Newspaper column: Gun law backers too wily for their own good

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.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

9 comments on “Newspaper column: Gun law backers too wily for their own good

  1. Rincon says:

    “The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.” Just like Donald Trump – except that he got less than 50% of the vote. Your note that the initiative failed in all counties except Clark suggests that you would like cattle to have voting rights. I’ve heard of animal rights, but isn’t that a bit much?

  2. Steve says:

    Admittedly, Clark County is Nevada’s economic engine. Does this mean Clark is the controller?
    Should Clark County speak for all of Nevada?
    OR, should the vote be used to enforce the law in those places where the vote reflects such support?
    Let the rural areas continue to live life as they see fit, make the city dwellers suffer the burden of majority tyranny.

  3. Anonymous says:

    Who brought the lawsuit to compel enforcement of the unenforceable ballot question? A defense will be instituted at some additional cost to the taxpayers. At the end, the lawsuit will be deemed meritless. Will those who brought the suit be required to pay the costs and the attorneys fees for defending what sounds like a frivolous piece of litigation? The answer is no.

  4. Bill says:

    Who brought the lawsuit to compel enforcement of the unenforceable ballot question? A defense will be instituted at some additional cost to the taxpayers. At the end, the lawsuit will be deemed meritless. Will those who brought the suit be required to pay the costs and the attorneys fees for defending what sounds like a frivolous piece of litigation? The answer is no.

  5. […] for ignoring the will of the people, the measure passed with only 50.45 percent of the vote, failing in every county except Clark. Would it have passed at all if the voters were […]

  6. […] Background Check Act, Question 1 on the November 2016 ballot, passed by a whisker with only 50.45 percent of the statewide vote, failing in every county except Clark. Nevadans for […]

  7. […] by voters in 2016 unenforceable. The backers of the ballot initiative, Question 1, tried to avoid having a fiscal note saying how much the background checks would cost Nevada taxpayers by requiring the checks to be run […]

  8. […] by voters in 2016 unenforceable. The backers of the ballot initiative, Question 1, tried to avoid having a fiscal note saying how much the background checks would cost Nevada taxpayers by requiring the checks to be run […]

  9. […] approved by voters in 2016. The backers of the ballot initiative, Question 1, tried to avoid having a fiscal note saying how much the background checks would cost Nevada taxpayers by requiring the checks to be run […]

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