FILE 

4 

DEC 0 2 2021 " 4 

nizAs 

CLERK 

BY 

IEF DEPLIIY 

137 Nev., Advance Opinion it 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JAMES PARSONS, INDIVIDUALLY No. 81034 

AND AS SPECIAL ADMINISTRATOR 

OF THE ESTATE OF CAROLYN LEE 

PARSONS; AND ANN-MARIE 

PARSONS, 

Appellants, 

vs. 

COLT'S MANUFACTURING COMPANY 

LLC; COLT DEFENSE LLC; DANIEL 

DEFENSE INC.; PATRIOT ORDNANCE 

FACTORY; FN AMERICA; NOVESKE 

RIFLEWORKS LLC; CHRISTENSEN 

ARMS; LEWIS MACHINE & TOOL 

COMPANY; LWRC INTERNATIONAL 

LLC; DISCOUNT FIREARMS AND 

AMMO LLC; DF&A HOLDINGS, LLC; 

MAVERICK INVESTMENTS, LP; 

SPORTSMAN'S WAREHOUSE; AND 

GUNS AND GUITARS INC., 

Respondents. 

Certified questions under NRAP 5 concerning the scope of 

immunity NRS 41.131 affords firearm manufacturers and distributors and 

Nevada's negligence per se doctrine; United States District Court for the 

District of Nevada; Andrew P. Gordon, District Judge. 

Questions answered in part. 

Friedman Rubin PLLC and Richard H. Friedman, Bremerton, Washington; 

Koskoff, Koskoff & Bieder, PC, and Joshua D. Koskoff and Alinor C. 

Sterling, Bridgeport, Connecticut; Matthew L. Sharp, Ltd., and Matthew L. 

Sharp, Reno, 

for Appellants. 

3 413 / 

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ith 14)47A 
Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas; 

Williams Mullen, PC, and Camden R. Webb and Robert Van Arnam, 

Raleigh, North Carolina; Williams Mullen, PC, and Turner A. Broughton 

and Justin S. Feinman, Richmond, Virginia; Spencer Fane LLP and John 

H. Mowbray, Mary E. l3acon, and Jessica E. Chong, Las Vegas, 

for Respondent FN America. 

Snell & Wilmer, L.L.P., and Kelly H. Dove, Patrick G. Byrne, V.R. Bohman, 

and Gil Kahn, Las Vegas, 

for Respondents Daniel Defense Inc. and Sportsman's Warehouse. 

Renzulli Law Firm, LLP, and John F. Renzulli, Christopher Renzulli, and 

Scott C. Allan, White Plains, New York; Evans Fears & Schuttert LLP and 

Jay J. Schuttert and Alexandria L. Layton, Las Vegas, 

for Respondents Coles Manufacturing Company LLC; Colt Defense LLC; 

Patriot Ordnance Factory; Christensen Arms; Lewis Machine & Tool 

Company; and LWRC International LLC. 

Pisciotti Malsch and Anthony Pisciotti, Ryan Erdreich, and Danny C. Lallis, 

Florham Park, New Jersey; Lincoln, Gustafson & Cercos, LLP, and Loren 

S. Young, Las Vegas, 

for Respondent Noveske Rifleworks LLC. 

The Chiafullo Group, LLC, and Christopher M. Chiafullo, New York, New 

York; The Amin Law Group, Ltd., and Ismail Amin and Jessica S. Guerra, 

Las Vegas, 

for Respondents Discount Firearms and Ammo LLC; DF&A Holdings, LLC; 

and Maverick Investments, LP. 

Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas, 

for Respondent Discount Firearms and Ammo LLC. 

Swanson, Martin & Bell LLP and James B. Vogts, Chicago, Illinois; 

Murchison & Cumming, LLP, and Michael J. Nunez, Las Vegas, 

for Respondent Guns and Guitars Inc. 

Fennemore Craig, P.C., and Therese M. Shanks, Reno; Claggett & Sykes 

Law Firm and Micah Echols, Las Vegas, 

for Amicus Curiae Nevada Justice Association. 

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Shook, Hardy & Bacon, L.L.P., and Victor E. Schwartz, Washington D.C.; 

Shook, Hardy & Bacon L.L.P., and Jennifer N. Hatcher, Kansas City, 

Missouri, 

for Amicus Curiae National Shooting Sports Foundation. 

BEFORE THE SUPREME COURT, EN BANC. 

