In a stunning move that is sure to leave many Nevada gun owners sighing with a bit of relief, Federal and State bureaucracy just might leave the Bloomberg backed Universal Background check measure in limbo unless the FBI or the State of Nevada moves to make a change. However for the moment, neither party seems to be inclined to change things.
On Wednesday the Nevada Attorney General Adam Paul Laxalt released an opinion that you can read in full here. However the most interesting part comes here.
Because the FBI will not perform the background checks required by the Act, enforcement of its criminal penalties will have the unintended consequence of punishing conduct that is widely and reasonably perceived by Nevadans to be lawful. This would create an unintended Catch-22. If there is any overarching principle of statutory interpretation in Nevada, it is that Nevada’s laws will not be read or applied to conflict with the drafters’ intent, or to require absurdities. According to its plain text, the Act preserves a preexisting right in Nevada to transfer or sell firearms between private parties. The Act’s background check requirement was intended to be a mere condition precedent to the sale or transfer of a firearm, not a complete ban on all private sales and transfers of firearms in Nevada. In fact, the proponents of the Act articulated this position in their “Rebuttal to Argument against Passage,” when they wrote: “Background checks are quick and easy … over 90% of FBI background checks are completed on the spot”.
Because the Act expressly and centrally relies on this error and forbids the Department from being contacted to run background checks, it requires and criminalizes the impossible. Under longstanding legal principles, Nevadans are not required to perform the impossible, and are therefore excused from compliance with the Act’s background check requirements unless and until the FBI changes its position set forth in its December 14, 2016, letter.
So the short version is that Nevada’s universal background check initiative is unenforceable for a combination of two reasons. First, the initiative directs the use of the FBI’s NICS system instead of the normal, state-run system that works with the FBI’s NICS system. Second, because of this, to comply with a State law the FBI would have to have more Federal resources allocated to deal with the influx of background checks required by the initiative. Something that the FBI is, for now, unwilling to do as Nevada is one of a number of “Point Of Contact” states that maintain their own databases.
Since Nevada is a Point of Contact State, with a state-run database that federally licensed firearms dealers use to conduct their background checks there is a $25 fee that is charged for a background check. The state database then, in turn, contacts the FBI’s NICS database to “cast a wider net” on the amount of information received.
If the universal background check initiative had directed that these background checks be done through the normal state system a “fiscal note” would have been added to the initiative outlining the additional financial burden that would have been placed on the state. Given that the measure passed by only 1%, it is likely that such a note would have prevented it from passing in the first place. Only 9,899 more voters were in favor of the initiative.
To comply with the initiative the state-run system could be abolished, but this would narrow the scope of the information retrieved by a background check done at a FFL. Furthermore the state would lose out on a source of tax revenue. Both of these factors make this unlikely to happen.
However, the proponents of the initiative wanted to avoid all of this, stack the deck, and instead chose to word the initiative in a way that would shift the burden of the additional background checks off of Nevada and onto the federal government. Since the states are not able to dictate the allocation of federal resources the FBI has refused to cooperate with the law, thus making the entire ballot initiative unenforceable. As noted by Nevada Attorney General.
Sufficed to say the NRA and Nevada gun owners are please. Robert Uithoven, manager of the NRA Nevadans for Freedom campaign against the initiative said,
The drafters and the sponsor, Michael Bloomberg’s group, never asked law enforcement to give input on the initiative. This is why not a single district attorney or elected sheriff in Nevada endorsed it. Had there been some collaboration, this issue might have been brought up earlier and this could’ve been avoided.
However not all are happy about this, and are still looking to find ways to push the initiative down the throats of gun owners. Former Washoe County Sheriff Mike Haley who pushed for the initiative said that,
The attorney general (Adam Paul Laxalt) has voiced his dislike for this initiative and I believe he will not try to find any resolution to what the FBI has said because he’s adverse to the initiative’s language anyway. It would appear to me that Nevada, in consultation with those other states, can find similar administrative processes to meet the FBI’s requirements.
While Jennifer Crowe Nevada spokesperson for Moms Demand Action, part of Everytown for Gun Safety, which supported ballot Question 1 to expand background checks in Nevada issued this statement,
Nevada wouldn’t be unusual in having a hybrid system. … There are other states that have some checks run through the FBI and some checks run through their in-state agencies. 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. 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.
While the fight may not be over to prevent this flagrant abuse of our constitutional rights it is, for now, a decided victory, born of the miscalculation of those who want to curtail our freedoms.
For the moment, however, the Nevada legislature is unable to change the wording of the initiative for the next three years and unless things change the measure finds itself at an impasse.