141 Nev., Advance Opinion c2 t
IN THE SUPREME COURT OF THE STATE OF NEVADA
SAMUEL WILLIAM COCKING, No. 88563
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent.
Appeal from a judgment of conviction, pursuant to a plea of no
contest, of involuntary manslaughter, carrying a concealed firearm without
a permit, and possession of a firearm not imprinted with a serial number.
First Judicial District Court, Carson City; Kristin Luis, Judge.
Affirmed.
Orrin Johnson Law and Orrin J. H. Johnson, Reno,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Garrit S. Pruyt, District
Attorney, and Melanie A. Brantingham, Supervising Deputy District
Attorney, Carson City,
for Respondent.
BEFORE THE SUPREME COURT, PARRAGUIRRE, BELL, and
STIGLICH, JJ.
OPINION
By the Court, PARRAGUIRRE, J.:
This appeal challenges the constitutionality of two Nevada
SUPREME COURT
statutes regulating the carrying and possessing of guns, following the
OF
NEVADA
101 1947A 0,
United States Supreme Court's clarification of the standard for reviewing
Second Amendment challenges announced in New York State Rifle & Pistol
Ass'n, Inc. u. Bruen, 597 U.S. 1 (2022). Applying Bruen, we conclude that
the statutes appellant challenges do not violate the Second Amendment
right to keep and bear arms. We further conclude that the district court did
not abuse its discretion by relying on impalpable or highly suspect evidence
at sentencing. We therefore affirm the judgment of conviction.
FACTS
On December 28, 2022, 19-year-old appellant Samuel Cocking
was skateboarding down a Carson City street with a gun concealed in his
waistband. The gun was not imprinted with a serial number. Cocking
tripped, and a group of minors nearby began to ridicule him. Cocking
turned to the group of minors and got into a verbal altercation with them.
Seeing the confrontation, the minors' father, Philip Eubanks, approached
Cocking to see why he was yelling at the minors. As Eubanks approached,
Cocking pulled out his gun and shot Eubanks in the chest, killing him.
Cocking was arrested and charged by criminal complaint with
open murder with the use of a deadly weapon, carrying a concealed firearm
without a permit, and possession of a firearm not imprinted with a serial
number. The district court denied his motion to dismiss the gun charges on
the grounds that the statutes violated his Second Amendment right to keep
and bear arms. Cocking reached an agreement with the State whereby he
pleaded no contest to count I, involuntary manslaughter; count II, carrying
a concealed firearm without a permit; and count III, possession of a firearm
not imprinted with a serial number. In entering the plea, he reserved his
right to challenge the constitutionality of the relevant statutes in counts II
and III on appeal. The district court sentenced Cocking to serve consecutive
prison terms totaling 43-108 months in the aggregate.
SUPREME COURT
OF
NEVADA
1947A
2
On appeal, Cocking claims that the district court erred by
denying his motion to dismiss counts II and III, arguing that the statutes
at issue are unconstitutional. He also claims that the district court abused
its discretion at sentencing by relying on impalpable or highly suspect
evidence. We disagree and affirm the judgment of conviction.
DISCUSSION
Cocking's Second Amendment arguments
The Second Amendment provides that "the right of the people
to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. The
United States Supreme Court has held that the amendment guarantees an
individual's right to carry arms in public for self-defense. Bruen, 597 U.S.
at 12. But the right to keep and bear arms is not absolute.
Id. at 21. "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."
Id. (quoting District of Columbia u. Heller,
554 U.S. 570, 626 (2008)).
The Second Amendment guaranteed to all
Americans the right to bear commonly used arms
in public subject to certain reasonable, well-defined
restrictions. Those restrictions, for example,
limited the intent for which one could carry arms,
the manner by which one carried arms, or the
exceptional circumstances under which one could
not carry arms . . . .
Id. at 62 (citation and internal quotation marks omitted).
In determining whether a firearm regulation runs afoul of the
Second Amendment's guarantees, the Supreme Court explained, "[w]hen
the Second Amendment's plain text covers an individual's conduct, the
Constitution presumptively protects that conduct." Id. at 17. "The
government must then justify its regulation by demonstrating that it is
SUPREME COURT
OF
NEVADA
3
101 1947A e
consistent with the Nation's historical tradition of firearm regulation." Id.
at 24. Accordingly, when faced with a constitutional challenge to a statute
regulating firearms, this court must determine (1) whether the regulated
conduct is covered under the plain text of the Second Amendrnent's
protections, and if so, (2) whether the regulation is consistent with
America's historical tradition of gun regulation.
