University of Kansas Law Review
Comment, 43 (1995): 835.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
LOOKS LIKE A WAITING PERIOD FOR THE BRADY BILL: TENTH AMENDMENT CHALLENGES TO A CONTROVERSIAL UNFUNDED MANDATE *
Copyright © 1995 Kansas Law Review, Inc. & Jonathan Duncan
The shocking events that transpired on the afternoon of March 31, 1981 immediately and directly affected the families of four unsuspecting men.  Indeed, the entire country watched nervously as President Ronald Reagan was forced into his limousine and three other men lay wounded on the sidewalk. The effects of John Hinckley, Jr.'s assassination attempt on that March afternoon did not cease upon his arrest or upon President Reagan's full recovery. Rather, the violent actions of this individual ignited pre-existing concerns in America that led to changes in the law of the insanity defense  and gun control. 
As the horrifying shots rang out, a stray bullet struck Press Secretary James Brady and marked the beginning of a thirteen-year personal struggle to prevent handgun violence through legislation. The struggle apparently ended on November 30, 1993 as a disabled James Brady watched President Clinton sign the "Brady Bill" into law.  Even as the struggle in the legislative branch came to an emotional end, the judicial branch was gearing up for a battle of its own. Shortly after the Brady Bill became the Brady Handgun Violence Prevention Act of 1993  (Brady Act), opponents in Arizona, Montana, Texas, Mississippi, Vermont and Louisiana sought to enjoin enforcement of the Act on a variety of constitutional grounds.  [Page 836]
This Comment discusses and analyzes the history behind the Brady Act and its fight to survive constitutional challenges. Although these challenges rest on a variety of constitutional provisions,  this Comment specifically addresses those challenges based on the Tenth Amendment of the United States Constitution. Part II of this Comment discusses the history of gun control in America and Part III outlines the Brady Act and its requirements. Part IV of this Comment briefly reviews the background of the Tenth Amendment and its treatment by the Supreme Court. The application of those Supreme Court decisions to the Brady Act by federal district courts is then analyzed in Part V. Finally, this Comment concludes that certain unfunded mandates imposed by Congress on state and local governments are inconsistent with the Tenth Amendment and, therefore, unconstitutional. Debate surrounding the wisdom of gun control,  the effectiveness of the Brady Act  and the right to bear arms  are adequately discussed elsewhere and will not be addressed in this Comment.
II. GUN CONTROL IN AMERICA
The understanding that handguns create certain dangers is not a recent discovery to American citizens or legislators. Although individuals may disagree about the right to own firearms or the extent of the government's ability to prevent crime, it cannot be denied that handguns often result in the spilling of blood.  The Brady Act represents one of Congress's many reactions to this fact. [Page 837]
Congress first attempted to curb gun violence by passing the National Firearms Act of 1934.  This Act imposes a $200 tax on transfers of certain automatic weapons, shotguns and rifles and imposes a $5 tax on transfers of other weapons.  Congress then tightened its control over the sale of weapons by passing the Federal Firearms Act in 1938.  In this Act, Congress created licensing requirements for all dealers of firearms or ammunition.  The Act also prohibited the interstate shipment of firearms to felons, persons under felony indictment and persons lacking required permits. 
Congress did not raise the issue again for many years because violent crime rates steadily declined.  During the 1960s, however, crime rates began to rise, creating concern in the American public.  After the nation witnessed the tragic murders of Robert Kennedy and Martin Luther King, Jr., Congress responded by passing the Gun Control Act of 1968.  This Act, like its predecessor, seeks to prohibit the possession of firearms by "convicted felons, fugitives from justice, drug users and addicts, persons adjudicated mentally incompetent, illegal aliens, persons dishonorably discharged from the military, and anyone who has renounced his or her United States citizenship."  Anyone attempting to purchase a firearm is required to fill out Alcohol, Tobacco and Firearms (ATF) Form 4473 and declare that he or she is not prohibited by federal law from receiving or possessing a firearm. 
In addition to regulating interstate sales of guns, the Gun Control Act of 1968 also requires that a federal license be obtained to engage in manufacturing, importing or dealing in firearms in interstate or foreign commerce.  Critics of this provision not only call the Act ineffective, but also argue that the import restrictions "stimulate the domestic [Page 838] market."  Finally, the Act requires licensees to maintain records of their transactions and permit inspection of these records by the ATF. 
III. THE BRADY BILL
It is against this backdrop that the assassination attempt occurred and the "gun control movement galvanized."  On October 13, 1980, John Hinckley, Jr. purchased two .22 caliber RG revolvers from Rocky's Pawn Shop in Dallas, Texas.  Hinckley carried one of these guns to the Washington Hilton Hotel on March 30, 1981 intending to assassinate the President. As the presidential entourage paused for a moment, Hinckley opened fire and shot President Reagan, White House Press Secretary James Brady, a Secret Service agent and a District of Columbia police officer.  Although each of these individuals survived, the gunshot wound to James Brady's head left him permanently disabled. 
James Brady, along with his wife Sarah and Handgun Control, Inc., a lobbying group, urged Congress to enact federal legislation requiring a waiting period for every proposed handgun purchase.  Their collective efforts were instrumental in Congress's passage of the law that now bears James Brady's name.
A. Procedural History of the Brady Bill Through Congress
More than seven years passed between Hinckley's assassination attempt and the introduction of the first waiting-period legislation in Congress.  On February 4, 1988, Representative Edward Feighan introduced House Bill 975 to the 100th Congress as the original form of the Brady Bill.  Feighan's proposal would have required licensed handgun dealers to collect sworn statements from potential purchasers [Page 839] and forward them to the local chief law enforcement officer (CLEO) for verification.  The dealer could then complete the sale after seven days unless the CLEO sent notification to the contrary during that time period.  This bill was brought to the full House on September 15, 1988 where it was defeated and an alternative measure was passed in its place. 
Representative Feighan did not surrender, however, and reintroduced a similar bill to the 101st Congress on January 4, 1989.  This bill included exceptions to the seven-day waiting period as well as numerous other changes added during the previous session.  Hearings were held on the bill in early April 1989, but the measure again failed to pass the full House. 
Representative Feighan refused to accept defeat and on January 3, 1991 introduced the waiting-period bill, House Bill 7, to the 102nd Congress.  After substantial action in various committees and subcommittees, the bill passed the House of Representatives on May 8, 1991.  The Senate was debating similar legislation at this time and on July 11, 1991, passed Senate Bill 1241.  The Senate bill approved a five-day waiting period for handgun purchases and called for a "national point-of-purchase" system to be developed.  The point-of-purchase system envisioned a computerized process that would allow dealers to make an instant check of the potential buyer's eligibility.  The Senate bill provided that when the instant check system was developed, it would become operational and the waiting-period rule would expire.  [Page 840]
The House bill and the Senate bill went to conference where the committee reported a version similar to that proposed by the Senate.  This conference report was subsequently approved in the House by a margin of two votes.  Representative Feighan needed only a Senate confirmation to pass the Brady Bill on the third attempt, but the "conference report was never voted on by the Senate." 
Under new sponsorship, the Brady Bill was introduced in the 103rd Congress on February 22, 1993.  After extensive debate, disagreement and review, the Brady Bill was signed into law by President Clinton on November 30, 1993.  The debate included warnings by the bill's opponents about its constitutional vulnerabilities. In both houses of Congress these warnings included discussions regarding the tension between the proposal and the Tenth Amendment. 
Opponents argued that the Brady Act unconstitutionally compelled state officers to enact federal regulations without providing funds necessary to implement the requirements.  In the House, Representative Steve Schiff made this argument clear in his dissent from the report of the House Committee on the Judiciary.  Recognizing that Congress cannot impose unfunded mandates on state and local agencies, Representative Schiff proposed an unsuccessful amendment "to make the performance of the background check an option, rather than a requirement."  The House was warned about Tenth Amendment questions on other occasions as well. Representative Bill Orton, noting differences among the states, argued that state legislatures should be the proper forum for such regulation.  He later concluded that the Brady [Page 841] Bill "violates the spirit of the 2d and 10th amendments to the Constitution." 
The Senate also had actual knowledge during its debates that the Brady Bill might be constitutionally infirm. Senator Craig expressed reservations similar to those expressed in the House when he stated that "(the Brady Bill) will not work. The reason it will not work is because it . . . speaks to a background check, but it knows under the 10th amendment of the Constitution it cannot force it."  In addition, Senator Smith placed a detailed study of the Brady Bill in the Congressional Record. In that study, David B. Kopel concluded that "(a) federal waiting period violates the 10th Amendment by forcing state officials to perform background checks." 
