Petition for Writ of Certiorari — Zoie H., Petitioner v. Nebraska

Supreme Court briefJun 22, 2020

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Zorn H.,

Petitioner,

STATE OF NEBRASKA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Nebraska

PETITION FOR WRIT OF CERTIORARI

JOE NIGRO

JAMES SIEBEN

MARK CARRAHER

OFFICE OF THE

LANCASTER

COUNTY PUBLIC

DEFENDER

633 S. 9th St.

Lincoln, NE 68508

(402) 441-7631

PAULD. CLEMENT

Counsel of Record

ERIN E. MURPHY

MATTHEW D. ROWEN

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave. NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Petitioner

June 22, 2020

QUESTION PRESENTED

In 2018, Nebraska amended its criminal law to

disenfranchise anyone adjudicated by a juvenile court

to have committed certain acts from exercising their

constitutional right to possess a firearm until age 25.

See Neb. Rev. Stat. §28-1204.05(1).

While the

legislature accompanied that new criminal prohibition

with a requirement that the juvenile court inform a

juvenile of the Second Amendment consequences of an

adverse adjudication, it did not amend its laws to

require a right to trial by jury for offenses that can

result in a loss of Second Amendment rights well past

the age of majority. The net result is that Nebraska

deprives individuals of their Second Amendment

rights as a collateral consequence of an adjudication

in which it deprives the accused of a right to a jury

trial. In the decision below, the Supreme Court of

Nebraska held that neither the Second nor Sixth

Amendment precludes that result, reasoning that

because the automatic loss of Second Amendment

rights is imposed as a collateral consequence of the

adjudication, and not as a direct criminal punishment,

it does not implicate the Sixth Amendment at all. In

so holding, the court undermined both constitutional

rights and broke sharply with decisions from this

Court and others.

The question presented is:

Whether the Second and Sixth Amendments

permit a state to deprive an individual of the Second

Amendment right to keep and bear arms based on the

commission of an offense while denying the accused a

right to a jury trial for that offense.

PARTIES TO THE PROCEEDING

Petitioner, the defendant-appellant below, is Zoie

H. Her full name is disclosed in a sealed envelope

provided with this petition. Respondent, the plaintiffappellee below, is the State of Nebraska.

111

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

In re Zoie H. v. State of Nebraska, No. S-18-1028 (Neb.

Jan. 24, 2020). There are no other proceedings in state

or federal trial or appellate courts, or in this Court,

directly related to this case within the meaning of this

Court's Rule 14. l(b)(iii).

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING .......................... .ii

STATEMENT OF RELATED PROCEEDINGS ...... .iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 3

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED ...................................... 4

STATEMENT OF THE CASE ................................... 4

A. Legal Background ........................................ 4

B. Factual and Procedural Background ........... 7

REASONS FOR GRANTING THE PETITION ....... 12

I. The Decision Below Squarely Conflicts With

Decisions Of Other State Courts Of Last

Resort ................................................................. 15

II. The Decision Below Is Wrong ........................... 21

III. This Is An Excellent Vehicle To Resolve

Unsettled Issues Of Constitutional Law .......... 25

CONCLUSION ......................................................... 30

APPENDIX

Appendix A

Opinion, Supreme Court of Nebraska, In re

Zoie H., No. S-18-1028 (Jan. 24, 2020) ....... App-1

Appendix B

Relevant Constitutional and Statutory

Provisions ................................................... App-19

U.S. Const. amend. II .......................... App-19

U.S. Const. amend. VI ........................ App-19

Neb. Rev. Stat. § 28-1204.05 ............... App-19

TABLE OF AUTHORITIES

Cases

Andersen v. Eighth Judicial Dist. Ct. in

& for Cty. of Clark,

448 P.3d 1120 (Nev. 2019) ..................... 7, 17, 18, 23

Baldwin v. New York,

399 U.S. 66 (1970) .................................................. 16

Blanton v. City of N. Las Vegas,

489 U.S. 538 (1989) ........................................ passim

Breed v. Jones,

421 U.S. 519 (1975) ............................................ 8, 27

District of Columbia v. Colts,

282 U.S. 63 (1930) .................................................... 6

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................... 1, 4, 5, 15

