On Monday, District Court Judge Joe Hardy, Jr., ruled against Nevadans for Background Checks in their suit against Governor Brian Sandoval (R) and Attorney General Adam Laxalt (R) for refusing to implement 2016’s Question 1. Despite voters narrowly approving the background checks initiative, the “gun show loophole” remains alive and well in Nevada thanks to the dispute over how to implement the provision requiring the FBI to conduct background checks on most “private sale” gun purchases.
So was this law doomed from the start, as Laxalt likes to claim? Or might there yet be a way to implement the will of the voters?
Whose fault is it anyway?
In June, both sides made their respective pleas to Judge Hardy in a packed courtroom at the Las Vegas Regional Justice Center. On one side, Nevada Solicitor General Lawrence VanDyke proclaimed, “This is such a legally flawed case that it will be dismissed entirely.” He argued that Sandoval and Laxalt did what they were legally required to do, including making the ultimate decision not to enforce the background checks law because the State of Nevada can not dictate how the federal government utilizes its resources.
On the other side of the courtroom, Nevadans for Background Checks attorney Mark Ferrario countered, “The simplest thing this Governor could have done was to send a letter to the FBI. […] There was not one letter from the the Governor to the FBI indicating how Question 1 would be enforced.” Ferrario argued that Sandoval and Laxalt were never sincere in their intent to implement the law, and that they failed to utilize the simplest way to break the FBI logjam: change the state’s point of contact status, so that the federal government can handle more background checks.
In his ruling, Judge Hardy determined that the court can not “direct the Governor on how to act or alter the Governor’s decisions.” Hardy dismissed what he called the “emotional arguments” of the plaintiffs as he declared that he could not agree to “wordsmithing executive branch communications” as the plaintiffs saw fit.
Is the background checks law dead, then?
In his ruling, Judge Hardy stated that the courts can’t force the Governor to take certain actions. He didn’t, however, rule that certain actions can’t be taken by a future Governor. As Sandoval prepares to leave office, and as Laxalt’s locked in a tough race against Clark County Commissioner Steve Sisolak (D) for the right to succeed Sandoval, this is where the gun fight turns political.
Shortly after the decision was announced, Sisolak’s campaign declared, “Nevadans deserve better and, as governor, Steve will move swiftly to see that commonsense background checks are implemented.” Thus far, Sisolak has advocated more aggressive action on gun violence prevention, including implementing the stalled background checks law. In contrast, Laxalt campaigned against Question 1 in 2016 and continues to oppose closing the loophole that allows anyone to purchase weapons at gun shows and on the internet without having to go through a background check.
What happens next?
Thanks to Hardy’s ruling, the final fate of the background checks law lies with this year’s election. Should Laxalt win, the background checks law will probably remain dead in the water, as Laxalt has maintained a close relationship with the NRA (and the NRA remains strongly opposed to expanding background checks).
But if Sisolak wins, and if Sisolak follows through on his promise to close the background checks loophole once and for all, there are two potential courses of action. One would be to wait until at least November 2019, when the Legislature will legally be allowed to modify the voter-approved ballot initiative. Since Democrats are likely to at least maintain their majorities in the Legislature this fall, Sisolak could call a special session late next year or early in 2020 to change the provision of the law that dictates who conducts the background checks.
The other possible course of action is changing the point of contact rule that sparked the conflict with the FBI in the first place. Since 1998 the Nevada has been a full point of contact state, in that the Nevada Department of Public Safety currently conducts all required background checks utilizing the state’s criminal database and mental health records. However some nine other states have what’s considered a dual point of contact system where the states conduct certain background checks as they see fit, and have the FBI run other background checks through its NICS system. Should Sisolak win the Gubernatorial election, he could try reopening dialogue with the FBI by notifying them of Nevada’s intent to pursue such a dual point of contact system that allows private gun sales (that were not required to undergo background checks before Question 1 passed) to run through NICS.
Whatever ends up happening to Question 1, the matter now moves out of Hardy’s courtroom and into the court of public opinion. The matter was initially decided by voters directly, but now voters must weigh in again as they decide whether to elect a Governor who wants to save the background checks law, or one who’d like to continue leaving it for dead.