Seton Hall Legislative Journal 1992
Symposium: Emerging Constitutional Rights: Health Care and Education
Note, p.245
Posted for educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
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GUN CONTROL: THE BRADY HANDGUN VIOLENCE PREVENTION ACT
Marc Christopher CozzolinoCopyright © 1992 by the Seton Hall University Law Center; Marc Christopher Cozzolino
Introduction
In recent years, the issue of gun control has sparked volatile debate both on Capitol Hill and throughout the nation. Gun control advocates argue that more stringent federal laws would deter violent crime. [1] Powerful lobbying groups such as the National Rifle Association (NRA) have spoken out against this legislation as an unconstitutional infringement on the right to bear arms. [2] Indeed, the overwhelming statistics on violent crimes involving handguns present a stark sense of reality that has prompted many legislators to action. According to a 1990 Department of Justice report, between 1979 and 1987, criminals armed with handguns assaulted 693,000 people. [3] In New York City alone, more than fifteen children were killed by stray gunfire this year. [4] But, perhaps the most shocking incident that galvanized Congressional action on gun control was the violent assassination attempt perpetrated by John Hinckley, Jr. [5] The assailant himself was quoted as saying that a waiting period for handgun purchases would have deterred his efforts. [6] Although the 1981 assassination attempt was highly publicized, the number of violent crimes involving handguns continued to escalate throughout the country. [7] These alarming statistics, coupled with increased [p.246] public interest, prompted Congress to formulate legislation which would strengthen the current federal gun control laws.
This note will examine the debate surrounding the Brady Handgun Violence Prevention Act of 1991. The provisions contained in both the House [8] and Senate [9] versions of this Act would amend Title 18 of the United States Code, to require a waiting period before the purchase of a handgun. [10] Part one of this note will focus on related federal legislation that led to the Act. Part two will present a discussion of both the House and Senate versions of the Brady Handgun Violence Prevention Act. Part three will examine the various legislative proposals and the legislative history of the Act. Part four examines public and law enforcement opinion on the Act. Lastly, part five addresses the various constitutional issues implicated by this Act.
I. Related Federal Legislation
A. Gun Control Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968, [11] as amended by the Gun Control Act of 1968, [12] represents Congress' first attempt to promulgate gun control legislation. [13] Pursuant to Title IV, it is unlawful for any person "who is under indictment for, or who has been convicted in any court of a crime [p.247] punishable by imprisonment for a term exceeding one year" to ship, transport or receive any firearm or ammunition in interstate commerce. [14] The primary purpose of the 1968 Act was to keep "firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetency." [15] Furthermore, Congress found that the relative ease with which firearms could be obtained contributed to the rise of crime. [16] In an effort to curb the prevalence of crime, Congress sought to attenuate one of the main sources of lawlessness and violence. [17] Thus, the Gun Control Act of 1968 laid the basic conceptual foundation for what was to follow in terms of federal gun control legislation. Although the subject of gun control was largely dormant for thirteen years, it once again became an issue warranting national concern in the 1980s. As previously indicated, the single most important event which rejuvenated this debate was the assassination attempt on President Reagan on March 30, 1981. [18]
B. Anti-Drug Abuse Act of 1988 (H.R. 4916)
1. Brady Amendment--H.R. 975
Despite increased public attention on the issue of gun control, no legislative proposals were introduced in Congress until seven years after the assassination attempt. On February 4, 1988, Representative Edward Feighan (D- Ohio) introduced H.R. 975 which provided for a seven-day waiting period before any person could sell, deliver or transfer a handgun to someone who was not licensed under the Gun Control Act of 1968. [19] Under this Act, a prospective purchaser would have been required to sign a sworn statement which the handgun dealer would send to [p.248] the local chief law enforcement officer for verification. [20] If, after the seven-day waiting period, the dealer did not receive notification from the chief law enforcement officer that the purchaser's receipt of the handgun would violate federal, state or local law then the transfer could be initiated. [21] Initially, H.R. 975 did not preempt state gun control legislation if there was a preexisting waiting period of at least seven days prior to the transfer of a handgun. [22]
On June 30, 1988, during the Judiciary Committee's markup of an omnibus drug bill that was to be incorporated in the Anti-Drug Abuse Act of 1988 (H.R. 4916), Feighan proposed H.R. 975 as an amendment to the bill. [23] Feighan's amendment was adopted by the Committee and became section 903 of H.R. 4916. [24]
2. The McCollum Alternative
During the June 30 mark-up of the Anti-Drug Abuse Act of 1988, Representative William McCollum (R-Fla.) offered a substitute amendment for Representative Feighan's gun control provisions. [25] This amendment required the Attorney General to develop a system for the immediate and accurate identification of felons who attempt to purchase firearms. [26] The amendment, however, was rejected by the House Judiciary Committee.
