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COMMENTARY: Don’t blame Gov. Sandoval and Attorney General Laxalt for problems with background check initiative

Updated December 18, 2017 - 2:57 pm

Regarding the Review-Journal’s Nov. 29 article on Clark County District Attorney Steve Wolfson’s criticism of Gov. Brian Sandoval and Attorney General Adam Laxalt for their failure to enforce Question 1, the state’s universal background check law, a few points need to be made.

Mr. Wolfson makes it sound as if Mr. Laxalt made a personal decision to declare the new law unenforceable as a way to defeat its purpose. Not true.

All Mr. Laxalt did was read the law and make a legal determination that it is unenforceable. He called officals at the FBI, which runs the National Instant Check System system, and asked if the agency would begin to do the background checks required by Question 1. They refused, saying they had no legal authority to do so because Nevada chose decades ago to be a Point of Contact (POC) state for those checks. This means that the Nevada Department of Public Safety does the background checks themselves.

Changing over to the NICS system is not like telling a waiter you want Coca-Cola instead of Pepsi. There is more to it, and given the current state of both federal and Nevada law, Mr. Laxalt had no choice but to declare Question 1 unenforceable. After all, as attorney general, he is required to follow the law, has no power to make law and has no powers of enforcement.

During the 2017 session, the Nevada Legislature, which does have law-making powers, had ample opportunity to address the situation and change state law to allow Nevada to use NICS. But lawmakers saw fit not to do so.

This probably had to do with the fact that, as a POC state, Nevada charges a $25 fee, paid by the gun buyer, for each background check. This generates several million dollars every year. Much of that money goes to fund Nevada’s criminal records system, which includes the very people who do the background checks on gun purchasers in Nevada. If Nevada changes over to NICS, the state loses that revenue.

The people who crafted Question 1 knew about the loss of revenue if NICS replaced the POC for their universal background checks. But chose to require the NICS checks anyway because they didn’t want the $25 POC fee to be seen as a tax and possibly endanger its chances of passage.

It is also important to emphasize that NICS checks are not as thorough or complete as Nevada’s POC checks. That’s because Nevada’s records are more inclusive than those the federal government use when they check a criminal background through NICS — Nevada’s records system has more bad guys from Nevada in it than does NICS. That means if Nevada does its checks by NICS, more bad guys will be able to buy guns.

There is another interesting piece of this political Rubik’s cube. One might think that as much as the chief prosecutor for Nevada’s largest county wants to see universal background checks for all gun transfers, he would show as much zeal for prosecuting gun crimes as he would for the enforcement of Question 1’s background checks. Apparently, not so much.

As the Nevada Firearms Coalition found out when we sent a freedom of information request to Mr. Wolfson’s office some time back, the DA’s office prosecuted 1,405 people during the years 2013-2015 for being in illegal possession of a firearm. However, there was not one prosecuted for transferring a firearm to a prohibited person. That is also a felony, and is also the point of the Question 1 background check initiative — stopping the transfer of firearms to those forbidden by law to have them.

In other words, Clark County apparently does not make it a priority to prosecute people who help those forbidden by law to have guns to get their hands on guns. Vigorously done, that would help discourage the transfer of guns to those who should not have them.

Ironically, Mr. Wolfson wants to make it easier for dangerous felons to get guns — because that’s what will happen if Nevada switches to using NICS for gun transfer background checks, as he is demanding.

Question 1 was poorly crafted and would be unenforceable even if the FBI were doing the background checks through NICS. It would fall only on the law-abiding, who would be the only ones obeying it, and leave untouched the criminals who buy guns without bothering with any kind of check.

That is not the fault of Gov. Sandoval or Mr. Laxalt, who are just following the law and telling the emperor he has no clothes.

Don Turner is president of the Nevada Firearms Coalition.

A previous version of this online column included an incorrect byline.

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