B. Requirements of the Brady Act
The purpose of the Brady Act "is to prevent convicted felons and other persons who are barred by law from purchasing guns from licensed gun dealers, manufacturers or importers."  To that end, the Act imposes what is commonly known as a five-day waiting period on the purchase of certain handguns.  Two myths surround public perception of this requirement. First, the waiting period is understood by some to serve primarily as a "cooling-off" period.  The waiting period, in fact, is employed not as a grace period for the purchaser, but rather as a mechanism to allow local law enforcement officers to determine the legality of the attempted purchase.  Second, the waiting period is understood by some to represent a permanent practice. As [Page 842] discussed below, the waiting period is a temporary measure scheduled to become obsolete in five years. 
The Brady Act requirements contain two distinct phases. The interim provisions, which include the waiting period, became effective immediately upon passage of the Act. The permanent provisions, however, become effective in 1998, at which time the interim provisions will no be longer in force. 
1. Interim provisions
The interim provisions of the Brady Act place affirmative requirements on the following three groups of persons: handgun purchasers (transferees), handgun dealers (transferors) and CLEOs.  When a prospective purchaser decides to buy a handgun, that transferee must complete ATF Form 5300.35 and provide photographic identification which includes that person's name, address and date of birth.  Furthermore, the transferee must state that he or she is not a convicted felon, under felony indictment, an unlawful user of any controlled substance, mentally defective, an illegal or unlawful alien in the United States, under a dishonorable discharge from the Armed Forces or a person who has renounced citizenship of the United States.  Under the general rule, the transferee then must wait for background clearance before taking possession of the handgun. 
Neither the above statement nor a waiting period for possession is required if the transferee is cleared in advance by an authorized government official and issued a current permit.  The transferee may also avoid the above actions by presenting a statement from the CLEO "that the transferee requires access to a handgun because of a threat to [Page 843] the life of the transferee or of any member of the household of the transferee." 
Upon receipt of the personal statement described above, the transferor must verify the identity of the transferee and forward the completed form to the CLEO in the county where the purchaser resides.  The instant the form is received, the CLEO proceeds under mandate from the federal government and the Brady Act proceeds into severe constitutional trouble. It is at this point that local law enforcement officers are required to perform a number of tasks under the express direction of the United States Congress. These unfunded federal requirements form the basis of the constitutional challenges discussed in this Comment.
The CLEO to whom a transferor has provided notice "shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law."  This includes "research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General."  To solidify the mandatory nature of the provision, the report from the House Committee on the Judiciary stated that "(t)he bill requires local law enforcement officials to make a reasonable effort to ascertain whether the prospective purchaser is forbidden from buying the handgun." 
The CLEO then has further duties depending upon the result of the background research. If the research indicates that the purchase would not violate federal, state or local law "the officer shall . . . destroy the statement, any record containing information derived from the statement, and any record created as a result of the notice (from the transferor)."  If, however, the research indicates that the purchase would violate the law and the transferee requests the reasons for this determination, "the officer shall provide such reasons to the individual in writing within 20 business days after receipt of the request."  Transferring the firearm is prohibited until the dealer is advised by the [Page 844] CLEO that the transfer is legal or until five days elapse after the CLEO receives notice of the proposed transfer, whichever occurs first. 
2. Permanent provisions
Upon termination of the interim provisions, the permanent provisions become operative. The waiting period eventually will be superseded by a national instant background check computer system established by the Attorney General.  When operational, this system will allow dealers to contact a federal computer system and make an instant on-line background check. Implementation, oversight and review of this phase are responsibilities delegated to the acting Attorney General and not to individual CLEOs.  The permanent provisions of the Brady Act authorize Congress to apportion $100 million to states to aid in the computerization process  and are not subject to constitutional challenge at this time. 
IV. THE TENTH AMENDMENT
At this time, six cases challenging the interim provisions have been filed in and decided by federal district courts.  The Tenth Amendment is the common thread which runs through each of these challenges and forms the basis of this discussion. These cases turn on whether the Tenth Amendment prohibits the use of federally imposed, unfunded mandates on state and local officials.  For definitional purposes, "(a) mandate is a requirement imposed on a subordinate level of government to provide a public service that otherwise would not be furnished or to provide a public service in a more costly fashion."  A mandate is unfunded if the subordinate government is not reimbursed for the additional costs incurred by reason of the requirements.  This is a [Page 845] practice that is increasingly unpopular with a number of legislators. For example, Senator Inhofe recently stated that "(u)nfunded mandates are the product of an assertive, greedy Government that has arrogantly injected itself into the dictatorial position that was feared most by our Founding Fathers." 
The House of Representatives and the Senate passed legislation that would prohibit Congress from imposing unfunded mandates on the states and their political subdivisions.  The Unfunded Mandates Reform Act of 1995 does not affect the Brady Act or the present discussion, however, because it is not a retroactive measure.  Its effect, rather, will be only prospective in nature.  [Page 846]
In the first challenge to the Brady Act, Printz v. United States,  the federal court in Montana concluded that Congress exceeded its authority by requiring state officers to administer a federal program without providing federal funds.  In Koog v. United States,  the next challenge, the federal court in Texas concluded that the Brady Act's requirements were so minimal as to create no constitutional violation.  In the four most recent challenges, McGee v. United States,  Mack v. United States,  Frank v. United States,  and Romero v. United States,  federal courts in Mississippi, Arizona, Vermont, and Louisiana respectively, struck down portions of the Brady Act as contrary to the Tenth Amendment.
Although other questions are often involved in these cases, the issue addressed by this Comment is a narrow one and should be properly defined. "The issue is not . . . whether Congress possesses the raw power to regulate the transfer of handguns. Clearly it does. The thorny question is whether the Tenth Amendment limits the power of Congress to regulate in the way it has chosen."  Stated differently, the concern is the extent to which Congress may use the states as tools of federal regulation.  It is clear that Congress may regulate the sale of firearms,  but it is not clear whether Congress may do so using state officials. That question is addressed in the remainder of this Comment.
A. Historical Background
"No aspect of the United States Constitution has been so vigorously and so persistently disputed as its division of powers between the [Page 847] national government and the governments of the several states."  This issue is not unique to the present decade. In fact, it was not unique in 1787 when state delegates assembled for the Federal Convention in Philadelphia.  As statesmen convened to tackle the important task of designing a government, the nation braced itself for an historical exchange of ideas. The debate surrounding the Brady Act is the most recent sequel to the drama that began in this country many years ago regarding constitutional powers of the federal government.
The Bill of Rights, including the Tenth Amendment, was an extremely important issue to many people during the work of the Framers and was intimately related to the ultimate passage of the Constitution. Proponents of the historical Convention, commonly known as the Federalists, sought to depart from the Articles of Confederation and create a strong central government.  The Federalists were led by the persistent and determined Alexander Hamilton, James Madison and John Jay.  Fearing the unbridled power of a national government, opponents known as the Anti- Federalists sought to protect and defend the powers enjoyed by state governments under the Articles of Confederation.  Led by Patrick Henry, Samuel Adams and others, the Anti-Federalists distrusted undefined grants of power found in terms such as "necessary and proper" and "general welfare."  They preferred, instead, the "small, pastoral republic where virtuous, self-reliant citizens managed their own affairs." 
After intense debates which are beyond the scope of this Comment, the Federalists prevailed. The Constitution emerged from the Convention, complete with implied powers and guarantees of federal supremacy over state legislation.  The debates raged on as the Constitution was submitted to the states for ratification. Pivotal in these debates was the [Page 848] omission of a Bill of Rights from the proposed Constitution. The Anti- Federalists effectively used this omission in their campaign to persuade states to reject the new Constitution.  Indeed, the Constitution was ratified only after the Federalists promised to enact subsequent amendments to the document guaranteeing personal liberties.  It was the ardent Federalist James Madison who first publicly switched to supporting the Bill of Rights while he privately stated that the amendments were a "nauseous project" aimed to destroy the opposition. 
Madison's promise earned him a seat in the new Congress as a representative from Virginia.  On June 8, 1789, Representative Madison introduced the Bill of Rights to an apathetic House of Representatives which believed that Congress should be busy with more important matters.  By late September, the amendments had passed both the House and the Senate and were submitted to the states for ratification.  On December 15, 1791, Madison's home state of Virginia became the final state to ratify the Bill of Rights. 
The reservation-of-powers amendment was originally introduced as the twelfth amendment but became the tenth after the states failed to ratify the first two amendments.  Madison drafted the amendment using state laws as his guide and introduced it without the final clause, "or to the people," which was added later.  In his introductory speech, Madison stated: "Perhaps words which may define this (reservation of power) more precisely than the whole of the instrument now does, may be considered superfluous. I admit that they may be deemed unnecessary; but there can be no harm in making such a declaration . . . ." 
