Universal Background Checks
Private guns sales require a dealer background check effective Jan. 2, 2020.
Back in 2013, after the Sandy Hook school shooting, SB 221, the first version of the private gun sale/transfer ban, euphemistically called "universal background checks", was passed out of the Legislature, but vetoed by Governor Sandoval. Following the loss, Michael Bloomberg's organizations began agitating for a ballot initiative that became Ballot Question 1. Question 1, or universal background checks, which would have made it illegal to privately sell or transfer firearms without involving a dealer, was declared to be unenforceable as is Question 1 passed by less than 1% and only in Clark County, but the law was determined to be unenforceable and invalidated by an attorney general opinion. SB 143, the correction, was rushed through the 2019 Legislature to take effect Jan. 2, 2020.
A district court ruled that Question 1 is not enforceable because the writers of the initiative assumed the FBI would run the checks for free. However, this is being appealed by the new Democratic administration and Attorney General, who could receive a contorted Supreme Court opinion in their favor. Private sales could be effectively outlawed at any time.
Attorney General Adam Laxalt authored this opinion in which he found that citizens cannot comply with the terms of the law. In short, Nevada has chosen a state system and the FBI will not provide duplicate services for private sales. Ballot Question 1 has not been thrown out or delayed from statutory implementation, rather the attorney general has stated that it is not enforceable, meaning that “citizens may not be prosecuted for for their inability to comply with the Act.” While technically illegal, prosecution for a private gun sale is highly unlikely as attempting to comply with the terms of the law (codified as NRS 202.254) would be impossible.
Ballot Question 1, narrowly passed by about 9,000 voters (and only succeeding in Clark County), bans gun sales between private citizens. It was an initiative paid for and marketed by former New York mayor and billionaire Michael Bloomberg’s Everytown for Gun Safety. Previously, Nevada law allowed free, voluntary background checks for citizens wishing to sell firearms face-to-face. With the revision of NRS 202.254, there are no longer free background checks for private sales and if one wished to get a background check on a private sale, one would have to have a dealer take possession of the firearm and pay $25, as if the firearm was shipped through the mail.
It is believed that the required usage of the FBI NICS system vs. the state system was in part due to gradually "encourage" states to switch to the federal system to better enable a sale/transaction based gun registration system, where gun transfers and sales are used to track who owns a firearm. Without registration, failure to comply with background checks is very difficult to prove.
Attorney General Adam Laxalt authored this opinion in which he found that citizens cannot comply with the terms of the law. In short, Nevada has chosen a state system and the FBI will not provide duplicate services for private sales. Ballot Question 1 has not been thrown out or delayed from statutory implementation, rather the attorney general has stated that it is not enforceable, meaning that “citizens may not be prosecuted for for their inability to comply with the Act.” While technically illegal, prosecution for a private gun sale is highly unlikely as attempting to comply with the terms of the law (codified as NRS 202.254) would be impossible.
Ballot Question 1, narrowly passed by about 9,000 voters (and only succeeding in Clark County), bans gun sales between private citizens. It was an initiative paid for and marketed by former New York mayor and billionaire Michael Bloomberg’s Everytown for Gun Safety. Previously, Nevada law allowed free, voluntary background checks for citizens wishing to sell firearms face-to-face. With the revision of NRS 202.254, there are no longer free background checks for private sales and if one wished to get a background check on a private sale, one would have to have a dealer take possession of the firearm and pay $25, as if the firearm was shipped through the mail.
It is believed that the required usage of the FBI NICS system vs. the state system was in part due to gradually "encourage" states to switch to the federal system to better enable a sale/transaction based gun registration system, where gun transfers and sales are used to track who owns a firearm. Without registration, failure to comply with background checks is very difficult to prove.
The Opinion
Basically, the FBI refuses to run background checks on behalf of the Nevada Department of Public Safety, as Nevada has chosen its own Point-of-Contact (POC) center to run background checks (one option of the Brady Bill). This duplicates efforts and federal regulations require all federal or all state (option for a split-system applies only to long guns vs. handguns, not retail vs. private sale).
Since it is impossible for dealers to run background checks as required by the law, and with sales sans a background check banned by law, it would be impossible to privately transfer a firearm legally. This is a Catch-22 and a deprivation of a right without due process of law, as the opinion noted. Therefore, the law must be invalidated because the law cannot require one to comply with the impossible.
The opinion was based on a question posed by the director of the Nevada Department of Public Safety. The question was whether or not the state had the authority to run checks through the Federal system and charge fees. The FBI was conducted as part of the attorney general's research.
Since it is impossible for dealers to run background checks as required by the law, and with sales sans a background check banned by law, it would be impossible to privately transfer a firearm legally. This is a Catch-22 and a deprivation of a right without due process of law, as the opinion noted. Therefore, the law must be invalidated because the law cannot require one to comply with the impossible.
The opinion was based on a question posed by the director of the Nevada Department of Public Safety. The question was whether or not the state had the authority to run checks through the Federal system and charge fees. The FBI was conducted as part of the attorney general's research.
“The Nevada Supreme Court long ago adopted the doctrine that the law does not require impossible acts. When a law imposes a requirement that cannot be performed, a party is relieved of compliance until the obstacle to performance is lifted.”
The law “operates as a total ban, clearly at at odds with the intent of voters,” which was to create background checks on private gun sales (taking the law at face value). “It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.”
“Because the FBI will not perform the background checks required by the Act, enforcement of its criminal penalties will have the unintended consequence of punishing conduct that is widely and reasonably perceived by Nevadans to be lawful.”
The FBI
With thanks to Mike S.
The FBI NICS Section will not perform background checks requested by Nevada FFLs are required by the initiative. The FBI explained “the recent passage of Nevada legislation...cannot dictate how federal resources are applied” and that “private party background checks are the ‘responsibility of Nevada to be conducted as any other background check for firearms through the Nevada [Department of Public Safety].’”
The FBI's has decided that it is not the FBI's responsibility to conduct private background checks for Nevada, but rather that "these background checks [are to be] conducted as any other background check for firearms, through the Nevada DPS..." But the strict language of the initiative itself requires the federal system be used, which does not allow a simple switch of systems based on the FBI's disinterest in participating.
The FBI did not specifically address whether or not the dealer themselves could sign up for a federal NICS account, but the intent of their letter was that they would have no part in private sale background checks. The FBI might change their opinion administratively or in response to legislation, but under the incoming Trump administration and a Republican controlled Congress, federal changes are unlikely.
The FBI's has decided that it is not the FBI's responsibility to conduct private background checks for Nevada, but rather that "these background checks [are to be] conducted as any other background check for firearms, through the Nevada DPS..." But the strict language of the initiative itself requires the federal system be used, which does not allow a simple switch of systems based on the FBI's disinterest in participating.
The FBI did not specifically address whether or not the dealer themselves could sign up for a federal NICS account, but the intent of their letter was that they would have no part in private sale background checks. The FBI might change their opinion administratively or in response to legislation, but under the incoming Trump administration and a Republican controlled Congress, federal changes are unlikely.
Until Jan. 2, 2020, or further notice.
This information alone, specifically that the Federal system is inferior, illustrates that the anti-gun crowd is not only ignorant of the background check system, but prioritizes the groundwork for registration over public safety. If the Bloomberg groups truly cared about safety, they would have chosen the superior Nevada system over the federal, but registration is their goal (and making it harder for citizens to buy and sell guns).
Another reason the NICS check was required was because it is "free" in that the FBI does not charge a fee, even though a dealer may charge for being the intermediary handling the transfer. Transfer fees are common for mail-order guns, which are required to be sent to a licensed dealer. Such a fiscal impact would have likely caused the initiative to be rejected based on the increased cost to the state.
Another reason the NICS check was required was because it is "free" in that the FBI does not charge a fee, even though a dealer may charge for being the intermediary handling the transfer. Transfer fees are common for mail-order guns, which are required to be sent to a licensed dealer. Such a fiscal impact would have likely caused the initiative to be rejected based on the increased cost to the state.
The opinion concludes: “...Nevadans are not required to perform the impossible and are therefore excused from compliance with the Act’s background check requirement unless and until the FBI changes its position…” Based on this attorney general’s opinion, at this time, Ballot Question 1 and the revised version of NRS 202.254 are unenforceable, though it is still on the books. Until Jan. 2, 2020, private gun sales were legal in Nevada.
On Feb. 15, 2019, just five days after being publicly introduced, Gov. Sisolak signed into law SB 143, which bans private gun sales effective Jan. 2, 2020. SB 143 was rushed through the Legislature, waiving all normal rules and procedures, to make a political point around the anniversary of the Parkland school shooting, which had nothing whatsoever to do with Nevada or private gun sales.
The bill was intended to be introduced secretly Monday night just before the 8 AM Tuesday hearing supposedly to take pro-gun activists by surprise. The intent was to pass the bill through a joint session of the judiciary committees to limit public comment and debate. That is exactly what was done, except we learned of it beforehand and were able to make a good showing at the joint hearing. Attendees reported that hundreds of pro-gun activists showed up to just dozens of anti-gun ones bussed in.
The way the bill was introduced and passed was entirely dishonesty, undemocratic, unconstitutionally, and possibly illegal. It is clearly the work of a tyrannical one-party government that does not care what 49.55% of voters thought.
2016's Question 1 passed by .45%, or 9,899 votes and lost in every county but Clark County. This initiative was not a mandate of the people and SB 143 was not enacting this mandate. Attorney General Laxalt did the right thing in checking with the FBI. There has been a consistent implication that he and Gov. Sandoval delayed implementation; that's not true. Laxalt followed the law while the writers of Question 1 failed to check with the FBI and wrote a bad law. SB 143 was nothing but a "fix" for the poor work of the Bloomberg groups pushing the law.
SB 143 is unconstitutional. Article 19, Sec. 2, 3. of the Nevada Constitution prohibits the legislature from amending, annulling, repealing, setting aside, or suspending a ballot question for 3 years from when the ballot question takes effect (in this case, Jan 1, 2017). Common understanding would mean that they must wait until Jan. 2, 2020 to “fix” the law, but they acted under the interpretation that they could pass it early and it would be effective after the deadline. Note that the background check law is in full force and effect as of this reading.
The bill was intended to be introduced secretly Monday night just before the 8 AM Tuesday hearing supposedly to take pro-gun activists by surprise. The intent was to pass the bill through a joint session of the judiciary committees to limit public comment and debate. That is exactly what was done, except we learned of it beforehand and were able to make a good showing at the joint hearing. Attendees reported that hundreds of pro-gun activists showed up to just dozens of anti-gun ones bussed in.
The way the bill was introduced and passed was entirely dishonesty, undemocratic, unconstitutionally, and possibly illegal. It is clearly the work of a tyrannical one-party government that does not care what 49.55% of voters thought.
2016's Question 1 passed by .45%, or 9,899 votes and lost in every county but Clark County. This initiative was not a mandate of the people and SB 143 was not enacting this mandate. Attorney General Laxalt did the right thing in checking with the FBI. There has been a consistent implication that he and Gov. Sandoval delayed implementation; that's not true. Laxalt followed the law while the writers of Question 1 failed to check with the FBI and wrote a bad law. SB 143 was nothing but a "fix" for the poor work of the Bloomberg groups pushing the law.
SB 143 is unconstitutional. Article 19, Sec. 2, 3. of the Nevada Constitution prohibits the legislature from amending, annulling, repealing, setting aside, or suspending a ballot question for 3 years from when the ballot question takes effect (in this case, Jan 1, 2017). Common understanding would mean that they must wait until Jan. 2, 2020 to “fix” the law, but they acted under the interpretation that they could pass it early and it would be effective after the deadline. Note that the background check law is in full force and effect as of this reading.
I voted "yes", but now I see that this is a terrible law.
The moral of the story is to get educated and active in the gun rights community. Get involved now and help stop future gun control. Never vote for gun control because compromise is just an erosion of rights with no tangible benefit to safety. Donate to the Nevada Firearms Coalition so we can fight these battles more effectively in the future. Your apathy and/or ignorance passed this law and the FBI saved you.
The moral of the story is to get educated and active in the gun rights community. Get involved now and help stop future gun control. Never vote for gun control because compromise is just an erosion of rights with no tangible benefit to safety. Donate to the Nevada Firearms Coalition so we can fight these battles more effectively in the future. Your apathy and/or ignorance passed this law and the FBI saved you.
Where do criminals get illegal guns?
Most criminals get their guns through method that are already illegal. The studies are clear. Criminals mainly obtain guns through theft, through fraud (straw purchases), outright illegal street dealers, and from relatives. In reality, only about 75% of all illegally possessed guns are obtained through illegal sales which would not be regulated by the initiative. The law would not outlaw sales or transfers between close relatives. All the initiative would change is that friends or strangers could not privately sell guns, so the criminal seeking a weapon would have to turn to a relative or engage in already illegal methods. It is naïve to think that criminals, would not simply turn to other, more popular, illegal methods of buying guns.
Most criminals get their guns through method that are already illegal. The studies are clear. Criminals mainly obtain guns through theft, through fraud (straw purchases), outright illegal street dealers, and from relatives. In reality, only about 75% of all illegally possessed guns are obtained through illegal sales which would not be regulated by the initiative. The law would not outlaw sales or transfers between close relatives. All the initiative would change is that friends or strangers could not privately sell guns, so the criminal seeking a weapon would have to turn to a relative or engage in already illegal methods. It is naïve to think that criminals, would not simply turn to other, more popular, illegal methods of buying guns.
The law is unenforceable (see top of page for most current information)
The law provides no enforcement mechanism to ensure compliance with private sales background checks. The law is a feel-good measure at best that would not be enforceable, except by entrapment, sting, or confession. Nothing in it would actually prevent criminals from getting guns, just outlaw private sales, and curtail one of the many freedoms that Nevada sees fit to give its citizens.
Many illegal sales will go on, and the already illicit transfers between criminals will continue as if nothing changed. Here's how not to get caught if you decide to ignore this unconstitutional, worthless law. Ignore this law at your own risk, but non-compliance with a bad law is a personal choice to make.
Without someone confessing there was no background check or a sting operation, it is practically impossible to prove a violation. All you have to say is that you did obtain a background check and it’s up to the prosecution to prove you didn’t; that’s hard to do. The most important thing to remember is to remain silent and do not discuss anything with the police. Request an attorney. All you have to say is that you did get a background check in compliance with the law. Not where, when, who the gun came from, etc. (or vise versa, if you sold it). The police and prosecutor must prove their case; that's the beauty of innocent until proven guilty.
Nevada currently has approximately 740 licensed FFLs. There are 365 days in a year. Remember that FFLs keep their records in their "bound book" per ATF regulations. Some may have converted to electronic bound books if issued a variance by the ATF, but this is not yet the norm. That means someone has to physically go and paw through their bound book and possibly the 4473 forms at each dealer to prove that a record does not exist. So they would have to reasonably ensure that they inspect every record at every dealer in the state.
If law enforcement/prosecution do not check every dealer or check every record, they leave the door open for the defense to create a reasonable doubt that the one record at the one dealer that they did not inspect could be the form proving that the background check was completed. Remember that by federal law, the NICS system may not be used to create a registration of firearms or gun owners. This means that under federal law the identifying records on their end must be destroyed after the background check is completed. The man-hours required to attempt to prosecute a single violation of this law would be ridiculously prohibitive.
The law provides no enforcement mechanism to ensure compliance with private sales background checks. The law is a feel-good measure at best that would not be enforceable, except by entrapment, sting, or confession. Nothing in it would actually prevent criminals from getting guns, just outlaw private sales, and curtail one of the many freedoms that Nevada sees fit to give its citizens.
Many illegal sales will go on, and the already illicit transfers between criminals will continue as if nothing changed. Here's how not to get caught if you decide to ignore this unconstitutional, worthless law. Ignore this law at your own risk, but non-compliance with a bad law is a personal choice to make.
Without someone confessing there was no background check or a sting operation, it is practically impossible to prove a violation. All you have to say is that you did obtain a background check and it’s up to the prosecution to prove you didn’t; that’s hard to do. The most important thing to remember is to remain silent and do not discuss anything with the police. Request an attorney. All you have to say is that you did get a background check in compliance with the law. Not where, when, who the gun came from, etc. (or vise versa, if you sold it). The police and prosecutor must prove their case; that's the beauty of innocent until proven guilty.
Nevada currently has approximately 740 licensed FFLs. There are 365 days in a year. Remember that FFLs keep their records in their "bound book" per ATF regulations. Some may have converted to electronic bound books if issued a variance by the ATF, but this is not yet the norm. That means someone has to physically go and paw through their bound book and possibly the 4473 forms at each dealer to prove that a record does not exist. So they would have to reasonably ensure that they inspect every record at every dealer in the state.
If law enforcement/prosecution do not check every dealer or check every record, they leave the door open for the defense to create a reasonable doubt that the one record at the one dealer that they did not inspect could be the form proving that the background check was completed. Remember that by federal law, the NICS system may not be used to create a registration of firearms or gun owners. This means that under federal law the identifying records on their end must be destroyed after the background check is completed. The man-hours required to attempt to prosecute a single violation of this law would be ridiculously prohibitive.
Why does this matter?
All too often we make decisions based upon little, if any, knowledge of the topic. That is exactly what the universal background check campaigns convinced the voter to do. They advance a restriction of rights under the pretense of safety, supported by scant evidence, misinformation, and emotion. Universal background checks are the first step to total gun registration and other examples have shown that indeed reporting those background checks can form as the framework for a registration system. Additionally, a success will only encourage anti-gunners to keep pushing their agenda.
The law also requires that the federal, FBI background check system (NICS), is used instead of the existing state system, which meets all federal requirements and has local criminal records and mental health records the federal system lacks. Using the federal system integral to creating a national gun registration system because a state-by-state gun registry would be too piecemeal.
Nevada Carry opposed the initiative because it essentially bans private sales and has ominous implications. The law should, at the very least, have included an exemption for concealed weapon permittees and allowed for public access to a background check hotline. If background checks on private sales are the issue, and not forcing everything through a dealer and thus federal databases, then why not introduce and easy and convenient way for private citizens to perform the background checks themselves?
All too often we make decisions based upon little, if any, knowledge of the topic. That is exactly what the universal background check campaigns convinced the voter to do. They advance a restriction of rights under the pretense of safety, supported by scant evidence, misinformation, and emotion. Universal background checks are the first step to total gun registration and other examples have shown that indeed reporting those background checks can form as the framework for a registration system. Additionally, a success will only encourage anti-gunners to keep pushing their agenda.
The law also requires that the federal, FBI background check system (NICS), is used instead of the existing state system, which meets all federal requirements and has local criminal records and mental health records the federal system lacks. Using the federal system integral to creating a national gun registration system because a state-by-state gun registry would be too piecemeal.
Nevada Carry opposed the initiative because it essentially bans private sales and has ominous implications. The law should, at the very least, have included an exemption for concealed weapon permittees and allowed for public access to a background check hotline. If background checks on private sales are the issue, and not forcing everything through a dealer and thus federal databases, then why not introduce and easy and convenient way for private citizens to perform the background checks themselves?
Why can’t private parties run their own background checks?
The answer to the above question is because there would be no record of the transfer—not that there needs to be one. A dealer would be required to record the transfer in his bound book and the seller to fill out a Form 4473, subject to ATF inspection and recording. There would be zero ability to verify if a background check was done and if registration is the ultimate goal, one less record for the government to have access to.
Nevada Carry argues that the ultimate goal of the supporters of this initiative is to create a full gun registry and universal background checks is the first step. Ad hoc, backdoor gun registration already exists by retaining the sales records of defunct dealers or by combing the records of dealers still in business.
If balancing public safety versus the uninfringed right to keep and bear arms were the true goal, allowing public access to the background check system or granting an exemption to holders of concealed firearm permits should have been implemented. Nevada law already has an existing, voluntary system. This law does not allow a person to conduct their own background check for a private party sale and makes no mention of allowing holders of concealed firearm permits to be exempt from the transfer fee, as they currently are.
The answer to the above question is because there would be no record of the transfer—not that there needs to be one. A dealer would be required to record the transfer in his bound book and the seller to fill out a Form 4473, subject to ATF inspection and recording. There would be zero ability to verify if a background check was done and if registration is the ultimate goal, one less record for the government to have access to.
Nevada Carry argues that the ultimate goal of the supporters of this initiative is to create a full gun registry and universal background checks is the first step. Ad hoc, backdoor gun registration already exists by retaining the sales records of defunct dealers or by combing the records of dealers still in business.
If balancing public safety versus the uninfringed right to keep and bear arms were the true goal, allowing public access to the background check system or granting an exemption to holders of concealed firearm permits should have been implemented. Nevada law already has an existing, voluntary system. This law does not allow a person to conduct their own background check for a private party sale and makes no mention of allowing holders of concealed firearm permits to be exempt from the transfer fee, as they currently are.
Background checks never were the problem with gun crime
Gun shows are not a major source of illegal guns. Of 14,285 inmates surveyed by the DOJ, just 0.7% obtained their illegal firearms at a gun show and 1% at a flea market. Another study said that: “that in 1994, only 3.9 percent of [illegal] firearms purchases were made at gun shows.” Contrary to hype spread by the initiative supporters, modern guns cannot be ordered online and shipped to the home of a private person. Gun sale and auction site must ship to a dealer. As for Backpage and web-forums, they are the high-tech version of the old newspaper and magazine want ads.
Almost half (46%) of illegal guns were obtained through 'straw purchases', where a non-prohibited person buys the gun, on behalf of the a prohibited person) by fraudulently claiming they are the actual end-user of that gun. (Source). "Straw purchasers are the primary source of crime guns. Importantly, straw purchasers have no record of a prohibiting offense." (NIJ) Private sales are not the major source of illegal guns. “In one study, the ATF found that 50.9% of all illegal guns trafficked were originated from straw purchases, while only 14.2% came from unregulated private sales—roughly the same percentage of guns that were stolen.”
The majority of failed background checks do not lead to prosecutions, indeed, they are far from flawless. Many denials are in fact, false positives. John Lott, a economist known for his analysis of studies on guns and violence, points out that there is an “initial false positive rate of roughly 94.2 percent,” (from 2009 statistics). Only 4,154 denials out of 71,010, after review, were determined to be potentially criminal attempts to purchase firearms and only 140 cases were referred to prosecutors and only 77 of those cases were prosecuted at all. That’s roughly one one-hundredth of the total denials that were prosecuted. Only 32 cases resulted in a conviction or guilty plea.
Background checks don’t stop mass murderers. None of the most notable mass shooting suspects in recent American history bought their guns in private sales which would be subject to the provisions of the universal background check initiative. Most killers passed background checks or were not deterred by universal background check laws.
Gun shows are not a major source of illegal guns. Of 14,285 inmates surveyed by the DOJ, just 0.7% obtained their illegal firearms at a gun show and 1% at a flea market. Another study said that: “that in 1994, only 3.9 percent of [illegal] firearms purchases were made at gun shows.” Contrary to hype spread by the initiative supporters, modern guns cannot be ordered online and shipped to the home of a private person. Gun sale and auction site must ship to a dealer. As for Backpage and web-forums, they are the high-tech version of the old newspaper and magazine want ads.
Almost half (46%) of illegal guns were obtained through 'straw purchases', where a non-prohibited person buys the gun, on behalf of the a prohibited person) by fraudulently claiming they are the actual end-user of that gun. (Source). "Straw purchasers are the primary source of crime guns. Importantly, straw purchasers have no record of a prohibiting offense." (NIJ) Private sales are not the major source of illegal guns. “In one study, the ATF found that 50.9% of all illegal guns trafficked were originated from straw purchases, while only 14.2% came from unregulated private sales—roughly the same percentage of guns that were stolen.”
The majority of failed background checks do not lead to prosecutions, indeed, they are far from flawless. Many denials are in fact, false positives. John Lott, a economist known for his analysis of studies on guns and violence, points out that there is an “initial false positive rate of roughly 94.2 percent,” (from 2009 statistics). Only 4,154 denials out of 71,010, after review, were determined to be potentially criminal attempts to purchase firearms and only 140 cases were referred to prosecutors and only 77 of those cases were prosecuted at all. That’s roughly one one-hundredth of the total denials that were prosecuted. Only 32 cases resulted in a conviction or guilty plea.
Background checks don’t stop mass murderers. None of the most notable mass shooting suspects in recent American history bought their guns in private sales which would be subject to the provisions of the universal background check initiative. Most killers passed background checks or were not deterred by universal background check laws.
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