Nevada Universal Background Check Proponents Lose Case in Court

Truth About Guns – by Dean Weingarten

In 2016, anti-Second Amendment zealot Michael Bloomberg was able to place Question 1 on the ballot in Nevada. The ballot initiative passed and mandated universal background checks in the state, covering even private party firearms sales.

Supporters of the Bloomberg initiative laid out over $18 million in support of the measure, outspending the opposition three to one. And that total doesn’t include money spent to put the initiative on the ballot. Despite the huge cash outlay, the measure only narrowly passed 558,631 for to 548,732 against.   

But a funny thing happened on the way to common sense gun control. After the initiative passed, Nevada’s Attorney General ruled that the law couldn’t be implemented.

On December 28, 2016, Attorney General Adam Paul Laxalt (R) said the initiative could not be enforced due to the refusal of the FBI to participate in the expanded background checks. Question 1 was designed to require background checks for firearm transfers between unlicensed individuals, also known as private-party sales, which would take place through the FBI’s National Instant Criminal Background Check System (NICBCS). According to a letter from the FBI to Nevada, “the recent passage of the Nevada legislation [Question 1] regarding background checks for private sales cannot dictate how federal resources are applied.” Furthermore, Nevada is one of 12 states with a state-run background checks system and does not depend on the FBI to perform existing background checks.

Supporters of the initiative have blamed the attorney general for their mistake and have challenged the ruling in court.

This week, the Nevada District Court found for the state and against the backers of the restrictions on private sales.

From ag.nv.gov:

Today, Nevada Attorney General Adam Laxalt applauded a Nevada District Court’s decision to toss out a lawsuit brought by the proponents of Nevada’s stillborn Background Check Act, also known as Question 1. The lawsuit sought to shift the blame for the broken initiative from its drafters to Nevada Attorney General Adam Paul Laxalt and Nevada Governor Brian Sandoval. The Court, in a comprehensive 22-page opinion, ruled that “as a matter of law, […] given the undisputed efforts to implement The Background Check Act, it is unenforceable as written.” The Court rejected each of the proponents’ legal claims, noting that their “arguments have shifted throughout this case” and that they “failed to provide this Court with any authority even remotely supporting” their legal argument. The Court also repeatedly commented on the falsity of the proponent’s factual allegations, observing that they “ignore the facts.” The Court chastised the proponents for their “charged” and “emotional appeals,” explaining they were “unfounded,” “without supporting evidence,” and “improperly placed before the judiciary.”

“The Court’s 22-page decision reaffirms what my office has been saying all along—that the Act ‘is unenforceable as written,’” said AG Laxalt. “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.”

The judge’s order reaffirms that the Attorney General’s opinion“correctly identified and exposed several errors” in challengers’ misrepresentations about the 2016 ballot initiative. Shortly after the Question 1 initiative was passed, the Federal Bureau of Investigation (FBI) wrote to the Nevada Department of Public Safety (DPS) on two occasions stating that they would not conduct the background checks for Nevada because, among other reasons, a state law cannot mandate how federal resources are allocated. In a December 28, 2016 formal opinion requested by DPS, the Office of the Nevada Attorney General correctly opined that the law could not be implemented without the FBI’s cooperation.

The opinion in the case is here. It says essentially what Attorney General Laxalt stated earlier.

If the case had occurred in New York state, the result might have been different. In Nevada, the court followed the rule of law.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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