Commentators appear to agree with Madison's statement about the utility of the Tenth Amendment. For example, Charles A. Lofgren states that it is declaratory of the overall scheme and "probably reaffirm(s) the centralizing tendencies of the new system."  Walter Berns argues that the Tenth Amendment contains no terms which courts [Page 849] can use to settle cases or controversies and that it "is an accessory to interpretation of the Constitution: it is not and cannot provide a rule of law of the Constitution."  He continues, "it is merely declaratory of the division of powers between nation and states made in the original, unamended Constitution."  Charles J. Bloch adds that the purpose of the amendment is "to allay fears that the new national government might seek to exercise powers not granted and that the states might not be able to exercise fully their reserved powers."  Not all commentators, however, agree with Berns and Lofgren that the Tenth Amendment states but a truism. Raoul Berger, for example, attributes more force to the amendment than that popularly granted.  He argues that the amendment is not merely declaratory, but instead provides a "fundamental demarcation of powers" which "put the obvious beyond peradventure." 
Regardless of its ultimate meaning, cases decided upon the Tenth Amendment, including challenges to the Brady Act, necessarily involve an attempted exercise of power by the federal government under either the Commerce Clause  or the Necessary and Proper Clause.  A court must determine whether these exercises by Congress are consistent with its delegated powers or whether Congress unconstitutionally invaded powers reserved to the states. Inquiries regarding delegated powers and reserved powers are "mirror images of each other."  The Supreme Court recently captured the relationship when it stated:
In the end, just as a cup may be half empty or half full, it makes no difference whether one views the question at issue . . . as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment.  [Page 850]
B. Treatment by the Supreme Court
The Supreme Court's entire line of Tenth Amendment cases is arguably relevant to the Brady Act because challenges based on the Tenth Amendment have been successful in a majority of cases.  Much of the line is also arguably irrelevant given the most recent Tenth Amendment case decided by the Supreme Court, New York v. United States.  Indeed, many lower courts have held it to be controlling in Brady Act cases.  For these lower courts, the prior decisions of the Supreme Court did not affect the Brady Act challenges. Other courts, however, have held that New York is not dispositive and chose to judge the Brady Act in light of the Court's entire line of Tenth Amendment cases.  For example, after summarizing the Court's decisions, the Koog court concluded that "no single decision controls the entire spectrum of Tenth Amendment analysis."  According to some courts, then, each Supreme Court case regarding the Tenth Amendment is relevant to the Brady Act's constitutionality. For this reason, each will be briefly summarized below.
The Supreme Court has decided only a small number of cases based on the Tenth Amendment. A sufficient number of cases are reported to illustrate considerable disagreement on the issue, but not enough to establish universal rules of application. As observed by the Koog court:
Supreme Court decisions about the Tenth Amendment do not reflect a pattern of straight line development of a theme. Rather the cases seem to reflect a series of shifting perspectives on the nature and breadth of the powers reserved to the states . . . leaving lower courts with few concrete principles to decide cases. 
Early Supreme Court cases had the effect of judicially amending the plain text of the Tenth Amendment. Unlike the Articles of Confederation, which reserved every state power "which is not by this confederation expressly delegated"  to the national government, the Tenth Amendment does not contain the word "expressly."  Unwilling to confine the government's powers to those expressly delegated, James Madison did not include the term in the original bill and fought subsequent attempts to insert it.  That which Madison fought to [Page 851] exclude was implied by the Supreme Court as early as 1798 in Calder v. Bull  when Justice Chase stated in dictum that "all the powers delegated by the people of the United States to the federal government are defined, and no constructive powers can be exercised by it." 
The Court made this implied alteration to the language of the Tenth Amendment explicit in 1868.  In Lane County v. Oregon,  the Court stated in dictum that the states and the people retained "all powers not expressly delegated to the national government."  The Court quoted and reaffirmed this statement in 1918 in the well-known case of Hammer v. Dagenhart. 
Until 1937, the Court used similar reasoning to narrowly define federal powers and to restrict government regulation of economic activity.  "The crucial period in the explosion of federal power was the New Deal era."  No longer restricting federal power, the post-New Deal cases upheld expansive regulation, holding that the Tenth Amendment "states but a truism that all is retained which has not been surrendered."  This allowance of extensive federal regulation recently caused concern among proponents of state sovereignty. Specifically, these individuals feared what has been called "the proliferation of unfunded mandates."  Also known as unreimbursed responsibilities, these congressional directives not only threatened state sovereignty, but also acted as a form of hidden taxation on the states.  In 1976, these concerns made their way to the Supreme Court and began a modern line of cases governing the application of the Tenth Amendment to unfunded federal mandates. [Page 852]
1. Before New York v. United States
This modern line of cases falls far short of clarity and even farther short of consistency. The Supreme Court recently described this line of cases, commenting that "(t)he Court's jurisprudence in this area has traveled an unsteady path."  That path began with National League of Cities v. Usery.  That case challenged the 1974 amendments to the Fair Labor Standards Act (FLSA) extending its federal requirements to state and local employees.  The FLSA amendments were challenged by states and their political subdivisions, arguing that the federal commerce power imposes limits on Congress when regulating the states in their capacity as states.  Justice Rehnquist, writing for the majority, stated:
We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner. 
The Court, after discussing the effects of the FLSA amendments on the states, held that the provisions impermissibly interfered with state governmental functions and their political subdivisions.  The amendments were struck down because regulation of states "in their capacities as sovereign governments"  did not comport with the federal system of government mandated by the Constitution.  This position was ill- fated and short-lived. 
Justice Brennan, dissenting in Usery, argued that the Constitution does not restrain the power of Congress based on notions of state sovereignty.  On the contrary, Justice Brennan argued, "nothing in the Tenth Amendment constitutes a limitation of congressional exercise of powers delegated by the Constitution to Congress."  [Page 853]
The Tenth Amendment and congressional exercise under the Commerce Clause were again before the Court in Hodel v. Virginia Surface Mining & Reclamation Ass'n.  This case involved a constitutional challenge to the Surface Mining Control and Reclamation Act.  The Surface Mining Act attempted to encourage safety and preserve the environment by requiring states to enforce a federal regulatory program "mandating compliance with the full panoply of federal performance standards."  The Court found the Surface Mining Act to be within the congressional power to regulate interstate commerce.  Justice Marshall, writing for the majority, then proceeded to refine and narrow the holding of Usery by articulating a three- prong test to be applied in similar cases. First, there must be a showing that the challenged statute regulates the "States as States." Second, the federal regulation must address matters that are indisputably "attribute(s) of state sovereignty." And third, it must be apparent that the States' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional governmental functions." 
Finally, after passing these tests, a reviewing court must determine whether the federal interest involved may nevertheless be such that it justifies state submission.  The Court applied this test and held that the Surface Mining Act did not compel the states to enforce the standards or commandeer the legislative process of the states.  Justice Marshall stressed that mere displacement of states' police power pursuant to congressional action under the Commerce Clause is not prohibited by the Constitution or the Tenth Amendment.  The demise of Usery thus began as the Court summarily distinguished the Surface Mining Act as a regulation of individual business and not of states as states. 
In the following term, the Court again faced the tension between congressional grants of power and the reservation of power found in the Tenth Amendment. In Federal Energy Regulatory Commission v. [Page 854] Mississippi  (FERC), the Court considered a constitutional challenge to the Public Utility Regulatory Policies Act.  This Act was passed to combat the nation's energy crisis and attempted to encourage conservation of electricity and optimization of efficiency and equity to consumers.  To achieve these ends, the Act requires state regulatory commissions to consider federal rate structures and regulatory standards.  The Act dictates the manner in which the methods are to be considered and imposes specific reporting requirements regarding those considerations. 
The State of Mississippi, among others, challenged the federal requirements as beyond the scope of the Commerce Clause and as violative of the Tenth Amendment.  The Court rejected the early doctrine that the federal government could not compel state officers to perform certain duties.  Instead, the Court embraced the competing idea that "the Federal Government has some power to enlist a branch of state government . . . to further federal ends."  The Court, however, found that the state utility regulatory commissions were equivalent to judicial tribunals  and that Congress had the power to require those tribunals to enforce federal law.  This effectively allowed Congress to impose certain requirements on state judiciaries. Note, however, that "the Court left open the question whether other branches could be so enlisted."  The requirements of the Brady Act do not apply to the judicial branch and therefore fall within this unanswered question.
Furthermore, like the Court in Hodel, the FERC Court held that nothing in the Act directly compels the states to enact legislation or threatens the sovereignty of the states.  Also like Hodel, the Court asserted that federal law may displace exercises of state police power without violating the Constitution.  Justice Blackmun, writing for the court, then hinted at a de minimis test for federal intrusion when he stated that "(w)e fail to see, however, that this places any particularly [Page 855] onerous burden on the State."  This idea was abandoned when Justice Blackmun later stated that the Act did not compel the exercise of states' sovereign powers. 
