Pohlabel v. State

• Decision Date: 20 March 2012
• Docket Number: No. 55403.,55403.
• Parties: Michael Kevin POHLABEL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

128 Nev. Adv. Op. 1

268 P.3d 1264

Michael Kevin POHLABEL, Appellant,

v.The STATE of Nevada, Respondent.

No. 55403.

Supreme Court of Nevada.

Jan. 26, 2012.Rehearing Denied March 20, 2012.

West Codenotes

Recognized as Unconstitutional

West's NRSA 202.360(1)(b) Frederick B. Lee, Jr., Public Defender, and Alina M. Kilpatrick, Deputy Public Defender, Elko County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Mark Torvinen, District Attorney, and Robert J. Lowe, Deputy District Attorney, Elko County, for Respondent.Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

Michael Pohlabel pleaded guilty to being a felon in possession of a firearm in violation of NRS 202.360. In doing so, he reserved the right to argue on appeal, as he did unsuccessfully in the district court, that his conviction violates the right to keep and bear arms secured by the Second Amendment to the United States Constitution and by Article 1, Section 11(1) of the Nevada Constitution. Because we reject Pohlabel's argument that, despite his felon status, he has a constitutional right to possess a black powder rifle, we affirm.

I.

The conviction underlying this appeal grew out of a traffic stop in rural Nevada. During the stop, the police spotted a rifle in the back of the car. Pohlabel told police the rifle was his and that he was taking it with him on a fishing trip. The rifle was an in-line black powder rifle. Seven years earlier, Pohlabel had been convicted of two felony counts of possession of a controlled substance.

NRS 202.360(1)(a) makes it a felony for a convicted felon to “own or have in his or her possession ... any firearm.” ¹ Charged with violating this statute, Pohlabel moved to dismiss. In support of his position, Pohlabel presented expert testimony concerning black powder rifles (they must be loaded by hand each time a shot is fired, take at least 45 seconds to load, and are hard to conceal) and argued that, given their limitations, black powder rifles pose little threat and should not, and constitutionally cannot, be forbidden to nonviolent felons like himself. While federal law prohibits felons from possessing firearms, it excludes antique and muzzle-loading replica firearms, including black powder rifles like Pohlabel's, from its ban. See 18 U.S.C. § 921(a)(3), (16)(C) (2006). To Pohlabel, the fact that federal law permits what Nevada law forbids when it comes to felons possessing black powder rifles demonstrates the lack of basis for, and unconstitutionality of, Nevada law.

The district court denied Pohlabel's motion to dismiss. Thereafter, Pohlabel pleaded guilty but reserved the right to challenge the constitutionality of his conviction on appeal. Pohlabel has remained out of custody pending appeal.

II.

A.

Pohlabel summarizes his argument as follows:

Because the constitutions of the State of Nevada and the United States make the right to bear arms fundamental, any restriction of the right is subject to strict scrutiny, placing the burden on the State to show that any restriction of the right is “narrowly tailored” to serve a “compelling state interest.” Keeping felons from possessing black powder rifles does not survive strict scrutiny because they take too much time to load, can only hold one bullet at a time, and are not easily concealable on the person.

(Footnotes omitted.) In Pohlabel's view, “[i]t would be easier to rob a liquor store or mug a tourist with a bow and arrow than a black powder rifle.”

Pohlabel's argument, however well-articulated, makes a fatal mistake: It assumes that the constitutional right to keep and bear arms applies to felons on equal terms with other citizens. This assumption is insupportable. The Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), lays to rest the argument that the Second Amendment only protects gun rights associated with militia service. But the core individual right Heller recognizes—the “right of law-abiding, responsible citizens to use arms in defense of hearth and home,” id. at 635, 128 S.Ct. 2783—categorically, or at least “presumptively,” id. at 627 n. 26, 128 S.Ct. 2783, does not extend to felons, id. at 626–27, 128 S.Ct. 2783. And judged by its text and the evident understanding of the voters who adopted it in 1982, Article 1, Section 11(1) of the Nevada Constitution similarly disqualifies felons from the right to keep and bear arms. Applying the de novo review appropriate to constitutional challenges, Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007), we therefore reject Pohlabel's strict scrutiny approach and uphold the constitutionality of NRS 202.360(1)(a).

