The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The Second and Sixth Amendments

If a state criminal conviction leads to denial of gun rights under state law (not just federal law), the defendant must be given the option of a jury trial, rules the Nevada Supreme Court.


The U.S. Supreme Court has held—largely on originalist grounds—that the Sixth Amendment right to jury doesn't apply to "petty" criminal offenses. (The leading case on this is D.C. v. Clawans (1937), but it has been reaffirmed since then.) Generally speaking, the test for a petty offense is whether the criminal statute authorizes a punishment of more than six months in jail for it (regardless of how much punishment is actually being imposed in the particular case). But other consequences, such as very high fines can also lead a crime to be treated as serious, and thus subject to the jury trial guarantee, and not just petty.

In yesterday's Anderson v. Eighth Judicial Dist. Ct., the Nevada Supreme Court concluded that the loss of gun rights also makes the crime serious, even if it would otherwise lead to a maximum of six months or less in jail:

[T]he United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must "demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one." …

First-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months…. We previously considered the additional penalties imposed by the offense of first-offense domestic battery [a community-service requirement of not more than 120 hours and a fine of not more than $1,000] and concluded that those penalties did not "clearly indicate a determination by the Nevada Legislature that this is a serious offense to which the right to a jury trial attaches." However, just over one year after our decision …, the Legislature amended the penalties associated with a [first-offense domestic battery] conviction … to criminalize possession or control of a firearm in this state by a person who "[h]as been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined [by the federal statute banning gun possession by people convicted of such a crime]." It is this amendment that … commands the conclusion that misdemeanor domestic battery is a serious offense.

In [the earlier case], we held that a federal regulation restricting a convicted domestic batterer's possession of a firearm was not a direct consequence of a Nevada conviction for misdemeanor domestic battery. In so holding, we relied partly on the United States Supreme Court's reasoning "that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense 'serious.'" But now, although not included in the statute proscribing misdemeanor domestic battery, our Legislature has imposed a limitation on the possession of a firearm in Nevada that automatically and directly flows from a conviction for misdemeanor domestic battery.

In our opinion, this new penalty—a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions—"clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one." Unlike other penalties that we have concluded are not serious[—such as] a fine in the range of $200 to $1,000, loss of one's driver's license for a period of 90 days, and mandatory attendance of an alcohol abuse education course at the defendant's expense)[—]the right affected here convinces us that the additional penalty is so severe as to categorize the offense as serious.

For a different result, see the federal magistrate judge's decision in U.S. v. Jardee (D.N.D. 2010).