Justice O'Connor's dissent laid the foundation for her later majority opinion in New York v. United States.  She returned to the Usery opinion, arguing that the Act regulates states as states and invades the attributes of state sovereignty.  Justice O'Connor then reviewed the history and intent behind the framing of the Constitution  and concluded that "government by one sovereign through the agency of a second cannot be satisfactory." 
Usery was further minimized in EEOC v. Wyoming,  the Court's next case involving a Tenth Amendment challenge to federal legislation. This case challenged the constitutionality of amendments to the Age Discrimination in Employment Act (ADEA) that made it applicable to state and local governments.  Although factually very similar to Usery, the Court distinguished the amendments narrowly, severely limiting the application of Usery.  The Court found that the present amendments constitute a lesser intrusion on the states and, therefore, Congress would not be overridden. 
Chief Justice Burger, in dissent, argued that "Congress' authority under the Commerce Clause is restricted by the protections afforded the states by the Tenth Amendment."  He then applied the Hodel test  and concluded that the ADEA as applied to the states violated the Constitution.  Justice Powell, in a separate dissent, also argued that the Tenth Amendment acted as a restriction on the national government. 
Whatever shred of life was left in Usery after EEOC was expressly buried by the Court in its next Tenth Amendment case, Garcia v. San [Page 856] Antonio Metropolitan Transit Authority.  Garcia involved the application of the FLSA to state and local government employees.  The Court found the Usery approach to this issue unworkable and it was expressly overruled.  Finding no violative interference with state sovereignty, the Court held the application of the federal statute to the states to be constitutional. 
More important, the Court effectively narrowed the use of the Tenth Amendment by stating that "(a)part from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself."  In other words, the Framers carefully protected states' rights through careful design of the political process and the delegation of powers rather than through the terms of the Tenth Amendment. 
Justice O'Connor dissented in Garcia, arguing that the political processes praised by the majority had been ineffective in preventing the unprecedented growth of federal regulation in recent decades.  She continued by offering a reminder from McCulloch v. Maryland  that courts must consider both the ends and the means of federal legislation and determine whether those are appropriate based on the letter and the spirit of the Constitution.  Fearing an assault on federalism, Justice O'Connor would place great importance on state autonomy when weighing the means employed by Congress.  It is not difficult to speculate the outcome if her reasoning were applied to the Brady Act.
The Supreme Court first applied its Garcia analysis in South Carolina v. Baker.  This case involved the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) which eliminates the federal income tax exemption for interest earned on certain publicly offered long-term bonds issued by state and local governments.  The exemption remained in effect for registered bonds.  TEFRA was [Page 857] challenged by states claiming that it compelled them, in violation of the Tenth Amendment, to issue only registered bonds.  Justice Brennan delivered the opinion for the Court and applied Garcia without reference to the previously discussed cases.  After determining that states are protected by the right to participate in the political process and finding no evidence that South Carolina was deprived of that right, the Court upheld TEFRA as constitutional. 
Justice Rehnquist concurred, arguing that TEFRA should be upheld because its impact on states was de minimis.  Justice O'Connor again dissented, arguing in favor of state autonomy as a limit on the federal government's exercise of enumerated powers.  She observed that federal taxation was a threat to state sovereignty and urged the Court to strike the provision as violative of the Tenth Amendment. 
2. New York v. United States
Against this "fractious and complex history"  the Supreme Court decided its most recent Tenth Amendment case, New York v. United States.  In New York, the Supreme Court considered a challenge to three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (Waste Act).  The Waste Act provides three incentives to encourage states' compliance with the statutory obligation to dispose of waste generated within their borders. 
The first incentive is a monetary enticement.  It provides for a surcharge to be collected by the Secretary of Energy and redistributed to the states upon compliance with certain deadlines.  The Court upheld this incentive, holding that "conditioned grants to the States upon the States' attainment of a series of milestones" is within the Congress' power.  [Page 858]
The second incentive is an access incentive.  This provision not only allows a host state to collect an escalating surcharge on waste entering from other states, but also allows denial of access if the exporting state failed to license its own disposal facility by 1992.  The Court also upheld this incentive, stating that Congress has the power "to offer states the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation."  The Brady Act does not provide either a monetary enticement or an access incentive to encourage background checks. The Court's approval of these methods has no effect on the Brady Act.
The third and most severe incentive at issue in New York was the "take-title" provision.  This incentive was the most similar to the background check requirement of the Brady Act because it placed affirmative duties on state governments without providing enabling funds. The take-title provision required states to operate disposal sites within their borders  by January 1, 1996 or, in the alternative, to take actual title to all waste within their borders at that time.  This incentive was invalidated by the Court because Congress "crossed the line distinguishing encouragement from coercion."  This is the same welcome that the Brady Act has received in five of the six courts which heard its challenge.
The unfunded federal mandate at issue in New York provides the most recent Supreme Court statement regarding application of the Tenth Amendment.  The Court found that the Tenth Amendment does, in fact, act as a restraint on the powers of Congress.  The restraint, however, is not derived from the text of the Amendment.  The Court, therefore, must determine "whether an incident of state sovereignty is protected by a limitation on an Article I power." 
Charged with a broad and critical mission, Justice O'Connor, writing for the majority, attempted to clarify "the boundary between federal and [Page 859] state authority."  As discussed above, the federal government can constitutionally encourage state action by providing conditional grants or by allowing the states to choose between regulation and federal preemption.  These exercises of authority do not intrude on the sovereignty reserved to the states by the Tenth Amendment.  In addition, these methods enable the state governments to remain responsive to local concerns and accountable to the voters.  The Court made it clear, however, that "Congress may not simply commandee(r) the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program."'  States do not exist as regional offices or administrative agencies of the federal government. 
Finding that the take-title provision offered states a "choice" between enacting regulation or accepting ownership of hazardous materials,  the Court concluded that a choice between two unconstitutionally coercive regulatory techniques is no choice at all.  Though the motive may be pure and the need immediate, the Court warned against the temptation to concentrate power in a single legislative body as an expedient solution to the current problem.  This warning, however, fell on deaf congressional ears.
The announcement of the "no commandeering" rule was not the only bit of controversy created by the Court's opinion in New York. The opinion effectively ignored a substantial number of Supreme Court decisions on the Tenth Amendment by making a distinction between those underlying regulations that worked as "generally applicable laws" and those that, instead, regulated only the states.  The Court determined that New York presented no occasion to apply or revisit many of [Page 860] the above-mentioned cases because the take-title provision was not generally applicable to private parties.  This is a distinction that the dissent vigorously attacked as "especially unpersuasive." 
It is on this controversial point that the Brady Act challenges turn. The outcomes of these cases depend upon whether the reviewing court interprets New York as dispositive authority or instead applies the Court's entire Tenth Amendment record.
V. THE STATE OF THE CHALLENGE
It is impossible to speculate whether the Brady Bill was a factor in the New York decision. New York was decided in 1992 during intense debate about the Brady Bill and after constitutional concerns were voiced in Congress. Whether the legislation was a contributing factor or not, the Court knew of the Brady Bill and its potential Tenth Amendment deficiencies. The Court nevertheless solidified the "no commandeering" rule and refused to carve out exceptions to the strict announcement. Thus, the extension of this rule to the Brady Act is entirely appropriate and should be expected. One may challenge the reasoning which supports the rule,  but the application of that rule to federal mandates of state governments is hardly an arguable issue.
The implications of the New York rule for federal mandates, including the Brady Act, are both reasonable and predictable. A careful reading of the case will instruct Congress as to what it may and may not require of states. The Supreme Court's interpretation of the Constitution forewarned Congress about the Brady Act's vulnerabilities and it cannot now marvel at the judiciary's activism. Neither this interpretation nor the likelihood of activism toward future federal unreimbursed responsibilities is a threat to congressional power. Both are implications which should please both Federalists and Anti- Federalists: Congress may regulate states by jumping through certain hoops, but states are not required to volunteer as implements of federal legislation.
Five federal district courts refused to enforce the Brady Act because it unconstitutionally intrudes upon state sovereignty in violation of the Tenth Amendment.  One court, however, found no constitutional deficiency and upheld the Brady Act as written and enacted.  Each of [Page 861] these cases is factually similar. Each was initiated by a local sheriff in an attempt to enjoin enforcement of the Brady Act. Each case also involved other issues in addition to the Tenth Amendment challenge. For example, the United States consistently challenged the plaintiffs' standing to sue.  These challenges were unsuccessful as each of the courts held that the plaintiff suffered an injury caused by the Brady Act which could be redressed by a favorable decision. 