OPINION 

By the Court, PICKERING, J.: 

NRS 41.131(1) provides that Inlit) person has a cause of action 

against the manufacturer or distributor of any firearm or ammunition 

merely because the firearm or ammunition was capable of causing serious 

injury, damage or death." Currently pending in Nevada's federal district 

court is a suit brought by the parents of a victim of the Route 91 Harvest 

Festival massacre against the manufacturers and distributors of the AR-15 

rifles the gunman used. The federal court has determined that the 

complaint plausibly alleges that the AR-15s violated state and federal 

machinegun prohibitions. It now asks this court to decide whether the 

allegation of illegality allows the parents wrongful death and negligence 

per se claims to proceed, despite the immunity NRS 41.131(1) declares. We 

hold that it does not and that, as written, NRS 41.131 provides the gun 

manufacturers and distributors immunity from the claims asserted against 

them under Nevada law in this case. 

I. 

A. 

Carrie Parsons was killed in the October 1, 2017, mass shooting 

that occurred at the Route 91 Harvest Festival outdoor concert in Las 

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Vegas, Nevada. In the 32nd-floor hotel room from which he fired, the 

shooter had amassed an arsenal of high-capacity magazines; bump stocks—

a tool that replaces the standard stock of an AR-15 rifle and uses the 

firearm's recoil mechanism to enable continual (i.e., automatic) fire with a 

single trigger pull—; and 12 AR-15 semi-automatic rifles that respondents 

(collectively, the gun companies) manufactured and/or sold. The shooter 

replaced the standard stocks of his AR-15 rifles with those bump stocks and 

fired 1,049 rounds, in just 10 minutes, into the crowd of country music fans 

gathered below. The shooter killed 58 people that night, including Carrie, 

and injured hundreds more, then committed suicide. 

James and Ann-Marie Parsons sued the gun companies in 

Nevada state court, alleging (1) wrongful death caused by the companies' 

knowing violation of 18 U.S.C. § 922(b)(4) (2019) (prohibiting the sale or 

delivery of machineguns "except as specifically authorized by the Attorney 

General consistent with public safety and necessity") and NRS 202.350(1)(3) 

(similar); (2) negligence per se under the same statutes; and (3) negligent 

entrustment. The gun companies timely removed the case to federal court, 

where they filed a motion to dismiss under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure (FRCP). The motion argued that the complaint 

failed to state claims upon which relief could be granted and that the federal 

Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. 

§§ 7901-03 (2019), and NRS 41.131 bar the Parsonses claims as a matter of 

law. 

The federal district court granted the motion to dismiss the 

negligent entrustment and negligence per se claims, but denied it as to the 

wrongful death claim based on the so-called "predicate exception" to the 

PLCAA. Enacted in 2005, the PLCANs declared purpose is to "prohibit 

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causes of action against manufacturers [and] distributors . . . of 

firearms . .. for the harm solely caused by the[ir] criminal or unlawful 

misuse by others when the product functioned as designed and intended." 

15 U.S.C. § 7901(b)(1) (2019); see also id. §§ 7902(a)-(b), 7903(5)(A). But the 

PLCAA's predicate exception permits "action[s] in which a manufacturer or 

seller . . . knowingly violated a State or Federal statute applicable to the 

sale or marketing of the product, and the violation was a proximate cause 

of the harm for which relief is sought." 15 U.S.C. § 7903(5)(A)(iii). Invoking 

the PLCAA's predicate exception, the Parsonses argued to the district court 

that the ease with which an AR-15 can be modified to enable full automatic 

fire brings the rifle within the federal and state definitions of "machinegun," 

see 26 U.S.C. § 5845(b) (2019) (defining a machinegun as "any weapon which 

shoots, is designed to shoot, or can be readily restored to shoot, 

automatically more than one shot, without manual reloading, by a single 

function of the triggee); NRS 202.350(8)(c) (2015) ("Machine gun means 

any weapon which shoots, is designed to shoot or can be readily restored to 

shoot more than one shot, without manual reloading, by a single function of 

the trigger.") (recodified as NRS 202.253(6) (2021)), and the associated 

restrictions on their manufacture and sale. See 18 U.S.C. § 922(b)(4); NRS 

202.350(1)(b). 

After reviewing the Parsonses' complaint, the federal district 

court provisionally credited their argument. It concluded that the 

complaint plausibly alleged that the gun companies "knowingly 

manufactured and sold weapons 'designed to shoot' automatically because 

they were aware their AR-15s could be easily modified with bump stocks to 

do so[J" thereby violating federal and state machinegun prohibitions. 