On September 15, 1988, when H.R. 4916 was brought before the full House for a vote, Representative McCollum again offered his amendment as a substitute for the waiting provisions [p.249] of section 903 of H.R. 4916. This time, the House adopted the McCollum amendment, which replaced the Feighan amendment (a.k.a. the Brady amendment) and became section 6213 of the Anti-Drug Abuse Act of 1988. [27] Pursuant to section 6213, the Attorney General was instructed to establish a plan for implementation of a felon identification system and to report back to Congress after the Act's passage. [28]
Attorney General Richard Thornburgh issued his initial report to Congress on November 20, 1989. [29] This report contained two basic options regarding a felon identification system. The first option would entail a point-of-sale identification, while the second option would establish a pre-approval procedure. [30] The report indicated, however, that the prior approval system would present greater costs; whereas, the point-of-sale system would be more cost-efficient. [31] The Attorney General then attempted to research all of the possible shortcomings of a felon identification system from a technical, procedural and legal perspective. [32]
From a legal standpoint, there were certain problems with this Act. For instance, section 6213(c) relied on the definition of "felon" specified in the Gun Control Act of 1968 which is ambiguous in itself. [33] As pointed out in the Attorney General's report, criminal background checks are not without their imprecision. [34] Section 6213 of the statute mandated an "accurate identification of felons who attempt to purchase firearms;" however, it did not [p.250] specify the level of accuracy that would be acceptable. [35] Ideally, accuracy must attain the following goals: (1) to correctly identify felons who attempt to purchase firearms and (2) not to reject eligible persons who attempt to purchase firearms. [36] The McCollum Amendment highlighted a fundamental problem regarding felon identification that it and the Brady Amendment must address. The question of whether to have an instantaneous background check or a waiting period has become the main source of division among legislators who support gun control, but differ on the procedural aspects. [37]
C. H.R. 467
Representative Feighan introduced H.R. 467 on January 4, 1989 with certain significant additions. [38] This bill did not require the dealer to send the purchaser's sworn statement to the chief law enforcement officer by certified or registered mail. [39] H.R. 467 is distinguishable from H.R. 975 in that the former allowed the purchaser to obtain a handgun when there was a threat to either his life or a member of his household; H.R. 975 only allowed such a purchase when it was the purchaser's life that was threatened. [40]
Like its predecessor, H.R. 467 required the criminal background check to be performed by state law enforcement officials. [41] This bill included amendments offered by other legislators after H.R. 4916 was reported out of full Committee. [42] On April 5, 1989, H.R. 467 was one of nine measures on which [p.251] two hearings were held; however, the bill was not passed by the full House. [43] This vote spelled the end of gun control legislation in the 101st Congress.
II. Overview of Brady Handgun Violence Prevention Act
A. House Version (H.R. 7)
On January 3, 1991, Representative Feighan introduced H.R. 7 which would amend Title 18 of the United States Code to require a waiting period before the purchase of a handgun. [44] Changes in the bill from prior versions of the legislation include: (1) the requirement that the statement made by the prospective purchaser be sworn; (2) an expansion under the "permit to possess" exemption to include persons with a valid permit to possess issued five years prior to the current sale; (3) background checks done by the state included in permit exemption can be performed by a state government official; and (4) the exemption of mail order sales of firearms from coverage. [45]
The Brady bill's seven-day waiting period requirement would be waived under certain circumstances. [46] First, the prospective purchaser gives the dealer, during a ten-day waiting period ending on the date of the most recent purchase, a statement from the chief law enforcement officer that the firearm is needed due to a threat to the purchaser's or a family member's life. [47] Second, the prospective purchaser presents the dealer with a permit that has been issued no more than five years earlier under the required licensing system of the state in which the present transfer is to occur and has been verified by an authorized government official. [48] Lastly, the state already has a law requiring a waiting period of at least seven days or has a system whereby an authorized government official can verify that the purchaser's receipt of a firearm would not be unlawful. [49]
Under H.R. 7, the seven-day waiting period would be eliminated when a national system for felon identification, as established [p.252] by the Attorney General pursuant to section 6213 of the Anti-Drug Abuse Act of 1988, is made readily available. [50] Under this system the dealer can obtain an instantaneous report verifying that available information does not indicate that the purchaser's receipt of a firearm would violate federal, state or local law. [51]
The substantive aspects of H.R. 7 dictate certain other requirements as well. Pursuant to section (3)(A), the statement [52] shall contain only the name, address and date of birth appearing on a valid identification document, e.g., drivers license. [53] Additionally, section (3)(B) of the Act adds to the category of persons to which the purchase of firearms is unlawful as originally mandated in 18 U.S.C. § 922(d). [54] Section (3)(B) of the Act includes those who have been illegally residing in the country, those who have been dishonorably discharged from the Armed Services, and those who have renounced their United States citizenship. [55] In sum, the Act attempts to keep firearms out of the hands of those individuals who may pose the greatest threat to society.
B. Senate Version (S. 257)
On January 23, 1991, Senator Metzenbaum (D-Ohio), introduced S. 257, a bill which would amend Title 18 of the United States Code, to require a waiting period before the purchase of a handgun. [56] He was joined in this effort specifically by Senators [p.253] Lautenberg (D-N.J.) and Moynihan (D- N.Y.), who represent two states with similar problems with handgun violence. [57] In essence, Senator Metzenbaum's proposal adopted the language of H.R. 7 verbatim.
