Nevada Question No. 1 & the Second Amendment

  • October 27, 2016

State Question No. 1 on the current Nevada election ballot asks whether federal background checks already required in the purchase of firearms at federally-licensed retail firearms dealers should also apply to a variety of other firearms sales and transfers such as those made at gun shows, over the internet and between strangers.

Question 1 includes numerous exemptions and exceptions that cover the most frequent innocent non-commercial transfer of firearms, so that loaning or transferring a firearm to an extended family member is exempt from background checks, as is loaning a firearm to a hunting partner during a hunt, or to a friend at a shooting range.

Opponents argue that Question 1 infringes on the Second Second AmendmentAmendment and punishes law-abiding citizens. In my opinion, the Second Amendment right to keep and bear arms is not affected by Question 1. The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

If you ask 10 people what the Second Amendment means, you are likely to get ten different answers. There is only one interpretation of the Second Amendment that really matters, and that is the late Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller, 128 S. Ct. 2783 (2008):

“State Question 1, which includes many significant exemptions, does not infringe upon anyone’s constitutional rights and does not punish law-abiding citizens by extending background checks to non-retail sales and transfers of firearms.”

(1) It protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

(2) It does not limit the right to keep and bear arms for militia purposes, but limits the type of weapon to which the right applies to those in common use for lawful purposes.

(3) It does not provide unlimited rights to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Longstanding prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms remain valid.

Heller, a law enacted for Washington, D.C., restricted residents from owning handguns and required that all other firearms be kept unloaded and disassembled or trigger-locked. Heller ruled this invalid.

The Second Amendment, however, does not guaranty freedom from all regulation of firearms (nor is it a right as some believe to keep arms for an armed insurrection against democratically elected leaders).

In Heller, Justice Scalia — the court’s conservative lion for three decades — specifically ruled that laws imposing conditions and qualifications on the commercial sale of arms do not violate the Second Amendment.

For this reason, State Question 1, which includes many significant exemptions, does not infringe upon anyone’s constitutional rights and does not punish law-abiding citizens by extending background checks to non-retail sales and transfers of firearms.

Andrew Wolf is a Nevada Sportsman and gun owner. 

Defending Fraud Cases with Particularity (Specificity)

  • October 11, 2016

Defending fraud cases – enforcing the requirement of pleading fraud with particularity (specificity).

We often observe that claims in business and real estate disputes include allegations of fraud. Fraud allegations can be both upsetting and costly to resolve.  Fraud claims often assert unethical or criminal conduct, knowingly perpetrated by person accused.  Fraud claims might also be phrased as a negligent misrepresentation, which is just slightly less inflammatory.

Defending fraud claims requires some special strategies. At the most basic level, if requested, courts will require detailed allegations of fraud in comparison to other kinds of claims.  Thus, while it might be sufficient to generally allege that a defendant failed to exercise due care and thus was negligent in operating a vehicle leading to a car accident, courts will typically require considerable factual detail in fraud allegations, including the date, time and place of the fraudulent communication and what exactly was fraudulent or dishonest.  We believe it is most effective to start pursuing this detailed information early in the case.

In our experience, in both business and real estate cases, the alleged
real-estate-listings-fraudfraudulent actions of various parties are often lumped together collectively and are not specifically pleaded. In a fraud case, being lumped together with others’ wrongful conduct is both upsetting and complicates each individual’s defense.  Using procedural rules that require specificity in fraud allegations, we have found that courts are receptive to granting pre-answer motions seeking more detailed fraud allegations so that our clients can identify exactly what is attributed to them as opposed to all of the defendants collectively.

If you have been sued for fraud in a business or real estate transaction, the best time to start seeking specificity is through a pre-answer motion to dismiss or a motion for a more definite statement.  By doing so, there is a good chance the court will require the plaintiff to plead their fraud allegations against you and any other defendants with great specificity (and individualized per each defendant), which will provide better clarity and efficiency in defending your position as the case unfolds.  Incline Law Group LLP has had recent successes in various cases pursuing this strategy to the ultimate benefit of our clients.