Parsons v. Coles Mfg. Co., LLC, No. 2:19-cv-01189-APG-EJY, 2020 WL 

5 
1821306, at *5-6 (D. Nev. April 10, 2020) (holding that, "(flor purposes of a 

motion to dismiss, this allegation [of easy modifiability to enable automatic 

fire] supports a plausible claim for relief) (citing 18 U.S.C. § 922(b)(4) and 

NRS 202.350(1)(b)); Parsons v. Colt's Mfg. Co., LLC, No. 2:19-cv-01189-

APG-EJY, 2020 WL 4059685, at *4 (D. Nev. July 20, 2020) (denying 

reconsideration); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 

(2007) (holding that plaintiff must make sufficient factual allegations to 

allege a plausible claim for relief to survive a motion to dismiss under FRCP 

12(b)(6)). On this basis, the district court held that "[t]he Parsons have 

alleged a wrongful death claim that is not precluded by the PLCAA." 

Parsons, supra, 2020 WL 41821306, at *6; see generally Anya Sanko & 

Dylan Lawter, Guns in the Sky: Nevada's Firearm Laws, 1 October, and 

Next Steps, 5 Nev. L.J.F. 34, 46-59 (2021). 

This left the question whether the immunity NRS 41.131 

declares is broader than that provided by the PLCAA in this case. The 

federal district court declined to decide this question of state law in the first 

instance, instead certifying two questions about NRS 41.131s scope to this 

court under NRAP 5. The federal court later reconsidered its dismissal of 

the negligence per se claim and certified an additional question to us about 

Nevada's negligence per se doctrine. It reserved final ruling on the motion 

to dismiss the wrongful death and negligence per se claims pending our 

decision on the certified questions. 

B. 

The certified questions the federal district court has forwarded 

are thus three: 

1. Does a plaintiff asserting a wrongful death claim 

premised on allegations that firearms 

manufacturers and dealers knowingly violated 

federal and state machine gun prohibitions have 

6 
"a cause of action against the manufacturer or 

distributor of any firearm . . . merely because 

the firearm or ammunition was capable of 

causing serious injury, damage or death, was 

discharged and proximately caused serious 

injury, damage or death[J" under [NRS 41.131]? 

2. Does [NRS 41.131] allow a wrongful death claim 

premised on allegations that firearms 

manufacturers and dealers knowingly violated 

federal and state machine gun prohibitions 

because the statute is "declaratory and not in 

derogation of the common law"? 

3. [C]an a plaintiff assert a negligence per se claim 

predicated on violations of criminal federal and 

state machine gun prohibitions absent evidence 

of legislative intent to impose civil liability? 

Rule 5 of the Nevada Rules of Appellate Procedure "gives this 

court discretionary authority to accept and answer certified questions of 

Nevada law that 'may be determinative of the cause then pending in the 

certifying court.'" Progressive Gulf Ins. Co. v. Faehnrich, 130 Nev. 167, 170, 

327 P.3d 1061, 1063 (2014) (quoting NRAP 5). In answering certified 

questions, this court accepts the facts stated by the forwarding court in its 

certification order. SFR Invs. Pool 1, LLC v. Bank of N.Y. Mellon, 134 Nev. 

483, 489 n.5, 422 P.3d 1248, 1253 n.5 (2018). We also, necessarily, accept 

the certifying court's determinations with respect to its own substantive and 

procedural law. See Eric C. Surette, Annotation, Construction and 

Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th 

415, 468 (2011) ("[I]n answering questions posed by a federal court . . . , the 

parameters of state law claims or defenses identified by the submitted 

questions may be tested, but it is not the answering court's office to intrude 

(by its responses) upon the certifying court's decision-making process."). 

7 
The federal district court's questions all incorporate its 

determination that the complaint plausibly alleges that the gun companies' 

manufacture and sale of the AR-15s "violated federal and state machine gun 

prohibitions." As the answering court, "our role Is limited to answering the 

questions of [state] law posed to [us]?" Progressive Gulf Ins. Co., 130 Nev. 

at 170, 327 P.3d at 1063 (second alteration in original) (quoting In re 

Fontainebleau Las Vegas Holdings, LLC, 127 Nev. 941, 955, 267 P.3d 786, 

794-95 (2011)). For purposes of this case, we therefore accept, without 

independently deciding, the federal court's determination that an AR-15 

rifle may fit the federal and state definitions of machinegun.1Although the 

federal district court has deferred fmal resolution of the machinegun issue 

to further factual and legal development, this does not make our answers to 

its certified questions impermissibly advisory. See Echeverria v. State, 137 

Nev., Adv. Op. 49, 495 P.3d 471, 475 (2021) (noting in the context of NRAP 

5 that "Mills court lacks the constitutional power to render advisory 

opinion?). Depending on the answers we give, Nevada law may resolve the 

case at the pleading stage, without need of further proceedings. Thus, the 

questions are sufficiently outcome-determinative to satisfy NRAP 5, and we 

exercise our discretion in favor of accepting and answering them. 

