Newspaper column: Judge confirms gun background check law unenforceable

A district court judge brought the hammer down on backers of a voter-approved initiative intended to require background checks prior to gun sales by private individuals, telling them the courts and the executive branch cannot fix the problem they themselves created.

The 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 Background Checks reportedly spent $19 million on the campaign for passage with $18 million coming from former New York City Mayor Michael Bloomberg and his political action committee Everytown for Gun Safety. The NRA reportedly spent $6.5 million in opposition.

As Judge Joe Hardy pointed out in his 22-page ruling this past week the Question 1 backers included in the law a requirement that background checks must be conducted by the FBI and not the Nevada Department of Public Safety (DPS), which does the background checks for licensed gun dealers under an arrangement with the FBI called a Point of Contact. This verbiage allowed supporters to argue in the obligatory fiscal note that “no Nevada tax dollars” would be used to conduct the background checks.

Judge Hardy concluded, “This framing and representation no doubt facilitated passage by the voting public,” which seems reasonable considering how narrow the vote margin turned out to be.

The initiative specifically spelled out that those involved in a private gun sale would have to contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS] … 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 DPS 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.

The Background Check Act carried a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

But the FBI refused to conduct the background checks, saying a state law could not compel a federal agency to engage in such a costly undertaking.

The backers’ lawsuit sought to have the court force the governor and the state attorney to get the FBI to conduct the background checks or to sever that section from the law. The judge wrote that the state constitution’s separation of powers clause prohibits him from ordering the executive branch to do something so long as their actions are not arbitrary and capricious, and the section could not be severed because that would destroy a central component of the law approved by the voters.

Nevada Attorney General Adam Laxalt, whose office had declared the initiative unenforceable, welcomed the court decision agreeing with his office’s conclusion.

“The Court’s 22-page decision reaffirms what my office has been saying all along — that the Act ‘is unenforceable as written,’” Laxalt was quoted as saying in a press release. “This is not because of anything that I or other Nevada officials have failed to do; in the words of the Court, we have ‘undertaken a real and substantial effort to implement the law.’ Rather, it is a result of Question 1’s flawed drafting. It is unfortunate that the very same people who imposed this defective law on all Nevadans have gone to such lengths to use its brokenness as a reason to politically attack me and other Nevada’s elected officials through litigation. Hopefully, today’s careful decision puts an end to this practice.”

Laxalt is the Republican nominee for governor on this fall’s ballot.

The judge also noted that allegations by the plaintiffs that the attorney general and Gov. Brian Sandoval had failed to aggressively work to make the law enforceable we’re unfounded, detailing communications attempting to negotiate with the FBI, and saying the proponents made improper emotional appeals about public safety.

Gov. Sandoval’s office told The Nevada Independent, a web-based news site, “the Governor’s Office believes the order speaks for itself.”

Basically, the drafters of the initiative were too wily for their own good, opting for selling the law as tax-free and thus building in its own Catch-22.

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.


Newspaper column: Senate candidates are on opposite ends of political spectrum

Catherine Cortez Masto debates Joe Heck in Senate race faceoff recently. (R-J photo via AP)

Catherine Cortez Masto debates Joe Heck in Senate race faceoff recently. (R-J photo via AP)

The race to fill the U.S. Senate seat of retiring Sen. Harry Reid offers voters a marked contrast in candidates, especially rural voters.

Reid has handpicked former Nevada Attorney General Catherine Cortez Masto to be his Democratic heir apparent, while Republicans have nominated Congressman Joe Heck, an emergency room physician by profession and a brigadier general in the Army Reserve.

The issue of what to do about federal public lands alone finds the two candidates pegged on opposite ends of the political spectrum.

Rep. Heck argues that far too much of Nevada — more than 86 percent — is controlled by federal government land agencies, which restrict productive uses.