Here, Cocking appeals the district court's denial of his motion
to dismiss his two gun charges, arguing that the convictions violate his
Second Amendment right to keep and bear arms.' "Typically, this court
reviews the district court's decision not to dismiss [a criminal] information
for an abuse of discretion." Martinez u. State, 140 Nev., Adv. Op. 70,
558
P.3d 346. 354 (2024). But whether a statute is constitutional is reviewed de
novo. Siluar u. Eighth Jud. Dist. Ct., 122 Nev. 289, 292,
129 P.3d 682, 684
(2006). Accordingly, we proceed to analyze de novo whether Cocking's
convictions violate his Second Amendment rights under the framework
outlined in Bruen.
Count II—carrying a concealed firearm without a perrnit
Cocking was convicted in count II of violating NRS
202.350(1)(d)(3), which states, in relevant part, that a person within this
State shall not . . [clarry concealed upon his or her person any . . . [p]istol,
revolver or other firearm" without a permit. NRS 202.3657 sets forth
criteria for the granting of a concealed carry permit. Relevant here, NRS
'Cocking also mentions the Nevada Constitution's Second
Amendment counterpart—Nevada Constitution article 1, section 11(1)—
stating that it is broader than the federal Second Amendment. But Cocking
does not identify any meaningful distinction between the Second
Amendment and the Nevada Constitution and provides arguments only
related to the Second Amendment.
SUPREME COURT
OF
NEVADA
4
947A e
202.3657(3)(a)(1) states that an applicant must be "[t]wenty-one years of
age or older" to obtain a concealed carry permit. As Cocking was 19 years
old at the time of the offense, the age restriction was the only requirement
preventing him from obtaining a concealed carry permit. Cocking argues
that this requirement, as applied to him, violates his right to keep and bear
arms. His argument implicates two questions: whether the opportunity to
obtain a concealed carry permit is protected under the plain text of the
Second Amendment, and if so, whether restrictions on individuals under
the age of 21 are consistent with historical firearm regulation.
Under Bruen's first prong, the State argues that concealed carry
is not covered under the plain text of the Second Amendment and is not
presumptively protected. Therefore, the State argues, this court need not
determine whether the age restriction in Nevada's licensing scheme is
consistent with historical gun regulation in determining whether NRS
202.350(1)(d)(3) is constitutional. Some courts have held that the carrying
of a concealed firearm is not covered under the plain text of the Second
Amendment. See, e.g., Pentta o. County of San Diego, 824 F.3d 919, 929
(9th Cir. 2016) (stating "Mlle right of a member of the general public to
carry a concealed firearrn in public is not, and never has been, protected by
the Second Amendment"), abrogated on other grounds by Bruen, 597 U.S. 1.
In Bruen, the Court noted some historical prohibitions on
concealed carry, commenting that early courts did not consider these
restrictions to violate the Second Amendment.
In the early to mid-19th century, some States began
enacting laws that proscribed the concealed carry
of pistols and other small weapons. As we
recognized in Heller, "the majority of the 19th-century courts to consider the question held that
[these] prohibitions on carrying concealed weapons
SUPREME COURT
OF
NEVADA
5
(0) 194Th CAto
were lawful under the Second Amendment or state
analogues."
Bruen, 597 U.S. at 52 (alteration in original) (quoting Heller,
554 U.S. at
626). The cases cited in Heller provide sorne insight into what early courts
believed regarding the Second Amendment's applicability to concealedcarry restrictions.
We are of the opinion, then, that so far as the
act of 1837 seeks to suppress the practice of
carrying certain weapons secretly, that it is valid,
inasmuch as it does not deprive the citizen of his
natural right of self-defence, or of his constitutional
right to keep and bear arms. But that so much of
it, as contains a prohibition against bearing arms
openly, is in conflict with the Constitution and
void . . .
Nunn v. State, 1 Ga. 243, 251 (1846), overruled in part by Hertz v. Bennett,
751 S.E.2d 90, 95-96 (2013).
[The gun restriction] interfered with no man's right
to carry arms (to use its own words) in full open
view, which places men upon an equality. This is
the right guaranteed by the Constitution of the
United States, and which is calculated to incite men
to a manly and noble defence of themselves, if
necessary, and of their country, without any
tendency to secret advantages and unmanly
assassinations.