1We note but express no opinion on the 2019 amendment to NRS 

202.253(6)(c) (recodified as NRS 202.253(8)(c) (2021)), which partially 

defines a "semiautomatic firearm" as "not a machine gun." Cf. Staples v. 

United States, 511 U.S. 600, 602-06 (1994) (discussing semiautomatic 

nature of AR-15 rifles when determining mens rea requirements under 26 

U.S.C. § 5861(d), without deciding whether an AR-15 rifle is a 

"machinegun"). The federal and Nevada statutes differ in how they spell 

"machinegun." This opinion uses "machinegun" except where the quoted 

source writes "machine gun" out as two words. 

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The federal district court's questions ask us to interpret NRS 

41.131. The "whole-text" canon requires that, in construing a statute, "Mlle 

text must be construed as a whole." Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 167 (2012); Orion Portfolio 

Servs. 2 LLC v. Cty. of Clark ex rel. Univ. Med. Ctr. of S. Nev., 126 Nev. 397, 

403, 245 P.3d 527, 531 (2010) ("This court has a duty to construe statutes 

as a whole, so that all provisions are considered together and, to the extent 

practicable, reconciled and harmonized."). Our analysis therefore begins 

with the full text of NRS 41.131, which provides: 

1. No person has a cause of action against 

the manufacturer or distributor of any firearm or 

ammunition merely because the firearm or 

ammunition was capable of causing serious injury, 

damage or death, was discharged and proximately 

caused serious injury, damage or death. This 

subsection is declaratory and not in derogation of 

the common law. 

2. This section does not affect a cause of 

action based upon a defect in design or production. 

The capability of a firearm or ammunition to cause 

serious injury, damage or death when discharged 

does not make the product defective in design. 

See NRS 0.039 (defining "person" to mean "a natural person, any form of 

business or social organization and any other nongovernmental legal 

entity"). NRS 41.131 was enacted in 1985, twenty years before the PLCAA. 

1985 Nev. Stat., ch. 480, § 1, at 1469-70. But similar to the PLCAA, see 15 

U.S.C. § 7901(b)(1), its purpose was to establish that "if someone shoots a 

firearm and hurts somebody, you can't sue the firearms manufacturer 

because it shoots." Hearing on S.B. 211 Before the Assemb. Judiciary 

Comm., 63d Leg. (Nev., Apr. 17, 1985) (statement of Assemb. Robert Sader, 

9 
Member, Assemb. Judiciary Comm.); see also Hearing on S.B. 211 Before 

the S. Judiciary Comm., 63d Leg. (Nev. Mar. 13, 1985) (statement of Sen. 

Robert E. Robinson, Chairman, S. Commerce & Labor Comm.) ("EA] gun in 

itself is not to be determined as at fault in case of a death or 

injury . . . . [Rather] the liability would be on the handler of the gun."). 

Each side finds in NRS 41.131 language they say 

unambiguously favors them. The Parsonses argue that the phrase "merely 

because" instructs that NRS 41.131 is a "no-fault" statute that shields 

firearm manufacturers and distributors from frivolous lawsuits alleging 

fault based on only the inherent dangers of firearms, not ones alleging that 

firearm manufacturers and distributors acted unlawfully in manufacturing 

or distributing restricted firearms. The gun companies counter that NRS 

41.131 broadly immunizes them from all civil actions, with a single 

exception for products liability actions involving design or production 

defects that cause the firearm to malfunction—for example, a gun that does 

not shoot but explodes when the trigger is pulled. But the parties' 

competing interpretations (and to some extent the district court's phrasing 

of its questions about NRS 41.131) push the statute's outer bounds and ask 

that we opine more broadly than is necessary. The answer to the limited 

dispositive question—does the plausible allegation of illegality take the 

causes of action asserted here outside the immunity NRS 41.131(1) 

declares?—lies somewhere in between. See Progressive Gulf Ins. Co., 130 

Nev. at 171, 327 P.3d at 1063 (noting that this court may rephrase a 

certified question in its discretion). 

