Indy Explains: The seven-year battle to implement background checks on private gun sales
If the first major battle between Republicans and Democrats of the 2019 Legislature sounds like a rerun, that’s because it is.
Legislative Democrats on Monday introduced a bill designed to finally implement the 2016 ballot initiative requiring background checks on most private gun sales and transfers — a topic that’s become a mainstay in the last two election cycles and the subject of political barbs delivered by Democratic and Republican candidates alike.
Although the bill — which requires the state and not the FBI to conduct the background checks — is technically new, it’s the latest step in a six year journey that reaches back to a 2013 veto, a contentious ballot initiative and years of frustration and litigation from gun control advocates seeking to require background checks on private party gun sales and transfers.
Although several questions remain, such as how much the requirement will cost the state and how much firearms dealers can charge as a fee to do the background checks, the measure appears fast-tracked to a signature from Gov. Steve Sisolak amid solid Democratic control of both the Assembly and Senate.
But as lawmakers prepare for a lengthy and emotional hearing on Tuesday, here’s how Nevada policymakers got to this point.
Under the 1993 Brady Handgun Violence Prevent Action Act, any federally licensed firearms dealer is required to first conduct a background check on any person wishing to purchase a firearm. The background checks are conducted through the FBI’s National Instant Criminal Background Check System, but the bill allows states to either maintain their own criminal history databases for undertaking background checks or used a mixed system — using the FBI’s service for long guns and a state-run database for handguns, for example.
In 1998, Nevada became one of 12 “Point of Contact” states where all background checks are conducted using a state-run system, a decision lauded by state officials as more comprehensive than the federal system’s database as it includes things such as mental-health records, outstanding state warrants and other state-level criminal history.
But the federal law only applies to sales by federally-licensed dealers, which has led gun control advocates — including former New York City Mayor Michael Bloomberg's Everytown for Gun Safety organization — to push for policies to close the so-called “gun show loophole,” where guns sold or transferred between two individuals don’t require a background check. At least six states have passed laws requiring background checks on all firearm sales, and a handful of others either require people buying guns to first obtain a permit and background check or apply the provisions only to handgun sales.
In 2013, state lawmakers led by former Democratic Sen. Justin Jones pushed for a wide-ranging measure that included quicker reporting of mental health adjudications to the state’s criminal history repository for background checks and would also have required similar background checks with some exceptions on private sales of firearms. The bill passed on a 11-10 party line vote in the state Senate, and on a 23-19 margin in the state Assembly with Democrats Skip Daly, Richard Carrillo, James Ohrenschall and Mike Sprinkle opposing the measure along with every Assembly Republican.
But the bill was vetoed by Sandoval, who said In his veto message that it would “constitute an erosion of Nevadans’ Second Amendment rights under the United States Constitution and may subject otherwise law-abiding citizens to criminal prosecution.”
A year later, Jones and a cadre of gun control advocates launched the “Nevadans for Background Checks,” a signature-gathering drive designed to put the concept on the 2016 ballot.
The measure attracted staunch opposition from the National Rifle Association (which contributed more than $6.5 million to a PAC opposing the petition), 16 Nevada sheriffs, Sandoval and former Attorney General Adam Laxalt, who appeared in ads opposing the measure. Supporters included Reno Mayor Hillary Schieve and Clark County District Attorney Steve Wolfson, and substantially outraised opponents through more than $17.3 million in contributions from Bloomberg and Everytown.
On Election Day 2016, the measure was approved by voters — but just barely. A margin of less than 10,000 votes out of more than 1.1 million cast separated the initiative from defeat, losing in every county save populous Clark County.
Troubles with the FBI
But no matter the margin of victory, the initiative still became law. But a roadblock soon emerged: the FBI’s refusal to conduct the background checks, despite multiple requests from state officials.
Copying the provision in Jones’ initial 2013 legislation, the ballot question approved by voters required the background checks to be processed through the FBI’s National Instant Criminal Background Check System (NICS) and not through the state database — a likely cost-saving measure, as the Department of Public Safety estimated in 2016 that the cost of processing the checks (not including fees) would cost the state approximately $650,000 per year.