“I believe that the best stewards of our precious lands are the people closest to it, who understand Nevada’s Western way of life, not bureaucrats in Washington,” Heck says on his website. “I opposed the president’s recent unilateral, executive land grab designating the Basin and Range Monument because it went well beyond the intention of the Antiquities Act and it did not have the support of local residents. I also cosponsored legislation called the Nevada Land Sovereignty Act of 2015, which prevents the president from taking executive action designating or expanding national monuments without Congressional approval or local support.”

In Congress, Heck boasts that he has fought to stop the listing of the greater sage grouse as an endangered species because of how it would harm the state’s economy.

“As your Senator, I will fight to transfer more of our public lands back to our state so that Nevadans can decide how to best utilize the land,” the congressman says.

In sharp contrast, Cortez Masto is cut from the same cloth as Reid, who applauded the president’s unilateral designation of Basin and Range Monument and has generally opposed handing over greater control of public lands to the state.

She has said on her website, “I will fight to ensure that future generations are able to experience the incredible natural resources Nevada has to offer, just like I did,” meaning leaving it in the hands of federal bureaucrats who have failed to manage the range to prevent wildfire and have failed to control the overpopulation of feral horses that are starving from overgrazing and jeopardizing other wildlife as well.

She also embraces Reid’s blind allegiance to the not-ready-for-free-market green energy acolytes.

“As U.S. senator, I will work to ensure we are fully utilizing Nevada’s abundance of wind, solar, and geothermal energy resources and increase investments in renewable energy technology to create green jobs here in Nevada,” she says. “I will also work to preserve and protect Nevada’s incredible public lands — a unique, valuable resource in Nevada that creates thousands of jobs and brings in millions of dollars into our state’s economy every year. We must safeguard our natural resources and stop big oil from receiving unnecessary tax subsidies” — unlike subsidies for green energy?

When it comes to ObamaCare and its skyrocketing premiums and deductibles and disappearing providers, Heck has already worked to pass legislation that would exempt residents of counties that have only one ObamaCare provider from the requirement to pay a tax penalty if they fail to maintain minimum health coverage under the so-called Affordable Care Act. Ten rural Nevada counties this next year will have only one provider.

“As an emergency department physician, one of the reasons I ran for Congress was the passage of the disastrous Affordable Care Act,” Heck says “The law has failed to meet its stated goals of increasing access to healthcare and reducing costs. Recent events suggest the law is having the opposite effect. Major insurers are leaving the exchanges and others are predicting significant premium hikes for their customers, making it anything but affordable.”

For her part, as attorney general, Cortez Masto refused then-Gov. Jim Gibbons’ directive to file suit to challenge the ObamaCare law, even though she was required to do so by state law — a dereliction of duty.

Heck recently voted to delay an Obama administration Labor Department rule that would vastly increase the number of workers who would have to be paid overtime and thus cripple many small businesses and result in job losses.

Meanwhile, Cortez Masto is advocating that Congress should raise the minimum wage, another job crushing move.

When it comes to the Second Amendment, Heck has an “A” rating from the National Rifle Association, while the NRA has spent $1 million on ads opposing Cortez Masto.

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.

Editorial: Most sheriffs and the governor oppose gun background check initiative

Three out of four Nevada county sheriffs agree, Question 1 on the November ballot, the Nevada Background Checks for Gun Purchases Initiative, should be voted down, because it will do nothing to prevent gun violence, will be too costly and merely put honest people in jeopardy of running afoul of a nitpicking law.

The National Rifle Association reports opposition to Question 1 has been announced by Sheriff Ken Furlong (Carson City), Sheriff Ben Trotter (Churchill County), Sheriff Ron Pierini (Douglas County), Sheriff Jim Pitts (Elko County), Sheriff Keith Logan (Eureka County), Sheriff Ron Unger (Lander County), Sheriff Kerry Lee (Lincoln County), Sheriff Al McNeil (Lyon County), Sheriff Sharon Wehrly (Nye County), Sheriff Gerald Antinoro (Storey County), Sheriff Chuck Allen (Washoe County) and Sheriff Mike Allen (Humboldt County).

Clark County Sheriff Joe Lombardo has chosen to remain neutral and others are silent on the matter.

