Seton Hall Legislative Journal
Symposium: Triggering Liability: Should Manufacturers, Distributors, and Dealers be Held Accountable for the Harm Caused by Guns?
vol. 19, no. 3, 1995.
Note, 894.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE BRADY HANDGUN VIOLENCE PREVENTION ACT: DOES IT HAVE A SHOT AT SUCCESS?
Jill A. Tobia*
I. Introduction
Gun violence in the United States over the past ten years has reached epidemic proportions.[1] The statistics concerning handgun violence in this country are especially troubling.[2] The impact of the crimes, murders, suicides, and accidents resulting from the use of these weapons touches the lives of all Americans regardless of social status, culture, age, or race.[3] This growing fear for personal safety, coupled with the proliferation of handguns in this country, has made gun violence a central political issue.[4] [Page 895]
While the public perception of fear often initiates dialogue among politicians, it is the occurrence of high-profile events that prompts legislative action in Congress.[5] Consequently, the proposal of the Brady Handgun Violence Prevention Act ("Brady Act"), fueled by the events surrounding John Hinkley's attempt on the life of President Reagan, eventually gathered enough support to pass the scrutiny of Congress.[6] However, while it is sometimes hard to imagine opposition to a law aimed at preventing the illegal transfer of these potentially deadly weapons,[7] there is a concern that the Act infringes upon the rights of both individuals and states.[8] The value that the public and the courts place on the protection of such rights exposes the conflict between the desire to be protected from harm and the desire to preserve individual autonomy.[9] The future of the Brady Act depends on a resolution of this [Page 896] tension.
Part II of this note provides a brief historical background of the events that led up to the introduction and eventual passage of the Brady Act. Part III discusses the Act's legislative history, with specific emphasis on congressional debates over the sections which are presently playing a key role in both the Act's enforcement and challenges to its constitutionality. Part IV then outlines the continuing dialogue between gun proponents and opponents, as well as scholarly discussion on the effectiveness and viability of the Act. Part V examines the recent attempts to challenge the constitutionality of certain sections of the Act in the courts. Finally, Part VI discusses the future of the Brady Act, especially in light of the Act's uncertain status in the courts. Furthermore, this section explores the Brady Act's impact on future attempts at gun legislation.
II. Historical BackgroundAmericans have always been fascinated by guns.[10] Today, both the press[11] and entertainment media[12] continue to capitalize on [Page 897] this popular fascination and thus subconsciously perpetuate a gun culture.[13] The steadily increasing loss of life to gun violence in this country over the course of the last thirty years, however, has generated a strong counter balance to this detached fascination.[14] The main piece of gun control legislation during this time period was the 1968 Gun Control Act.[15] This Act made it unlawful for convicted felons, drug users, mentally incompetent individuals, dishonorably discharged military personnel and fugitives to purchase or possess a firearm.[16] However, the only method prescribed by [Page 898] the statute to enforce these exclusions was to require that all gun purchasers complete a form certifying that they did not belong to one of the restricted classes enumerated in the statute.[17] The most obvious deficiency in this legislation was its failure to provide for effective enforcement.[18] Yet, this law remained unchallenged as no further gun control measures were introduced in Congress until the assassination attempt on President Ronald Reagan revitalized the issue.[19]
On March 30, 1981, John Hinckley, Jr., armed with a .22 caliber pistol, shot President Reagan, White House Press Secretary James Brady, and two law enforcement agents.[20] Although President Reagan fully recovered, James Brady is permanently disabled and confined to a wheelchair.[21] Symbolizing the "permanent legacy of pain and everyday struggle," James and Sarah Brady became the spokespersons for a strong national effort to reduce gun vio- [Page 899] lence.[22] The end result of their efforts is embodied in the Brady Handgun Violence Prevention Act.[23]
III. Legislative HistoryAlthough the assassination attempt on President Reagan occurred in 1981, no gun control legislation was actually introduced in Congress until 1987.[24] In addition to this initial delay, the Brady Act was not sent for Presidential approval until November, 1993.[25] The nearly six years of debate over the Brady Act demonstrates that despite their proclaimed commitment to combatting gun violence, congressional members remained divided on the best means to achieve this laudable end.[26] In the end, the intense debate of four separate Congress' led to the passage of a "bipartisan compromise,"[27] which left many members speculating that the Brady Act [Page 900] was more a symbolic, rather than actual, victory in the process of enacting effective gun control measures.[28]
Perhaps the most significant revision of existing gun control laws offered by every version of the Brady legislation was an attempt to statutorily impose some form of waiting period on all handgun purchases.[29] The first version of the Brady Act, introduced by Congressman Edward Feighan (D-Ohio) in the 100th Congress, sought to implement a national seven day waiting period on gun transfers to those individuals not licensed to make such purchases under the Gun Control Act of 1968.[30] According to its provisions, the bill required that, upon application for a handgun purchase, the purchaser must submit to the dealer a sworn statement verifying that he or she is not prohibited by federal or state law from receiving such a weapon.[31] It was then the responsibility of the dealer to forward this form to the chief legal enforcement officer of the purchaser's residence to verify that he or she complied with federal and state law.[32] Subsequent to its proposal, Mr. Feighan offered and had accepted H.R.975 as an amendment to an omnibus drug bill entitled the Anti-Drug Abuse Act of 1988 [hereinafter "Brady Amendment"].[33] On September 15, 1988, however, the Brady Amendment and its national waiting period provision was replaced by the House of Representatives. This amendment called for the establishment of a system, within one year of the bill's passage, that would allow gun dealers to immediately assess the criminal background of a potential purchaser.[34] [Page 901]
Despite the enactment of the Anti-Drug Abuse Act in 1988 in this amended form,[35] the establishment of such a system was conceded to be only a long-term possibility.[36] Consequently, the following year, Representative Feighan again attempted to legislatively impose a national seven day waiting period for handgun purchases.[37] Only two days of congressional hearings were devoted to this bill. Accordingly, no action was ever taken.[38]
Nonetheless, the continued pressure applied by mounting statistics over the increase of handgun violence in this country favored a renewal of Brady legislation.[39] Thus, attempting to once again capitalize on this favorable climate, Representative Feighan introduced another waiting period bill.[40] This bill called for a national five business-day waiting period, which would be eclipsed once an instant-check system was implemented by the Attorney General.[41] This version, although subsequently passed by the House of Representatives,[42] was never voted upon by the Senate.[43]
The substance of this legislation, however, was preserved and [Page 902] reintroduced by Representatives Schumer and Sensenbrenner on February 22, 1993.[44] Although significant debate surrounding the exact textual language followed, H.R.1025 was eventually passed into law almost identical to how it was initially proposed.[45] Specifically, the Act requires that all handgun[46] purchasers complete a form certifying that they do not fall into one of the prohibited categories enumerated by the statute.[47] Upon completion of the form, the gun dealer is required to furnish the chief legal enforcement officer ("CLEO") of the county in which the purchaser resides with the statement.[48] The CLEO officer then has five days[49] to make a "reasonable effort"[50] to ascertain whether a handgun transfer is prohibited.[51] If a handgun transfer is deemed to be unlawful, the [Page 903] CLEO must provide the denied transferee with a written explanation for the denial.[52] Similarly, if the CLEO deems the transfer permissible, he or she is responsible for destroying the records obtained during the background check.[53] The ascertainment and background check provision is termed by the act to be only a temporary process, which is to be replaced by a national instant criminal background check system.[54]
The legislative history of the Act, and the Congressional debates that comprise this history, have been sharply criticized as representing faulty reasoning on both sides.[55] The use of emotion to foster support for both points of view arguably obscured the true goal of attempting to effectively combat the increasing amounts of gun violence in this country.[56] According to the critics of the legislation, the Brady Bill does not target the correct market for effectively preventing gun violence.[57] In fact, even Congress noted that [Page 904] most guns are primarily purchased from sources other than legitimate gun dealers.[58] Therefore, critics and scholars have begun to examine the positions of the interest groups responsible for the legislation in order to continue to search for an effective means of legislatively combatting the gun violence epidemic.