B.

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.” U.S. Const. amend. II. Heller holds, based on “both text and history, that the Second Amendment confer[s] an individual right to keep and bear arms,” unconnected from militia service, for the “core lawful purpose of self-defense” in the home. 554 U.S. at 595, 630, 128 S.Ct. 2783. Two years after Heller, McDonald v. Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality opinion), declared that “the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty,” id. at ––––, 130 S.Ct. at 3042, and that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller,” making it applicable to the states. Id. at ––––, 130 S.Ct. at 3050.

Heller characterizes the Second Amendment as guaranteeing “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added). It contrasts this category of citizens, whose gun rights the Second Amendment protects (the “law-abiding” and “responsible”), with “felons and the mentally ill,” whom the government may prohibit from possessing firearms:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.

Id. at 626, 128 S.Ct. 2783 (emphasis added). In a footnote, the Court explains that its list of “presumptively lawful regulatory measures” is illustrative and not exhaustive. Id. at 627 n. 26, 128 S.Ct. 2783. McDonald reiterates that “the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’ ” and that neither Heller nor McDonald “cast[s] doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.’ ” 561 U.S. at ––––, 130 S.Ct. at 3047 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783).

Heller's declaration that the government can prohibit felons, categorically, from possessing firearms cannot be dismissed as dicta. The opinion conditioned Heller's right to keep a loaded handgun in his home on him not being “ disqualified from the exercise of Second Amendment rights,” 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added)—that is, he qualified for the relief the Court granted him only “if he is not a felon and is not insane.” Id. at 631, 128 S.Ct. 2783. Heller's statement about felon-disqualification thus is not dicta; it limits the very relief Heller won. See United States v. Barton, 633 F.3d 168, 172 (3d Cir.2011) (“the Supreme Court's discussion in Heller of the categorical exceptions to the Second Amendment was not abstract and hypothetical; it was outcome-determinative”); United States v. Rozier, 598 F.3d 768, 771 n. 6 (11th Cir.2010) (“[t]o the extent that ... Heller limits the Court's opinion to possession of firearms by law-abiding and qualified individuals, it is not dicta”); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir.2010) (under Heller, “felons are categorically different from the individuals who have a fundamental right to bear arms”; this holding is not dicta because if Heller proved to be a felon or insane, he was “disqualified” from Second Amendment protection); see also United States v. Marzzarella, 614 F.3d 85, 90 n. 5 (3d Cir.2010) (collecting cases and noting that “ ‘there is dicta and then there is dicta, and then there is Supreme Court dicta’ ” (quoting Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.2006))).

We recognize, as the Third Circuit did in Marzzarella, that Heller's footnoted reference to felon-dispossession laws, among others, being “presumptively lawful” could mean one of two different things. “On the one hand, this language could be read to suggest the identified restrictions”—here, a prohibition against felons possessing any type of firearm—“are presumptively lawful because they regulate conduct outside the scope of the Second Amendment.” Marzzarella, 614 F.3d at 91. On the other hand, it may mean that such restrictions “are presumptively lawful because they pass muster under any standard of scrutiny.” Id. Although both readings are reasonable, “the better reading, based on the text and the structure of Heller, is the former—in other words, that these longstanding limitations are exceptions to the right to bear arms.” Id. We agree. Heller does not treat felons (and the mentally ill) as having qualified Second Amendment rights but, rather, as “exceptions” to its coverage. 554 U.S. at 635, 128 S.Ct. 2783. This comports with the Heller majority's categorical approach—and consequent, emphatic rejection of the judicial balancing advocated by the dissent. Id.; see Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84...