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Nevada’s gun background check law, already in limbo, faces new legal challenge

Nevada’s new law expanding firearm background checks to private-party sales and transfers is facing another challenge: a lawsuit contending that it violates the state Constitution.

The law, approved by voters in a ballot initiative in November, is already in limbo and will not take effect as expected on Sunday following an opinion earlier this week by the state attorney general that it is currently unenforceable.

The lawsuit filed Thursday by a private gun seller adds a new threat to the law, arguing that it improperly creates a “taxable event” for gun sellers in violation of the state Constitution. It also says that would violate the sellers’ right to due process in the event they did not have the checks conducted.

The complaint filed in Clark County Court names the state Departments of Taxation and Public Safety.

According to the complaint, a retailer performing a background check for a private gun sale or transfer would have to take possession of the firearm as if it was part of the store’s inventory and then charge the seller a sales or use tax.

That would place a financial burden on the seller, said Las Vegas attorney Donald Green, who filed the lawsuit on behalf of client Peter Reece, an occasional gun seller at gun shows who does not have a federal firearm license.

The new background check law is “1 million percent silent on the issue of creating a taxable event,” Green said.

“You can’t just do that,” he said. “It’s not an exception under the tax code.”

The office of Nevada Attorney General Adam Laxalt, who would be charged with defending the law, said it could not comment on Friday because it had not yet been served with the complaint.

Laxalt himself dealt the background check law a setback earlier this week, stating in an opinion Wednesday that it can not take effect as scheduled because of a problem with the way it assigns responsibility for conducting the checks between the state and the FBI’s National Instant Criminal Background Check System.

The initiative said that dealers conducting background checks for private transfers must contact the FBI’s National Instant Criminal Background Check System (NICS) to determine whether the buyer is eligible to purchase or possess firearms under state and federal law.

But the FBI informed the Nevada Department of Public Safety on Dec. 14 that it will not conduct these background checks.

In its letter, the FBI said Nevada is a “point of contact” state that uses not only the federal NICS system but also a state central repository — a database that includes such things as mental health records, domestic violence incidents, misdemeanor criminal records and arrests reports, as well as restraining orders.

The FBI said that means the state background check system is more comprehensive and the DPS would be better suited to carry out the checks.

It also noted that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”

Contact Wesley Juhl at wjuhl@reviewjournal.com and 702-383-0391. Follow @WesJuhl on Twitter.

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