Even Adam Laxalt didn’t argue Nevada’s background check law was unconstitutional.
“According to its plain text, the Act preserves a preexisting right in Nevada to sell or transfer firearms between private parties. The Act’s background check requirement was intended to be a mere condition precedent to the sale or transfer of a firearm…” Laxalt wrote when, as Attorney General, he argued the bill was technically unenforceable.
“A mere condition” of sale.
Laxalt reiterated the point elsewhere in his opinion, describing the background check measure approved by voters in 2016 as “a law that the voters clearly intended to impose mere conditions upon the private sale and transfer of a firearm.”
There it is again — “mere conditions.”
Adam Laxalt. What a squish. Who knew?
“For me,” wrote Nye County Sheriff Sharon Wehrley this week, who evidently is not a squish, the background check is about much more than mere conditions.
“This gun legislation is a political statement,” Wehrely wrote, “and as such in direct conflict with the Second Amendment’s delineated rights, a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
In the original text of the Constitution, “Militia,” “State,” and “Arms” are all capitalized. But if we begin quibbling about 18th Century capitalization, then we’ll start quibbling about its punctuation, and goodness knows that ship has sailed.
Anyway, did I mention Wehrley is not a squish like Adam Laxalt? To her, Nevada’s background check law is not only unconstitutional. It is Hitler.
“In Germany prior to WWII we saw Hitler place restrictions on the right to bear arms,” she wrote in a letter to Gov. Steve Sisolak, or should I say … “HITLER!!!!!”
Meanwhile, back in the reality-based community, 20 states currently regulate private gun sales, including many requiring background checks, and including at gun shows, which is pretty much what Nevada’s legislation is about.
The people in all those states are also Hitler, obviously. But more to the point, Wehrley, and the law enforcement officials scattered across lightly populated portions of mostly rectangularly shaped states out West who she is parroting (who in turn wittingly or not are doing the NRA’s bidding), would have us believe that those laws simply must not and cannot stand because they are unconstitutional
Yet there they all are, still on the books.
Wehrley & Friends bring to mind one of the most famous headlines in the history of The Onion, “Area Man Passionate Defender Of What He Imagines Constitution To Be.”
I’m no constitutional law expert-texpert. But it seems a tad far-fetched to assert that regulating, to quote Laxalt, “mere conditions” of gun sales is unconstitutional.
Writing the opinion for the 2008 Heller decision, in which the U.S. Supreme Court rejected a couple hundred years of U.S. historical precedent and jurisdictional practice to embrace a newfangled interpretation of the Second Amendment that only emerged in the late 20th century, Antonin Scalia famously (and in the judgment of many of the country’s most prominent historians, mistakenly) asserted that the amendment was intended to protect an individual right to bear arms.
But just as famously, Scalia also wrote:
…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government building, or laws imposing conditions and qualifications on the commercial sale of arms.”
Ah, but Scalia said “commercial sale” not private sale so … never mind?
Eh, not so fast. It turns out Scalia made some other points in the Heller decision too.
Here’s a fun passage, written a couple years ago by former congressman and judge Abner Mikva and law professor Lawrence Rosenthal:
The Second Amendment is the only provision in the Bill of Rights with a preamble, which announces its purpose: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The Heller decision, in turn, described the “militia” not as a formal military organization, but as everyone qualified to keep and bear arms.
The Second Amendment therefore means that all who exercise firearms rights should be “well regulated.”
If rural Nevada sheriffs want to play copycat to their counterparts in Washington state (Washingtonification!) and New Mexico (New Mexicanization!) and declare they simply are not going to enforce state laws they don’t like, who knows, maybe it will lead to a glorious TV-ready standoff, and media the world over will gawk in wonder at the rural West and it’s “colorful characters” and peculiar idiosyncrasies. Rural Nevada sheriffs can reignite all that magical Bundy-style public relations charm for Nevada. Yippee!
Or maybe the NRA will bankroll some lawyers for Wehrley & Co. and they can go shopping for one of those deeply unqualified NRA-loving Trump-appointed federal judges, shimmy the case all the way up to the
McConnell Roberts Court, and get regulations of private gun sales struck down throughout the nation, because Hitler.
It could happen.
In the meantime, Wehrley and some other local Nevada officials are saying they are simply going to ignore Nevada’s background check law, because they don’t like it.
Sounds legit. Because if they do that, presumably Clark County can just start ignoring laws, too. Like, say, the laws that say sales, gaming, and other tax revenue generated in Clark County gets shared with rural counties.