In deciding the cases, each district court reviewed the substantive provisions of the Brady Act and then analyzed those requirements in light of Supreme Court precedent regarding congressional powers. Thus, the outcome of the Brady Act challenges turned on whether the reviewing court applied only New York or, instead, applied the Court's entire line of Tenth Amendment decisions. This is because the Brady Act is extremely difficult to uphold under New York's stringent "no commandeering" rule. The Brady Act could more easily be upheld by application of prior cases, such as FERC or Garcia, in which the Court allowed Congress to place certain requirements on the states. To the extent that these cases are irreconcilable, New York, as the most recent, should control and displace contrary precedent. It is, therefore, the duty of lower federal courts to strictly apply the "no commandeering" rule to generally applicable legislation and application of any other law is incorrect.
In Printz v. United States,  the government argued that the Tenth Amendment rules should not be understood solely on the basis of the New York opinion.  It attempted to make prior cases relevant by arguing that the Brady Act is a generally applicable law, that the states are protected by the political process, that the Act is not mandatory, and that its provisions are only a de minimis intrusion.  The Printz court correctly declined the invitation to visit cases other than New York, but agreed with the government that the case allowed a de minimis burden on the states.  The court nevertheless found that "the impact of the mandates of the Act is far from de minimis"  and concluded that [Page 862] Congress substantially commandeered the states in violation of the Tenth Amendment. 
The Printz court should be commended for its willingness to boldly apply the law even when faced with an extremely controversial issue. It was the first court to hear a Brady Act challenge and had no general rule or prior opinions to reject or deferentially accept. But was the proverbial slate really as clean as it appeared? Although the Brady Act's slate was clean, the unfunded mandates' slate was clearly marked with a rule by the name of New York v. United States. The Printz court proceeded to correctly mark the former slate.
The second challenge to the Brady Act was brought by Sheriff J.R. Koog in Koog v. United States.  This court, unlike Printz, did not limit the scope of its review to New York. After noting the unclear Supreme Court decisions, the court stated that "no single decision controls the entire spectrum of Tenth Amendment analysis. Opinions such as New York, Garcia, and FERC all exist side by side as precedents binding on this Court."  The court aligned the principles enunciated in these cases on a continuum and placed the Brady Act challenge on that continuum.  Concluding that the requirements placed on state officials were minimal, the court held that the Brady Act did not unconstitutionally commandeer the states. 
The Koog court found that the Brady Act was more like the regulation challenged in FERC than that challenged in New York.  Even if the court was correct in applying cases other than New York, the court erred by following FERC. Without supporting authority, Koog extended FERC's blessing of congressional mandates on a state judicial branch to mandates on other state branches. This is impermissible because the extension was a question left open by the FERC court itself  and answered in the negative by New York.  Thus, the court literally compared apples and oranges when it compared the duties imposed on CLEOs under the Brady Act with the burdens imposed on the quasi- judiciary in FERC.
Furthermore, it is difficult to agree with the Koog court's supporting premise that a background check on every handgun purchase is a [Page 863] minimal burden on local law enforcement efforts. For example, Sheriff Samuel Frank of Orange County, Vermont, testified in a subsequent case that the time required to perform a background check ranges from fifteen minutes to six hours.  He testified that the sheriff's office served about 26,000 persons  and had no more than two persons on duty during a typical day.  Both time and money are extremely valuable in offices like Sheriff Frank's. Because of limited funding and personnel in law enforcement offices, the Brady Act imposes more than a minimal burden on those state actors forced to implement its requirements. That burden is not diminished by the fact that the interim provisions will be phased out in five years nor does it somehow transform an unconstitutional mandate into a presently flawed, but constitutional, law.
After the first two challenges yielded a split of authority, the Brady Act suffered two severe blows in June 1994. In early June, a federal district court in Mississippi sustained Sheriff Bill McGee's challenge to the constitutionality of the Brady Act.  After a brief discussion of cooperative federalism, the court noted that in the Brady Act Congress did not give local sheriffs the option of cooperating with federal officials, but rather mandated compliance with specific requirements.  The court's discussion and analysis consisted of extensive citation to New York and concluded by adopting the "no commandeering" rule.  The court cited FERC, noting a de minimis exception, but did not cite any other previous Supreme Court cases in the Tenth Amendment line. 
In late June, the Brady Act was again struck down in Mack v. United States.  Like McGee, the Mack court did not expressly choose to apply New York as the dispositive law governing all Tenth Amendment cases, but did correctly apply its rule without significant reference to prior Supreme Court decisions.  The court rejected the government's attempt to paint the Brady Act as "a law of general applicability."  Concluding that the Brady Act was even more intrusive than New [Page 864] York's take-title provision, the court held that the requirements placed on state actors exceeded Congress' delegated powers. 
These two decisions in June 1994 were devastating to proponents of the Brady Act. During the course of one month, an even split of authority had given way to a majority rule holding the Act to be unconstitutional. This trend is acceptable because the tie-breaking cases were correctly decided. The McGee and Mack courts correctly identified the analogous provisions and binding authority of New York. They objectively put aside issues of gun control or the right to bear arms and correctly applied recent Supreme Court precedent. Unlike the Printz court, however, these courts had a split of authority and could choose which sister jurisdiction's lead to follow. Competing opinions existed and these courts correctly chose to follow the judgment and opinion of Printz. Finding the Brady Act to burden state and local actors, the courts invoked the "no commandeering" rule and struck down the Act.
The next decision regarding the constitutionality of the Brady Act was brought on May 10, 1994 by Sheriff Samuel Frank in Frank v. United States.  This case represents the boldest example of a court's express choice to limit its binding authority to New York. After discussing the Brady Act and other gun control laws, the court addressed the law applicable to the case.  The court "subtly" hinted at its inclination when it stated in a footnote:
The Government bemoans the fact that "for all practical purposes" Sheriff Frank relies exclusively on New York. That observation is correct. Of course, if a party is going to rely exclusively on one case, the most recent Supreme Court case discussing the issue at hand is not a bad choice. 
The court solidified its position by bluntly and correctly holding that "New York controls the outcome of this case."  The court reasoned that the Brady Act did not subject state governments to generally applicable laws  and, like the take-title provision in New York, it commanded action on the part of those state governments.  A strict application of the New York "no commandeering" rule to these findings could yield only one result. Without mention of a de minimis exception and without apology, the court emphatically stated that "(t)here can be [Page 865] no doubt that such a command is unconstitutional."  Provisions mandating CLEOs to perform background checks and to report their results were made merely optional by the court. 
The most recent challenge to the Brady Act is Romero v. United States.  This case firmly established the emerging trend as the general rule when it struck down the Brady Act as unconstitutional.  After determining that Congress has the authority to regulate handguns, the court turned to the question of whether the Constitution grants Congress the "authority to instruct the states to act pursuant to federal edict . . . ."  The court recognized the general "no commandeering" rule of New York and then enumerated certain "exceptions" when the Supreme Court allowed minimal federal intrusion.  The court cited, for example, FERC, which allowed Congress to require state judiciary officers to enforce federal law.  The court concluded, however, that the Brady Act "does not fall into any of the(se) bright line clearly-defined categories . . . ." 
The court next took the interesting step of deciding which incidents of state sovereignty are protected by the Tenth Amendment.  The court held that two such protected incidents are the maintenance of public order and the allocation of funding for Sheriffs' Offices.  It then concluded that the Brady Act intrudes unconstitutionally on these incidents and that "(b)y acting to control state law enforcement methods rather than controlling interstate commerce itself, Congress has gone one step too far."  Thus, without citing the prior Brady Act challenges, the federal district court in Louisiana correctly aligned itself with those courts holding fast to the rule of New York. It fell short of the boldness of Frank, however, by leaving open the possibility that there exist incidents of state sovereignty that may be unprotected by the Tenth Amendment although not yet enumerated by the Supreme Court.  The court did not miss the opportunity to issue a strong [Page 866] statement to Congress and charged that "the Brady Act significantly impairs the ability of the states to function effectively in a federal system."  Thus, as the general rule becomes increasingly clear, the assertions directed toward Congress become increasingly heated.
At this time, these six decisions represent the entire line of authority on the constitutionality of the Brady Act. Appeals from these decisions and future challenges are likely. It is not clear, however, whether the Supreme Court will hear one of these challenges. The Court may decline to hear the arguments for either of two reasons. First, the issue will be moot when the permanent provisions become operative. Second, the issue was already decided in New York and most lower courts have correctly applied its rule to the Brady Act. Future decisions should follow the majority rule generally and the boldness of Frank specifically. The opinions should recognize New York as binding authority and confidently conclude that the Brady Act is unconstitutional.
