Question 1 has been impaled on a Catch-22.

You remember Question 1, don’t you? It was on all the ballots in Nevada and passed with a mere 50.45 percent of the vote, failing in every county except Clark. It requires almost all private sales or transfers of firearms to be cleared by a criminal background check. Failure to comply would result in up to a year in jail and a $2,000 fine.

But Attorney General Adam Laxalt’s office has opined that the drafters of Question 1 were too smart for their own good and created a law that cannot, at this time, be enforced, because the federal agency that is specifically required by the law to carry out said background checks refuses to do so.

The ballot summary stated: “The background check would be conducted using the National Instant Criminal Background Check System (NICS) administered by the Federal Bureau of Investigations (FBI), and the federally-licensed dealer would be able to charge a reasonable fee for conducting the background check and facilitating the firearm transfer between unlicensed persons.”

But earlier this month the official in charge of the FBI’s criminal background check system sent the state a letter saying his office would not conduct those background checks because Nevada is one of the many states that has entered into a sort of mutual aid pact in which the state becomes the Point of Contact for background checks. The state Department of Public Safety is given access to the NICS data bank and uses that and its own resources to conduct background checks for firearm sales.

The head of NICS said a state law cannot require a federal agency to expend resources and it will not.

Since the law specifies that background checks must be conducted through the NICS, the Department of Public Safety is prohibited from conducting the background check, the AG opinion states.

“The FBI’s refusal to carry out the central function required by the Act effectuates an unconditional ban, at present, on all private firearm sales or transfers in Nevada,” the opinion concludes. “Criminal conviction, the only method by which the Act may be enforced according to its terms, is the ostensible penalty for selling or transferring a firearm in violation of this unintended ban. As a matter of due process, this makes the Act unenforceable as a criminal law. The Nevada Supreme Court long ago adopted the doctrine that the law does not require impossible acts. When a law imposes a requirement that cannot be performed, a party is relieved of compliance until the obstacle to performance is lifted.”

Catch-22.

The law specifies one and only one method for conducting criminal background checks, thus prohibiting the state from doing so. Therefore, the law is unenforceable.

In his book of the same name this is how Joseph Heller explained Catch-22: A doctor said a certain pilot could be grounded from flying World War II combat missions because he was crazy, but first he would have to ask to be grounded, which would indicate he is sane, because only an insane person would willingly fly dangerous missions.

“There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind,” Heller wrote. “Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to.”

Here is how the AG opinion signed by Bureau Chief Gregory Zunino further explains it: “Here, similarly, while the Act imposes a duty on every Nevadan who seeks to privately sell or transfer a firearm, the Act has also created an obstacle — wholly beyond their control or that of the State itself — that currently presents them from meeting that duty. As a consequence, a law that the voters clearly intended to impose mere conditions upon the private sale or transfer of a firearm now operates as a total ban, clearly at odds with the intent of voters. When criminal penalties are threatened, the doctrine against requiring impossibilities is strengthened by due process and other constitutional guarantees. It is manifestly unjust to criminally penalize someone for failing to perform an act that is impossible to perform.”

We hope this law just disappears down the rabbit hole from whence it came.   — TM

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