Most recently, Gov. Brian Sandoval has added his voice to the opposition. “The governor does not support Question 1. He has concerns that this measure would dilute the legitimate rights of law-abiding Nevadans and that it does not actually address the complex issue of keeping firearms out of the hands of criminals,” said Mari St. Martin, a spokeswoman for the governor.

St. Martin has noted that existing law already prohibits a person from selling or giving a firearm or ammunition to another person if he or she has actual knowledge that the other person is under indictment for or has been convicted of a felony, is a fugitive from justice, has been found mentally ill or is in the country illegally.

Question 1 would require “universal” background checks and require law enforcement to scrutinize virtually every gun sale or transfer. It is being pushed by Nevadans for Background Checks, which is funded by former New York Mayor Michael Bloomberg’s Everytown for Gun Safety. It would require most gun transfers to be conducted through a federally licensed firearms dealer.

A summary of the measure reads in part: “This initiative requires that an unlicensed person who wishes to sell or transfer a firearm to another person conduct the transfer through a licensed gun dealer who runs a background check on the potential buyer or transferee. A licensed dealer may charge a reasonable fee for this service.”

Elko County Sheriff Jim Pitts has been quoted as saying, “This is for one thing a law that we can’t enforce. There’s no way of enforcing this. Only the citizens who follow the law are going to be the ones who follow it, and the ones that are the criminals aren’t going to follow it anyway. How are we going to follow it up?”

Washoe County Sheriff Chuck Allen said Question 1 infringes upon the Second Amendment and “will do absolutely nothing to stop criminals while criminalizing the commonplace activities of many Nevada gun owners.”

Carson City Sheriff Kenny Furlong has said, “Any bill that does not address mental health, which I believe to be the core cause of the violence we’ve had across the country, does not meet my expectations.”

Sheriff Sharon Wehrly in Nye County has said, “It merely places more restrictions on good people, will make it more difficult, and incur unnecessary costs for law-abiding citizens to manage their personal property.”

A recent survey conducted by Las Vegas television station KTNV in conjunction with Rasmussen Reports found that 65 percent of those polled support the background checks initiative and only 28 percent opposed it with 7 percent undecided.

Perhaps the majority of sheriffs and the governor can help persuade the voters that one more unenforceable law on the books will just add to the regulatory burden and cost and do nothing to increase safety.

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.

Nevada attorney general joins the ranks of those opposed to gun background check initiative

As we have already noted, Question 1 on the November ballot, which would impose universal gun background checks, will do nothing to stop criminals from obtaining guns, will be expensive to try to enforce and will only ensnare upstanding citizens in its labyrinth of regulations.

Now, Nevada Attorney General Adam Laxalt says he agrees. According to an emailed press release from the National Rifle Association, Laxalt says, “As the state’s chief law enforcement officer, I take seriously my duty to ensure that my fellow Nevadans are safe. I have carefully reviewed the Question 1 initiative and have concluded that it would not prevent criminals from obtaining firearms and would instead cost Nevadans time, money, and freedom.”

Gov. Brian Sandoval earlier came out against the proposal as have a majority of Nevada’s sheriffs.

Robert Uithoven, campaign manager for NRA Nevadans for Freedom, boasted, “Laxalt has always put service to his country and fellow Nevadans first. He knows that Question 1 is part of larger political agenda aimed at restricting our Second Amendment rights and has nothing to do with public safety.”

AG Adam Laxalt


Newspaper column: Harry keeps us rolling in the aisles

Are you sure there isn’t some way to talk Harry into running for re-election?

Nevada will be a barren, mirthless desert without Harry Reid’s unpredictable and always outrageous pronouncements, provocations, proposals and pontifications. He should come with a warning label: Past performance is no predictor of future results.

Harry provides a perpetual game of rhetorical twister. You never know where his hand, foot or mouth will end up — though likely all in the same place. His comedic forte is misdirection. You never know what he will say next.

Why, just this past week he took to the floor of the Senate to lambaste his former allies at the National Rifle Association.