State v. Chandler, 5 La. Ann. 489, 490 (1850) (internal quotation marks
omitted). As noted in Bruen, these cases provide evidence that while early
courts believed that the Second Amendment protects an individual's right
to carry firearms in public, they believed concealed carry to be outside the
scope of the amendment's guarantees.
Bruen summarized historical evidence, stating that the
evidence "does demonstrate that the manner of public carry was subject to
reasonable regulation." 597 U.S. at 59. Specifically, "[s]tates could lawfully
SUPREME COURT
OF
NEVADA
6
101 1947A e
eliminate one kind of public carry—concealed carry—so long as they left
open the option to carry openly." Id. The Court noted that challenges to
"shall-issue" concealed carry licensing regimes may still violate the
amendment if the regime "den[ies] ordinary citizens their right to public[ly]
carry." Id. at 38 n.9. Therefore, it appears the Court's understanding of the
Second Arnendment is that it protects the right to publicly carry, but not
necessarily the preference to carry in a concealed manner.
We conclude that because NRS 202.350(1)(d)(3) prohibits only
the carrying of a concealed weapon in public without a permit, it does not
infringe upon the Second Amendment right to publicly carry firearms for
self-defense. It is notable that no law in the State of Nevada would have
prevented Cocking from openly carrying a firearm. It cannot be said then
that the age restriction in Nevada's concealed carry licensing regime denied
Cocking his right to public carry. Therefore, we need not address whether
the age-based restriction is consistent with the nation's historical tradition
of gun regulation. We conclude that the district court did not err in denying
Cocking's motion to dismiss count II.
Count III—possession of a firearm not imprinted with a serial number
Cocking was convicted in count III of violating NRS 202.364(1),
which states that "[a] person shall not possess . . . a firearm that is not
imprinted with a serial number issued by a firearms importer or
manufacturer in accordance with federal law and any regulations adopted
thereunder." Once again, Cocking asserts that his conviction under this
statute deprived him of his right to keep and bear arms because the
possession of unserialized firearms is protected under the Second
Amendment and because serial number requirements, being a relatively
new invention, are inconsistent with this nation's historical tradition of
firearm regulation.
SUPREME COURT
OF
NEVADA
7
(0) 1947A 41474)47
Cocking seems to argue that the first step of Bruen's two-part
inquiry requires a strict reading of the Second Amendment's plain text, and
the amendment presumptively protects the possession of any type of
weapon. Therefore, he argues the district court erred by failing to consider
Bruen's second prong and address his proffered evidence that serial
numbers were not historically required. But such a reading of Bruen is
inconsistent with how the Supreme Court has interpreted the Second
Amendment. Federal courts have repeatedly stated that the Second
Amendment, as understood at its implementation, did not protect the
possession of any firearm but only firearms "typically possessed by law-abiding citizens for lawful purposes." See, e.g., Heller, 554 U.S. at 625-27
(stating the Second Amendment only protects the carrying of weapons that
are in common use for lawful purposes); see also United States u. Reyna, No.
3:21-CR-41 RLM-MGG, 2022 WL 17714376, at *4 (N.D. Ind. Dec. 15, 2022)
("For [Bruen's] Step One to have any meaning, the regulated conduct must
be defined specifically enough that it can meaningfully compare to the
Second Amendment's plain text—a plain text that is more complex than
mere possession. To do otherwise would be to compare the regulated
conduct to the Second Amendment's bare and oversimplified text—keeping
and bearing arms, without the original public meaning emphasized in
Heller and [Bruen]."); United States u. Price, 111 F.4th 392, 398 (4th Cir.
2024) ("[Defendant] argues that our inquiry at step one is extremely narrow:
that, at least in this case, the only relevant question is whether the
regulation criminalizes 'keep [ing] and bear[ingt any 'Arms.' U.S. Const.
amend. II. But that argument does not accord with the text of the Second
Amendment, nor with the analysis put forth in Heller, Bruen, and [United
States u. Rahimi, 602 U.S. 680 (2024)]." (second and third alterations in
original)), cert. denied, 2025 WL 951173 (2025).
