• 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. 

Andrew N. Wolf (Andy) is a partner with the Incline Law Group, LLP. Incline Law Group, LLP, is committed to providing legal clarity. Our transparent approach to delivering legal services is designed to get beneath the surface of the matter in order to minimize surprises and maximize our clients’ outcomes. Founded in 1973 by John C. Rogers, Incline Law Group has earned a reputation for professionalism, discretion, honesty, diligence and positive results. Most of our attorneys are licensed in Nevada and California and have been providing legal clarity in the areas of Real Estate, Litigation, Family Law, Contracts, Business Formation and Estate Planning for over 40 years to our Northern Nevada and California communities. Andy has been practicing law for more than 25 years and is licensed to do so in both California and Nevada and his practice areas include: - Civil litigation and transactions - Real property: Including sales, contracts, brokerage, mortgages, land use, TRPA coverage, etc. - Landlord - tenant law - Business and commercial law - Construction law, contractors and design professionals - Homeowners Associations - Business Entities - Insurance law Andy is a member of the State Bar of Nevada, State Bar of California and the Washoe County Bar Association. Andy has served as Judge Pro Tem, Placer County, CA and Washoe County, NV and as an adjunct professor, teaching Business Law and Risk Management, at Sierra Nevada College located in his home town of Incline Village, NV. Andy is an avid golfer and skier and served on Skiing Magazine's Test Team from 1997 - 2000.