AG knocks down recently passed gun law
December 29, 2016
Based on an opinion from Nevada's attorney general, Adam Laxalt will not implement a ballot measure that narrowly passed a statewide vote and called for background checks on more gun sales and transfers.
Laxalt said Wednesday Nevada will not be able to follow through on a ballot measure that calls for background checks on additional guns sales and transfers. Neither the state nor the FBI will do the checks, Laxalt added.
Director of the Nevada Department of Public Safety, James Wright, requested the formal opinion from Laxalt on two questions:
"First, does the Background Check Act allow the Nevada 'Point of Contact' program to perform background checks for private-party sales or transfers of firearms conducted by federal firearms licensees?
Second, if the Department is legally authorized to perform these checks, may it charge fees for doing so?"
Laxalt responded "no" to both questions, stating the Act was written in such a way that all private transfer background checks must be conducted by the federally administered National Instant Criminal Background Check System, or NICS, as opposed to being conducted through the Nevada "Point of Contact" system.
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The FBI recently sent a letter to the Nevada Department of Public Safety saying, in short, that the FBI would not conduct background checks on private firearms transfers as called for in the new law. In the letter, the FBI noted that the State of Nevada "… cannot dictate how federal resources are applied."
Laxalt concluded his opinion by stating that because the FBI would not conduct the checks, the law is "unenforceable" and, therefore, "citizens may not be prosecuted for their inability to comply with the Act…."
Question 1 passed by fewer than 10,000 votes with Clark County causing the scales to tip in favor of the ballot measure. Sixteen of the state's 17 sheriffs opposed the measure with the Clark County sheriff taking a neutral stand.
"This is what happens when you allow uniformed, out-of-state lobbying groups that prey on people's emotions to write your laws," said Robert Uithoven, campaign director for a Nevada group affiliated with the National Rifle Association, which mostly funded the opposition.
"Most gun registrants are not paying any attention to it," Churchill County District Attorney Art Mallory said before the election of Question 1's wording. "As the attorney general and three sheriffs said in their television ad, this poses unreasonable restrictions on restrictions law abiding citizens."
Mallory said Question 1 would expand private transfers of a firearm to be conducted through a federal firearms dealer and subject to fees.
Sheriffs and police chiefs had said there is too much government overreach as the ballot question calls for a background check if one were to loan a gun to a friend or relative.
Under current law, federal firearms dealers must run a background check when selling a firearm regardless of where the transfer takes place.
"The position of the (National Instant Criminal Background Checks System) Section is that these background checks are the responsibility of the state of Nevada to be conducted as any other background check for firearms," wrote Kimberly Del Greco, who oversees the background-check division within the FBI, in a Dec. 14 letter.
Jennifer Crowe, spokeswoman for Nevada Moms Demand Action, an affiliate of Everytown, said it's law in Nevada that private gun sales are subject to background checks.
"We are confident that the state and the FBI will work together and make it happen to implement the will of the people and protect our public safety."
The background check measure went to a statewide vote this fall after Republican Gov. Brian Sandoval vetoed a similar measure in 2013.
Democratic lawmakers, who have control of both the state Senate and Assembly in the spring, said they'll consider legislative solutions to ensure the background check plan goes forward. They also criticized Laxalt's opinion, who was a staunch opponent of expanding background checks and appeared in commercials against the measure.
With wire reports