By Dave Workman | Senior Editor
Anti-gunners who drafted Nevada’s Ballot Question 1 that passed by a slim margin in November to mandate so-called “universal background checks” were evidently too smart for their own good, because in December, state Attorney General Paul Laxalt declared that the measure is unenforceable.
The gun prohibition lobby, which spent millions of dollars to pass the measure, was furious. Silver State gun rights leaders, however, were almost gleeful, and a few people were quietly whispering “we told you so” about the measure.
The problem with the Nevada Background Check Act is that it contains specific language that creates a roadblock to its implementation. According to opinions from both the FBI’s National Instant Criminal Background Check System (NICS) and the Nevada Attorney General’s office, Nevada has a “Point of Contact” program that has background checks conducted by the Department of Public Safety’s Central Repository. However, the new law specifically requires licensed firearms dealers to contact the NICS system.
Jennifer Crowe, spokesperson for the state’s Moms Demand Action group, which is part of the Everytown for Gun Safety gun control lobbying organization, told the Reno Gazette-Journal that, “The bottom line is that Nevada officials have a responsibility to work with the FBI to implement the system approved by a majority of voters.”
However, in a Dec. 14 letter to the Nevada Department of Public Safety (DPS), Kimberly J. Del Greco, section chief for the FBI’s NICS Section, explained that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”
Because federal regulations say NICS background checks may be done by either the FBI or by “a local or state law enforcement agency serving as an intermediary” between a licensed dealer and the FBI, Nevada’s checks are done by local agencies.
Laxalt’s office explained it in an opinion that made headlines all over the state: “Because the Act specifically directs the dealer to run checks directly through the FBI’s NICS system, the Nevada Department of Public Safety has no authority to perform the private-party background checks required by the Act.”
“To conduct the required check in the manner specifically required by the Act,” the AG’s office detailed, “the licensed dealer must contact the National Instant Criminal Background Check System, … 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 Act is very specific that the only background check it authorizes for a private sale or transfer is directly through the FBI. Indeed, lest there be any doubt, the Act specifically directs that licensed dealers not contact the Department’s Central Repository to conduct such checks. Because the plain text of Section 5(3)(a) expressly forbids licensed dealers from contacting the Central Repository to conduct the private party background checks required by the Act, it necessarily forbids the Department from facilitating non-compliance with the Act by performing such checks through the Central Repository. And because the Department lacks authority to perform such background checks, it therefore cannot charge fees for doing them.”
Some people theorize that the
authors of the Nevada measure didn’t want to involve the Central Repository because that would have required estimating the cost to the state for this new requirement.
A hint about that might be found in Washington State, where voters passed a similar measure in 2014 against opposition from gun rights groups. Right now, the state Department of Licensing is seeking $382,000 from the Legislature to pay for an outside contractor to bring its records up to speed. The agency, which handles paperwork for pistol transfers, has a backlog dating back more than a year.
The Spokane Spokesman-Review reported that the backlog dated back to 2014. The estimate is that some 327,000 handgun sales and transfers need to be entered into the state’s pistol registry.
That may not sit well with Evergreen State gun rights advocates who recall the breach of security in the system of a license vendor that processes the online sales of fishing and hunting licenses in Washington, Oregon and Idaho. Several million records were exposed.
There is no evidence that the Washington law has prevented a single crime since it took effect in December 2014.
