“Universal” Background Checks Unenforceable
As discussed here before, Question 1 on the November 2016 ballot required background checks for all private firearm transfers in Nevada (read the text here). Since that question passed by the narrowest of margins (a fine argument against legislating through “mob rule” ballot initiatives), Nevada’s Attorney General has issues an opinion that the law is unenforceable (read that opinion here). If you don’t want to read that, the opinion essentially states that since the FBI won’t conduct the required background checks and there is not provision for state agencies to do so, the ballot question and the resulting law are unenforceable. Private sales without a background check will be allowed after January 1, 2017.
But don’t get too excited. This is only an opinion by the sitting AG. It carries legal weight and will likely be heeded by local DA’s and prosecutors but it is not a guarantee. The law is still on the books. A future AG could reverse the decision. The Democrat controlled legislature could try to “fix” the law, though the ballot initiative language in the state constitution seems to forbid that, even to “fix” the language. An overzealous local official could decide to take a stand and prosecute anyway. The law is on the books and, therefore, private transfers without a check are still technically illegal.
I would expect court battles over this in the coming months. Expect the legislature, controlled by Democrats that largely support the law, to try to do something. As for now, the State’s AG has stated, “citizens may not be prosecuted for for their inability to comply with the Act.” It may not be legal but you are unlikely to be prosecuted, especially considering there is really no way to know you’ve transferred a firearm privately, most law enforcement agencies consider the law unenforceable and aren’t going to spend any resources on it and you have the AG’s opinion in your favor. But you COULD be prosecuted. Use your own judgement. If you transfer a firearm privately, don’t advertise the fact. With the law on the books, gun owners will still be forced to conduct their legal and Constitutionally guaranteed business in the shadows. Getting the law off the books should be every Nevada gun owners goal.