As Senator Metzenbaum pointed out, current federal law does not effectively prevent convicted felons from purchasing a firearm. [58] Specifically, he noted that in most cases, a convicted felon would enter a gun store, lie about his record, and proceed to purchase a handgun. [59] Senator Metzenbaum posited that a seven-day waiting period would give law enforcement officials enough time to perform an accurate background check on potential purchasers. [60] Senator Metzenbaum conceded that his bill could not completely eradicate the violence associated with firearms because of the prevalence of black market handgun transactions. [61] Senator Metzenbaum did state, however, that the twenty-two states employing similar waiting-period provisions have reported favorable results. [62]
S. 257 does not mandate handgun registration, nor does it deal with the barring or confiscation of handguns. [63] Furthermore, the seven day waiting period for handgun purchases would be phased out after a nationwide system for instantaneous background checks could be developed nationwide pursuant to section 6213 of the Anti-Drug Abuse Act of 1988. [64]
[p.254]
III. Congressional Reaction to the Brady Bill
A. House of Representatives
1. Subcommittee on Crime and Criminal Justice
On March 21, 1991, the Subcommittee on Crime and Criminal Justice held a hearing on H.R. 7. [65] During the course of the Subcommittee hearing, sixteen witnesses were called to testify. [66] Specifically, testimony was received from Paul McNulty, Acting Director, Office of Policy Development, Department of Justice; Dennis Kurre, Deputy Assistant Director, Information Division, Federal Bureau of Investigation; and Sarah and James Brady, on behalf of Handgun Control, Inc. [67] In addition, testimony was received from a panel of families who had each lost a family member through a handgun murder. [68] Representatives from the law enforcement community also participated in these proceedings. [69]
On April 10, 1991, the Subcommittee on Crime and Criminal Justice, with a reporting quorum present, revised H.R. 7. [70] At that time there were no amendments offered, and the measure was ordered favorably reported to the Committee on the Judiciary by a vote of nine to four. [71]
2. Committee on the Judiciary
With a reporting quorum present, the Committee on the Judiciary considered H.R. 7 on April 23, 1991. [72] At this time Representatives Schumer (D- N.Y.) and Sensenbrenner (R-Wis.) offered an amendment. [73] This amendment would delete the requirement that a gun dealer must receive written verification that the local chief law enforcement officer has received the sworn statement before proceeding with the sale. [74] The amendment [p.255] was then adopted by a voice vote. [75]
On the same day Representative Staggers (D-W.Va.) offered H.R. 1412, the Felon Handgun Purchase Prevention Act of 1991. [76] This proposal would require the Attorney General to establish a Federal hotline within six months of enactment. [77] The hotline was proposed as an alternative to the seven-day waiting period, which was vigorously opposed by some members of the House. [78] Under the Staggers proposal, this hotline would inform gun dealers if a prospective purchaser's receipt of a gun would violate federal law. [79] In the event that the purchase of a gun would not violate federal law, the gun dealer would still be required to wait for twenty-four hours before commencing the sale. [80] Under certain circumstances, however, the gun dealer would not have to contact the federal hotline. [81]
The ensuing House debate vividly demonstrates the geographic polarity created by the issue of gun control. Representative Ike Skelton (R-Mo.) spoke in favor of the Staggers Amendment. [82] As he explained:
Those of us from small town and rural America see people using firearms correctly and having respect for them. A 7-day [p.256] waiting period will not make one iota of difference in the crime rates of large cities.... Washington, D.C., a city with one of the highest rates of violent crime, has strict gun control laws.... A waiting period will only hurt law-abiding citizens, not criminals. [83]
Representative D. French Slaughter (R-Va.) also spoke in support of the Staggers Amendment. [84] He acknowledged that the State of Virginia has enjoyed great success with its hotline system. [85] Since its implementation in 1989, 87,723 Virginians purchased firearms. [86] In addition, Representative Slaughter mentioned that the background check prevented 1454 individuals who had criminal records from purchasing firearms. [87] Representative Slaughter concluded by stating that the Virginia system was endorsed by both the NRA and Handgun Control, Inc. [88]
Representative Glenn Anderson (D-Cal.) opposed the Staggers Amendment for mostly practical reasons. [89] First, he noted that the implementation of a background check system on a national level would simply take too long. [90] For example, Representative Anderson noted it would take the FBI between five to ten years to automate its criminal records into a computerized format. [91] Furthermore, Representative Anderson observed that the seven-day waiting period is not cost-prohibitive: the Congressional Budget Office estimated that the Brady Bill would only cost between five to ten million dollars annually. [92]
In addition, Representative Anderson argued that waiting periods have proven effective. [93] In California, a fifteen day waiting period prevented 1793 handgun sales in 1989; this figure increased to 2182 in 1990. [94] Representative Anderson also observed that a national [p.257] waiting period would prevent criminals from purchasing handguns in states that do not require waiting periods and using them in states that do. [95] Finally, Representative Anderson noted that 95% of the American population supported the Brady Bill. [96]
When the flourish of active debate subsided, the House rejected the Staggers Amendment and passed the Brady Bill by a vote of 239 to 186. [97]
B. Senate
1. Comprehensive Violent Crime Control Act of 1991 (S. 635)
On March 11, 1991, in an address to both houses of Congress, President Bush urged legislators to pass a comprehensive crime package within 100 days. [98] President Bush also indicated that he would only consider a gun control measure if it was part and parcel of a larger, comprehensive crime bill. [99] In response to this presidential initiative, Senator Strom Thurmond (R-S.C.) proposed S. 635 on March 13, 1991. [100] This bill included measures encompassing such areas as: imposing a federal death penalty, curbing the abuse of habeas corpus petitions and combating criminal violence involving firearms. [101] [p.258]
Title IV of S. 635 dealt specifically with firearms. Section 419 amends the current law with regard to the reporting of multiple handgun sales within five business days. [102] Under the current law such multiple sales to unlicensed persons must be reported to the Bureau of Alcohol, Tobacco and Firearms (BATF). [103] However, section 419 adds two additional requirements. First, it extends the multiple sales reporting requirements so that it would include purchases of handguns over a thirty-day period. [104] Second, the section adds a requirement that the licensee send a copy of the multiple sales to the chief law enforcement officer in the place where the purchaser resides. [105]
2. Biden-Mitchell Compromise
On June 6, 1991, Senator Joseph Biden (D-Del.) proposed S. 1241, a bill designed to control and reduce violent crime. [106] Biden's bill was the Democratic version of the crime package offered by the Bush administration on March 11, 1991. [107] On the same day, Senate Majority Leader George J. Mitchell (D-Me.) revealed his own compromise proposal for a handgun waiting period. [108]
Mitchell's compromise consisted of a waiting period with a mandatory background check and the authorization of forty million dollars to help states update their criminal records in order to facilitate instantaneous criminal background checks. [109] The receipt of federal funding would be contingent upon compliance with two conditions. [110] Senator Mitchell indicated specific reasons [p.259] for this conditional funding. [111]
S. 1241 was basically a reintroduction by Senator Biden of S. 618, his own Crime Control Act of 1991, with the inclusion of the compromise version of the Brady Bill. According to Biden, the nation needed such a comprehensive anti- crime bill. [112]
3. Thurmond's Compromise
On June 20, 1991, Senator Strom Thurmond (R-S.C.) attempted to have the President's crime bill, S. 635, substitute S. 1241. The one-hundred-day deadline for Bush's proposal was June 14; however, when the time came for a vote on the bill Senate Republicans did not want to support the Thurmond initiative. [113] When Thurmond attempted to amend the measure in an effort to capture more votes, his bill began to closely resemble Biden's comprehensive crime bill, S. 1241.
