FBI has rightly refused to fix Question 1’s fatal flaw

Nevada is one of a handful of states that, years ago, agreed with the FBI to serve as a “point-of-contact” state. What does that mean? It means that, in Nevada, if you are subject to a background check when you buy a firearm, that check is done by state’s Department of Public Safety, which checks both the federal database and Nevada’s own database (called the “central repository”).

Nevada has followed this procedure for years. The FBI likes the system because it provides a more thorough check, ensuring that if someone has disqualifying information that is in Nevada’s own database but not the federal one, that person cannot pass the background check and purchase a firearm.

During the most recent election, Nevadans narrowly passed Question 1 — the Background Check Act — which requires that even when a private citizen transfers a gun to another private citizen, the person receiving the gun must go to a licensed dealer and pass the same background check that would have been required if she were buying the gun from that dealer.

Except not.

In reality, for reasons that remain murky, the drafters of the measure decided to reject the tried and true point-of-contact system that Nevada’s Department of Public Safety has operated for decades, and instead require that background checks under the new act “must” be requested by licensed dealers directly from the FBI itself.

And just in case that was not clear enough, the law expressly orders that dealers performing the background checks for private sales may “not” contact the DPS central repository. So under the new law, the only background checks permitted for private citizen gun transfers are those conducted by the FBI.

But the FBI in a Dec. 14 letter to the Department of Public Safety says it will not allow the background checks to run directly through the agency. As the FBI explained, “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.” According to the FBI, “these background checks are the responsibility of the state of Nevada to be conducted as any other background check for firearms, through the Nevada DPS.”

This, of course, creates a classic Catch-22 because the act itself, in unequivocal terms, requires exactly what the FBI forbids.

Now, undoubtedly, some supporters of the act will blame the FBI for its unyielding position, accusing it of undermining state law. Or they’ll try to shift the blame to state officials for not finding some way to fix their broken law. But that is just a diversion.

It was the drafters of the new law who decided, for unknown reasons, to upend a system that has worked well in Nevada for decades. Instead of recognizing Nevada’s long-time status as a point-of-contact state, they drafted a law that tries to make an end-run around it — and apparently they never asked the FBI if it would play along.

The FBI’s refusal to do so is not surprising, given that the act attempts to require a background check that would be less effective than Nevada’s current system. It is no wonder that the FBI refuses to rescue such a flawed law.

So where does that leave Question 1? Because the measure was passed at the ballot box, Nevada’s legislators are legally prohibited from making changes to this law for a minimum of three years. Nevada Attorney General Adam Laxalt, asked by the DPS to provide a formal legal opinion on how it should respond to this legal morass, has concluded that the law is unenforceable as written. Under longstanding legal principles, people cannot be criminally punished for failing to engage in conduct that is impossible to perform.

Question 1’s opponents warned during the election that it was a deeply flawed law. But now, with the FBI saying it will not do the checks required by the initiative, it is hard to see how anyone would want a law enforced that is so poorly written that it would make criminals of private citizens who fail to do the impossible when they sell or transfer a gun.

Bob List, a Republican, served as Nevada attorney general before becoming governor in 1979. Michael Roberson, a Henderson Republican, is minority leader of the state Senate.