A universal gun background check measure, approved by Nevada voters and touted as a victory by gun control advocates, was supposed to take effect after the clock struck midnight Saturday and residents rang in the new year.
But the FBI and Nevada’s attorney general, calling the initiative unenforceable, have put it on hold indefinitely.
The unexpected development is a welcome surprise for Second Amendment supporters, who have long been critical of such background check efforts funded by Michael’s R. Bloomberg’s gun control advocacy group, Everytown for Gun Safety.
“When you have folks who don’t know what they are doing and don’t know what they are talking about when it comes to firearms policy, this is the sort of mess that you wind up with,” said Craig DeLuz, a spokesman for the Firearms Policy Coalition. “An idea that sounds good on paper can end up violating the rights of citizens.”
At issue with the Nevada ballot initiative, which 50.4 percent of voters approved on Nov. 8, is who would be responsible for conducting background checks during gun transactions between private citizens.
Transactions between private citizens previously did not require any background checks. Under the initiative, transactions are subject to federal screenings through the FBI-run National Instant Criminal Background Check System.
But the FBI on Dec. 14 alerted the Nevada Department of Public Safety that it would not conduct the checks. The bureau said in a letter to state officials that it is the state’s responsibility to facilitate the checks and that the ballot measure’s approval “cannot dictate how federal resources are applied.”
Nevada is one of 12 “points of contact” where states handle their own gun background checks. Firearms dealers contact the Department of Public Safety’s Central Repository rather than rely solely on the FBI’s system. The FBI notes that the state-run system offers more current data on criminal histories and a broader array of checks on disqualifiers, such as commitment to a mental hospital.
But the Bloomberg-backed initiative specifically prohibits private sales checks from being run through the state’s central repository, leaving the state with no authority to perform checks for private sales, according to an opinion issued by Nevada Attorney General Adam Laxalt, a Republican.
“It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform,” Mr. Laxalt wrote in an opinion Wednesday deeming the ballot initiative unenforceable. “Despite its intent to merely regulate the transfer or sale of firearms between private parties, because it is impossible to perform the background checks as required by the Act, the Act now unconditionally prohibits such transactions under the threat of criminal prosecution for conduct that was formerly lawful and routine.”
He concluded that unless the FBI changes its position, the state cannot enforce the background check requirement on private sales.
A spokeswoman for Gov. Brian Sandoval, a Republican who opposed the initiative, said the opinion is under review by the governor’s office and he plans to discuss it with the Department of Public Safety.
Supporters of the initiative raised more than $19 million to have the law implemented, and it was not immediately clear what, if any, action they could take.
Robert Uithoven, campaign manager for the National Rifle Association-backed Nevadans for Freedom group that opposed the initiative, said the path forward for his opponents might be difficult. He noted that Nevada law bans the state Legislature from amending any ballot initiative for three years after its passage.
Supporters still say the government has an obligation to honor the will of the voters.
“We think the law is clear and that it can be implemented and that it just takes some cooperation by the FBI and the state officials,” said Jennifer Crowe, the Nevada representative for Moms Demand Action, part of Everytown for Gun Safety. “There is a solution if the state is willing to work with the FBI to figure it out.”
Ms. Crowe said supporters plan to meet to strategize a way forward. She declined to discuss how the ballot initiative was written or to compare it to a similar Everytown-sponsored measure that Washington state passed in 2014.
Mr. Uithoven said his understanding is that the initiative’s supporters did not want the central repository to be responsible for background checks because that would have required them to draft a fiscal note explaining how much it would cost the state to implement. Instead, they shifted the responsibility to the federal government.
“That was obviously a grave mistake on their part. I think they thought the FBI would just do it,” Mr. Uithoven said.
NRA spokeswoman Catherine Mortensen said the measure was poorly written.
“The fact that Nevada’s background check law has been deemed unenforceable is not only a victory for the people of Nevada, it exposes the entire Bloomberg gun control effort as a fraud,” Ms. Mortensen said. “This confirms what we at the NRA have been saying all along. The Bloomberg agenda is being pushed by uninformed political activists who prey on people’s emotions.”