Duncan v. Louisiana,

391 U.S. 145 (1968) .................................. 1, 6, 16, 25

Frank v. United States,

395 U.S. 147 (1969) .................................................. 6

Hallinger v. Davis,

146 U.S. 314 (1892) ................................................ 15

Kent v. United States,

383 U.S. 541 (1966) ................................................ 28

Lewis v. United States,

518 U.S. 322 (1996) ................................................ 25

McDonald v. City of Chicago,

561 U.S. 742 (2010) ........................................ 1, 4, 21

McKeiver v. Pennsylvania,

403 U.S. 528 (1971) .............................................. 7, 8

Vll

Miller v. United States,

209 A.3d 75 (D.C. 2019) ................................... 21, 24

N. Y. State Rifle & Pistol Ass'n, Inc.

v. City of New York,

140 S. Ct. 1525 (2020) ............................................ 15

Padilla v. Kentucky,

559 U.S. 356 (2010) .......................................... 23, 25

People v. Suazo,

118 N.E.3d 168 (N.Y. 2018) ............................. 20, 24

Raufv. State,

145 A.3d 430 (Del. 2016) ......................................... 5

Richter v. Fairbanks,

903 F.2d 1202 (8th Cir. 1990) ................................ 24

State ex rel. McDougall

v. Strohson (Cantrell),

945 P.2d 1251 (Ariz. 1997) .................................... 19

State v. Lintz,

902 N.W.2d 683 (Neb. 2017) .................................. 29

State v. Louthan,

595 N.W.2d 917 (Neb. 1999) .................................. 24

State v. Peters,

622 N.W.2d 918 (Neb. 2001) ............................ 11, 22

State v. Wiltshire,

491 N.W.2d 324 (Neb. 1992) .................................. 24

United States v. Chavez,

204 F.3d 1305 (11th Cir. 2000) .............................. 20

United States v. Combs,

No. 8:05CR271, 2005 WL 3262983

(D. Neb. Dec. 1, 2005) ............................................ 19

Vlll

United States v. Jardee,

No. 4:09-MJ-091, 2010 WL 565242

(D.N.D. Feb. 12, 2010) ........................................... 20

United States v. Nachtigal,

507 U.S. 1 (1993) .................................................... 16

United States v. Snow,

No. 11-0149-SU, 2011 WL 5025535

(D. Or. Oct. 21, 2011) ............................................. 20

Constitutional Provisions

U.S. Const. amend. II ................................................. 4

U.S. Const. art. III, §2, cl. 3 ....................................... 5

Statutes

Neb. Rev. Stat. §28-105 .............................................. 9

Neb. Rev. Stat. §28-1204.05(1) ............................. 9, 18

Neb. Rev. Stat. §28-1204.05(2) ................................... 9

Neb. Rev. Stat. §28-1204.05(4) ................................. 18

Neb. Rev. Stat. §28-201(4) ........................................ 10

Neb. Rev. Stat. §28-511 ............................................ 10

Neb. Rev. Stat. §28-518(1) ........................................ 10

Neb. Rev. Stat. §43-246(3) .......................................... 8

Neb. Rev. Stat. §43-261.01 ....................................... 10

Neb. Rev. Stat. §43-279(1) ........................................ 11

Neb. Rev. Stat. §43-280 ........................................ 8, 27

Neb. Rev. Stat. §43-286(1) .......................................... 8

Neb. Rev. Stat. §43-289 .............................................. 8

Neb. Rev. Stat. §43-412 .............................................. 8

Nev. Rev. Stat. §483.460(1)(c) (1987) ....................... 23

Other Authorities

Emily Ahdieh, The Deportation Trigger:

Collateral Consequences and the

Constitutional Right to A Trial by Jury,

30 Geo. Mason U. Civ. Rts. L.J. 65 (2019) .............. 6

Paul T. Crane, Incorporating Collateral

Consequences into Criminal Procedure,

54 Wake Forest L. Rev. 1 (2019) ............................. 5

Firearm Prohibitions: Summary of

State Law, Giffords Law Center,

https://bit.ly/3ec4WwR

(last visited June 18, 2020) ................................... 26

Felix Frankfurter & Thomas G. Corcoran,

Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury,

39 Harv. L. Rev. 917 (1926) ................................... 16

Thomas Jefferson to Thomas Paine (July 11,

1789), in 3 The Writings of Thomas

Jefferson (H. A. Washington ed., 1859) ............. 5, 29

Marsha Levick & Neha Desai, Still Waiting:

The Elusive Quest to Ensure Juveniles a

Constitutional Right to Counsel at all

Stages of the Juvenile Court Process,

60 Rutgers L. Rev. 175, 182 (2007) ....................... 28

Tr. of Oral Argument, Voisine v. United

States, No. 14-10154 (U.S. Feb. 29, 2016) ............. 26

PETITION FOR WRIT OF CERTIORARI

The decision below holds that the Second and

Sixth Amendments permit an individual to be

deprived of her Second Amendment right to keep and

bear arms as an automatic consequence of an offense

as to which she has no right to a jury trial. That

decision cannot be reconciled with this Court's Second

or Sixth Amendment jurisprudence, and it conflicts

with decisions of other state courts of last resort.

This Court has made clear beyond cavil that the

Second Amendment protects an individual and

fundamental constitutional right that cannot be

subjected to second-class treatment. See District of

Columbia v. Heller, 554 U.S. 570 (2008); McDonald v.

City of Chicago, 561 U.S. 742 (2010). This Court also

has long held that the Sixth Amendment guarantees

a right to a jury trial for any "serious" offense, and that

the "seriousness" of an offense is assessed by

considering the severity of the consequences the

legislature imposes for its commission. See Blanton v.

City of N. Las Vegas, 489 U.S. 538 (1989); Duncan v.

Louisiana, 391 U.S. 145 (1968). Together, those

principles compel the conclusion that if the legislature

wants to make the loss of Second Amendment rights a

consequence of conviction of an offense, then it must

afford the accused the protection of the right to a trial

by a jury of her peers.

In the decision below, the Supreme Court of

Nebraska held the state can disregard both

constitutional guarantees without violating either. In

particular, it held that a juvenile may be deprived of

her Second Amendment rights until she reaches the

age of 25 via an adjudication conducted (over her

objection) entirely by a judge. That decision conflicts

with a decision from the Supreme Court of Nevada

that refused to allow that simultaneous denial of

Second and Sixth Amendment rights, and instead held

that if the state wants to use a conviction to deprive

an individual of Second Amendment rights, then it

must afford the accused a right to a trial by jury.

Making matters worse, the Supreme Court of

Nebraska reached its dual-threat conclusion through

reasoning that would allow states to impose all

manner

of severe

penalties,

including

the

disenfranchisement of other constitutional rights,

without respecting the Sixth Amendment guarantee.

According to the decision below, the Sixth Amendment

is concerned only with those consequences that flow

directly from the statute that imposes the offense, not

those that flow from a "collateral" source, like a

separate statute. In other words, even though a

determination that petitioner committed the offenses

in question automatically deprived her of her Second

Amendment rights for six years after she reaches the

age of majority, the court held that this undisputed

and automatic consequence is irrelevant to the Sixth

Amendment analysis.

That reasoning squarely conflicts with decisions

of this Court and others. Indeed, Blanton itself-one

of this Court's seminal Sixth Amendment jury-trialright cases-treated as highly relevant to its analysis

a civil penalty that was no less "collateral" than the

one imposed here. It could hardly be otherwise. A rule

that looked only to penalties enumerated in the

offense itself would provide a roadmap for states to

deprive defendants of Sixth Amendment protections.

Such a rule would also systematically under-protect

Second Amendment rights, which are commonly lost

as a "collateral" consequence of separate criminal

prohibitions, rather than through "direct" sentencing

conditions.

Such a rule would have particularly troubling

consequences for juvenile justice systems. Those

systems generally need not provide jury trials

precisely because they do not deprive individuals of

constitutional rights well into adulthood. If a state

wants to transform such a system into one that can

deprive the accused of her full suite of constitutional

rights into adulthood, then it cannot do so without

complying with the Sixth Amendment's most basic

guarantee. Put differently, the state cannot deprive

the accused of her constitutional right to a jury trial

on the rationale that this is just a juvenile proceeding,

and then tell an adult that she has no Second

Amendment right to keep and bears arms because of

the result of a bench trial. The state cannot disregard

both constitutional guarantees.

This case thus

provides the Court with an opportunity to reaffirm

that the Second and Sixth Amendments both protect

rights that are fundamental.

