On Tuesday, we reported on a new lawsuit filed in Virginia that takes on the state’s new universal background check law, which is scheduled to take effect on July 1st. The lawsuit is being brought by the Virginia Citizens Defense League and Gun Owners of America, along with several individual plaintiffs, and seeks an injunction blocking the law from going into effect on July 1st. Already in Virginia private transfers conducted at gun shows in the state can go through background checks if private sellers volunteer to do so, but contained within the new lawsuit is some stunning information about the legality of that process.

Back in 2015, Virginia Attorney General Mark Herring decided that he was going to unilaterally end concealed carry recognition with dozens of states, which caused a major backlash from gun owners in Virginia and neighboring states. Governor Terry McAuliffe, always eager to appear to be moderate, crafted an agreement with the (at the time) Republican controlled legislature. In exchange for what amounts to universal recognition of other states’ concealed carry licenses, the legislature signed off on the voluntary background checks at Virginia gun shows. SB 715 sailed through the legislature, and while few checks have been conducted in the years since, it’s been an option for those who want to use it.

As outlined in the lawsuit, and in a new column by GOA’s Erich Pratt, the Virginia State Police apparently never had the legal authority to run those voluntary checks.

Apparently realizing that S.B. 715’s private background checks could not be implemented under federal law, the administration of Virginia’s anti-gun Democrat Governor and Attorney General began to scheme with the FBI, under its anti-gun Director James Comey, to find a way to end-run the federal prohibition on NICS checks for private sales.  From November 2015 to January of 2016, the VSP and the FBI exchanged a series of emails, which were recently obtained by Gun Owners of America through a state records request.

In those nonpublic emails, the FBI advised Virginia that it could not approve use of the NICS System for a private “voluntary background check,” but if VSP would instead agree to call the background check a “permit” system for the buyer — which it’s clearly not —  then the FBI could approve VSP’s use of the NICS System under the federal exception for NICS checks for “issuance of a firearm-related … permit or license.”  28 C.F.R. § 25.6(j)(1).

Of course, S.B. 715 neither establishes nor requires a “permit” or a “license” to conduct a sale between private parties, but those are “just words.”  Getting cutesy with the English language, the McAuliffe administration drafted an Executive Order to create — out of thin air — a “special permit” to run a “voluntary background check.”  Tada!  Problem solved?

VSP asked the FBI if the draft Executive Order and the proposed “special permit program” would qualify for the federal exemption.  On January 4, 2016, the FBI replied that such a “permit” system would qualify, but that “Virginia … will have to determine whether its law allows the establishment of a firearms-related permit by Executive Order.”

Unbelievably, after Comey’s FBI signed off on the nonsensical “special permit program” as long as the state approved the establishment of such a program via an executive order, McAuliffe failed to actually issue the EO. Pratt says that means that for the past four years, any voluntary background check performed by the Virginia State Police has been illegal, though law enforcement from the FBI on down have apparently turned a blind eye to it.

These voluntary checks will go away if the state’s universal background check law takes effect on July 1st, but McAuliffe, current governor Ralph Northam, and the Virginia State Police still owe gun owners an explanation. At the moment, it sure looks like these gun control advocates haven’t been willing to follow the law, even though that’s what they demand of gun owners in the state.