Policy to include concealed weapons permit holders in background checks disputed by pro-gun rights group

More than 130,000 Nevadans with concealed weapon carry permits will not be exempted from the state’s new background check law when it goes into effect next year, despite an existing carve-out for gun purchases made from licensed firearm sellers.

The state’s Department of Public Safety in late October sent a letter to inform all federally licensed firearm sellers in the state that individuals with a CCW license will not be allowed to avoid undergoing a background check for a private sale or transfer of a firearm — even though CCW permit holders typically don’t have to undergo a background check when buying a gun from a retail store.

The requirement comes from a new law, SB143, which was passed in the first month of the 2019 legislative session and requires background checks to be performed prior to nearly all private party firearm sales and transfers in the state. The legislation corrects and implements issues from a narrowly voter-approved background checks initiative from 2016 that was never enforced because it required the checks to be performed by the FBI, which refused to do so. A legal fight ensued but was largely nullified after the bill was signed into law by Gov. Steve Sisolak in 2019.

In a statement to The Nevada Independent, DPS spokeswoman Kim Yoko Smith said that the department sent out the letter to answer “anticipated” questions about the new requirements, while citing minutes from the bill’s lone hearing on Feb. 12 that show a “clear legislative history” that lawmakers intended to include CCW holders in the new requirements. 

“Because the Nevada DPS, Records Communications and Compliance Division is the Point of Contact that conducts background checks in this State, the intention of the letter was to answer questions that were anticipated regarding background checks for private party transfers or sales under this new Nevada law,” she wrote in an email.

But the letter has prompted concern from the Nevada Firearms Coalition (the National Rifle Association’s state-specific affiliate partner), which sent a letter to state officials earlier this month asking them to reconsider the decision in light of federal policies to allow some CCW holders avoid going through a background check.

“DPS needs to abide by state and federal laws instead of making determinations based on legislative minutes that have no legal weight or authority,” Nevada Firearms Coalition President Don Turner wrote in the letter.

Although the legislation doesn’t explicitly mention licensed concealed carry weapon holders, testimony from the February hearing on SB143 from Everytown for Gun Safety Action Fund attorney William Rosen indicates that backers of the bill believed that the background checks should also apply to licensed CCW permit holders.

Responding to a question from Republican Assemblywoman Jill Tolles, Rosen said that the reason for not excluding CCW permit holders from the provisions of the bill was because Nevada law allows CCW permits to remain valid for five years, and that requiring a background check was an additional safeguard that could prevent a prohibited person from buying a firearm.

“People may become subject to restraining orders or anything else that prohibits gun ownership,” he said during the meeting. “If a background check is done at each point of sale, it is a quick and easy process and one more safeguard.”

Rosen echoed that position in an email to The Nevada Independent, saying that requiring background checks on every firearm sale, even for CCW holders, “helps ensure that those who are legally prohibited from having guns can’t slip through the cracks and arm themselves."

Like most states, Nevada does not require individuals to obtain a license or state permission to obtain a firearm, but does add several additional requirements for anyone who wishes to legally carry a concealed firearm.

To acquire a CCW permit, applicants must be at least 21 years old (18 is the minimum age to purchase and possess a firearm) and complete an eight-hour concealed firearm permit course approved by the county sheriff — individual sheriffs are required to issue a license to any applicable person within 120 days, or deny the application for a lawful reason.

As with background checks for firearm purchases from licensed sellers, a concealed carry permit can be denied if a person has an active arrest warrant, past convictions for violent misdemeanor, DUI, felony or domestic violence charges or are not legally in the country.

But that interpretation has drawn criticism from the Nevada Firearms Coalition, which says it would create an unwieldy tiered system of background checks for CCW holders.

The 1993 federal Brady Act, which implemented the requirement for background checks and other limitations on firearms sales, contains a provision that allows states to consider a concealed weapon permit as an alternative to a normal background check for firearms sales, as long as the background check for the CCW purchase checks the same boxes that a federal background check would require. 

These exemptions are listed by the federal Bureau of Alcohol, Tobacco and Firearms, and Nevada is one of the roughly two dozen states allowed to have CCW permits to count for background checks.

One complicating factor is that the new state requirements for background checks are run through Nevada’s own background check system, and does not rely on the federal government’s National Instant Criminal Background System. 

In an interview, Turner said that he has not yet heard back from DPS regarding his group’s disagreement with the agency’s interpretation of the law. He raised other concerns with the policy, including the possibility of CCW holders being charged fees to undergo background checks by licensed firearms dealers, but said he wanted to contact state lawmakers before considering any sort of legal action against the state.

“We think they’re really stepping over their authority,” he said.

As of November 2019, there are more than 130,000 active CCW permits throughout the state, with the bulk coming from the state’s population centers in Clark County (79,524) and Washoe County (23,180). But Nevada’s rural counties tend to have a higher percentage of concealed carry permits, including 15 percent individuals in Nye County and 13 percent of the 4,029 people in Storey County.

Nye County Commission demands lawmakers 'cease any action' restricting Second Amendment rights

A photo of the sign next to the road entering Nye County.

Nye County commissioners are formally demanding that Nevada lawmakers “cease any action restricting the Right of the People to keep and bear arms,” and say bills lawmakers propose along those lines “will not be tolerated.”

Commissioners unanimously passed the resolution during their regularly scheduled meeting in Tonopah on Monday. The measure also demands that Gov. Steve Sisolak veto any measure infringing on Second Amendment rights.

“Elected officials take an oath of office to support the Constitutions of Nevada and the United States,” Don Turner, president of the Nevada Firearms Coalition, said in a statement, “and these statements reaffirm to the Nevada Legislature, that oath of office.”

The resolution comes a week after Nye County Sheriff Sharon Wehrly announced she would not be enforcing a newly passed law requiring background checks on almost all private party gun sales and transfers signed into law by Sisolak last month. The measure won’t take effect until Jan. 2, 2020.

Six other sheriffs have made similar declarations, according to the firearms coalition.

The Elko Daily Free Press reported last week that the Elko County Commission will consider a resolution at its March 20 meeting that would essentially declare that the county would not enforce the background check law. Elko County Sheriff Aitor Narvaiza told the paper that other rural counties, including White Pine, Eureka, Douglas, and Lander, will also be expressing their disagreement with the law.

The resolution describes “infringements” on 2nd Amendment rights to include “any laws that deny due process for the civil forfeiture, seizure, confiscation, destruction or other regulation of privately owned and possessed firearms by persons who have not been adjudicated as prohibited possessors per Nevada and/or federal statutes.”

It also opposes “any laws that order the surrender, civil forfeiture, seizure, confiscation or destruction of personal property that was not illegal prior to 2019, and is in violation of constitutionally protected property rights, the establishment of a centralized database for firearms ownership” and “firearms laws that are not applied equally across all jurisdictions, cities, towns, and counties within the State of Nevada.”

It excludes any law prohibiting the sale or possession of guns by felons or people with a history of dangerous mental illness.

Democrat Steve Yeager, chairman of the Assembly Judiciary Committee that hears bills related to gun laws, said the resolution would not change the way the Legislature conducts business and said he disagreed that proposals under consideration this session violate the 2nd Amendment.

“I would not vote for or advance a bill that I believe violated a constitutional amendment so I strongly disagree with that sentiment. And in fact I don’t think [the Legislative Counsel Bureau’s Legal Division] would authorize a bill that was unconstitutional,” he said. “So [they’re] certainly entitled to their opinion, but I don’t think we’ve done any of that this session nor do I anticipate we will.”

This story was updated at 12 p.m. on March 12, 2019 to add comment from Steve Yeager.