A. 

Looking first to its plain language, Harris Assocs. v. Clark Cty. 

Sch. Dist., 119 Nev. 638, 641-42, 81 P.3d 532, 534 (2003) (noting that this 

court starts with the plain language of a statute), NRS 41.131 can be 

10 
reasonably read to allow the claims at issue here because it uses the phrase 

"merely because," and the Parsonses action is arguably premised on fault 

beyond a firearm's inherent ability to cause harm; that is, the gun 

companies' manufacture and distribution of illegal machineguns. But NRS 

41.131 does not limit the gun companies' immunity to the manufacture and 

distribution of legal firearms. Instead, the Legislature provided that Ink, 

person has a cause of action against the manufacturer or distributor of any 

firearm or ammunition" (emphasis added), and "any" conventionally means 

"all" or "every." E.g., Legislature v. Settelmeyer, 137 Nev., Adv. Op. 21, 486 

P.3d 1276, 1281 (2021) (holding that the term "any'' means "any and all," 

"one out of many," arid "indiscriminately of whatever kind") (quoting Any, ,

Black's Law Dictionary (6th ed. 1990)); Dimond v. Linnecke, 87 Nev. 464, 

467, 489 P.2d 93, 95 (1971) (construing "any to mean "alF or "everY). 

Because the phrase "any firearm" accordingly means "all firearms," whether 

legal or illegal—a point that the Parsonses' counsel conceded at oral 

argument—NRS 41.131 does not require that the firearm manufactured or 

sold be legal for a gun company to seek shelter from civil liability under it. 

See, e.g., Settelmeyer, 137 Nev., Adv. Op. 21, 486 P.3d at 1281 (reasoning 

that the term "anY has broad application); United States v. Cole, 525 F.3d 

656, 659-60 (8th Cir. 2008) (interpreting the phrase "any firearm" broadly). 

This court would have to insert the word "legal" or "lawful" 

between "anY and "firearm" for the Parsonses' allegation of fault to escape 

NRS 41.131s reach, and this court does not read in implied terms that the 

Legislature omitted. See Echeverria v. State, 137 Nev., Adv. Op. 49, 495 

P.3d 471, 476 (2021) ("This court has repeatedly refused to imply provisions 

not expressly included in the legislative scheme.") (internal quotation 

omitted). Indeed, unlike NRS 41.131, some states' analogous statutes 

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condition the immunity they provide on the manufacture or sale of a firearm 

being legal, similar to the PLCAA and its predicate exception, 15 U.S.C. 

§§ 7902(a), 7903(5)(A)(iii). E.g., Alaska Stat. § 09.65.155 (2020) ("A civil 

action to recover damages . . . may not be brought against a person who 

manufactures or sells firearms or ammunition if the action is based on the 

lawful sale, manufacture, or design of firearms or ammunition.") (emphasis 

added); Ariz. Rev. Stat. Ann. § 12-714 (2016) ("Businesses . . . that are 

engaged in the lawful sale to the public of firearms or ammunition are not, 

and should not be liable for the harm caused by those who unlawfully 

misuse firearms or ammunition.") (emphasis added); S.D. Codified Laws 

§ 21-58-2 (2004) ("No firearm manufacturer, distributor, or seller who 

lawfully manufactures, distributes, or sells a firearm is liable to any person 

or entity, or to the estate, successors, or survivors of either, for any injury 

suffered, including wrongful death and property damage, because of the use 

of such firearm by another.") (emphasis added); see also N.H. Rev. Stat. 

Ann. § 508:21 (2010) (providing immunity to firearm manufacturers and 

distributors for the criminal acts of a third party but stating that this 

immunity does not apply to "an action brought against a manufacturer [or 

distributor] convicted of a felony under state or federal law, by a party 

directly harmed by the felonious conduct"); Charles J. Nagy, Jr., American 

Law of Products Liability § 106:4 (3d ed. 2016) (compiling state immunity 

statutes applicable to manufacturers and distributors of firearms). 

More like NRS 41.131 is Indiana code section 34-12-3-3(2) 

(2021), which provides that "a person may not bring or maintain an action 

against a firearms or ammunition manufacturer. . . . or seller 

for . . . recovery of damages resulting from the criminal or unlawful misuse 

of a firearm or ammunition for a firearm by a third party." And in KS&E 

12 
Sports v. Runnels, the Indiana Supreme Court held that this analogous 

statute limited gun companies liability for harms caused by third parties, 

even if the gun company acted unlawfully, because the Indiana Legislature 

purposefully omitted the term "lawful" from the statute's second subsection. 