“Now, the NRA and its leadership are committed to a radical agenda that allows criminals and mentally ill Americans to access guns to commit these terrible acts,” Reid said.

Harry Reid with .22 rifle

Reid never lets the facts get in the way of a good rant, such as the fact a plan — endorsed by the NRA — was offered in August to improve the national database of mental health records, because people with mental health problems have purchased guns due to poor record keeping. That proposal languishes.

In 2012, the same Harry Reid spoke at the opening of a firing range in northern Clark County claiming he was the one who secured the land for the park and $60 million in funding. He talked about carrying a gun as a Capitol police officer and while a member of the state gaming commission. He also rambled nostalgically about shooting a rabbit with a .22 when he was a child in Searchlight and how his grandmother cooked it — this one always cracks me up, as it did his audience at the time. He said it was an old, mangy, all-sinew-and-bone jackrabbit. Yeah, right, grandma told him she cooked it.

Reid’s comic sidekick that day was Wayne LaPierre, the head of the NRA, who praised Reid. “I’ll tell you he’s a true champion of the Second Amendment back in Washington,” he said.

Perhaps that was true at one time. Reid actually voted in 2005 for the Protection of Lawful Commerce in Arms Act, which limited the ability of trial lawyers to sue gun makers and dealers for the “harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.”

Reid comes down squarely on both sides of the product liability issue, especially if his self-interest is involved.

Just 10 years earlier Reid stood on the floor of the Senate and argued for 20 minutes against a bill that would have reformed product liability law and capped lawsuit damages that drive up the cost of all manner of goods.

“In the area of products liability, I pause to think what would happen if manufacturers, especially big business, did not have to worry about their products being safe,” Reid passionately argued. The bill passed but Clinton vetoed it.

Reid and his leadership PAC have raked in $4 million from trial lawyers during the past six years, according to the Center for Responsive Politics. That might explain the passion … or was it a premonition?

Harry Reid after injury to eye

This past week Reid and his wife filed a product liability lawsuit against the maker of an elastic exercise band he was using in his Henderson home on New Year’s Day when he slipped and crashed into a cabinet.

“While in use, the TheraBand broke or slipped out of Mr. Reid’s hand, causing him to spin around and strike his face on a cabinet,” the suit says.

Wait a minute. This is a product liability case and Reid can’t say whether it broke or slipped? Isn’t that a key element of the case? Is the band in two pieces or not?

Reid, 75, at first told reporters the band broke but later changed his story, saying the band slipped. Now he wants it both ways. That’s funny.

Reid’s suit says he and his wife sustained more than $50,000 in damages — including broken ribs and face bones, disfigurement, bruising, a concussion, loss of vision in his right eye and a loss of consortium.

Reid, who has an estimated net worth of $10 million, argues the maker of the band did not include warnings about potential accidents — particularly for the elderly.

Maybe there should be background checks before one can buy an elastic exercise band to make sure the buyer is mentally and physically capable of using such a dangerous product as it was “designed and intended.”

Harry is such a card.

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

Update: Lawsuit could open Reid to probing discovery and deposition.

Hillary one-ups Harry in criticism of the NRA

If you thought Harry Reid was harsh in his criticism of his former friends at the National Rifle Association, wait till you hear what Hillary Clinton called them.

“You know, the NRA’s position reminds me of negotiating with the Iranians or the communists,” she said in Iowa Wednesday. I doubts she wants negotiation, but rather capitulation. Besides, hasn’t Obama been “negotiating” with Iranians and communists? No, wait, he has been capitulating.

“The NRA tries to keep gun owners — the ones who are members — really upset all the time so they can keep collecting their money, because they tell them they’re the only thing that’s going to stop the black helicopters from landing in the front yard and people’s guns being seized,” Clinton also said, basically accusing NRA members of being paranoid nuts. “That’s the argument they make. And it works with some people and it has turned a lot of people into absolutists themselves.”

She put out a statement earlier saying that if Congress did not act to curb the Second Amendment she would act on her own, much as Obama has been doing to write and rewrite laws that are the duty of Congress.