OPINIONS BELOW

The opinion of the Supreme Court of Nebraska is

reported at 937 N.W.2d 801 and reproduced at App.118.

JURISDICTION

The Supreme Court of Nebraska issued its

opinion on January 24, 2020. On March 19, 2020, this

Court extended the deadline to file any petition for a

writ of certiorari due on or after that date to 150 days.

This Court has jurisdiction under 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

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.

The Sixth Amendment provides in relevant part:

"In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed .... " U.S. Const. amend. VI.

Nebraska's prohibition on the possession of

firearms, codified at Revised Statute §28-1204.05, is

reproduced at App.19.

STATEMENT OF THE CASE

A. LegalBackground

In its seminal decision in District of Columbia v.

Heller, this Court held that the Second Amendment

"confer[s] an individual right to keep and bear arms."

Heller, 554 U.S. at 595. Two years later, the Court

held that this right is not just individual but

fundamental, applicable against state and local

governments, and entitled to the same robust

protections as other fundamental rights enshrined in

the Constitution. See McDonald, 561 U.S. at 778

(plurality op.) ("[T]he Framers and ratifiers of the

Fourteenth Amendment counted the right to keep and

bear arms among those fundamental rights necessary

to our system of ordered liberty."); id. at 806 (Thomas,

J., concurring in part and concurring in the judgment)

("agree[ing]" that "the right to keep and bear arms ...

is 'fundamental"'). While Heller made clear that it

should not "be taken to cast doubt on longstanding

prohibitions on the possession of firearms by felons,"

554 U.S. at 626, it likewise cast no doubt on the

proposition that such prohibitions must rest on a

conviction obtained in accordance with the full

panoply of substantive and procedural protections the

Constitution guarantees.

Among those guarantees is the right to a trial by

a jury of one's peers. Indeed, "[t]he Framers believed

a defendant's right to demand a jury trial was so

important that they included it in the U.S.

Constitution twice." Paul T. Crane, Incorporating

Collateral Consequences into Criminal Procedure, 54

Wake Forest L. Rev. 1, 49-50 (2019). Although the

Constitution already provided that "[t]he Trial of all

Crimes, except in Cases of Impeachment, shall be by

Jury," U.S. Const. art. III, §2, cl. 3, the Framers

enumerated the right again in the Sixth Amendment.

That belt-and-suspenders approach reflected the

importance the Framers placed on the right. John

Adams and Thomas Jefferson disagreed about much,

but not about the importance of the jury-trial right.

Adams proclaimed that "[r]epresentative government

and trial by jury are the heart and lungs of liberty,"

Rauf v. State, 145 A.3d 430, 465 n.216 (Del. 2016)

(quoting Statement of John Adams (1774)), while

Jefferson described the jury-trial right "as the only

anchor, ever yet imagined by man, by which a

government can be held to the principles of its

constitution," Letter from Thomas Jefferson to

Thomas Paine (July 11, 1789), in 3 The Writings of

Thomas Jefferson, at 71 (H. A. Washington ed., 1859).

Of course, like the Second Amendment, the Sixth

Amendment guarantee is not absolute; "there is a

category of petty crimes or offenses which is not

subject to the Sixth Amendment jury trial provision."

Duncan, 391 U.S. at 159. In particular, the right

attaches only to adjudications of "serious" offenses.

Blanton, 489 U.S. at 541.

The most important

indication of the seriousness of an offense is the

"severity of the penalty" the legislature has

"authorized for [the offense's] commission." Frank v.

United States, 395 U.S. 14 7, 148 (1969). For "[i]n

fixing the maximum penalty for a crime, a legislature

'include[s] ... a judgment about the seriousness of the

offense."' Blanton, 489 U.S. at 541 (alteration in

original) (quoting Frank, 395 U.S. at 149).1

Critically, that inquiry focuses not only on "the

maximum authorized period of incarceration" for a

crime, but also on "any additional statutory penalties"

that follow from a conviction. Blanton, 489 U.S. at 543

(emphasis added). Accordingly, while a misdemeanor

offense punishable by six months in prison or less

ordinarily will not trigger the jury-trial right, it will if

a conviction also carries with it additional penalties

1 At one point, the inquiry into (/whether an offense was (petty,'

and therefore not covered by the Sixth Amendment' called for an

aexamin[ation of] the nature of the offense and whether it was

triable by jury at common law." Emily Ahdieh, The Deportation

Trigger: Collateral Consequences and the Constitutional Right to

A Trial by Jury, 30 Geo. Mason U. Civ. Rts. L.J. 65, 66 (2019); see

District of Columbia v. Colts, 282 U.S. 63, 73 (1930). The Court

ultimately shifted the emphasis away from historical analogies

and toward a a more objective analysis, focusing on (indications of

the seriousness with which society regards the offense."' Ahdieh,

supra, at 66 (quoting Frank, 395 U.S. at 148).

sufficiently "severe that they clearly reflect a

legislative determination that the offense in question

is a serious one." Id. Applying that test, the Supreme

Court of Nevada has held that if the legislature wants

to make the loss of Second Amendment rights a

consequence of a misdemeanor conviction, then it

must provide the defendant with the right to a trial by

jury. See Andersen v. Eighth Judicial Dist. Ct. in &

for Cty. of Clark, 448 P.3d 1120 (Nev. 2019).

Factual and Procedural Background

1. This case arises out of a juvenile proceeding

against petitioner Zoie H. As a general matter, this

Court has held that states may maintain separate

juvenile justice systems that do not provide a right to

trial by jury. See McKeiver v. Pennsylvania, 403 U.S.

528 (1971) (plurality op.). But as Justice White

explained in his concurring opinion providing the fifth

vote for that outcome, that is because the typical

juvenile adjudication does not carry with it the

consequences of a criminal conviction:

Coercive measures, where employed, are

considered

neither

retribution

nor

punishment. Supervision or confinement is

aimed at rehabilitation, not at convincing the

juvenile of his error simply by imposing pains

and penalties. Nor is the purpose to make the

juvenile delinquent an object lesson for

others, whatever his own merits or demerits

may be. [And a] typical disposition in the

juvenile

court

where

delinquency

established may authorize confinement until

age 21, but it will last no longer[,] and[,]

within that period[,] will last only so long as

his behavior demonstrates that he remains

an unacceptable risk if returned to his

family.