72 N.E.3d 892, 899 (Ind. 2017); cf Ind. Code Ann. § 34-12-3-3(1) (providing 

immunity from suits related to the "lawful" design, manufacture, 

marketing, or sale of a firearm or ammunition). Like subsection 2 of 

Indiana's statute, NRS 41.131 does not expressly "den[y] immunity to 

firearms sellers that violate the law." Runnels, 72 N.E.3d at 899. And 

because the Nevada Legislature did not reserve the protections of NRS 

41.131 to the manufacture and sale of legal weapons, the alleged illegality 

of AR-15 rifles appears to be immaterial. 

This interpretation does not render the phrase "merely 

because meaningless, as the Parsonses maintain. First, NRS 41.131(2) 

expressly limits the immunity NRS 41.131(1) declares, providing that, 

"[t]his section does not affect a cause of action based upon a defect in design 

or production"—e.g., the mismanufactured firearm that explodes and 

injures bystanders when the trigger is pulled—allowing actions asserting 

such fault to proceed. Second, NRS 41.131(1) does not categorically 

immunize firearm manufacturers and distributors from liability for 

independent acts of negligence; that is, acts that create an unreasonable 

risk of harm above and beyond that posed by the firearm's inherent 

dangerousness. As an example, consider the sporting goods store (a gun 

distributor) whose clerk leaves a loaded firearm out on the counter that a 

patron picks up and pulls the trigger on, thinking the chamber was empty, 

injuring the person next to her. In that case, the cause of action does not 

arise "merely because the gun "was capable of causing serious injury, 

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damage or death, was discharged and proximately caused serious injury, 

damage or death." NRS 41.131(1). The clerk's negligence in leaving the 

loaded firearm out on the display case gives rise to the cause of action for 

direct or vicarious liability, not the firearm's inherent capacity to shoot and, 

when shot, to injure or kill. 

B. 

NRS 41.131s history contextually supports this reading. The 

Nevada Legislature enacted NRS 41.131 in 1985. 1985 Nev. Stat., ch. 480, 

§ 1, at 1469-70. At that time, machineguns were legal to manufacture, sell, 

transfer, and possess under Nevada law. It was not until 1989 that Nevada 

defined "machine gun" and prohibited its possession and use, see 1989 Nev. 

Stat., ch. 309, § 1, at 653-54, and not until 2003 that Nevada prohibited the 

manufacture and sale of machineguns. 2003 Nev. Stat., ch. 256, § 6, at 

1351. And although Congress prohibited firearms manufacturers and 

dealers from selling or delivering machineguns to persons other than those 

authorized by the Secretary of State in 1968, Gun Control Act of 1968, Pub. 

L. No. 90-618, §§ 922, 5845, 82 Stat. 1216-17, 1230-31 (1968), it was not 

until 1986 that Congress prohibited the transfer or possession of all 

machineguns other than for official governmental use. Firearm Owners' 

Protection Act of 1986, Pub. L. No. 99-308, § 102, 100 Stat. 451, 452-53 

(1986) (providing that "it shall be unlawful for any person to transfer or 

possess a machinegun"). 

These post-1985 criminal prohibitions demonstrate that 

Congress and the Nevada Legislature recognized the grave danger that 

machineguns pose in civilian hands. Yet, despite the decision to impose 

criminal penalties for the manufacture and sale of machineguns unless 

federally authorized, the Nevada Legislature did not eliminate or amend 

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NRS 41.131 to permit civil actions seeking damages for conduct alleged to 

violate those prohibitions when it enacted them.2For us to hold that the 

immunity NRS 41.131(1) declares does not reach suits involving 

machineguns because of the later-enacted statutes criminalizing their 

distribution, we would have to treat those later statutes as having impliedly 

repealed a portion of the civil immunity NRS 41.131 originally conferred. 

"Repeals by implication are disfavored—very much disfavored"—and 

limited to the rare situation where a new statutory provision "flatly 

contradicts an earlier-enacted provision." Antonin Scalia & Bryan A. 

Garner, supra, at 327; cf. Washington v. State, 117 Nev. 735, 739, 30 P.3d 

1134, 1137 (2001) (noting that the practice of implied repeal is "heavily 

disfavored"). Such flat contradiction does not appear here. 

