A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.
But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”
According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”
He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”
He received several rounds of applause the newspaper reported.
The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.
The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”
“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.
The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”
Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.
AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.
It must be overturned and litigation is the proper route to do so.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, Sparks Tribune and the Lincoln County Record.
WINNEMUCCA – Nevada Republican Party officials, seeking to put 2018 state losses behind them and set a glide path for nominating President Donald Trump for a second term in 2020, re-elected their incumbent chairman and other party leaders Saturday and formally took the party out of holding a presidential caucus to choose its candidate in February.
The Silver State’s GOP thus becomes the latest state party to all but formally endorse the sitting president more than a year before the election, though central committee members stopped short of nominating him outright. That vote, per Republican national committee rules, won’t happen until February, state leaders said Saturday.
But by opting against a caucus, a move favored by the Trump campaign in Nevada and elsewhere, state Republicans do avoid a contest that could sow division and would cost the party money, but whose outcome would not be much in doubt.
Republicans in South Carolina and Kansas voted to forgo their states’ primaries earlier Saturday, and Arizona Republicans were expected to follow suit as well.
“We have an incredible incumbent who’s very strong,” Douglas County’s Amy Tarkanian told fellow delegates as party faithful debated the move. “And I think it would be a slap in his face if we did not pass this.”
The measure was approved on a show of raised hands. Those who spoke against it said skipping the presidential caucus would sharply curtail participation and enthusiasm for other caucus contests, which will continue as normal.
“It is not only about money. It’s also about the individual’s right to go to the (caucus) and cast a vote,” said Clark County delegate Mary Beganyi. “You want to elect Republicans? Engage Republicans.”
Meeting Saturday in Winnemucca, the county seat of strongly-Republican Humboldt County in Northern Nevada, far from Democratic strongholds in the south, party officials also backed the full slate of incumbent leaders, all Trump stalwarts who enjoy the similar backing of the president.
Chairman Michael McDonald, who has served since 2012, easily won a three-way race with 57 percent of the vote, or 205 out of 362 votes cast, beating back opponents who sought to blame him for the party’s losses in 2016 and 2018.
Trump lost the state in 2016, and Republicans suffered steep losses in 2018 up and down the ballot, including races for U.S. Senate, three of four U.S. House races, and the governor and attorney general races. Secretary of State Barbara Cegavske remains the only Republican statewide elected official.
McDonald defeated Mesquite Councilwoman Annie Black, who received 102 votes, and former Clark County GOP chairman Dave McKeon who won 54.
The caucus opt-out had the backing of the chairman and leadership.
“Caucuses are expensive,” McDonald said during a break in the meeting. He noted that county party organizations had their eyes on reversing 2018’s losses in state legislative races and wanted to “focus on and put the resources where they’re needed.”
In Nevada, Democrats hold a 73,000 active registered voter advantage over Republicans on the strength of their 165,000-voter lead in Clark County, where 71 percent of Nevada’s voters reside. Republicans have a registration advantage in the state’s other 16 counties. State active-voter registration is 38 percent Democratic, 33 percent Republican, and 22 percent nonpartisan according to August figures from the secretary of state’s office.
It was a senseless and futile gesture, but our Democratic lawmakers and governor were just the ones to do it.
Despite the fact Nevada voters in 1994 and 1996 amended the state Constitution to declare “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form,” the 21-member state Senate approved the extension of taxes and fees that were supposed to be curbed with a 13-8 vote, one vote short of the constitutionally mandated two-thirds. Gov. Steve Sisolak signed the tax extensions into law.
The eight Republican senators who voted against the tax extensions and three companies that would have to pay the higher taxes have sued in district court in Carson City, asking the court for a temporary restraining order and a permanent injunction against enactment of the laws.
The Democrats charged ahead with tax and fee extensions after their compliant Legislative Counsel Bureau (LCB), the lawmakers’ lawyers, issued an opinion that a two-thirds vote was not necessary since the taxes were not being “raised” but merely allowed to continue at a rate that was scheduled to be reduced, paying no heed to the fact the bills in question “generate” public revenue. Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.
When Republicans first threatened to sue, Sisolak confidently stated, “We’ve got legal opinion from LCB that, you know, a simple majority is what’s needed. I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”
After the suit was actually filed, a somewhat less assured Sisolak was quoted by the pressas demurring, “I remain absolutely committed to taking action if necessary following the court’s decision to ensure our schools continue to receive the total amount of funding approved by the Legislature for the … biennium.”
According to the governor’s executive budget at the end of that biennium there is expected to be a rainy day fund balance of $415.2 million, more than enough to cover the $98 million that the extension of the modified business tax rate and the $7 million that the $1 Department of Motor Vehicles technology fee extension are expected to generate.
The modified business tax extension is scheduled to begin being collected on Oct. 1 and the technology fee was set to end on July 1, 2020.
So, what was the point in pushing the constitution-ignoring legislation?
Senate Republican Leader James Settelmeyer said in a statement released to the media after the suit was filed, “We have checks and balances for a reason and eroding the two-thirds requirement is an unprecedented disregard for the constitution and creates a dangerous precedent. While there was ample money to fund education and other vital programs, Sisolak and (Senate Democratic Leader Nicole) Cannizzaro acted recklessly and their behavior created an unnecessary constitutional crisis at the expense of over 23,000 small business in Nevada.”
The lawsuit itself makes abundantly clear the stakes involved here: “This action involves an issue of of significant public and statewide importance as it seeks to uphold and protect the constitutional amendment proposed by citizen ballot initiative adopted and overwhelmingly approved by Nevada voters in 1994 and 1996. As provided in Article 1, Section 2 of the Nevada Constitution, political power is inherent in the people. Government only has power from the consent of the governed, and the residents and citizens of the State of Nevada twice voted strongly in favor of amending the Nevada Constitution to add the two-thirds requirement, and the two-thirds requirement has, at least prior to 2019, been applied consistently to legislative bills extending sunsets by the Nevada Legislature.”
The Republican senators and three companies, of course, are asking for recovery of reasonable attorney fees and costs. So, the taxpayers are likely to get stuck with all the costs from both sides.
The suit further noted that lawmakers “had enough money to fund the State’s budget without the public revenues created, generated or increased as a result of the changes to the payroll tax …”
So the passage with less than two-thirds votes was senseless, and, once the courts correctly rule that a two-thirds vote was constitutionally necessary, it will have been futile.
A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.
by Thomas Mitchell
“We’ve got legal opinion from LCB (Legislative Counsel Bureau) that, you know, a simple majority is what’s needed,” Gov. State Sisolak was quoted as saying Tuesday. “I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”
Be prepared to move back, governor, by nearly $100 million in your budget for the next two years — the budget that promises 5 percent raises for teachers.
Republicans have promised a legal challenge if the business tax was extended without a two-thirds majority of both houses as prescribed by the Constitution. The tax extension passed the Senate on a party line vote of 13-8, one vote shy of two-thirds.
Voters in 1994 and 1996 amended the Nevada Constitution to state “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”
The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have.
But the compliant LCB told the majority Democratic lawmakers and the Democratic governor, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”
The bill clearly “generates” revenue that two-thirds of the lawmakers in 2015 said would decrease as of July 1, 2019.
The state Constitution is not something to tamper with. Republicans should take it to court and make the Democrats abide by the rules, even if it means a special session would have to called. In fact, the GOP lawmakers should go directly to the state Supreme Court for an opinion that would binding, unlike the LCB opinion “that future decrease or expiration is not legally operative and binding yet …”
Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary. So, governor, when do you trust your attorneys?
Source: See you in court, governor