Id. at 552 (White, J., concurring). Accordingly, the

Court has since cautioned that courts must "eschew

'the "civil" label-of-convenience which has been

attached to juvenile proceedings"' and instead

"candidly appraise[]" their actual nature when

"determining the applicability of constitutional rights"

to juvenile proceedings. Breed v. Jones, 421 U.S. 519,

529 (1975).

Consistent with that caution, Nebraska carefully

constructed its juvenile justice system to ensure that

it focuses on rehabilitating juveniles, not punishing

criminals.

Like most states, a primary goal of

Nebraska's system is "[t]o remove juveniles ... from

the criminal justice system whenever possible" and to

reduce the future commission of crimes through "the

provision of social and rehabilitative services" to

juveniles and their families. Neb. Rev. Stat. §43246(3). Accordingly, while a juvenile adjudicated by

the juvenile justice system to have committed an

offense can be subject to restrictions like probation, id.

§43-286(1)(a)(ii)(A), or commitment to the Office of

Juvenile Services, id. §43-412, "a juvenile committed

under the [juvenile code cannot] be confined after he

or she reaches the age of majority" (which is 19 in

Nebraska), id. §43-289, and "[n]o adjudication by the

juvenile court upon the status of a juvenile shall be

deemed a conviction nor shall the adjudication operate

to impose any of the civil disabilities ordinarily

resulting from conviction," id. §43-280.

Or at least that used to be the case. In 2018, the

Nebraska legislature enacted a provision that imposes

a new and fundamentally different disability on

juveniles adjudicated under the juvenile code.

Specifically, the legislature amended its general

criminal prohibitions on possession of a firearm to

include a new category:

[A] person under the age of twenty-five years

who knowingly possesses a firearm commits

the offense of possession of a firearm by a

prohibited juvenile offender if he or she has

previously been adjudicated an offender in

juvenile court for an act which would

constitute a felony or an act which would

constitute a misdemeanor crime of domestic

violence.

Id. §28-1204.05(1). "Possession of a firearm by a

prohibited juvenile offender is a Class IV felony for a

first offense and a Class IIIA felony for a second or

subsequent offense." Id. §28-1204.05(2). Class IV

felonies are punishable by up to two years in prison,

and Class IIIA felonies are punishable by up to three

years in prison. Id. §28-105.

This disability is not imposed through the juvenile

code itself, but rather as part of the ordinary criminal

code. And unlike the consequences available under

the juvenile code, which by law cannot carry past the

age of majority, this new prohibition on possessing a

firearm applies for six years after a juvenile turns 19.

Recognizing the inadequacy of the juvenile justice

system's less formal procedures to address the

deprivation of a constitutional right well past the age

of majority, the legislature imposed along with this

new prohibition a new requirement that the juvenile

court "explain the specific legal consequences that an

adjudication ... will have on the juvenile's right to

possess a firearm."

Id. §43-261.01. But while

Nebraska warns the juvenile about the adult

consequences of an adverse adjudication, it does not

couple that notice with an opportunity to a trial by

jury. The result is that while an adult accused of the

offenses that trigger that prohibition would be

constitutionally entitled to a jury trial, a juvenile

accused of such offenses is not afforded the same

protection, even though that juvenile adjudication can

now produce the adult consequence of the loss of

Second Amendment rights after the age of majority.

2. In 2018, Nebraska filed felony attempted theft

charges against petitioner in Lancaster County

juvenile court.

App.3.

The state alleged that

petitioner and a friend had attempted to steal a car as

it was being fueled up outside a convenience store in

Lincoln. App.2. Attempted theft by unlawful taking

of something worth $5,000 or more is a felony under

Nebraska law. App.3; see Neb. Rev. Stat. §§28201(4)(c), 28-511, & 28-518(1).

In addition to moving to quash, petitioner filed a

jury-trial demand. App.3. As she explained, under

§28-1204.05, a juvenile court determination that she

committed the attempted theft offense would directly

and automatically result in the deprivation of her

fundamental constitutional rights under the Second

Amendment until she reached the age of 25.

Accordingly, she argued that §28-1204.05 "effectively

transforms a juvenile adjudication for an act which

would be a felony ... into a serious criminal offense to

which the right to a jury trial attaches." App.9.

The juvenile court rejected that argument.

Because Nebraska requires all juvenile court

proceedings to "be conducted before the court without

a jury," Neb. Rev. Stat. §43-279(1), the court denied

her jury-trial demand. App.4-5. The court then held

a bench trial at which the state's witnesses identified

petitioner as the perpetrator of the alleged offense and

estimated the value of the vehicle in question. App.5.

The court ultimately credited those witnesses and

found that petitioner had committed the alleged

offense. App.6.

3. Petitioner appealed, and the Supreme Court of

Nebraska granted her petition to bypass the

intermediate appellate court. But the court affirmed

the juvenile court's conclusions, holding, inter alia,

that the Sixth Amendment right did not apply to

petitioner's juvenile adjudication. App.9-16.

The court did not (and could not) dispute that, as

an automatic result of the juvenile court proceedings,

petitioner is now legally prohibited, on pain of

incarceration for two years, from possessing a firearm

until she is 25 years old. See App.9, App.11-12.

Instead, relying on prior precedent holding that a post

hoc criminal prohibition on possession of a firearm by

a convicted felon is not an additional "penalty" for Ex

Post Facto Clause purposes, the court held that §281204.05 is not relevant to the Sixth Amendment

analysis at all because it is "a collateral consequence"

of the juvenile adjudication, "not part of the

punishment imposed for that" adjudication. App.12

(citing State v. Peters, 622 N.W.2d 918 (Neb. 2001)).

The court then went on to reject the alternative

argument that it should "extend[] the right to jury

trial to juvenile adjudications" with or without the loss

of Second Amendment rights, as some states have

done. App.14. But the court closed by reiterating that

it rejected petitioner's Sixth Amendment claim not

just because this was a juvenile proceeding, but

because it "rejected the premise that §28-1204.05

imposes a penalty for juvenile adjudication." App.16.

REASONS FOR GRANTING THE PETITION

The decision below holds that an individual may

be deprived of her Second Amendment rights based on

a finding that she committed an offense made in a

proceeding in which her request for a jury trial was

denied. That conclusion cannot be reconciled with the

Second and Sixth Amendments, or with cases from

this Court and others. Worse still, the reasoning of

the decision below would allow juveniles to be

disenfranchised from exerc1smg all manner of

constitutional rights well into their adult years, as

long as the disenfranchisement was a collateral

consequence of a separate statute rather than part of

the sentence for the offense. That untenable decision

readily warrants this Court's review.

