The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.
Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.
The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.
The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”
The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.
After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”
Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.
The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.
Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.
On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.
In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.
“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”
It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.
The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.