SUPREME COURT
OF
NEVADA
8
(0) I947A Tea
Consistent with • this understanding of the amendment, the
State argues that the possession of an unserialized firearm is not
presumptively protected conduct because unserialized firearms are not in
common use for lawful purposes. Further, the presence of a serial number
does not impair or improve the functioning of a firearm. Therefore,
requiring a serial number does not hinder an individual's ability to use a
firearm for self-defense or other lawful purposes.
In United States u. Serrano, the United States District Court
for the Southern District of California discussed whether the Second
Amendment protects the possession of a firearm without a serial number,
stating, "the Supreme Court in Heller, [McDonald u. City o[ Chicago, 561
U.S. 742 (2010)], and Bruen, found that the Second Amendment protects
the right of law abiding, responsible citizens to possess and carry weapons
in case of confrontation." 651 F. Supp. 3d 1192, 1210 (S.D. Cal. 2023)
(internal quotation marks omitted). And "[c]onsequently, [the statute's]
constitutionality hinges on whether a criminal prohibition on the possession
of a firearm with an obliterated serial number turden[s] a law-abiding
citizen's right to armed self-defense.' Id. (third alteration in original)
(quoting Bruen, 597 U.S. at 29). The court found that the conduct of
possessing an unserialized firearm was not protected by the Second
Amendment because such firearms are "weapons not typically possessed by
law-abiding citizens for lawful purposes." Id. at 1211 (internal quotation
marks omitted).
In Price, the United States Court of Appeals for the Fourth
Circuit also directly addressed an argument that a ban on unserialized
weapons violates the Second Amendment post-Bruen. 111 F.4th at 396-97.
Price reached the same conclusion as the Serrano court:
SUPREME COURT
OF
NEVADA
9
WI 1947A cep>
[I]f we conclude that a weapon is not in common use
for a lawful purpose, it can be permissibly excluded
from the Second Amendment's protection based on
the tradition of regulating dangerous and unusual
arms. In other words, while historical tradition
regarding the regulation of dangerous weapons
supports a limitation on the scope of the Second
Amendment right, a weapon must be in common
use for a lawful purpose to be protected by that
right.
Id. at 405 (citations and internal quotation marks omitted). The court found
that unserialized "weapons would be preferable only to those seeking to use
them for illicit activities"—i.e., concealing the commission of crimes. Id. at
406.2 Accordingly, the court found such firearms were not in common use
for lawful purposes and fell outside the scope of Second Amendment
protection. Id. at 408. Many other federal courts have also found, post-Bruen, that the possession of unserialized firearms falls outside the scope
of the Second Amendment. See, e.g., United States v. Avila, 672 F. Supp. 3d
1137, 1144 (D. Colo. 2023) (collecting cases).
Consistent with other courts confronting the issue post-Bruen,
we conclude that NRS 202.364(1) does not regulate conduct protected by the
Second Amendment because it does not infringe on a law-abiding citizen's
right to keep and bear arms for self-defense and other lawful purposes.
2 The Price decision specifically dealt with obliterated serial nurnbers,
as opposed to guns that never had serial numbers. But courts generally
treat the two categories the same for all practical purposes. See, e.g.,
Montgomery v. Rosenblum, No.: 3:24-cv-01273-AN, 2024 WL 3887248, at *5
(D. Or. Aug. 20, 2024) (stating plaintiff failed to identify "any meaningful
difference between wanting to manufacture an unserialized firearrn and
wanting to remove a serial number from a firearm—in both instances, the
goal is obtaining an unserialized firearm").
SUPREME COURT
OF
NEVADA
10
01) 1947A cal.7
Therefore, we conclude that the district court did not err in denying
Cocking's motion to dismiss count III of the criminal information.
Whether the district cottrt abused its discretion in sentencing
Cocking claims that the district court abused its discretion at
sentencing by relying on impalpable or highly suspect evidence. He argues
the district court considered three categories of information that were
inappropriate: (1) juvenile offenses for which he was never adjudicated,
(2) character evidence based on his rap lyrics, and (3) a view of the facts of
the crime that was not supported by the record.
Sentencing decisions are reviewed for an abuse of discretion.
Chavez u. State, 125 Nev. 328, 348,
213 P.3d 476, 490 (2009). "[Nil abuse
of discretion will be found only when the record demonstrates 'prejudice
resulting from consideration of information or accusations founded on facts
supported only by impalpable or highly suspect evidence . . . ." Lloyd v.
State, 94 Nev. 167, 170,
576 P.2d 740, 742 (1978) (quoting Silks v. State,
92
Nev. 91, 94,
545 P.2d 1159, 1161 (1976)). Accordingly, in determining if
relief is warranted, this court must determine (1) whether the district court
relied on facts founded on impalpable or highly suspect evidence, and (2) if
so, whether prejudice resulted. Id.
Juvenile history
A district court may consider a defendant's juvenile record
when making a sentencing determination. See generally Thomas u. State,
88 Nev. 382, 385,
498 P.2d 1314, 1316 (1972). Cocking argues that the
district court relied on a false characterization of his juvenile history
because the State recounted details of certain robberies allegedly committed
by Cocking in Texas for which he was never adjudicated. Although Cocking
was never adjudicated of those robberies, a court has discretion to hear
evidence of uncharged facts at sentencing. Cf. Ferris v. State, 100 Nev. 162,
SUPREME COURT
OF
NEVADA
424:o
11
(0) 1947A
163, 677 P.2d 1066, 1066-67 (1984) (noting information pertaining to prior
acts for which no conviction has been obtained was not impalpable or highly
suspect because the information "was based upon reliable information given
to police officers by one of the victims"). Here, the State provided police
reports indicating Cocking was identified on video surveillance, Cocking
admitted he was at the location of one of the robberies, and he was identified
by multiple witnesses, including a codefendant.
Further, the district court was careful to explain what it
considered in making its sentencing determination and did not mention the
facts of the robberies. Instead, as it relates to this issue, the district court
simply noted the uncontested fact that Cocking had a prior history with the
juvenile system. Therefore, we conclude that the district court did not rely
on impalpable or highly suspect evidence related to Cocking's juvenile
history.
Rap lyrics
Cocking asserts that the district court abused its discretion by
considering violent rap lyrics he wrote as proof of bad character. We have
expressed caution in allowing the State to present evidence of artistic
works, including rap lyrics, during the State's case-in-chief. See, e.g.,
Holmes v. State, 129 Nev. 567, 573-74,
306 P.3d 415, 419 (2013). But a
sentencing court may "consider facts and circumstances that would not be
admissible at trial." Denson v. State, 112 Nev. 489, 492,
915 P.2d 284, 286
(1996). Importantly, the court was careful to state its specific
considerations in making its sentencing determination. In listing its
reasons, the court made no mention of the rap lyrics or Cocking's character.
Therefore, we conclude that Cocking has failed to demonstrate that the
district court relied on impalpable or highly suspect evidence in this regard.
SUPREME COURT
OF
NEVADA
12
101 1947A
Facts of the crime
Cocking argues that the district court relied upon a
characterization of the facts of the crime that were belied by the record. The
court did raise the facts of the crime as the primary reason for the sentence,
particularly noting that Cocking had a chance to walk away from the
confrontation but instead chose to stick around and exchange insults with
the group of minors, leading to the shooting. Cocking points to testimony
from the minor witnesses at the preliminary hearing, who stated that they
were instigating a fight with Cocking. He argues that the minors' testimony
somehow negates the idea that he could have walked away. But the
witnesses testified that after the initial taunting, Cocking turned and
approached them, at which point they tried to instigate a fight. As the
district court noted, after hearing the minors taunt him, Cocking could have
walked away but instead chose to turn around and confront them. Once
this happened, even though the minors testified that they were continuing
to be disrespectful and trying to provoke him, he still had an opportunity to
leave but stuck around, exchanging insults until the fatal shooting.
The district court made reasonable inferences about what
happened based on the facts presented at the preliminary hearing and other
proceedings. Therefore, we conclude that the district court did not abuse its
discretion by relying on impalpable or highly suspect evidence.
CONCLUSION
The statutes Cocking challenges on appeal do not implicate
presumptively protected conduct under Bruen's two-part framework or,
consequently, violate the Second Amendment of the United States
Constitution. The district court therefore did not err in denying Cocking's
motion to dismiss the counts of carrying a concealed firearm without a
permit and possession of a firearm not imprinted with a serial number.
SUPREME COURT
OF
NEVADA
e
13
(0) 1947A
Further, the district court did not abuse its discretion in determining
Cocking's sentence. Accordingly, we affirm the judgment of conviction.
s tr- J.
Parr a guirre
We con
J.
ell
- 9-
Stiglich
SUPREME COURT
OF
NEVADA
{0) 1947A agrtA
14
