Criminal background checks for firearms sales law has a Catch-22

Question 1 has been impaled on a Catch-22.

You remember Question 1, don’t you? It was on all the ballots in Nevada and passed with 50.45 percent of the vote, failing in every county except Clark. It requires almost all private sales or transfers of firearms to be cleared by a criminal background check first. Failure to comply would result in up to a year in jail and a $2,000 fine.

Now Attorney General Adam Laxalt has opined that the drafters of Question 1 were too smart for their own good and created a law that cannot, at this time, be enforced, because the federal agency that is specifically required to carry out said background checks refuses to do so. 

The ballot summary stated: “The background check would be conducted using the National Instant Criminal Background Check System administered by the Federal Bureau of Investigations (FBI), and the federally-licensed dealer would be able to charge a reasonable fee for conducting the background check and facilitating the firearm transfer between unlicensed persons.”

But earlier this month the official in charge of FBI’s criminal background check system sent the state a letter saying his office would not conduct those background checks because Nevada is one of the many states that has entered into a sort of mutual aid pact in which the state becomes the Point of Contact for background checks. The state Department of Public Safety is given access to the NICS data bank and uses that and its own resources to conduct background checks for firearm sales.

The head of NICS said a state cannot require a federal agency to expend resources and it will not.

Laxalt’s opinion concludes:

Catch-22.

The law specifies one and only one method for conducting criminal background checks, thus prohibiting the state from doing so. Therefore, the law is unenforceable.

Here is a passage from Joseph Heller’s book that explains Catch-22:

Yossarian looked at him soberly and tried another approach. “Is Orr crazy?”
“He sure is,” Doc Daneeka said.
“Can you ground him?”
“I sure can. But first he has to ask me to. That’s part of the rule.”
“Then why doesn’t he ask you to?”
“Because he’s crazy,” Doc Daneeka said. “He has to be crazy to keep flying combat missions after all the close calls he’s had. Sure, I can ground Orr. But first he has to ask me to.”
“That’s all he has to do to be grounded?”
“That’s all. Let him ask me.”
“And then you can ground him?” Yossarian asked.
“No. Then I can’t ground him.”
“You mean there’s a catch?”
“Sure there’s a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.”
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22,” he observed.
“It’s the best there is,” Doc Daneeka agreed.

Here is how the AG opinion signed by Bureau Chief Gregory Zunino further explains it: