Nevada’s New Background Checks Under Attack
Nevada’s newly passed law to expand firearm background checks during private sales and transfers is facing another challenge; a lawsuit stating that the law may violate Nevada’s Constitution.
The law, approved by voters in a ballot initiative in November, is already in limbo and will not take effect as the new year begins 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 issue 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.
According to the lawsuit, 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. You can’t just do that,” Green 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 because it had not yet been served with the complaint.
The ballot initiative at the center of this, stated 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.
It also noted that “the recent passage of the Nevada legislation regarding background checks for private sales cannot dictate how federal resources are applied.”
Only time will tell if this law will make its way to the official books.
Do you think it is right to challenge a ballot initiative voted on by the people like this? Do you think that the ballot initiative itself flies in the face of the constitution? Let us know in the comment section below.
FFL dealers in Nevada have 2 resources for background checks-one is the NICS which is Federal and the State Repository ( I think that’s correct). The background check law as it is written specifies the Dealer performing the background check MUST use the NICS system. FBI says they won’t perform the checks, which leaves the law in limbo at this time as unenforceable. I don’t recall anything about the dealer having to charge a sales or use tax. They supposedly would be able to charge for the background check. I also don’t remember anything about the seller having to turn the weapon over to the dealer prior to the background check being done.
The only reason this law passed on the ballot is because the anti-gun crowd pushed it in the most populous county which is Clark County. Most of the rest of the state is rural and didn’t want this law passed, but since Clark County has the most population in the state, there you go.