Debate raged back and forth between the two competing factions in the Senate. Democrats claimed that the GOP bill was, in essence, S. 1241. [114] The only difference was Thurmond added monetary provisions for state and local law enforcement officials patterned after Biden's proposals. [115] Thurmond insisted that S. 635 was still the administration's bill, even though the administration explicitly stated that the extra $3 billion for law enforcement was neither necessary nor available. [116]
When the measure was brought up for a vote it was rejected by a 40-56 vote, which was mostly along party lines. [117] In an effort to salvage the administration's bill, Thurmond and other Republicans attempted to offer parts of S. 635 as individual amendments to S. 1241. [118] [p.260]
4. Stevens' Amendment
On June 28, 1991, Senator Ted Stevens (R-Alaska) proposed an amendment that would replace the waiting period for gun purchases with a mandatory instantaneous background check. [119] The amendment provides for a penalty against the states if they do not have an instant check system implemented and operating twenty-four months from the date of enactment. [120] The penalty for a state failing to comply with the mandatory checks from improved state and federal criminal history records would result in the loss of justice assistance grants. [121] According to Senator Stevens, these mandatory criminal background checks would still preserve the Second Amendment rights of law-abiding citizens. [122] The amendment does not permit the registration of either a gun or a gun owner and it specifically prohibits keeping any records of lawful transactions. [123]
This amendment was met with great opposition. [124] Senate Majority Leader George Mitchell pointed out that the Stevens' amendment was substantially similar to the Staggers' amendment proposed in the House. [125] Mitchell believed that the amendment failed to provide police with the requisite tools needed to make a thorough background check of a prospective handgun purchaser. [126] Therefore, he asserted that the amendment was proposed in an effort to avoid the strict waiting period. [127] Mitchell further stressed that an instantaneous check is neither technologically feasible, nor cost efficient at the present time. [128] As a result, the Senate rejected Stevens' amendment by a vote of 44-54. [129]
5. Mitchell-Dole-Metzenbaum Compromise
June 28, 1991, was a particularly busy day in the Senate. [p.261]
With the defeat of Stevens' amendment early in the day, Senators Mitchell, Dole (R- Kan.) and Metzenbaum formulated a compromise measure. [130] The modified provision required a waiting period of five business days that would be phased out in two and one-half years when the Attorney General certified that state criminal records met certain standards. [131]
This bipartisan compromise required the local police to check an identification statement of the prospective firearm purchaser to determine his eligibility. [132] The handgun provision of S. 1241 would authorize $100 million to aid states in updating and computerizing their records, so that instantaneous background checks would be feasible nationwide. [133] Once the national system was in place, it would be utilized by licensed gun dealers to check the eligibility of all firearm purchases. [134]
On July 11, 1991, the Senate passed S. 1241, the Violent Crime Control Act of 1991, by the overwhelming margin of 71-26. [135] Importantly, S. 1241 included a provision which imposed a five-day waiting period for the purchase of handguns.
IV. Public and Law Enforcement Opinion
A. Public Opinion
The Brady Handgun Violence Prevention Act, unlike some current legislation in Congress, fostered positive public support for a waiting period for handgun purchases. A September 1990 Gallup poll found that 95% of those surveyed support a seven-day waiting period and in 1988 a similar poll found 90% of gun owners surveyed expressed support for such a provision. [136] Much of this public support resulted from the unceasing lobbying efforts of Sarah and James Brady who represent Handgun [p.262] Control, Inc., an influential gun control lobby. [137] Both of the Bradys have spent countless hours on Capitol Hill and with the media urging federal legislation mandating a waiting period before handgun purchases can proceed. [138] At one point, even the NRA recognized the validity of a waiting period for the purchase of handguns in a 1976 publication. [139]
Public opinion polls are far from perfect measures of the state of mind of the populace. Particularly, flaws in the wording of questions can exaggerate the true extent of public support. [140] Certain results can be achieved when a pollster skews the question. [141] According to one study, a Gallup poll question which assumed that a waiting period would help authorities keep firearms away from illegitimate persons received a favorable answer. [142] In sum, people will usually support a policy that appears to be effective. [143] [p.263]
B. Law Enforcement Opinion
Law enforcement views regarding the issue of a waiting period for gun purchases may begin from a more informed point of view. The Fraternal Order of Police, the International Brotherhood of Police Officers and the National Sheriffs' Association have spoken out in support of the Brady bill along with the American Bar Association. [144] Polling data indicated that a large number of major urban police chiefs also favor a waiting period for handguns. [145]
Both the American Federation of Police (AFP), the second largest rank and file police organization, and the National Association of Chiefs of Police (NACOP), the second largest command rank organization, oppose a waiting period. [146] According to a 1990 Gallup poll of NACOP, results indicated that a majority of command rank officers are skeptical about waiting periods. [147] Although skepticism is no true measure of opposition toward the waiting period, the polling results tend to manifest the imprecision of attempting to flesh out popular and professional opinion regarding legislation.
V. Constitutional Concerns
The Brady Handgun Violence Prevention Act raises two major constitutional concerns. The first issue involves the interpretation of the Second Amendment's right to bear arms. The opponents of the Brady Bill charge that the waiting period requirement would unduly infringe upon this right. [148] The second issue centers around the Fifth Amendment's prohibition against self-incrimination which Brady Bill opponents argue would be threatened by the disclosure of personal information for background checks. [149] Each constitutional issue warrants a separate analysis. [p.264]
A. Second Amendment (The Right to Bear Arms)
The Second Amendment has not received the same degree of attention as the rest of the Bill of Rights has in the courts; however, with the passage of the Brady Bill this situation may change. The cases that have been litigated on Second Amendment grounds have focused on the legality of the Gun Control Act of 1968 [150] which is on the verge of being amended by the Brady Bill.
In 1939, the Supreme Court in United States v. Miller, [151] held that the Second Amendment did not convey an absolute right to bear arms. Following Miller, United States Court of Appeals cases used this premise to examine section 922(a) of the Gun Control Act of 1968 and its prohibition against illegal firearm transactions by unlicensed gun dealers. [152] In United States v. Swinton [153] the court found that the defendant was actively engaged in the business of dealing guns in violation of the statute. [154] The Swinton court asserted that the previous holdings and the broad intent of the Act highlighted the principle that there is no absolute constitutional right of an individual to possess a firearm. [155]
Similarly, in United States v. King [156] the court ruled that the defendant was engaged in the business of dealing in firearms without a license to do so. The court disagreed with the conclusion that the Gun Control Act of 1968 [157] violated the defendant's right to keep and bear arms. [158] According to the court, the defendant was neither charged with nor convicted of keeping and bearing arms. [159] The act of keeping and bearing arms as protected by the Second Amendment is not violative of the statute. [160] However, engaging, without a license, in the business of dealing in firearms and of conspiring with others to do so did [p.265] contravene the Act. [161] Although these cases dealt with unlicensed firearms transactions under the Act, they illustrated the notion that Second Amendment rights are far from absolute.
Several other cases have focused on the prohibition against convicted felons from possessing firearms. [162] In Dickerson v. New Banner Institute, Inc., [163] the trial court "noted" a plea of guilty and placed the defendant on probation. [164] In an attempt to resolve a dispute among the federal circuit courts, the majority held that, for purposes of federal gun control laws, a plea of guilty and its notation by a state court, followed by a sentence of probation, constituted a conviction. [165] Similarly, the decision in United States v. Millender, [166] where the defendant pled guilty to a felony charge and was placed on two years probation produced the same result as Dickerson. [167] The Millender court held that: (1) federal law determines whether a person is considered a felon for purposes of federal firearms statutes; and (2) the defendant's voluntary plea of guilty to a felony charge in state court was a "conviction" for purposes of the firearms statute. [168] Thus, section 922(h)(1) of Title 18, United States Code, has been interpreted by courts in such a way as to deprive "convicted" felons of their Second Amendment right to bear arms. [169]
B. Fifth Amendment (Self Incrimination)
The required disclosure of personal information for a background check before the purchase of a handgun may infringe upon a purchaser's constitutional right to privacy. More specifically, under section 1(A)(i)(III) of the Brady Bill, the statement by the prospective purchaser could constitute self-incrimination under the Fifth Amendment. [170]
In a sense, a statement made by a prospective purchaser, which will be utilized in a background check, may be considered a [p.266] self-reporting requirement. [171] The Supreme Court discussed three factors that determine whether a self-reporting requirement violates the Fifth Amendment privilege against self-incrimination: (1) whether the notice requirement applies to an area of activity that is "permeated with criminal statutes," (2) is directed at a "highly selective" group of persons "inherently suspect of criminal activities," and (3) poses a "substantial hazard" or "direct likelihood" of self-incrimination. [172] As indicated in the Attorney General's initial report to Congress, [173] such a disclosure of information may prove damaging to a purchaser's reputation if the background check misidentified him due to a common name and date of birth. [174] Therefore, in an effort to protect individual privacy, the present gun control legislation must attempt to accurately identify persons ineligible to purchase firearms by reason of section (3). [175]
Conclusion
The debate over handgun control has stimulated significant, often emotional, dialogue from many varied segments of the political community. Those individuals who seek to protect their constitutional right to bear arms are pitted against those individuals who seek to protect themselves from the threat of criminals obtaining firearms. Hence, the stage is set for a dynamic interplay between two viable, but competing positions. Which of these positions is more precious depends upon to whom you pose the question. Obviously, the most difficult problem confronted by legislators and the Bush administration is determining which position will promote the greatest good for the society as a whole.
Although the Brady Handgun Violence Protection Act is hardly a panacea for the proliferation of firearms in this country, it will serve as a testimonial to the urgency of the problem in the United States. At worst, the legislation is far from a perfect measure [p.267] to combat the problem; however, at best, it is a firm declaration of intent. The continuous debate that has taken place in Congress on both sides of the issue has demonstrated to the nation that legislators do not accept complacency with regard to the present state of the law regarding firearms. Perhaps, legislators can redirect some of this fervor in the direction of other federal programs and legislative proposals.
With regard to the Brady Bill, there have been favorable proposals from both sides. Now that the bill is in Conference Committee, perhaps, legislators can set aside technical differences in the two versions to facilitate the passage of the legislation in the coming months. Recently, on October 22, 1991, the House passed H.R. 3371, a comprehensive crime bill. [176] Soon after, Congress entered into Conference Committee on S. 1241 and H.R. 3371. [177]
The most viable interpretation of the Act at this time appears to be the Mitchell-Dole-Metzenbaum Compromise which included a waiting period, a mandatory background check and a two and one-half year phase out of the five- day period after the Attorney General certified that states could operate an instantaneous background check. [178] This provision of S. 1241, the Senate's comprehensive crime bill, [179] accepts the viability of instantaneous background checks and is realistic in its approach to technology and funding. Under S. 1241 the Attorney General will act as a quasi- administrative agency overseeing the implementation and development of a felon identification system pursuant to the Brady Handgun Violence Prevention Act. Above all, [p.268] the present legislation that is now being scrutinized in Congress must take into account the human costs; indeed, the lives of many Americans may hang in the balance. Congress may possess the curative powers to mitigate the plague of firearms in this country.