But that difference led the FBI to refuse to process the background checks, as Nevada’s 1998 declaration as a full “point of contract” state meant the agency was precluded from “conducting the subject checks under the applicable federal regulation,” as it wrote in a Jan. 10, 2016 letter.
The Department of Public Safety, charged with implementing the law, then requested an opinion in December 2016 from Laxalt’s office which found that the initiative as written would impose an “unconditional ban” on all private firearm sales and transfers, meaning that “as a matter of due process” the initiative was “effectively unenforceable.”
“When criminal penalties are threatened, the doctrine against requiring impossibilities is strengthened by due process and other constitutional guarantees,” the opinion said. “It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.”
Although advocates and Everytown promised to look for solutions, multiple county sheriffs immediately announced that based on the office’s opinion, they would not enforce any of the provisions stated in the law. The prohibition on changing language of voter-approved initiatives for at least three years left the 2017 Legislature with no readily apparent solutions, and the initiative continued to exist only on paper.
The mass shooting in Las Vegas on Oct. 1, 2017 that left 59 people dead and hundreds injured brought the stalled initiative back into headlines, although shooter Stephen Paddock purchased the guns legally and would not have been stopped by the expanded background check proposal law.
Days after the shooting, The Nevada Independent reported that an attorney for Nevadans for Background Checks was threatening to sue the state if it did not take action to implement the measure, which included a lengthy legal memorandum arguing that the state had effectively become a “hybrid” point of contact state in regards to background checks once voters had approved the initiative.
Upon request by Sandoval, Laxalt’s office authored an opinion calling the proposed solution “unique and unprecedented” among other states with a hybrid state and federal background check system.
But a lawsuit against the state was launched in October 2017, with the first oral arguments coming months later in February. Amid the legal battle, Sandoval still sought to convince the FBI to implement the checks, sending a letter to White House officials in March 2018 stating in part that it was “disappointing to hear that the FBI is unable to accommodate Governor Sandoval’s request.”
Sandoval, who vetoed the initial 2013 legislation, said in a statement five years later that the “legal gridlock created by the drafters of Ballot Question One is frustrating for all parties involved.”
“Going forward, Governor Sandoval believes that the best path for both the proponents of the initiative petition, and the citizens of Nevada, would be to work with the legislature after the amendment moratorium has passed, and change the law to allow private party background checks to be conducted through DPS, rather than the FBI,” a spokeswoman for Sandoval said at the time.
The hopes of gun control advocates were cooled in August 2018, when Clark County Judge Joe Hardy Jr. denied a lawsuit seeking to require Laxalt and Sandoval to implement the measure, calling the arguments from the plaintiff “fundamentally flawed” and that the court could not “micromanage” the executive branch’s attempts to implement the stalled initiative. Laxalt lauded the dismissal, saying it proved his office’s point that the inability to enforce the initiative was not the fault of his office but rather because of the ballot measure’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 elected officials through litigation,” Laxalt said in a statement at the time.
The case was appealed to the Nevada Supreme Court, but a stipulated motion between the attorney general’s office — now led by Democrat Aaron Ford — and the plaintiffs in the case agreed to delay filing arguments until April 1, 2019.
Sandoval announced in November 2017 that the state would conduct voluntary background checks on private gun sales or transfers and waive the usual $25 fee on the checks. But few Nevadans have taken advantage of the checks — the Nevada Department of Public Safety said Monday it conducted 189 total voluntary background checks last year, a small percentage of the more than 98,300 background checks the department processed overall in 2018.
A move to quickly address the stalled initiative was promised by Sisolak on the campaign trail, and legislative leaders including Assembly Speaker Jason Frierson pledged to take up the initiative quickly.
“This body will count - as one of its first votes - a vote to finally implement the will of the voters by passing background checks on all gun sales,” he said on the first day of the Legislature.