This Court has squarely held that the right

protected by the Second Amendment 1s both

individual and fundamental. To be sure, one can

forfeit that right by engaging in certain types of

criminal conduct. But if the government wants to use

the commission of a crime as a basis to deprive

someone of a fundamental constitutional right, then it

must give the accused the protections the Constitution

guarantees m a criminal proceeding imposing

significant consequences-including the right to a jury

trial. That result follows directly from this Court's

Sixth Amendment cases, which have long held that

the Sixth Amendment guarantees a jury trial for any

offense that carries with it severe penalties. Like

incarceration for more than six months, the loss of the

fundamental right to keep and bear arms is

undoubtedly sufficiently severe to "clearly reflect a

legislative determination that the offense in question

is a serious one," Blanton, 489 U.S. at 543, and so

necessitates the protection of a trial by jury.

Applying that principle, the Supreme Court of

Nevada has held that the Sixth Amendment

guarantees a right to trial by jury for any offense that

carries as a consequence of conviction the loss of

Second Amendment rights, even ifit is a misdemeanor

with a short sentence that otherwise would not trigger

the jury-trial right. In this case, the Supreme Court

of Nebraska reached the opposite conclusion, holding

that the state may deprive petitioner of her Second

Amendment rights based on an offense adjudicated

via a bench trial. While the juvenile system, like most

misdemeanors, generally need not furnish a jury-trial

right, here, an adjudication carries with it the loss of

Second Amendment rights well into petitioner's adult

years. Yet the decision below not only approved that

unconstitutional result, but employed reasoning that

could permit states to deny all manner of

constitutional rights as a collateral consequence of

convictions imposed without a right to a trial by jury.

According to the decision below, the automatic loss of

Second Amendment rights is wholly irrelevant to the

Sixth Amendment analysis so long as it stems from a

statute other than the one that sets forth the offense.

That reasoning is flatly inconsistent with this Court's

precedent, as Blanton itself considered alongside the

statutorily authorized term of incarceration civil

penalties that stemmed from other "collateral"

statutory provisions. By failing to abide by that

teaching, the decision below provides a roadmap for

states to eviscerate the jury-trial right.

That concern is particularly acute when it comes

to Second Amendment rights.

Both the federal

government and the states routinely prohibit the

possession of a firearm by persons convicted of certain

crimes collaterally, i.e., by making it a separate crime,

not just a sentencing consequence of the underlying

offense.

By declaring those separate provisions

irrelevant to the Sixth Amendment analysis, the

decision below invites states to extend those (and all

manner) of constitutional disabilities to misdemeanor

offenses. It also invites states to use their nominally

civil juvenile systems to impose criminal penalties on

juveniles well past the age of majority, all while

refusing to extend the jury-trial right to those

disenfranchising proceedings.

Such

results,

exemplified by this case, run contrary to the whole

thrust of this Court's juvenile justice cases. Those

cases decline to apply the Sixth Amendment jury-trial

right to juvenile proceedings on the assumption that

they are rehabilitative, not punitive, and are

addressed to the unique circumstances of juveniles,

not to imposing penalties that disenfranchise

individuals until their mid-twenties.

This case thus presents an excellent opportunity

not only to reaffirm that the right protected by the

Second Amendment is a fundamental one, but to make

clear that states may not impose the loss of that

constitutional right (or any other) as a penalty for an

offense without providing the procedural protections

the Constitution guarantees someone accused of a

serious crime, and to ensure that the juvenile justice

system is not exploited to deprive juveniles of their

constitutional rights long past the age of majority.

The Decision Below Squarely Conflicts With

Decisions Of Other State Courts Of Last

Resort.

1. This Court has held unequivocally that the

right to keep and bear arms is fundamental-indeed,

is no less fundamental than any other enumerated

right.

And while some courts nonetheless have

persisted in treating that right as decidedly secondclass, see N. Y. State Rifle & Pistol Ass'n, Inc. v. City of

New York, 140 S. Ct. 1525, 1527 (2020) (Kavanaugh,

J., concurring), all should agree that the Second

Amendment at the very least protects the right to

possess a firearm for self-defense in one's home. After

all, that was the square holding of Heller. See 554 U.S.

at 635. To be sure, Heller made clear that this right

can be forfeited, and that it did not mean to "cast doubt

on longstanding prohibitions on the possession of

firearms by felons." Id. at 624. But the obvious

assumption underlying that caveat was that someone

becomes a felon who has forfeited Second Amendment

rights only as a result of a process that guaranteed the

accused the Sixth Amendment right to a jury trial.

After all, it has long been settled law that the jurytrial right extends to all felonies. See Hallinger v.

Davis, 146 U.S. 314, 318 (1892). The right serves "to

prevent oppression by the Government," as it provides

"an inestimable safeguard against the corrupt or

overzealous prosecutor and against the compliant,

biased, or eccentric judge." Duncan, 391 U.S. at 15556. Of course, like other fundamental constitutional

rights, including the Second Amendment, the Sixth

Amendment jury-trial right is not absolute. "So-called

petty offenses were tried without juries both in

England and in the Colonies and have always been

held to be exempt from the otherwise comprehensive

language of the Sixth Amendment's jury trial

provisions." Id. at 160; see generally Felix Frankfurter

& Thomas G. Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 Harv. L.

Rev. 917, 979 (1926). But the right unquestionably

extends both to felonies and to all other crimes for

which "objective indications" demonstrate "the

seriousness" of "the offense."

United States v.

Nachtigal, 507 U.S. 1, 3 (1993) (per curiam) (quoting

Blanton, 489 U.S. at 541).

In determining whether a particular offense is

"serious" for purposes of the Sixth Amendment, this

Court has instructed that "[t]he judiciary should not

substitute its judgment as to seriousness for that of a

legislature," as the latter "is 'far better equipped to

perform the task."' Blanton, 489 U.S. at 541. Instead,

to assess the "seriousness" of a crime, courts must look

to an objective measure: the severity of the penalties

the legislature has chosen to authorize for those who

commit it. Id. at 542. A maximum authorized term of

incarceration of more than six months is categorically

a "severe" penalty, and thus renders an offense

categorically "serious" for jury-trial purposes. Id. at

543; see also Baldwin v. New York, 399 U.S. 66, 71

(1970). And while a maximum authorized term of

incarceration of six months or less renders an offense

presumptively "petty" (and thus not within the scope

of the jury-trial guarantee), a defendant can overcome

that presumption by "demonstrat[ing] 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." Blanton, 489 U.S. at 543.