1. H.R.REP. No. 47, 102d Cong., 1st Sess. 4 (1991) hereinafter House Report.
2. U.S. CONST. amend. II. The second amendment states in relevant part, T]he right of the people to keep and bear Arms, shall not be infringed."
3. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T. OF JUSTICE, Handgun Crime Victims: A Special Report (July 8, 1990) ... hereinafter BJS Report. Similarly, almost half the murder victims were killed with a handgun, with an average of 9,200 people being killed and another 15,000 being wounded annually by handguns.
4. Hearings Before the Subcomm. on Crime and Criminal Justice of the Comm. on the Judiciary, 102d Cong., 1st Sess. 304 (1991) (testimony of Michael Beard, President of the Coalition to Stop Gun Violence).
5. House Report, supra note 1, at 4. On March 30, 1981, John Hinckley, Jr. shot President Ronald Reagan in the chest with a .22 caliber pistol, shot Press Secretary James Brady in the head, and shot a D.C. police officer and a Secret Service agent. Id.
6. House Report, supra note 1, at 5 (citing August 3, 1989, Declaration of John Hinckley, Jr., attached to "Defendant's Motion for Relief" (D.D.C.1989)).
7. BJS REPORT, supra note 3, at 1. See also House Report, supra, note 1, at 5. On April 24, 1990, James Brady (no relation to the Press Secretary who was shot by Hinckley in 1981) entered an Atlanta shopping mall and using a .38 special six-shot revolver, opened fire on the crowd killing one person. Id. Brady purchased the handgun on April 23, the same day that he was released from a state psychiatric hospital. Id. Presently, the State of Georgia does not require background checks on prospective gun purchasers. Id.
8. H.R. 7, 102d Cong., 1st Sess. (1991) hereinafter H.R. 7.
9. S. 257, 102d Cong., 1st Sess. (1991) hereinafter S. 257.
10. 18 U.S.C. § 922(a)(6) (1976) states:
It shall be unlawful ... for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
11. Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90- 351, § 3701, 82 Stat. 226 (1968).
12. Gun Control Act of 1968, Pub.L. No. 90-615, § 102, 82 Stat. 1214 (1968).
13. 18 U.S.C. § 921 (1968).
14. 18 U.S.C. § 922(g), (h) (1968).
15. S.REP. NO. 1501, 90th Cong., 2d Sess. 22 (1968).
16. Huddleston v. United States, 415 U.S. 814, 824 (1974). The Supreme Court explained that "w]hen Congress enacted the provisions ... of the Gun Control Act], it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest." Congress believed that the best way to deter black market transactions was to ensure that "f]irearms were] channeled through federally licensed] dealers to eliminate mail order purchases] and the generally widespread commerce in them." Id. at 825. Thus, the Act focused on the licensed firearms dealers and not on the character and fitness of the purchasers themselves.
17. See supra note 14.
18. BJS REPORT, supra note 3.
19. House Report, supra note 1, at 5.
20. Id. The purchaser would have to provide the following information in a sworn statement: the purchaser's name, address and date of birth as it appeared on a valid photographic identification; a statement that federal law does not prohibit the purchaser's receipt of the handgun; and the date of the statement. Id.
21. Id.
22. Id. at 6.
23. Id.
24. Id. First, the Committee amended H.R. 975 to read that coverage was for "any licensed importer, licensed manufacturer or licensed dealer"; previously, H.R. 975 covered "any person"; second, the Committee made the misdemeanor penalties ($1,000 or not more than one year imprisonment) applicable to anyone who violated the bill's provisions; and third, the Committee provided an effective date of 90 days after the date of enactment. Id.
25. House Report, supra note 1, at 6.
26. Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 6213, 102 Stat. 4360 (1988).
27. Id.
28. Id.
29. Draft Report on Systems for Identifying Felons Who Attempt To Purchase Firearms, 54 Fed.Reg. 26,903 (1989).
30. Id. According to the Attorney General's study, point-of-sale approval may involve telephone checks by the gun dealer through local or state law enforcement agencies. However, prior-approval schemes may include: (1) an identification card which establishes eligibility in advance; (2) a certificate to purchase for a limited period; and (3) a "smart" card encoded with basic information to establish an individual's eligibility. Id.
31. Id. at 26,909.
32. Id. at 26,903.
33. See supra note 12.
34. 54 Fed.Reg. at 26,922. Deficiencies in identification documents for positively establishing identity, incomplete criminal history records, and the prevalence of common names and dates of birth complicate accuracy] and make it much more difficult to obtain. Id.
35. Id. at 26,903.
36. Id. at 26,922.
37. See generally House Report.
38. House Report, supra note 1, at 7.
39. H.R. 467, 101st Cong., 1st Sess. (1989).
40. House Report, supra note 1, at 7.
41. Id.
42. Id. First, Representative Charles Stenholm (D-Tx.) proposed allowing the sale of a handgun to proceed if the dealer had been notified by the chief law enforcement officer that the purchaser's receipt of the firearm would not violate federal, state or local laws. Second, Representative Nancy Johnson (D-S.D.) proposed allowing a handgun to be transferred by a dealer to a purchaser who has a permit in the state in which the transfer is to occur. Finally, Representative John Rhodes III (R-Ariz.) proposed deleting from the purchaser's sworn statement the serial number and description of the firearm, as well as requiring the chief law enforcement officer to destroy the copy of the purchaser's sworn statement. Id.
43. Id.
44. Id.
45. Id. at 8.
46. H.R. 7, 102d Cong., 1st Sess. § 1(A)(ii)(I) (1991).
47. Id. § 1(B).
48. Id. § 1(C).
49. Id. § 1(D).
50. House Report, supra note 1, at 4.
51. Id.
52. See supra note 46, at § 3(A).
53. See House Report, supra note 1, at 2.
54. 18 U.S.C. § 922 states in relevant part:
(d) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--
(1) is under criminal indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to marihuana or any depressant or stimulant drug or narcotic drug; or
(4) has been adjudicated as a mental defective or has been committed to any mental institution. (citations omitted).