Hillary on guns

“If Congress refuses to act, Clinton will take administrative action to require that any person attempting to sell a significant number of guns be deemed ‘in the business’ of selling firearms. This would ensure that high-volume gun sellers are covered by the same common sense rules that apply to gun stores—including requiring background checks on gun sales,” the statement promised.

She also called for the makers of guns to be held liable if their products are used to do what they are designed to do.

“The NRA lobbied Congress to pass the so-called ‘Protection of Lawful Commerce in Arms Act,’ a dangerous law which prevents victims of gun violence from holding negligent manufacturers and dealers accountable for violence perpetrated with their guns,” her statement said. “It is past time to repeal this law and hold the gun industry accountable just like everyone else. Clinton voted against this law in 2005 and will lead the charge to repeal it as president.”

Cha-ching for the trial lawyers.






Gun grabbing: Any law with this many exceptions has got to be flawed

You know it is a bad law when it must contain this many exceptions.

Senate Bill 221 would make it a crime to “transfer” a firearm from one private citizen to another, instead requiring the transfer to go through a license firearms dealer, a background check and a $30 fee. The bill passed the Senate Finance Committee Tuesday on a party-line vote and could be voted on in the Senate today.

As soon as I heard about it, I started wondering what this might criminalize. Could I go to the shooting range with a friend and allow him to fire one of my weapons or I his? Could I give a grandson a rifle?

Well someone sat around for sometime thinking about this too. Here are the exceptions in the bill (line numbers and all):

Sec. 7.8. The provisions of NRS 202.254 do not apply to:
34 1. A transfer of a firearm to a person who is a holder of a
35 permit to carry a concealed firearm issued pursuant to the
36 provisions of NRS 202.3653 to 202.369, inclusive.
37 2. A transfer of a firearm to a person who holds a license as a
38 manufacturer or importer in firearms issued pursuant to 18 U.S.C.
39 § 923.
40 3. A transfer of an antique firearm, as defined in 18 U.S.C. §
41 921, or a curio or relic, as defined in 27 C.F.R. § 478.11.
42 4. A transfer of a firearm that is a gift or loan between family
43 members who are related by consanguinity or affinity within the
44 second degree.
1 5. A transfer of a firearm that occurs by operation of law or
2 because of the death of a person for whom the person transferring
3 the firearm is an executor or administrator of an estate or a
4 trustee of a trust created in a will.
5 6. A transfer of a firearm that is temporary and occurs while
6 in the home of the person to whom the firearm is transferred if the
7 person to whom the firearm is transferred:
8 (a) Is not prohibited from possessing a firearm; and
9 (b) Reasonably believes that possession of the firearm is
10 necessary to prevent imminent death or serious bodily injury to the
11 person making the transfer or others.
12 7. A temporary transfer of possession of a firearm without
13 transfer of ownership or title to ownership of the firearm, if such
14 transfer takes place:
15 (a) At a shooting range located in or on any premises owned or
16 occupied by a duly incorporated organization organized for
17 conservation purposes or to foster proficiency with firearms;
18 (b) At a target firearm shooting competition under the
19 auspices of, or approved by, a state agency or a nonprofit
20 organization; or
21 (c) While hunting, fishing, target shooting or trapping if:
22 (1) The hunting, fishing, target shooting or trapping is
23 legal in all places where the person to whom the firearm is
24 transferred possesses the firearm; and
25 (2) The person to whom the firearm is transferred holds all
26 licenses or permits required for such hunting, fishing, target
27 shooting or trapping.
28 8. A temporary transfer of a firearm that occurs while in the
29 presence of the owner of the firearm.
30 9. A transfer of a firearm from a person serving in the Armed
31 Forces of the United States to an immediate family member if the
32 person transferring the firearm will be deployed outside the United
33 States within 30 days after the transfer.
34 10. A temporary transfer of a firearm from a person to a
35 mental health professional or to the person’s physician if the
36 mental health professional, the physician or the person believes
37 the transfer is necessary to protect the health or safety of the
38 person or others.

Did they miss anything? I’m sure they did.