2. Applying those principles, the Supreme Court

of Nevada held that any offense that results in the loss

of Second Amendment rights "clearly reflect[s] a

legislative determination that the offense is a serious

one," and thus that a defendant "facing the charge is

entitled to the right to a jury trial." Andersen, 448

P.3d at 1124. Andersen arose after the Nevada

legislature

amended

its

firearm-possession

prohibition to include persons convicted of

misdemeanor battery constituting domestic assault.

Because that amendment rendered the loss of Second

Amendment rights a consequence "that automatically

and directly flows from a conviction for misdemeanor

domestic battery," the court concluded that it rendered

the offense sufficiently "serious" to trigger the jurytrial right. Id.

In reaching that conclusion, the Andersen court

distinguished the loss of Second Amendment rights

from other potential penalties, 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." Id.

Unlike those penalties, the court

explained, the deprivation of a fundamental

constitutional right "is so severe as to categorize the

offense as serious" and to trigger the right to a trial by

jury. Id.

The Supreme Court of Nebraska reached the

opposite result here. Just like the Nevada legislature,

the Nebraska legislature recently amended its firearm

possession laws to include a new category-namely,

anyone under the age of 25 who was "adjudicated an

offender in juvenile court for an act which would

constitute a felony or an act which would constitute a

misdemeanor crime of domestic violence" if committed

by an adult. Neb. Rev. Stat. §28-1204.05(1). An adult

defendant charged with any of those potentially

disenfranchising offenses is entitled to a jury trial.

The same is not true of a juvenile offender accused of

the juvenile analogs.

The Nebraska legislature recognized that the

potential loss of Second Amendment rights well into

adulthood was significant enough to require a juvenile

defendant to be warned of the consequence. But it did

not accompany that warning with any new procedural

rights, such as an entitlement to a jury-trial. Unlike

a plea colloquy where the accused is warned that she

is voluntarily forgoing constitutional rights by

entering into a plea, a juvenile offender is Nebraska is

simply warned that she risks losing Second

Amendment rights, without any opportunity to invoke

Sixth Amendment rights.2 Nonetheless, unlike the

2 The legislature did provide a mechanism to petition for the

restoration of Second Amendments lost by virtue of a juvenile

adjudication. See Neb. Rev. Stat. §28-1204.05(4). But that

restoration mechanism just underscores that the deprivation is

Nevada high court, the Nebraska high court concluded

that this loss of Second Amendment rights does not

render the underlying offense sufficiently "serious" to

trigger the Sixth Amendment jury-trial right. App .16.

Thus, under the decision below, Nebraska can use an

offense as a basis for denying Second Amendment

rights for six years after the age of majority, without

providing a right to a jury trial. In the Supreme Court

of Nebraska's view that result is fully consistent with

the Second and Sixth Amendments.

3. The Supreme Court of Nebraska is not alone in

holding that a legislature may deprive an individual

of her fundamental Second Amendment rights based

on a conviction obtained without the jury-trial right

that the Sixth Amendment guarantees. To be sure,

some of those decisions appear to be the product of

unduly narrow pre-Heller conceptions of the Second

Amendment. See, e.g., United States v. Combs, No.

8:05CR271, 2005 WL 3262983, at *3 (D. Neb. Dec. 1,

2005) ("a lifetime ban on possession of firearms is

hardly as onerous as a fifteen-year driver's license

suspension"); State ex rel. McDougall v. Strohson

(Cantrell), 945 P.2d 1251, 1256 (Ariz. 1997) ("to hunt

or possess a firearm for self-protection, while

admittedly very important to some people, does not

present the type of universal grave consequence we

have found in cases invoking a right to jury trial").

But others have openly embraced the proposition even

after Heller that the loss of Second Amendment

rights-even permanently-is not a "serious" penalty.

automatic once a juvenile is adjudicated to have committed a

qualifying offense.

For example, in United States v. Jardee, the court

acknowledged that there is "no question that a lifetime

prohibition against possessing weapons is a

substantial infringement upon one's rights," but

nonetheless declared it "not of the same order of

magnitude as the severe deprivation of liberty that

results from six months' incarceration." No. 4:09-MJ091, 2010 WL 565242, at *4 (D.N.D. Feb. 12, 2010).

Likewise in United States v. Snow, the court reached

its conclusion by reasoning that a permanent loss of

Second Amendment rights is less serious than the

"myriad of restraints on an individual's liberties and

constitutional rights" that the temporary probation

that may accompany a petty crime entails. No. 110149-SU, 2011 WL 5025535, at *3 (D. Or. Oct. 21,

2011); cf United States v. Chavez, 204 F.3d 1305,

1313-14, 1313 n.5 (11th Cir. 2000) (assuming without

deciding that Second Amendment protects an

individual right, but finding no right to jury trial

simply because Congress did not provide one).

Those decisions are difficult to square with courts'

willingness to find the Sixth Amendment triggered by

consequences that do not involve the forced

relinquishment of fundamental constitutional rights.

For instance, multiple courts have held that the Sixth

Amendment does require a right to trial by jury for an

offense that renders a noncitizen removable under

federal immigration law-even though there is no

constitutional right for a noncitizen to remain in the

country, even though removal is not automatic, and

even though the consequence of removability is not

imposed by the sovereign that created the underlying

offense. See, e.g., People v. Suazo, 118 N.E.3d 168,

174-75 (N.Y. 2018); Miller v. United States, 209 A.3d

75 (D.C. 2019).

The decision below thus leaves

Nebraskans with fewer procedural protections against

the loss of a fundamental constitutional right than

noncitizens in other jurisdictions are guaranteed for

the loss of a privilege that is not constitutionally

protected.

That disconnect is untenable and underscores

that the decision below cannot be squared with the

basic protections of the Second and Sixth

Amendments. The Sixth Amendment prevents the

imposition of severe consequences without the

fundamental right to trial by jury. A loss of the

equally fundamental right to keep and bear arms well

into adulthood plainly qualifies as a severe

consequence. If non-constitutional consequences are

sufficiently severe to trigger the Sixth Amendment,

yet a complete loss of Second Amendment rights for

years is not, then nothing is left of this Court's

admonition that "the right recognized in Heller [is not]

a second-class right." McDonald, 561 U.S. at 780

(plurality op.).