55. See supra note 1, at 2.
56. 137 CONG. REC. S1053 (daily ed. Jan. 23, 1991); see also supra note 8.
57. Id. at S1093-94 (statement of Sen. Metzenbaum).
58. Id.
59. Id.
60. Id.
61. Id.
62. Id. New Jersey stops an average of 500 convicted felons a year from illegally purchasing handguns. See also 54 Fed.Reg. at 26,925. The Attorney General's report indicates that New Jersey employs a Firearm Identification Card requirement to purchase rifles and shotguns. A handgun permit is required to purchase a handgun. This permit is for 90 days. A written application to the local Chief of Police is required for each firearm purchase. Fingerprints must be submitted with the application. Applications are sent to State Police for NCIC (National Crime Information Center) check. In reality, the processing time for applications is 6-10 weeks (somewhat longer than the time stated in the law). The local law enforcement agency receives results, then makes a recommendation to the District Court which is the actual issuing authority. Id.
63. Id.
64. Id. at S1095.
65. See House Report, supra note 1, at 8.
66. Id. at 8-9.
67. Id. Mrs. Brady is the current chair of Handgun Control, Inc. and Mr. Brady serves as vice-chairman of the National Organization on Disability.
68. Id.
69. Id. at 9.
70. Id.
71. Id.
72. Id.
73. Id.
74. Id. The amendment required that the dealer retain evidence that he had sent the purchaser's statement to the police within one day of its receipt. The provision is for the gun dealer's own protection against allegations that the form was not sent and is not a prerequisite to the sale going forward. The amendment was intended to maintain the purchaser's right, already contained in H.R. 7, to buy the handgun if seven days have elapsed from the time the purchaser gave the required statement to the gun dealer and there has been no communication from the police that the purchaser's receipt of the firearm would violate federal, state or local law.
75. Id.
76. H.R.REP. NO. 52, 102d Cong., 1st Sess. 1 (1991).
77. Id.
78. Id. See infra text accompanying notes 78-93.
79. Id.
80. Id.
81. See House Report, supra note 1, at 10. The gun dealer would not have to contact the hotline if the prospective purchaser presents a valid permit or license, issued by the state or political subdivision in which the gun sale is to occur, which allows the person to purchase, possess or carry a firearm; or the Secretary of the Treasury has approved the transfer under section 5812 of the Internal Revenue Code of 1986; or telephone service is not provided where the gun dealer's premises are located; or the gun dealer's ability to exchange information with the hotline is impaired due to circumstances beyond the gun dealer's control; or the gun dealer, pursuant to state law, notifies state law enforcement authorities of the proposed transfer, and the authorities approve the transfer and determine that the purchaser's receipt of the handgun would not violate state law.
82. 137 CONG. REC. E1818-02 (daily ed. May 8, 1991) (statement of Rep. Ike Skelton).
83. Id.
84. See House Report, supra note 1, at 19.
85. Id.
86. Id. Slaughter noted that the background check, which takes approximately two minutes, did not pose a substantial inconvenience to anyone. Id.
87. Id.
88. Id.
89. 137 CONG. REC. E1676-01 (daily ed. May 8, 1991) (statement of Rep. Glenn Anderson).
90. Id.
91. Id.
92. Id.
93. Id.
94. Id.
95. Id. For example, "of the handguns used in violent crime in Detroit, only 8% were bought in Michigan. In New York, only 4% of handguns used in crimes were purchased in the state." Id.
96. Id. For additional House debate, see 137 CONG. REC. E1786-01 (daily ed. May 8, 1991) (statement of Rep. Lee Hamilton, advocating a compromise measure which would combine the Brady Bill with the Staggers amendment); 137 CONG. REC. H1639-03 (daily ed. May 8, 1991) (statement of Rep. Dan Schaefer, in favor of the Staggers amendment); 137 CONG. REC. E1353-01 (daily ed. May 8, 1991) (statement of Rep. Charles Rangel, in favor of the Brady Bill); 137 CONG. REC. E2007-01 (daily ed. May 8, 1991) (statement of Rep. Eni F.H. Faleomavaega, in support of the Brady Bill).
97. Joan Biskupic, Crime Bill Faces House Fight Over Penalties, Appeals, CONG.Q. 1899 (July 13, 1991).
98. Joan Biskupic, Mitchell's Role Ups Chances For Gun-Control Proposal, CONG.Q. 1503 (June 8, 1991).
99. Id.
100. 137 CONG. REC. S3190 (daily ed. Mar. 13, 1991) (statement of Sen. Thurmond).
101. Id. The bill would authorize the death penalty for an estimated 51 federal offenses and would spell out proceedings for its imposition. Additionally, the legislation would prevent death row inmates from obtaining federal court review of their cases through petitions for habeas corpus if a federal judge believed the prisoner had a "full and fair" hearing in state court.
102. S. 635, 102nd Cong., 2d Sess. § 419 (1991). See also 18 U.S.C. § 923(g)(1)(D)(3) (1968).
103. Id.
104. S. 635, 102d Cong., 1st Sess., 137 CONG. REC. S3227 (1991).
105. Id.
106. S. 1241, 102d Cong., 1st Sess., 137 CONG. REC. S7321 (1991).
107. See supra note 98.
108. 137 CONG. REC. S7321 (daily ed. June 6, 1991) (statement of Sen. Mitchell).
109. Id. Recall that H.R. 7 did not possess a mandatory background check provision. The waiting period was designed more as a "cooling off" period.
