Background checks initiative idled because of money

Money is the reason the Question 1 gun background check bill is currently in limbo. And money may be the reason it never goes into effect at all.

The initiative would have extended criminal background checks currently conducted by licensed firearms dealers to gun sales or transfers between private parties. If you sought to sell a gun to somebody outside your immediate family, you would have been required to go to a gun store and get the check.

But instead of using the state’s criminal history repository (which marries records from state sources with the FBI’s National Instant Criminal Background Check System), the initiative mandated that gun dealers in private-party sales use only the FBI’s system.

Why? Money.

Under the state constitution, an initiative that requires the government to spend money must also include a tax or identify another constitutional funding source.

The framers of the background check initiative knew that if they required gun dealers to use the state database, they would also have to include a fee to cover the costs to the state. (Currently, gun store checks cost individuals $25.)

By mandating that gun dealers contact the FBI, however, the initiative didn’t have to impose a new fee and was thus potentially more palatable to voters. (As it was, the measure failed in every county but Clark, and passed by a statewide margin of fewer than 10,000 votes.)

A fee might have killed Question 1 outright. But by writing the initiative to avoid the fee, the measure may be doomed anyway.

In December, the FBI wrote to the state’s Public Safety Department essentially telling the agency that background checks should be conducted through the more comprehensive state criminal records repository. A state initiative cannot force the FBI to do a background check, any more than the FBI can force a state to build a database such as Nevada’s. (The FBI does conduct background checks directly for gun dealers, but mostly in states where there is no state database of criminal records.)

That led the office of Attorney General Adam Laxalt — who opposed Question 1 during the campaign — to issue an opinion saying that the law requires something impossible and thus cannot be enforced.

But proponents of the measure accuse Laxalt of lying down on the job and using the FBI’s refusal to cooperate as an excuse to stall a proposal that gained support of a (bare) majority of voters.

Instead of giving up, they say, Laxalt should be looking for a way to negotiate with the FBI so that background checks can still be conducted using the FBI database and avoiding costs to the state. But the attorney general seems not to be in the mood to do other people’s work. The prevailing sentiment is that proponents should have worked out that small but important detail before circulating the measure, instead of expecting the state to figure it out afterward.

Still, a majority of voters approved Question 1 and with good reason: Currently, there are no background checks required for private party gun sales, and thus no way for a gun seller to be sure he or she isn’t supplying a firearm to a felon, a mentally ill person or a domestic abuser. And that’s not a good thing.

The trouble is, because the initiative says specifically gun dealers may not use the state’s database, and because there’s no way to cover the costs even if it did, there’s a huge catch hamstringing a well-intentioned, much-needed initiative. This may well keep the law from ever serving the purpose for which more than 558,000 Nevada voters gave their assent.

And it’s all because of money.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.