Mike Bloomberg and his group Everytown for Gun Safety spent over $3 million on a Nevada ballot initiative called Question 1, which expanded background checks to include private sales and transfers. They succeeded in getting the bill passed, but now Nevada’s Attorney General Adam Laxalt has ruled that Nevadans can ignore the law, since it would force them to perform an impossible task
Question 1 mandated that all private firearm transfers be cleared directly through the federal National Instant Criminal Background Check System (“NICS”) rather than Nevada’s existing “point of contact” background check system, which queries state and federal databases (including NICS).
Although firearm sales through licensed dealers would remain unaffected by the law, a private sale or transfer would require the use of a federal firearms licensee (FFL) as an intermediary, who would then contact the NICS system. The wording of the law prompted James Wright, Director of the Nevada Department of Public Safety to ask Laxalt, “Does the Background Check Act (“Act”) allow for 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 answered that according to the law, the Nevada DPS lacked the authority to perform the checks, the law “unambiguously” required the licensed dealers used in the transaction to perform the check directly through the FBI’s NICS system.
Uh-oh. The FBI weighed in, telling the Nevada DPS on December 19, 2016 that they would not perform checks requested directly by Nevada dealers, writing, “The recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied,” and adding that the checks were the… “…responsibility of Nevada to be conducted as any other background check for firearms, through the Nevada DPS as the POC.”
Laxalt looked at the letter, and offered his take on the matter, wittily remarking, “…[U]nder longstanding legal principles Nevadans are not required to perform the impossible, and are therefore excused from compliance with the Act’s background check requirement unless and until the FBI changes its position set forth in its December 14, 2016 letter.”