110. See supra note 106, at S7322. The first condition is that a state agree to share its criminal record data with the FBI's interstate identification index by the end of 1993. The second condition is that by the end of 1995, states' criminal history records must have achieved an 80% level of currency of case disposition for the last five years of criminal activity. Id.
111. Id. Regarding the first condition, there are twenty-one states which today share criminal data with the FBI system. For a national check to be possible, all state records must be accessible through a central system. The second condition is designed to ensure that when a criminal background check is conducted, the records to be consulted will be reasonable, complete and current. Id.
112. Id. at S7323.
113. Joan Biskupic, Senate Begins Annual Ritual of Toughening Crime Law, CONG.Q. 1668 (June 22, 1991).
114. Id.
115. Id.
116. Id.
117. Id.
118. Id.
119. 137 CONG. REC. S8931 (daily ed. June 27, 1991) (statement of Sen. Stevens).
120. 137 CONG. REC. S8945 (daily ed. June 27, 1991) (statement of Sen. Mitchell).
121. Stevens, supra note 119, at S8933.
122. Id.
123. Id. at S8934.
124. Id.
125. Mitchell, supra note 120, at S8945.
126. Id.
127. Id. at S8946.
128. Id. at S8945; See supra text accompanying notes 27-35.
129. Id. at S8946.
130. 137 CONG. REC. S9068 (daily ed. June 28, 1991) (statement of Sen. Mitchell, Dole and Metzenbaum).
131. Joan Biskupic, Senate Wrestles With Compromise Bill, Approves Brady Compromise, CONG.Q. 1757 (June 29, 1991). The foregoing standards would be applicable if the United States Attorney General certified that a national system has access to the past five years of state criminal records and that records are 80% current. Id.
132. Biskupic, supra note 97, at 1901.
133. Id.
134. Id.
135. Id. at 1938.
136. See House Report, supra note 1, at 5.
137. 137 CONG. REC. S9046 (daily ed. June 28, 1991) (study by David B. Kopel).
138. Testimony before House of Representatives Judiciary Committee, Oct. 28, 1985, quoted in 134 CONG. REC. S792 (daily ed. Feb. 5, 1987) (statement of Sarah Brady). See also Hearing Before Subcomm. on Crime and Criminal Justice, 102d Cong., 1st Sess., 82 (1991) (statement of James Brady, Handgun Control, Inc.) hereinafter House Subcomm. Rep.] James Brady eloquently stated:
Sarah and I are on a crusade, a crusade to save lives, a crusade to make our Nation safer for our children and grandchildren and 95 percent of the American public is on the bandwagon. So many Members of Congress, who have previously supported the gun lobby, have come on board, and I am confident that this time, common sense will prevail.... Our freedom is on the line here.
Id.
139. 137 CONG. REC. S8939 (daily ed. June 27, 1991) (statement of Sen. Kohl). The article, entitled On Firearms Control, explained that a waiting period could help in reducing crimes of passion and in preventing people with criminal records or dangerous mental illnesses from acquiring weapons. Cf. House Subcomm. Rep. at 158 (statement of James Jay Baker, Director of Federal Affairs, National Rifle Association). Mr. Baker stated:
As you will note, in every case the data reflects an increase in violent crime and homicides. Of particular significance is the fact that, even as these increases have occurred, the rest of our Nation has experienced an overall drop in the incidence of violent crime based on the same categories.
Id.
140. Kopel, supra note 137, at S9047.
141. Id. at S9048.
142. Id.
143. Id.
144. John J. Curtin, Jr., Gun Control: The Time is Now, 77 A.B.A.J. 8 (1991).
145. Kopel, supra note 137.
146. Id. at S9047.
147. Id.
148. H.R. 7, 1(A)(ii)(I).
149. Id. § 1(A)(i)(III).
150. See supra note 12.
151. 307 U.S. 174 (1939).
152. See infra notes 153 to 168 and accompanying text.
153. 521 F.2d 1255, 1260 (10th Cir.1975).
154. See supra note 12.
155. See supra note 153, at 1259. See also, United States v. Miller, 307 U.S. 174 (1939); United States v. Romero, 484 F.2d 1324 (10th Cir.1973).
156. 532 F.2d 505 (5th Cir.1976).
157. See supra note 12.
158. See supra note 156, at 510.
159. Id.
160. Id.
161. Id.
162. See supra note 13.
163. 460 U.S. 103 (1983).
164. Id. at 107-08.
165. Id. at 114.
166. 811 F.2d 476 (9th Cir.1987).
167. See supra note 163.
168. See supra note 13.
169. Id.
170. See House Report, supra note 1, at 16.
171. 54 Fed.Reg. at 26,921.
172. California v. Byers, 402 U.S. 424, 430 (1971) (citing Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 79 (1965); Marchetti v. United States, 390 U.S. 39, 47 (1968)).
173. See supra note 29.
174. Id. at 26,920.
175. See House Report, supra note 1, at 17.
176. H.R. 3371, 102d Cong., 1st Sess. (1991). This House bill does not possess a handgun waiting provision; however, §§ 2011 and 2012 provide for a mandatory penalty for firearms possession by violent felons and reporting of multiple firearms sales, respectively. Id. at 141.
177. Joan Biskupic, Crime Measure Is A Casualty of Partisan Skirmishing, CONG.Q. 3528 (Nov. 30, 1991). The House-Senate conference agreement, reached on November 24, would have extended the federal death penalty to more than 50 crimes, restricted death row inmates' ability to challenge their sentences and imposed new gun-crime penalties. It also would have enacted the handgun waiting period for background checks as mandated in H.R. 7 and S. 1241, but absent from H.R. 3371. On November 27, 1991, the House adopted the conference report by a vote of 205-203; however, a Senate cloture failed by a 49-38 vote, which ultimately led to the legislation's abandonment until the next session of Congress. Id.
178. See supra, note 130 at S9068.
179. See supra note 106.