It should be clear that the challenges discussed in this Comment affect issues other than gun control in this country. Although law-makers in Washington clearly missed the "no commandeering" message of New York, the increasingly clear message of the Brady Act opinions rang loudly through the halls of Congress.  This modern resurrection of the Tenth Amendment begun in 1976 by Usery rapidly approaches completion with the emerging trend against unfunded federal mandates. Senator Robert Dole perhaps heard the message more clearly than any other lawmaker in Congress. In expressing his understanding, he pledged to enter the text of the Tenth Amendment into the Congressional Record each week for the duration of the 1995 legislative session.  In keeping that pledge, Senator Dole recently stated that "(i)n the 104th Congress, we plan to dust off the 10th amendment and restore it to its rightful place in the Constitution." 
Although not the single cause for this resurgence of the Tenth Amendment, the Brady Act certainly helped spark a fire in the grassroots effort to reassert state sovereignty. Its controversial provisions and clear mandates, coupled with its nationwide interest, formed an unusual series of issues for public debate. Originally designed as a gun control measure, the scope of the Brady Act [Page 867] unintentionally widened, giving both parties a fundamental issue to argue. Proponents asserting gun control and opponents asserting states' rights extracted compelling arguments from the debates surrounding the Brady Act. From this loaded exchange of ideas emerged an unconstitutional law that not only presently saves lives, but also aided the rediscovery of the Tenth Amendment. These already- realized benefits, the intended and the unintended, will survive regardless of the present waiting period and background check imposed by the judiciary on the Brady Handgun Violence Prevention Act.
Congress recognized a need to curb handgun violence and proceeded to enact the Brady Handgun Violence Prevention Act. This was a laudable end for which to strive, but the means invoked by Congress were vulnerable to constitutional challenge. Approximately one year after the Supreme Court ruled that the federal government could not commandeer state governments to implement federal legislation, Congress placed unfunded enforcement requirements on local law enforcement officers through the Brady Act. After six challenges to these requirements, there is a clear trend among federal district courts to strike the Brady Act down as violative of the Tenth Amendment. This is a correct outcome given the clear and exception-free rule announced by the Supreme Court in New York v. United States.  The application of this rule to the Brady Act is appropriate and its implications positive. In the future, Congress must decide whether it will invoke lawful incentives when mandating action by the states or whether it will reserve regulation of such issues for state legislatures. This is the law, according to the Supreme Court, and the successful challenges to the Brady Act will serve as a helpful reminder to the Congress of the United States of America.
* Jonathan Duncan. The author would like to thank Professor Stephen R. McAllister and Leslie A. Johnson for their very helpful comments and suggestions in the preparation of this Comment.
. Marie Cocco, For James Brady, A Trip Back to Terror, Newsday, Mar. 31, 1989, at 2.
. United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990); Lieutenant Matthew J. Sweeney, The Insanity Defense and the Trial of John W. Hinckley, Jr., 36 Naval L. Rev. 287 (1986) (book review).
. 138 Cong. Rec. S16,556 (daily ed. Oct. 5, 1992) (citing David B. Kopel, Why Gun Waiting Periods Threaten Public Safety, Independence Institute, Mar. 25, 1991).
. President's Remarks on Signing the Brady Bill, 29 Weekly Comp. Pres. Doc. 2477 (Dec. 6, 1993).
. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, S 102(a)(1), (b), 107 Stat. 1536, 1536-41 (codified at 18 U.S.C. S 922(s), (t) (Supp. V 1993)).
. Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994); Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994); Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994); McGee v. United States, 863 F. Supp. 321 (S.D. Miss. 1994); Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994); Romero v. United States, 1994 WL 794098 (W.D. La. Dec. 8, 1994).
. The Brady Act has been challenged as being unconstitutionally vague in violation of the Fifth Amendment. See, e.g., Frank, 860 F. Supp. at 1034. One court sustained this challenge, holding that the duties imposed on state officials were imprecise and indefinite and that "(t)his runs afoul of the Fifth Amendment Due Process Clause." Mack, 856 F. Supp. at 1382. The Mack court, however, rejected the argument that the Act's requirements constituted involuntary servitude in violation of the Thirteenth Amendment. Id.
. Mark Udulutch, Note, The Constitutional Implications of Gun Control and Several Realistic Gun Control Proposals, 17 Am. J. Crim. L. 19 (1989).
. 140 Cong. Rec. S15,000 (daily ed. Oct. 8, 1994) (statement of Sen. Mitchell) (in the first 100 days of operation nationwide, the Brady Act prevented 57,332 ineligible persons from purchasing handguns).
. Frank, 860 F. Supp. at 1043 n.15 ("Although the subject of federal law challenged here is the transfer of handguns, this case has absolutely nothing to do with the Second Amendment or the right to bear arms. This case is about the ability of the Federal Government to require action on the part of local officials."). For a discussion of the Second Amendment, see Jay R. Wagner, Comment, Gun Control Legislation and the Intent of the Second Amendment: To What Extent Is There an Individual Right to Keep and Bear Arms?, 37 Vill. L. Rev. 1407 (1992).
. Marc C. Cozzolino, Gun Control: The Brady Handgun Violence Prevention Act, 16 Seton Hall Legis. J. 245, 245 (1992).
. See National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. SS 5801-5872 (1988 & Supp. V 1993)); David T. Hardy & John Stompoly, Of Arms And The Law, 51 Chi.-Kent L. Rev. 62, 63 (1974).
. 26 U.S.C. S 5811(a) (1988); Hardy & Stompoly, supra note 12, at 63 n.14.
. See Federal Firearms Act, ch. 850, 52 Stat. 1250, repealed by Act of June 19, 1968, Pub. L. No. 90-351, S 906, 82 Stat. 234 (1968); Hardy & Stompoly, supra note 12, at 63-64.
. Act of June 30, 1938, ch. 850, S 3, 52 Stat. 1251 (repealed 1968).
. Act of June 30, 1938, ch. 850, S 2, 52 Stat. 1250 (repealed 1968).
. Hardy & Stompoly, supra note 12, at 64.
. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended at 18 U.S.C. SS 921-930 (1988 & Supp. V 1993)); Senator Bob Dole, The Brady Bill: It's Just Not Enough, 3 Kan. J.L. & Pub. Pol'y, Spring 1994, at 135.
. Id.; see also Frank v. United States, 860 F. Supp. 1030, 1033 (D. Vt. 1994).
. 27 C.F.R. S 178.124 (1994).
. 18 U.S.C. S 923(a) (Supp. V 1993); see also Frank, 860 F. Supp. at 1033.
. Monica Fennell, Missing the Mark in Maryland: How Poor Drafting and Implementation Vitiated a Model State Gun Control Law, 13 Hamline J. Pub. L. & Pol'y 37, 42 (1992).
. 18 U.S.C. S 923(g) (Supp. V 1993); see also Frank, 860 F. Supp. at 1033.
. 138 Cong. Rec. S16,556 (daily ed. Oct. 5, 1992) (statement of Sen. Smith) (citing David B. Kopel, Why Gun Waiting Periods Threaten Public Safety, Independence Institute, Mar. 25, 1991).
. Id. at S16,557.
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1985.
. Id. at 9, 1993 U.S.C.C.A.N. at 1986.
. Id.; Fennell, supra note 23, at 42.
. Cozzolino, supra note 11, at 247.
. Id. at 247-48.
. Id. at 248.
. See H.R. Rep. No. 344, 103d Cong., 1st Sess. 12-13 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1989-90.
. Id.; Cozzolino, supra note 11, at 250.
. Cozzolino, supra note 11, at 250.
. Id. at 250-51.
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 13 (1993), reprinted in 1993 U.S.C.C.A.N 1984, 1990; Cozzolino, supra note 11, at 251. This bill included minor changes immaterial to the present discussion. Cozzolino, supra note 11, at 252.
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1991.
. Cozzolino, supra note 11, at 261; Andrew J. McClurg, The Rhetoric of Gun Control, 42 Am. U. L. Rev. 53, 54-55 n.3 (1992).
. See H.R. Rep. No. 344, 103d Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1991.
. See id.; Cozzolino, supra note 11, at 261.
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1991.
. President's Remarks on Signing the Brady Bill, 29 Weekly Comp. Pres. Doc. 2477 (Dec. 6, 1993).
. The Tenth Amendment reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X.
. 139 Cong. Rec. H9143-44 (daily ed. Nov. 10, 1993) (statement of Rep. Schiff) ("There is no authorization of funding to do a personal background check, but that is what we are ordering the local police and sheriffs to do.").
. H.R. Rep. No. 344, 103d. Cong., 1st Sess. 38 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 2008 (statement of Rep. Schiff).
. Id. Representative Schiff stated on the floor of the House of Representatives that "(t)he motion to recommit I have offered directs the Committee on the Judiciary to remove the unfunded mandate by either removing the requirement now in the bill that chiefs of police and sheriffs take action, or requires that the Federal Government fund the action that we are ordering them to take." 139 Cong. Rec. H9143 (daily ed. Nov. 10, 1993) (statement of Rep. Schiff).