Nor is it the case that in 1985 when the Legislature enacted 

NRS 41.131 all firearms and types of ammunition were legal, such that its 

reference to "any firearm or ammunition" arguably only contemplated legal 

firearms and ammunition. On the contrary, in 1977 the Legislature passed 

a statute making it illegal to manufacture or sell a short-barreled rifle or 

shotgun, 1977 Nev. Stat., ch. 437, § 3, at 879-80 (now codified as NRS 

202.275), and in 1983 it passed a statute making it unlawful to manufacture 

2The Legislature has further passed statutes in which it "reserves for 

itself such rights and powers as are necessary to regulate the transfer, sale, 

purchase, possession, carrying, ownership, transportation, storage, 

registration and licensing of firearms, firearm accessories and ammunition 

in Nevada." NRS 268.418(2); NRS 269.222(2); NRS 244.364(2); see also 

NRS 12.107 (providing that "the State of Nevada is the only governmental 

entity . . . that may commence a lawsuit against a [firearm] manufacturer 

or distributor" for claims "resulting from or relating to the lawful design or 

manufacture . . . or the marketing or sale of a firearm or ammunition to the 

public," except suits by local governments for breach of contract or warranty 

concerning purchased firearms or ammunition). 

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and sell a "metal-penetrating bullet capable of being fired from a handgun." 

See 1983 Nev. Stat., ch. 327, § 2, at 800 (now codified as NRS 202.273). Yet 

despite these statutes, which predated NRS 41.131, and despite the series 

of amendments to NRS Chapter 202 adding, then expanding, criminal 

prohibitions on machineguns, the Legislature has left NRS 41.131 as 

originally enacted, with its wording unchanged, from 1985 to the present 

day. 

C. 

The federal district court and the parties next direct us to the 

second sentence of NRS 41.131(1)—"This subsection is declaratory and not 

in derogation of the common law." This sentence alludes to two longstanding canons of statutory construction: (1) "Statutes declaratory of the 

common law are coextensive with the common law and no change in 

meaning is presumed to have been intended by their enactment," 1A 

Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory 

Construction § 26:5 (7th ed. 2009); see also State v. Babayan, 106 Nev. 155, 

171, 787 P.2d 805, 816-17 (1990) (noting that a declaratory statute affirms 

existing law and leaves it more clearly in force); and (2) "Courts narrowly, 

or strictly, construe statutes in derogation of the common law," 3 Shambie 

Singer, Statutes and Statutory Construction § 61:1 (8th ed. 2020); see also 

Gibellini v. Klindt, 110 Nev. 1201, 1208, 885 P.2d 540, 545 (1994). As such, 

the second sentence in NRS 41.131(1) serves simply as an interpretive 

guide, providing that the statute should receive a fair reading, consistent 

with the common law, not the strict or narrow reading historically given 

statutes that overturn or derogate from the common law. See 3 Singer, 

supra, § 61:4 (collecting and discussing statutory provisions abrogating the 

canon that statutes that derogate from the common law are strictly or 

narrowly construed). 

16 
NRS 41.131(1) thus directs reference to the common law in 

interpreting the immunity it declares. It does not evince a "protective or 

remedial purpose, as the gun companies contend, requiring us to interpret 

NRS 41.131 liberally in their favor. But neither does the common law to 

which NRS 41.131(1) refers establish that the Parsonses have a cause of 

action against the gun companies for the illegal manufacture and 

distribution of machineguns, as they maintain. 

When the Legislature enacted NRS 41.131 in 1985, Nevada 

common law did not address whether a firearm manufacturer or distributor 

could be held liable in tort to a third party for injuries or death caused by 

the criminal misuse of the firearm. But cf. Thomas v. Bokelman, 86 Nev. 

10, 13, 462 P.2d 1020, 1022 (1970) (upholding summary judgment for the 

defendant owner of a firearm used by a third party to shoot and kill the 

victim on the grounds that the third party's criminal act was a superseding 

cause of the victim's death). Authority from outside Nevada had held that 

there is no common-law basis for imposing a duty on firearm manufacturers 

and distributors for third-party criminal misuse of firearms. Riordan v. 

Intl Armament Corp., 477 N.E.2d 1293, 1295 (III. App. Ct. 1985) (holding 

that a firearm manufacturer does not have a common-law duty to control 

the distribution of nondefective handguns to the public); see also Cassisi v. 