IV. The Spectrum of the Gun Control DebateThe Congressional debate over the Brady Act is in part a product of the opposing views of two special interest groups: Handgun Control, Inc. ("HCI")[59] and the National Rifle Association ("NRA").[60] Emerging from the debate between the two opposing organizations is the spectrum of views that comprise the discussion concerning gun control. The passage of the Brady Act has been viewed as an "important first step" for HCI and other gun control proponents.[61] Furthermore, it has been used as a stepping stone for further regulatory measures.[62] However, while the passage of the Brady Act is deemed by many to signify a weakening of the NRA's traditional domination over politicians,[63] the compromises made during its drafting indicate that the NRA still wields substantial influence in the political arena.[64] Furthermore, the scrutiny of the Brady Act, as well as proposals for further regulatory measures, [Page 905] will continue to fuel this debate.[65] The arguments on both sides, as well as scholarly comment on this topic, all play a key role in shaping future attempts to reduce the amount of gun violence in this country.[66]
A. Gun Waiting PeriodsThe debate surrounding the effectiveness of the five day waiting period that the Brady Act imposes on handgun purchasers reveals a fundamental disagreement as to whether this type of measure reduces the crime and violence committed with these weapons.[67] HCI maintains that waiting periods are an effective deterrent to gun violence.[68] In support of this proposition, HCI cites both John Hinckley's admission that a waiting period would have prevented his purchase of the gun used in the assassination attempt,[69] as well as the success of previously enacted state waiting periods aimed at preventing unwanted handgun transfers.[70] Fur- [Page 906] thermore, according to waiting period supporters, these type of measures do not inhibit legitimate gun ownership, but instead only prevent illegal purchases from occurring;[71] the impact on law abiding gun owners is minimal.[72]
In direct opposition to this support for waiting periods, however, is the contention that such regulations may actually threaten public safety.[73] Central to this assertion is the argument that waiting periods inefficiently divert already limited police resources to the performance of administrative duties rather than active law enforcement.[74] In addition to this reduction of police presence on the streets,[75] supporters of this position further argue that these [Page 907] measures detrimentally hinder legitimate attempts by individuals[76] to acquire guns for self-defense.[77] Consequently, the combination of both of these negative effects "may mean that a waiting period would cause a net loss of lives."[78]
B. The Second AmendmentIn addition to controversy surrounding its specific provisions, the broader debate evoked by the Brady Act involves the constitutionality of gun regulation in light of the Second Amendment.[79] [Page 908] Regardless of the specific effectiveness of the Brady Act and similar legislation, studies have demonstrated that gun control measures are associated with a lessening of violence.[80] In fact, gun control proponents cite compelling statistics that indicate that Americans overwhelmingly favor regulatory measures.[81] However, surveys of public attitudes also indicate that people are unwilling to sacrifice personal liberties even if the result would be to create a safer society.[82] Consequently, the NRA's contention that gun control laws undermine an individual's constitutional rights[83] continues to challenge legislative efforts to place restrictions on guns in order to achieve the goal of reducing violence in society.[84]
The NRA firmly asserts that gun control legislation impermissibly infringes upon an individual's "right to bear arms" under the Second Amendment.[85] According to the NRA, there is ample fed- [Page 909] eral case law that supports its interpretation of the Second Amendment.[86] In contrast to this position, gun control proponents argue that neither the historical context, nor the modern interpretation of this Amendment, mandate against legislative efforts to draft regulatory gun measures.[87] Most damaging to the NRA's position is the Supreme Court's ruling in United States v. Miller.[88] In Miller, the Supreme Court considered whether the National Firearms Act of 1934 violated the Second Amendment.[89] In ruling that the law was constitutional, the Court held that the Second Amendment was only protective of arms intended to be used for military purposes.[90] Consequently, this limited definition of the scope of the Second Amendment leaves the NRA with weak precedent for its expansive reading of this constitutional provision.[91]
The prospect of the passage of the Brady Act was thought by many to present an opportunity for the Supreme Court to revisit, and possibly refine, its ruling in Miller.[92] However, to date, no chal- [Page 910] lenges have been brought to the Act on Second Amendment grounds.[93] Yet, there still remains a section of the public that fears that this legislation is symbolic of a growing trend towards government intrusion into the lives of citizens.[94] Consequently, the NRA remains committed to challenging gun control efforts in order to preserve the tenets of the Second Amendment.[95] [Page 911]
V. Case LawWhile it is not the role of the courts to determine whether the Brady Act represents sound policy,[96] the judicial system is the arena to which the gun control battle has currently shifted.[97] Since its passage into law on November 24, 1993,[98] the Brady Act has been the subject of several lawsuits seeking to challenge its constitutionality.[99] Interestingly, while anti-gun control interest groups such as [Page 912] the NRA often voice a Second Amendment "right to bear arms" argument,[100] the courts considering the recent lawsuits have stated that such a right is not implicated.[101] Instead, the courts have focused on the Act's potential for exceeding Congressional authority granted under Article I, Section 8 of the United States Constitution and infringement upon the Fifth and Tenth Amendments.[102]
The two provisions of the Act that have been the subject of challenges by CLEOs are the penalty section[103] and the ascertainment and background check section.[104] Specifically, the CLEOs have contended that the ascertainment and background check provisions which call for CLEOs to assert a "reasonable effort" in performing searches, combined with the penalty section, is unconstitutionally vague and thus, a violation of the Due Process Clause of the Fifth Amendment.[105] Furthermore, in each case the CLEO has claimed that an Article I, Section 8, as well as a Tenth Amendment violation arises from the fact that the ascertainment and background check prescribes certain mandatory duties.[106] According to the CLEOs, the fact that they are forced to administer a federal act violates the proper relation between the federal government and the states as provided in the United States Constitution.
