Las Vegas Sun

September 20, 2019

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Governor, attorney general thumb their noses at the will of Nevadans

During a hearing last week in a lawsuit against Gov. Brian Sandoval and Attorney General Adam Laxalt for failing to implement Nevada’s 2016 ballot question on expanded background checks for gun buyers, the attorney for the state leaders accused the other side of using the court for political purposes.

Wrong. If anybody has been playing politics on this issue, it’s Sandoval and Laxalt.

Both Sandoval and Laxalt opposed the measure — Laxalt to the point where he appeared in commercials urging voters not to support it — and it’s become crystal clear since its passage that they’ve put their views on the ballot question above the will of the people on the issue.

The purpose of the suit is to force them to do their jobs and strive to get the measure implemented, not to stage a political protest.

At issue is a provision in the ballot measure that requires federal officials to perform the expanded checks, which apply to purchases between individuals who don’t hold federal firearms dealer licenses. Before the vote, Nevada already required checks for transactions involving licensed dealers, which are performed by the state.

State officials say the provision has met resistance from the feds, which has resulted in the ballot measure remaining unimplemented 19 months after it was passed.

State officials would have you believe that this was the only possible outcome of the vote. Their message to voters has essentially been: Hey, we asked the feds to do the checks and they said no, so what are we supposed to do about it?

But how perfectly spineless.

Imagine if state officials took the same approach to, say, Yucca Mountain? Hey, we told the feds we didn’t want the nation’s high-level nuclear waste stored 90 miles from Las Vegas, but they said they wanted it there, so what are we supposed to do about it?

With both background checks and Yucca Mountain, the answer is that state officials should do their damndest to implement the laws of the state and carry out the will of Nevadans.

Sandoval says the issue can be resolved by the Legislature during the upcoming session, and while that may be true, it’s not good enough.

The appropriate way forward is spelled out in the lawsuit. Sandoval needs to reach out to the FBI, fully explain the details of the ballot measure and pressure federal officials to do their job.

The plaintiffs in the suit have pointed out that state officials, in communications with the federal government, have not correctly explained provisions of the ballot measure, specifically a critical requirement for guns sold between nonlicensed individuals to be delivered into the possession of a license holder. In other words, the nonlicensed buyer and seller don’t do the check directly; instead, the ballot measure requires the weapon to be given to a licensed dealer. This is a crucial point, because under federal law, a licensed dealer must check guns via the FBI’s National Instant Criminal Background Check System — also known as NICS — before transferring them to anyone. Therefore, the protocol defined in the ballot measure works because it activates the federal requirement.

That being the case, Sandoval needs to make sure federal authorities aren’t misunderstanding the situation in Nevada.

The plaintiffs in the lawsuit even drafted a letter that Sandoval could send to clear up any confusion. In part, the proposed letter reads:

“The fact that the federal requirement for a background check is, in this instance, triggered by a gun owner’s obedience to the Nevada requirement that the firearm be delivered to the (license holder’s) possession does not create any exception to the FBI’s duty (to perform checks). If you disagree, please respond in writing with an explanation of the statutory or regulatory authority for such disagreement. Otherwise, please advise when NICS will be prepared to begin conducting these federally required background checks and what if any additional steps the State of Nevada needs to take to make this happen.”

Sandoval should send that letter, or one like it.

It’s maddening that this issue hasn’t been worked out already. Other states operate with hybrid systems, with some checks conducted by state officials and others by the feds, so it’s not as if Nevada was trying to achieve the impossible with the ballot measure.

But instead, state officials have made a half-hearted attempt — if that — at implementing the law.

So when the attorney for Sandoval and Laxalt, state Solicitor General Lawrence VanDyke, argued in court that the plaintiffs were merely using the suit as a vehicle for political advocacy, it was a slap in the face to Nevadans.

When the state’s leaders don’t do their jobs and work on the people’s behalf, what recourse do Nevadans have to force their hands other than the courts and the ballot box?

“You can’t half-bake it,” said Mark Ferrario, the lawyer for the plaintiffs in the suit. “You have to do something to implement the law.”

That’s hitting it on the head. State officials are putting a great deal of time and energy into fighting this case; it’s teeth-grindingly frustrating that they didn’t direct that effort at federal officials instead.