A lawsuit challenging the constitutionality of Nevada’s ban on so-called ghost guns is moving forward, but the law will remain in effect during litigation thanks to a ruling by a federal judge. On Monday, Barack Obama appointee and U.S. District Judge Miranda Du ruled against a motion by the Firearms Policy Coalition to prevent the ban from being enforced while the case is being litigated.
AB 296 was approved on a party line vote earlier this year, and signed into law by Democratic governor Steve Sisolak over the objections of Republicans and Second Amendment advocates, who argued that the ban on homebuilt firearms violated constitutional rights and would criminalize activity that’s been legal throughout our nation’s history.
In her order, Du (who was nominated to the federal bench by then-President Obama in 2012) found that the language in AB286 did not constitute a Second Amendment violation because individual gun owners could still purchase and use fully furnished firearms or firearm assembly kits as long as they come equipped with a serial number — finding the law “does not severely burden Second Amendment protected conduct, but merely regulates it.”
Du also did not find merit in FPC’s arguments that the measure would constitute an unconstitutional “taking” prohibited by the Fifth Amendment, saying the measure does not “deny all economically beneficial or productive use of unserialized firearms” because it only affects the sale or production of such products inside state lines.
“While the Court is sympathetic to the economic loss Plaintiffs assert, it is not clear based on the record the extent or certainty of that economic loss,” the order states. “Because AB 286 provides an approximate 10-month period for persons to sell unserialized firearms and constituent parts to firearms importers, manufacturers, or licensed dealers beginning June 7, 2021, the possibility of recouping a potential economic loss was — and remains as of the date of this order — possible.”
Du also wrote that the stated intent of the new legislation — public safety — could be considered a “valid exercise of the government’s police power,” adding that “public safety and the importance of firearm tracing necessitates the prohibition of Individual Plaintiffs’ unserialized firearms and constituent parts at issue, and thus not a taking.”
Firearms Policy Coalition calls Du’s decision “misguided,” adding that the ruling “reduces the fundamental human right to keep and bear arms to a mere privilege.”
Du’s ruling is another example of why so many Second Amendment supporters are eager for the Supreme Court to take up a case challenging New York’s carry laws later this fall. While that case doesn’t have direct implications for the Nevada “ghost gun” ban, there are high hopes that the Court will use NYSPRA v. Bruen to lay out the standard of review that courts across the country should be using when considering the constitutionality of gun control laws. Du’s opinion rejecting a stay for Nevada’s new law gives broad deference to the state to impose new criminal penalties on legal gun owners in the name of “public safety,” even if the state can’t explain how the law would be proactively enforced to prevent violent crime.
Under a heightened standard of review, it’s more likely that gun control laws like Nevada’s new ban would be tossed out of court, or at least put on hold while the law is being litigated. Unfortunately, any potential relief from the Supreme Court is still months away, and in the meantime any Nevada resident who built an unserialized gun while it was legal to do so runs the risk of criminal penalties if they keep the firearm in their possession.
Du’s decision is disappointing, but it won’t be the last word in the case. It’s also likely that Nevada won’t be the last opportunity for Second Amendment supporters to challenge bans on unserialized firearms, since the Biden administration is seeking to impose new rules and restrictions on unserialized firearms and unfinished frames and receivers. Those rules could be finalized as early as next month, and if Biden proceeds with implementing the new regulations expect a lawsuit to be filed as soon as the new rules become official.