II. The Decision Below Is Wrong.

This Court's review is all the more critical because

the decision below is patently wrong as a matter of

Sixth Amendment jurisprudence, and provides a

roadmap for states to deprive individuals of all

manner of fundamental rights without the safeguard

of a jury trial. It would be troubling enough if the

Supreme Court of Nebraska had simply held that the

loss of Second Amendment rights was relevant to the

severe-consequences calculus, but was insufficiently

"severe" to trigger a jury-trial right. But the court

actually went further and held that the loss of

petitioner's Second Amendment rights was not even

relevant to the severe-consequences inquiry because

"the prohibition on possessing firearms contained in

§28-1204.05 is not part of the juvenile code, but,

rather, it is contained within the statutory provisions

governing criminal offenses." App.12. In other words,

the Supreme Court of Nebraska treated an automatic

consequence of petitioner's adjudication as irrelevant

to the Sixth Amendment inquiry simply because it is

housed in a separate statute, as opposed to being

imposed directly as part of the sentence for the offense.

Nor did the court rest its analysis on or limit its

decision to some special aspect of the juvenile system.

Rather, the court relied principally on an earlier

Nebraska case involving whether the loss of Second

Amendment rights as a consequence of an adult felony

conviction should be considered part of the "penalty"

for the underlying offense. In that case, the court

concluded that "the statutory prohibition on

possessing firearms may be a collateral consequence

of a prior felony conviction, but it is not part of the

punishment imposed for that prior felony conviction."

App.13; see State v. Peters, 622 N.W.2d 918 (Neb.

2001). Applying that same reasoning here, the court

concluded that the new firearm-possession prohibition

likewise cannot be considered a penalty, even though

it follows automatically from an adjudication that a

juvenile committed the offense. App.12-16.

That reasoning is impossible to reconcile with this

Court's precedents. As this Court has made clear, the

Sixth Amendment analysis focuses on all "penalties"

the legislature "attaches to the offense," not just those

set forth in the statute enumerating the offense.

Blanton, 489 U.S. at 542; cf Padilla v. Kentucky, 559

U.S. 356 (2010) (holding that the Sixth Amendment

right to counsel entitles defendant to be advised of

"collateral" consequences of conviction). Any other

result would let technicalities trump fundamental

constitutional guarantees. Indeed, in Blanton itself,

one of the penalties the Court considered stemmed

from a separate civil statute enumerating certain

offenses that triggered suspension or revocation of a

driver's

license.

See

Nev.

Rev.

Stat.

§483.460(1)(c)(1987). The Court did not dismiss that

penalty out of hand simply because it was imposed as

a "collateral" civil consequence of conviction or was

codified in a different section of the code. It instead

considered it alongside all the other penalties to which

the conviction subjected the defendant, and found it

insufficient to trigger the jury-trial right only because

the Court could not "say that a 90-day license

suspension is that significant as a Sixth Amendment

matter, particularly when a restricted license may be

obtained after only 45 days." 489 U.S. at 544 & n.9.

The same was true in the Supreme Court of

Nevada's decision in Andersen.

There too, the

prohibition on possessing a firearm was (like most

such prohibitions) housed in a separate statute, not in

the domestic battery statute itself. Andersen, 448 P.3d

at 1123. But the court found that separation of no

moment to the Sixth Amendment inquiry, because the

loss of Second Amendment rights "automatically and

directly flow[ed] from a conviction for misdemeanor

domestic battery." Id. at 1124. Nor has the statutory

source of other consequences that follow automatically

from a conviction mattered to other courts considering

whether an offense is sufficiently "serious" to trigger

the jury-trial right. See, e.g., Suazo, 118 N.E.3d at

174; Miller, 209 A.3d at 75.

This Court's approach makes eminent sense, for a

rule that focused only on penalties enumerated in the

statute setting forth the offense itself would empower

the government to manipulate the Sixth Amendment

analysis at will.

Technicalities of statutory

codification cannot trump the substance of the severeconsequences analysis. To conclude otherwise would

produce untenable results. One need look no further

than the Supreme Court of Nebraska's own precedent

to confirm that. According to that court, the 15-year

suspension of driving privileges that follows directly

from a driving-under-the-influence conviction is

sufficiently

"serious"

trigger

the

Sixth

Amendment's jury-trial mandate.

See State v.

Wiltshire, 491 N.W.2d 324, 327 (Neb. 1992), overruled

on other grounds, State v. Louthan, 595 N.W.2d 917

(Neb. 1999); see also Richter v. Fairbanks, 903 F.2d

1202 (8th Cir. 1990) (same). Yet under the decision

below (and the Peters decision on which it relied), that

result would be different if the 15-year license

disability was moved to a different statute. Nothing

of consequence turns on whether a disability-or

worse yet a disenfranchisement of a constitutional

right-is part of the authorized sentence or rather an

automatic consequence of a separate statute.

Indeed, if anything, an automatic consequence of

conviction-whether imposed directly or collaterallywould seem to be an even more accurate measure of

the seriousness of an offense than the authorized

sentence, for it cannot be ameliorated by the judge

during sentencing. While this Court's cases focus

principally (although certainly not exclusively) on the

maximum penalty for an offense, see, e.g., Lewis v.

United States, 518 U.S. 322, 326 (1996); Duncan, 391

U.S. at 158-62, surely a statutory minimum term of

incarceration is an objective indication that the

legislature considered an offense more serious than

one that need not be punished by any incarceration at

all. Mere potential consequences of conviction should

not carry greater weight than consequences that are

certain to follow, just because the legislature decides

to enumerate the latter in a different section of the

code. 3

III. This Is An Excellent Vehicle To Resolve

Unsettled Issues Of Constitutional Law.

The question presented is exceptionally important

to vindicating the fundamental guarantees of both the

Second and the Sixth Amendment. It is commonplace

for states to prohibit the possession of firearms by

individuals convicted of certain offenses. Indeed, the

federal government and virtually every state make it

a crime for certain persons to possess a firearm,

s That conclusion follows a fortiori from Padilla. Although

deportation ais not, in a strict sense, a criminal sanction," as it is

a not within the sentencing authority of the state trial court," this

Court nonetheless found it relevant to the Sixth Amendment

right-to-counsel analysis when it follows as (/nearly an automatic

result' of being adjudged to have committed a certain offense.

