Editorial: Universal gun background check law unenforceable

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 a mere 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. Failure to comply would result in up to a year in jail and a $2,000 fine.

But Attorney General Adam Laxalt’s office 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 by the law 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 (NICS) 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 the 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 law cannot require a federal agency to expend resources and it will not.

Since the law specifies that background checks must be conducted through the NICS, the Department of Public Safety is prohibited from conducting the background check, the AG opinion states.

“The FBI’s refusal to carry out the central function required by the Act effectuates an unconditional ban, at present, on all private firearm sales or transfers in Nevada,” the opinion concludes. “Criminal conviction, the only method by which the Act may be enforced according to its terms, is the ostensible penalty for selling or transferring a firearm in violation of this unintended ban. As a matter of due process, this makes the Act unenforceable as a criminal law. The Nevada Supreme Court long ago adopted the doctrine that the law does not require impossible acts. When a law imposes a requirement that cannot be performed, a party is relieved of compliance until the obstacle to performance is lifted.”

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.

In his book of the same name this is how Joseph Heller explained Catch-22: A doctor said a certain pilot could be grounded from flying World War II combat missions because he was crazy, but first he would have to ask to be grounded, which would indicate he is sane, because only an insane person would willingly fly dangerous missions.

“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,” Heller wrote. “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.”

Here is how the AG opinion signed by Bureau Chief Gregory Zunino further explains it: “Here, similarly, while the Act imposes a duty on every Nevadan who seeks to privately sell or transfer a firearm, the Act has also created an obstacle — wholly beyond their control or that of the State itself — that currently presents them from meeting that duty. As a consequence, a law that the voters clearly intended to impose mere conditions upon the private sale or transfer of a firearm now operates as a total ban, clearly at odds with the intent of voters. When criminal penalties are threatened, the doctrine against requiring impossibilities is strengthened by due process and other constitutional guarantees. It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.”

We hope this law just disappears down the rabbit hole from whence it came.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

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18 comments on “Editorial: Universal gun background check law unenforceable

  1. deleted says:

    Nonsense. And Nevada’s own bastard, the guy who in his first and only private sector job before Nevada’s boobs elected him was called “an incompetent idiot” (paraphrasing, is hardly a go to guy when it comes to understanding a plainly written law.

    The ballot measure, as quoted, does NOT state that the federal government conduct the checks, the measure clearly states that the background checks be conducted USING the NICS system. Since Nevada authorities already have access to that system, it’s retarded, although consistent with Nevada’s own bastards stupidity, to suggest that law is therefore void as requiring an impossibility.

    It’s time for the bastard to do what the people of the state want him to do; what they voted for.

    The bastard.

  2. From the text of Question 1: “(a) The licensed dealer must contact the National Instant Criminal Background Check System, 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 …”

    ” NRS 179A.045  “Central Repository” defined.  “Central Repository” means the Central Repository for Nevada Records of Criminal History.”

    Clearly states …

    This was to avoid having a fiscal note about how this would cost the state $650,000 a year.

  3. Steve says:

    And, initiatives in Nevada cannot be modified by the Legislature for a minimum of 3 years.

  4. deleted says:

    Attorney General opinions are not the law.

    Nevadans have spoken and the bastard can pound all the sand he wants. (And waste our tax dollars doing it) doesn’t change a thing.

  5. Steve says:

    It’s not an opinion, the FBI won’t let Nevada directly access the NICS.

  6. Steve says:

    Clarification, the FBI will not allow Nevada FFA’s directly access the NICS.
    In this state they must go through the Central Repository and the initiative does not allow that.

  7. Right. The opinion merely says people cannot be prosecuted for failing to comply with a mandate with which it is impossible to comply.

  8. deleted says:

    The Opinion is of no legally binding effect. If, and when probably, the lawsuit is brought to require that the governor enforce the act, the AGs opinion will have the third or fourth level of legal impact that a court will consider.

  9. Steve says:

    Gerald Antinoro, Storey County sheriff, said by phone, “It’s not enforceable even without the opinion” and that “it’s creating opportunities for people to be dishonest.”

    Nevada does not require gun licensing so there is no paper trail for private party sales and transfers. The only paper trail comes from the initial sale when a federal background check was done. All anybody needs to do, he said, is claim the transfer or sale happened before Jan. 1, 2017 and it would be hard to prove otherwise.

    “What are we going to do – hunt down every rumor of a gun transfer?” he said.

    After they spent some $15,000,000.00 getting this squeaker passed, where is Michael Bloomberg? Shouldn’t he be ponying up a ton of money in an attempt to get the legislature to act?
    In three years….

  10. Until FBI changes stance, it is dead as a doornail.

  11. deleted says:

    The ballot measure stated “The background check would be conducted using the National Instant Criminal Background Check System (NICS)”

    “Since the law specifies that background checks must be conducted through the NICS,”

    Because the law says only that the background checks be conducted USING the NICS, and NOT “through” the NIC as administered by the federal government Thomas the bastards non-binding, opinion issued for purposes of political cover only, is not only wrong but consistent with his (only) prior private legal employers’ description of the bastard as (paraphrasing here) “a moron”.

    Even according to your article, Nevada HAS access to the NICS and is therefore entitled to perform the background checks “using” (as the ballot measure required) the NICS system. And legal precedent requires that any interpretation of a law be made so as to avoid an “impossibility” that the bastard would like to find here.

    And now, because of his ignorance, he is going to cost Nevadans more money.

  12. It says the Central Repository may NOT be used.

  13. Steve says:

    Patrick desperately seeking a sham plea!

  14. deleted says:

    Thomas your continued reference to the Central Depository is confusing; I certainly never suggested that it be used, and the ballot measure sure doesn’t reference it.

    The state Department of Public Safety is given access to the NICS data bank and because a licensee may contact the DPS, who can then access the NICS or “use” the system as the law requires, there is no “impossibility” of enforcing the law. Unless you don’t want to do what the voters said they want you to do.

  15. deleted says:

    Repository that is. Or should have been anyway.

  16. Steve says:

    Reading is fundamental.

    Patrick is fundamentally challenged.

  17. deleted says:

    After reading the bastards opinion Thomas I can see why you would confuse the Central Repository with the NICS; the worthless opinion does conflate the two.

    Subtly though, it’s clear that even the bastards minions that wrote wha he wanted them to write, knew there was a big difference when they tried to shoe horn in the NICS with the Central Repository of STATE records by saying that “people commonly” (as if this has any legal bearing on the issue, refer to STATE checks done by the DPS as being done through the Central Repository.

    And the point is even though the DPS has access to the state criminal records alongside the access it has to the NICS, the plain reading of the law requires only that the NICS be used for purposes of carrying out the law, and thus the “Central Repository” need not be involved.

    The bastard.

  18. Steve says:

    The FBI is requiring Nevada go through the Central Repository, Patrick.

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