Pohlabel v. State
268 P.3d 1264
Nev.2012Background
- Pohlabel, a felon, was found with a black powder rifle during a rural traffic stop; he claimed ownership and intended to use it on a fishing trip.
- NRS 202.360(1)(a) makes it a felony for a convicted felon to possess any firearm, including black powder rifles; Pohlabel moved to dismiss on this ground.
- Pohlabel introduced expert testimony about the limited danger and loading time of black powder rifles to argue the statute is unconstitutional as applied to him and to federal law exceptions for antique firearms.
- Pohlabel pled guilty but reserved the right to appeal the constitutionality of his conviction; he remained out of custody during the appeal.
- Supreme Court of Nevada must decide whether Nevada may categorically prohibit felons from possessing firearms, including black powder rifles, consistent with the Second Amendment and Article 1, Section 11(1).
- The court notes the federal framework (Heller and McDonald) recognizing limits on gun rights for felons and the Nevada constitutional text addressing citizenship and gun rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a felon be categorically barred from possessing firearms under the Second Amendment? | Pohlabel argues strict scrutiny applies and the ban fails to be narrowly tailored. | State asserts felons may be forbidden from firearm possession; Heller permits categorical exclusions. | Yes; felons may be categorically barred from firearm possession. |
| Does Article 1, Section 11(1) of the Nevada Constitution protect felons' gun rights? | Pohlabel contends the provision guarantees broad gun rights even to felons. | State argues the right is limited by felon status under the constitution. | Felons are categorically disqualified from the gun rights; unpardoned felons lack this protection. |
| Does Nevada’s definition of firearm include black powder rifles for felon-dispossession statutes? | Argues black powder rifles are antique/ muzzle-loading and should be exempt from the ban. | NRS 202.360(1)(a) applies to any firearm, including black powder rifles. | NRS 202.360(1)(a) applies to black powder rifles; their status as firearms is not exempted. |
| Is the term 'citizen' in Article 1, Section 11(1) limited to non-felon citizens, or does it include felons? | Felons may be excluded from citizenship-based gun rights only if not within the citizen class. | The State argues the legislature may restrict possession but the text may be read to include felons. | The term excludes unpardoned felons; thus felons lack gun rights under Article 1, Section 11(1). |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes an individual right to keep and bear arms but excludes felons and the mentally ill)
- McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010) (incorporates the Second Amendment against the states)
- Callie v. Bowling, 160 P.3d 878 (Nev. 2007) (applies de novo review to constitutional challenges)
- Marzzarella v. United States, 614 F.3d 85 (3d Cir. 2010) (two-pronged approach: determine scope; apply means-end scrutiny if protected)
- Rozier, 598 F.3d 768 (11th Cir. 2010) (felons are categorically different from protected gun-right holders)
- Torres-Rosario, 658 F.3d 110 (1st Cir. 2011) (rejects blanket challenges to felon-in-possession laws post-Heller)