Padilla, 559 U.S. at 364-66. If the Sixth Amendment right to

counsel entitles a defendant to be informed of an arguably

collateral consequence of conviction that is not even imposed by

the same sovereign, then surely the Sixth Amendment right to a

jury trial cannot be indifferent to consequences that the same

sovereign has determined should flow automatically from a

finding that the accused committed the offense.

including those convicted of certain offenses. See

Firearm Prohibitions: Summary of State Law, Giffords

Law Center, https://bit.ly/3ec4WwR (last visited June

18, 2020). To be sure, those offenses are typically

felonies, to which the Sixth Amendment jury-trial

right attaches. But as Andersen and the statutory

framework here confirm, that is not a hard-and-fast

rule. And whatever room for debate there may be over

whether the Second Amendment can tolerate the loss

of the right to keep and bear arms based on the

commission of a misdemeanor or juvenile offense, see

Tr. of Oral Argument 36:17-19, Voisine v. United

States, No. 14-10154 (U.S. Feb. 29, 2016) ("JUSTICE

THOMAS: Can you think of another constitutional

right that can be suspended based upon a

misdemeanor violation of a State law?"), there should

be no serious debate that if the legislature wishes to

impose that harsh penalty, then it must accompany it

with the protection of the right to a trial by jury.

Simply put, a state may not deprive an individual of

her fundamental Second Amendment rights based on

a conviction obtained without the jury-trial right that

the Sixth Amendment guarantees.

Yet the decision below provides a roadmap for

states to evade those basic constitutional guarantees.

After all, firearm possession restrictions are almost

always housed in separate criminal provisions. That

is not because they are deemed less serious than other

penalties for the underlying offense. To the contrary,

they are separately codified so that the legislature

may impose additional penalties on those who fail to

abide by the disenfranchisement worked as an

automatic condition of the earlier conviction. But

under the decision below, that effort to impose more

serious consequences on a failure to comply with the

restrictions imposed as a consequence of the earlier

offense actually causes the disenfranchisement to

drop out of the Sixth Amendment severity analysis

altogether. That cannot be right. And while the most

immediate impact may be on Second Amendment

rights, because of the proliferation of offender-inpossession laws, the threat to constitutional rights is

by no means confined to the Second Amendment

context. If the Sixth Amendment truly is indifferent

to any consequence that does not come from the

statute of conviction, then states could impose all

manner of penalties for misdemeanors and juvenile

offenses without providing jury-trial rights.

That rule has particularly troubling implications

for juveniles and juvenile proceedings. The whole

justification for not extending the full panoply of

constitutional rights to juvenile proceedings is that

those proceedings are rehabilitative, rather than

punitive, and focused on the special needs of juveniles.

This Court has admonished that it is not enough to

label the whole juvenile system quasi-civil. Instead,

courts must "candidly appraise[]" their actual nature

when "determining the applicability of constitutional

rights." Breed, 421 U.S. at 529. Consistent with that

admonition,

states-including

Nebraska-have

recognized that they cannot use a civil juvenile process

to impose criminal sanctions. See Neb. Rev. Stat. §43280 ("No adjudication by the juvenile court upon the

status of a juvenile shall be deemed a conviction ... [or]

operate to impose any of the civil disabilities

ordinarily resulting from conviction."). Instead, just

as Blanton demands the full panoply of constitutional

protections if the state chooses to convert a

traditionally petty offense into a serious one by

increasing the penalties that flow from a conviction, it

likewise demands those same protections if the state

chooses to attach criminal consequences to a juvenile

offense.

Notably, the Supreme Court of Nebraska did not

suggest otherwise. Instead, the court accepted the

premise that petitioner would be entitled to a jury trial

if the loss of Second Amendment rights for the first six

years of her adulthood was a "penalty" for the offense

with which she was charged. App.10. The court took

issue only with whether that loss is in fact a "penalty,"

based on its misguided view that only those penalties

enumerated in the law defining the offense matter.

App.12-13. That reasoning eviscerates the central

premise of this Court's justification for declining to

extend the jury-trial right to juvenile proceedingsnamely, that a juvenile court is "engaged in

determining the needs of the child and of society

rather than adjudicating criminal conduct." Kent v.

United States, 383 U.S. 541, 554 (1966).

One can certainly debate whether that premise

remains true as a general mater. See, e.g., Marsha

Levick & Neha Desai, Still Waiting: The Elusive Quest

to Ensure Juveniles a Constitutional Right to Counsel

at all Stages of the Juvenile Court Process, 60 Rutgers

L. Rev. 175, 182 (2007) (discussing "the increasingly

punitive edge of the juvenile justice system"). But

once a state crosses the line into imposing criminal

consequences on a juvenile that last well past the age

of majority, it can no longer seriously be said that it is

engaged in an effort to determine "the needs of the

child." Kent, 383 U.S. at 554. Yet the decision below

would leave states free to impose all manner of

criminal consequences as a result of juvenile

adjudications that lack the Constitution's procedural

protections, so long as they are set forth somewhere

other than in the juvenile code.

This case proves the point. No adult can be

deprived of the fundamental right to keep and bear

arms through a conviction absent an exercise or

knowing waiver of the jury-trial right. Every adult

charged with a felony in Nebraska is entitled to a jury

trial, as is every adult charged with a misdemeanor

crime of domestic violence. See State v. Lintz, 902

N.W.2d 683, 684 (Neb. 2017).

Juveniles (like

petitioner) are thus the only Nebraskans who can have

their fundamental firearm rights taken away from

them for several years of their adulthood without the

protection of a jury trial, "the only anchor ... by which

a government can be held to the principles of its

constitution."

Letter from Thomas Jefferson to

Thomas Paine (July 11, 1789), supra. Nothing in

McKeiver or any of this Court's other juvenile justice

precedents supports that untenable result. If it did,

then that would be ample justification to reconsider

McKeiver's fractured holding.

None of that means that Nebraska may not

prohibit juveniles determined to have committed

serious offenses from possessing a firearm after they

reach the age of majority. It simply means that if

Nebraska wants to deprive a juvenile of her Second

Amendment rights for the first six years of her

adulthood, then just as Nevada must do ifit wants to

deprive misdemeanants of their Second Amendment

rights, it must give her the right to a trial by jury.

Both the Second Amendment

Amendment demand nothing less.

and

the