. 137 Cong. Rec. E1698 (daily ed. May 9, 1991) (statement of Rep. Orton) ("This issue is one for the States or the people to determine, not the Federal Government.").
. 139 Cong. Rec. S16,307 (daily ed. Nov. 19, 1993) (statement of Sen. Craig).
. 138 Cong. Rec. S16,556 (daily ed. Oct. 5, 1992) (statement of Sen. Smith) (quoting David B. Kopel, Why Gun Waiting Periods Threaten Public Safety, Independence Institute, Mar. 25, 1991).
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 7 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1984.
. "Handgun" is defined by the Gun Control Act (of which the Brady Act is a part) as "a firearm which has a short stock and is designed to be held and fired by the use of a single hand." 18 U.S.C. S 921(a)(29) (Supp. V 1993).
. 139 Cong. Rec. S16,319 (daily ed. Nov. 11, 1993) (statement of Sen. Murray).
. 18 U.S.C. S 922(s)(2) (Supp. V 1993); H.R. Rep. No. 344, 103d Cong., 1st Sess. 7, 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1984, 1987.
. 18 U.S.C. S 922(t) (Supp. V 1993); H.R. Rep. No. 344, 103d Cong., 1st Sess. 11 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1988. The fact that the waiting period is a temporary measure is further evidence that the Brady Act's primary purpose is not to serve as a "cooling off" period.
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 11 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1988; Koog v. United States, 852 F. Supp. 1376, 1379 (W.D. Tex. 1994).
. "For purposes of this subsection, the term .chief law enforcement officer' means the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." 18 U.S.C. S 922(s)(8) (Supp. V 1993). See also Roy v. Kentucky St. Police, No. CIV.A.C94-0050-P(H), 1995 WL 146989 (W.D. Ky. Mar. 31, 1995).
. 27 C.F.R. S 178.130 (1994); Frank v. United States, 860 F. Supp. 1030, 1033 (D. Vt. 1994).
. 18 U.S.C. S 922(s)(3)(B) (Supp. V 1993); Koog, 852 F. Supp. at 1378 (W.D. Tex. 1994).
. 18 U.S.C. S 922(s)(1) (Supp. V 1993).
. Id. S 922(s)(1)(C).
. Id. S 922(s)(1)(B).
. Id. S 922(s)(1)(A)(i)(I-IV).
. Id. S 922(s)(2).
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 10 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1987 (emphasis added).
. 18 U.S.C. S 922(s)(6)(B)(i) (Supp. V 1993).
. Id. S 922(s)(6)(C).
. Id. S 922(s)(1)(A); Frank v. United States, 860 F. Supp. 1030, 1033-34 (D. Vt. 1994).
. H.R. Rep. No. 344, 103d Cong., 1st Sess. 22 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1999.
. Id. at 11, 1993 U.S.C.C.A.N. at 1988.
. Id. at 22, 1993 U.S.C.C.A.N. at 1999.
. None of the cases discussed in this Comment challenge the funded permanent provisions of the Brady Act. All challenges at this time are focused on the unfunded interim provisions.
. Detailed discussion of these cases and the courts' reasoning is found, infra, part IV.
. See, e.g., Printz v. United States, 854 F. Supp. 1503, 1507 (D. Mont. 1994); Edward A. Zelinsky, Unfunded Mandates, Hidden Taxation, and the Tenth Amendment: On Public Choice, Public Interest, and Public Services, 46 Vand. L. Rev. 1355, 1356-57 (1993).
. Zelinsky, supra note 81, at 1366.
. Id. It is estimated that the unfunded nature of these requirements will cost state and local governments approximately $16 billion in 1995. 141 Cong. Rec. H129 (daily ed. Jan. 5, 1995) (statement of Rep. Hayworth).
. 141 Cong. Rec. S1018 (daily ed. Jan. 18, 1995) (statement of Sen. Inhofe).
. See Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48. The Senate bill is described as
A bill to curb the practice of imposing unfunded Federal mandates on States and local governments; to strengthen the partnership between the Federal Government and State, local and tribal governments; to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate funding, in a manner that may displace other essential governmental priorities; and to ensure that the Federal Government pays the costs incurred by those governments in complying with certain requirements under Federal statutes and regulations . . . .
141 Cong. Rec. S53 (daily ed. Jan. 4, 1995) (statement of Sen. Kempthorne). This bill passed the Senate on January 27, 1995 by a vote of 86 to 10. 141 Cong. Rec. S1684 (daily ed. Jan. 27, 1995).
A similar bill in the House provides that if a mandate costs states over $50 million a year, "the mandate must be funded or those mandates will not become effective." 141 Cong. Rec. E49 (daily ed. Jan. 5, 1995) (statement of Rep. Clinger). This bill passed the House on February 1, 1995 by a vote of 360 to 74. 141 Cong. Rec. H1006 (daily ed. Feb. 1, 1995). A conference report, agreed to by both the House and the Senate, was signed into law by President Clinton on March 23, 1995. Helen Dewar, Hailing Bipartisanship, Clinton Signs Bill to Restrict Unfunded Mandates, Wash. Post, Mar. 23, 1995, at A10.
In addition, there is also a similar proposed amendment to the Constitution. 141 Cong. Rec. S415-16 (daily ed. Jan. 4, 1995) (statement of Sen. Hatch) ("Unfunded mandates would not be enforceable against States and localities unless Congress so specified through a separate supermajority vote."). In his introduction, Senator Hatch expressly stated that the amendment would codify the Supreme Court's ruling in New York v. United States, 112 S. Ct. 2408 (1992). Id.
. See Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48; 141 Cong. Rec. S1650 (daily ed. Jan. 27, 1995) (statement of Sen. Kempthorne).
. 141 Cong. Rec. S1650 (daily ed. Jan 27, 1995) (statement of Sen. Kempthorne).
. 854 F. Supp. 1503 (D. Mont. 1994).
. Id. at 1519 ("By requiring the states to carry out an unfunded federal mandate, Congress has substantially commandeered state executive officers and indirectly commandeered the legislative processes of the states to administer a federal program.").
. 852 F. Supp. 1376 (W.D. Tex. 1994).
. Id. at 1389.
. 863 F. Supp. 321 (S.D. Miss. 1994).
. 856 F. Supp. 1372 (D. Ariz. 1994).
. 860 F. Supp. 1030 (D. Vt. 1994).
. No. CIV.A.94-0419, 1994 WL 794098 (W.D. La. Dec. 8, 1994).
. Mack, 856 F. Supp. at 1379.
. New York v. United States, 112 S. Ct. 2408, 2420 (1992).
. Congress generally uses the Commerce Clause as its authority for firearm control statutes. Udulutch, supra note 8, at 33. The statutes may be justified in three ways: "(1) the activity involved relates to interstate transactions; (2) the activity has an effect on interstate commerce; or, (3) the activity is such that control is necessary and proper so as to effectuate the commerce power." Id. (footnotes omitted). Note that legislation enacted under the Commerce Clause enjoys a presumption of constitutionality and receives a highly deferential judicial review. Mack, 856 F. Supp. at 1379.
. Walter Berns, The Meaning of the Tenth Amendment, in Taking the Constitution Seriously: Essays on the Constitution and Constitutional Law 162, 162 (Gary L. McDowell ed., 1981).
. Charles A. Lofgren, The Origins of the Tenth Amendment, in Government From Reflection and Choice: Constitutional Essays on war, Foreign Relations, and Federalism 70, 75 (1986).
. Id. at 82.
. Ralph Ketcham, Introduction to The Antifederalist Papers and the Constitutional Convention Debates 1, 13 (Ralph Ketcham ed., 1986).
. Id. at 16-17.
. Lofgren, supra note 100, at 90.
. Ketcham, supra note 102, at 17.
. Leonard W. Levy, Bill of Rights, in Essays on the Making of the Constitution 258, 273- 74 (Leonard W. Levy ed., 2d ed. 1987).
. Id. at 277.
. Id. at 278.
. Id. at 258. This strategy proved successful. The opposition weakened as the people of the United States increasingly accepted the proposed Constitution and Bill of Rights. Id. at 289.
. Lofgren, supra note 100, at 106.
. Id.; Levy, supra note 106, at 280.
. Levy, supra note 106, at 286. The amendments were not passed as Madison intended. He argued to incorporate the amendments into the text of the Constitution at the appropriate points instead of placing them together as a supplement at the end of the document. Id. at 283.
. Id. at 288-89.
. Lofgren, supra note 100, at 107.
. Id. at 106-07.
. Id. at 107.
. Id. at 111.
. Berns, supra note 99, at 166.
. Id. at 170.
. Charles J. Bloch, States' Rights: The Law of the Land 32 (1958).