Maytag Co., 396 So. 2d 1140, 1143 (Fla. Dist. Ct. App. 1981) ("[O]ne who is 

injured while using a perfectly made axe or knife would have no right to a 

strict liability action against the manufacturer because the product that 

injured him was not defective."). But this authority was nascent and did 

not address whether a weapon's illegality or restrictions of its distribution 

changed that rule. And the uncertainty as to this issue persists to this day, 

as the federal coures certification order attests. 

SUPREME COURT 

OF 

NEVADA 

40) I947A aseekz• 

17 
This court confronted a similar interpretive challenge in Hamm 

v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), and its progeny, 

Hinegardner v. Marcor Resorts, L.P.V , 108 Nev. 1091, 1093, 844 P.2d 800, 

802 (1992); Yoscovitch v. Wasson, 98 Nev. 250, 252, 645 P.2d 975, 976 (1982); 

Bell v. Alpha Tau Omega Fraternity, 98 Nev. 109, 111, 642 P.2d 161, 162 

(1982); and Davies v. Butler, 95 Nev. 763, 777, 602 P.2d 605, 614 (1979). 

The issue in Hamm was "whether the heirs of pedestrians who were killed 

by [a drunk driver] have a claim for relief for wrongful death against the 

tavern keeper who unlawfully sold liquor to the offending driver." 85 Nev. 

at 99, 450 P.2d at 358. Nevada common law did not answer whether 

liability could be imposed in this instance. Id. at 100, 450 P.2d at 359. 

Cases elsewhere were split, and strong policy arguments existed both for 

and against imposing liability. Id. at 100-01, 450 P.2d at 359. And, while 

the Nevada Legislature had criminalized providing liquor to minors and 

drunk adults, it did not provide for civil liability for violation of these 

prohibitions except, in a limited way, for selling liquor to minors. See id. at 

102, 450 P.2d at 360. After discussing the law pro and con from elsewhere 

and the competing policies involved, this court concluded, "In the final 

analysis the controlling consideration is public policy and whether the court 

or the legislature should declare it." Id. at 100, 450 P.2d at 359. In the end, 

it decided against judicially imposing common-law liability, holding that "if 

civil liability is to be imposed [in this setting], it should be accomplished by 

legislative act after appropriate surveys, hearings, and investigations to 

ascertain the need for it and the expected consequences to follow." Id. at 

101, 450 P.2d at 359; see Hinegardner, 108 Nev. at 1096, 844 P.2d at 803- 

04. 

18 
SUPREME COURT 

Or 

NEVADA 

I01 1947A 

NRS 41.131(1)s reference to the common law as the rule of 

decision incorporates this line of cases. As in Hamm, this case poses 

profound and competing public policy concerns. The Legislature has passed 

numerous statutes regulating firearms, but it has not imposed private civil 

liability for the manufacture and distribution of illegal firearms in violation 

of federal or state law. Similar to Hamm, the decision whether or not to do 

so is legislative, not judicial. 

Our decision with respect to the immunity provided by NRS 

41.131 makes it unnecessary to separately address the federal court's third 

question about Nevada's negligence per se doctrine. On this issue, the 

parties provide divergent strands of authority advocating for and against a 

prerequisite of legislative intent to allow a party's use of negligence per se 

to establish the standard of care and breach in a negligence action. While 

that point may warrant clarification in a future case, the immunity provided 

in NRS 41.131 obviates the need to consider it here. See Hamm, 85 Nev. at 

101-02, 450 P.2d at 360. 

IV. 

In response to the questions certified to us by the federal 

district court, we hold that NRS 41.131 provides the gun companies 

immunity from the wrongful death and negligence per se claims asserted 

against them under Nevada law in this case. We in no way underestimate 

the profound public policy issues presented or the horrific tragedy the Route 

91 Harvest Festival mass shooting inflicted. But this is an area the 

Legislature has occupied extensively. If civil liability is to be imposed 

against firearm manufacturers and distributors in the position of the gun 

companies in this case, that decision is for the Legislature, not this court. 

We urge the Legislature to act if it did not mean to provide immunity in 

19 
We concur: 

Hardesty Parraguirre 

J. 

Cadish 

J. 

situations like this one. But as written, NRS 41.131 declares a legislative 

policy that the Parsonses cannot proceed with these claims under Nevada 

law. 

Piekujv , J. 

, J. 

j

...4.:44 , J. 

Silver Herndon 

Pickering 

Alo;-5at•-° 

Stiglich 

SUPREME COURT 

OF 

NEVADA 

(o) 1447A ositp. 

20