. See Raoul Berger, Federalism 77 (1987). Berger introduced his discussion of the Tenth Amendment stating that "(i)t is the fashion to belittle the Amendment as inconsequential, .redundant,' a .constitutional tranquilizer, and empty declaration."' Id.
. Id. at 80.
. U.S. Const. art. I, S 8, cl. 3.
. U.S. Const. art. I, S 8, cl. 18.
. New York v. United States, 112 S. Ct. 2408, 2417 (1992).
. Id. at 2419.
. See infra part V.
. 112 S. Ct. 2408 (1992).
. See, e.g., Frank v. United States, 860 F. Supp. 1030, 1042 (D. Vt. 1994).
. See Koog v. United States, 852 F. Supp. 1376, 1387-88 (W.D. Tex. 1994).
. Id. at 1387.
. Id. at 1381.
. Articles of Confederation art. II.
. U.S. Const. amend. X.
. Lofgren, supra note 100, at 108.
. 3 U.S. (3 Dall.) 386 (1798); see also Berns, supra note 99, at 167.
. Calder, 3 U.S. at 387.
. Berns, supra note 99, at 167-68.
. 74 U.S. (7 Wall.) 71 (1869).
. Id. at 76.
. 247 U.S. 251, 275 (1918), overruled by United States v. Darby, 312 U.S. 100, 116 (1941).
. Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 Kan. L. Rev. 493, 495 (1993).
. United States v. Darby, 312 U.S. 100, 124 (1941).
. Zelinsky, supra note 81, at 1367.
. For a general discussion of the effect of unfunded mandates, see id. at 1359-69.
. New York v. United States, 112 S. Ct. 2408, 2420 (1992).
. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530 (1985).
. Id. at 836-37.
. See id. at 841.
. Id. at 845.
. Id. at 851.
. Id. at 852.
. See Levy, supra note 142, at 497.
. See National League of Cities v. Usery, 426 U.S. 833, 858 (1976) (Brennan, J., dissenting).
. Id. at 862 (Brennan, J., dissenting).
. 452 U.S. 264 (1981).
. See id. at 268.
. See id. at 269.
. Id. at 283.
. Id. at 287-88 (citations omitted).
. Id. at 288 n.29.
. Id. at 288.
. Id. at 291.
. See id. at 293.
. 456 U.S. 742 (1982).
. See id. at 745.
. Id. at 746.
. Id. at 746-48.
. Id. at 748-49.
. Id. at 752.
. Id. at 761.
. Id. at 762.
. Id. at 760-61 & n.24 (citing Butz v. Economou, 438 U.S. 478, 513 (1978)).
. Id. at 760 (citing Testa v. Katt, 330 U.S. 386 (1947)).
. Printz v. United States, 854 F. Supp. 1503, 1513 (D. Mont. 1994).
. Federal Energy Reg. Comm'n v. Mississippi, 456 U.S. 742, 765 (1982).
. Id. at 767.
. Id. at 768.
. Id. at 769, 771.
. 112 S. Ct. 2408 (1992).
. FERC, 456 U.S. at 778-79 (O'Connor, J., dissenting).
. Id. at 791-96 (O'Connor, J., dissenting).
. Id. at 792 (O'Connor, J., dissenting).
. 460 U.S. 226 (1983).
. Id. at 229.
. Levy, supra note 142, at 497.
. EEOC v. Wyoming, 460 U.S. 226, 239 (1983).
. Id. at 252 (Burger, C.J., dissenting).
. Id. at 258 (Burger, C.J., dissenting). The Hodel test is very similar to the Usery test.
. Id. at 265 (Burger, C.J., dissenting).
. Id. at 269-79 (Powell, J., dissenting).
. 469 U.S. 528 (1985).
. Id. at 533.
. Id. at 531.
. Id. at 554.
. Id. at 550-51.
. See id. at 552.
. Id. at 587 (O'Connor, J., dissenting).
. 17 U.S. (4 Wheat.) 316 (1819).
. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 585 (1985) (O'Connor, J., dissenting).
. See id. at 588 (O'Connor, J., dissenting).
. 485 U.S. 505 (1988).
. Id. at 507.
. Id. at 507-08.
. Id. at 508.
. See id. at 512.
. Id. at 513, 527.
. Id. at 529 (Rehnquist, C.J., concurring).
. Id. at 530 (O'Connor, J., dissenting).
. Id. at 533-34 (O'Connor, J., dissenting).
. Koog v. United States, 852 F. Supp. 1376, 1386 (W.D. Tex. 1994).
. 112 S. Ct. 2408 (1992).
. See id. at 2414.
. Id. at 2416.
. Id.; 42 U.S.C. S 2021e(d)(2) (1988).
. New York, 112 S. Ct. at 2416.
. Id. at 2427.
. Id. at 2416; 42 U.S.C. S 2021e(e)(2) (1988).
. New York, 112 S. Ct. at 2416.
. Id. at 2427.
. Id. at 2416; 42 U.S.C. S 2021e(d)(2)(C) (1988).
. 42 U.S.C. S 2021e(d)(2)(C) (1988).
. The requirements apply to individual states or to groups of states known as compact regions. Id. States may organize into compact regions to assist in meeting the requirements of the Act, but failure of the region to comply nevertheless forces states to take title to the low-level radioactive waste generated within their borders. Id.
. New York, 112 S. Ct. at 2428.
. For a detailed critique of the Court's reasoning, see Levy, supra note 142.
. New York, 112 S. Ct. at 2418.
. Id. at 2419.
. Id. at 2423-24.
. Id. at 2427.
. Id. at 2424.
. Id. at 2420 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981)).
. Id. at 2434.
. Id. at 2428.
. Id. at 2434. This is true even if the states previously consented to the will of Congress. Id. at 2431 (When Congress exceeds its authority, "the departure from the constitutional plan cannot be ratified by the .consent' of state officials."). This, however, is a point with which the dissent disagrees. See id. at 2441 (White, J., dissenting in part, concurring in part) (arguing that the State of New York consented to Congress' requirements and "should not now be permitted to complain").
. See id. at 2420; see also Scott Gardner, Recent Case, 31 Duq. L. Rev. 877, 881 (1993).
. New York, 112 S. Ct. at 2420.
. Id. at 2443 (White, J., dissenting in part, concurring in part).
. See, e.g., Levy, supra note 142.
. Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994); Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994); McGee v. United States, 863 F. Supp. 321 (S.D. Miss. 1994); Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994).
. Koog v. United States, 852 F. Supp. 1376 (W.D. Tex. 1994).
. See, e.g., id. at 1379-81.
. See, e.g., id. at 1380 (applying Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992)).
. 854 F. Supp. 1503 (D. Mont. 1994).
. Id. at 1515.
. Id. at 1515-17.
. See id. at 1517.
. Id. at 1519.
. 852 F. Supp. 1376 (W.D. Tex. 1994).
. Id. at 1387.
. Id. at 1381.
. Id. at 1389.
. Id. at 1388.
. See Federal Energy Reg. Comm'n v. Mississippi, 456 U.S. 742, 761-62 (1982); see also Printz v. United States, 854 F. Supp. 1503, 1513 (D. Mont. 1994).
. New York v. United States, 112 S. Ct. 2408, 2434-35 (1992).
. Frank v. United States, 860 F. Supp. 1030, 1032 (D. Vt. 1994)
. Id. at 1031.
. Id. at 1032.
. McGee v. United States, 863 F. Supp. 321, 327-28 (S.D. Miss. 1994).
. Id. at 326.
. Id. at 326-27.
. 856 F. Supp. 1372, 1383-84 (D. Ariz. 1994).
. Id. at 1378-80.
. Id. at 1380 (calling the argument "disingenuous").
. Id. at 1381.
. 860 F. Supp. 1030 (D. Vt. 1994).
. Id. at 1041-43.
. Id. at 1041 n.13.
. Id. at 1042.
. Id. at 1043.
. Id. at 1042-43.
. Id. at 1042.
. Id. at 1044.
. No. CIV.A.94-0419, 1994 WL 794098 (W.D. La. Dec. 8, 1994).
. See id. at *11.
. Id. at *6.
. Id. at *7.
. Id. at *8-9.
. Id. at *9-10.
. Id. at *10.
. See id. at *9. It is difficult to determine the hazards or benefits of such a view in future decisions by the court. Such speculation, however, is not relevant to the court's reasoning about the immediate challenge to the Brady Act.
. Also ringing loudly through the halls of Congress were the results of the November 8, 1994 election.
. 141 Cong. Rec. S998 (daily ed. Jan. 17, 1995) (statement of Sen. Dole).
. 141 Cong. Rec. S1684 (daily ed. Jan. 27, 1995) (statement of Sen. Dole).
. 112 S. Ct. 2408 (1992).