Before reaching the constitutional arguments, the courts that [Page 913] have heard these cases have all considered whether the individual CLEO has standing to challenge the provisions.[107] In each case, the courts have focused on whether the CLEOs could establish that they suffered actual injury as a result of each provision.[108]
In order to establish actual injury sufficient to achieve standing to sue pursuant to the penalty provision, the courts have examined whether this section is applicable to the CLEOs.[109] Of the five courts that have decided the issue, four have ruled that this provision is not applicable to the CLEOs.[110] Central to this determination was a memorandum drafted by Assistant Attorney General Walter Dellinger specifically analyzing the applicability of the penalty provision to the law enforcement officers responsible for the Act's Administration.[111] According to the memorandum, both the legislative history of the Act[112] and general principles of statutory construction[113] support the conclusion that such a provision [Page 914] was not intended to apply to the CLEOs.[114] The memorandum further recognized that any attempt by the government to prosecute a CLEO for failing to perform one of the Act's imposed duties would present substantial due process problems.[115] Consequently, the Assistant Attorney General opined that the penalty provision does not apply to the CLEOs.[116] Absent this threat of criminal prosecution, the CLEOs lack standing to challenge the penalty provision.[117] Accordingly, those courts that have adhered to these [Page 915] finding have dismissed the CLEOs' Fifth Amendment claims.
In Mack v. United States, however, the CLEO was ruled to have standing to challenge the penalty provision.[118] According to the Mack court, the Assistant Attorney General's interpretation of the applicability of the penalty provision to the CLEOs was not demanding of special authoritative weight.[119] The Mack court reasoned that the only basis for deferring to an agency's opinion is statutory ambiguity or silence on the specific issue.[120] However, according to the court, absent silence or ambiguity, deference should be given to the "plain meaning" of the statute.[121] Thus, based on the language of the statute, the court determined that anyone who knowingly violates the Act's provisions is subject to the proscribed penalty.[122] The Mack court concluded, therefore, that this threat of criminal sanctions constituted sufficient injury to allow the CLEOs standing to assert a Fifth Amendment challenge to the penalty provision.[123]
Reaching the merits of the CLEO's claim, the Mack court examined the clarity with which the textual language defined the CLEOs' duties under the Brady Act.[124] According to the court, the failure of the Act to define with specificity the parameters of what constitutes a "reasonable effort" in enforcing the ascertainment and background check provision presents a vagueness problem because the failure to perform such duties results in criminal sanc- [Page 916] tions.[125] Therefore, the Mack court found that the ascertainment and background check provision in conjunction with the penalty provision violates the Due Process Clause of the Fifth Amendment.[126]
Despite the general consensus among the courts considering challenges to the Brady Bill that criminal penalties cannot be invoked against the CLEO, the Act has been interpreted to impose civil mandates upon the CLEO when a handgun purchase occurs.[127] The issue that has arisen with respect to these challenges is whether the Brady Act allows the federal government to compel states to enforce a federal program in the absence of federal funding.[128] The two cases that represent the opposing sides of this debate as they have emerged in the court system are embodied in the decisions rendered in Koog and Printz.[129]
Interestingly, while both cases relied on New York v. United States as controlling precedent concerning the Tenth Amendment's limitations on federal mandates to states, each reached opposite conclusions as to its application to the Brady Act. In Koog, the court examined a line of Supreme Court decisions regarding the bounds set by the Tenth Amendment concerning federal mandates to the states.[130] According to the court, the discretion afforded to the CLEOs in performing the duties under the Act preserves the proper relationship between the federal government and the states.[131] However, in Printz, the court determined that Supreme Court precedent supported the proposition that such [Page 917] compulsory programs were prohibited by the Tenth Amendment.[132] Consequently, the courts reached opposing determinations concerning the constitutionality of the ascertainment and background check provision of the Act.[133] Since the decision in Printz, three other decisions have subsequently ruled the provision to be a violation of the Tenth Amendment.[134]
In light of the willingness of some courts to declare this important enforcement provision of the Act unconstitutional, severability of the section from the rest of the Act becomes central to the legislation's survival.[135] According to the courts, there is ample evidence in the Congressional records supporting the contention that federal legislators would have enacted this legislation regardless of whether the ascertainment and background check provision was included.[136] Furthermore, the courts have all noted that the legislation's call for a national system indicates that the CLEO's duties should be severable.[137]
To summarize, the problem presented by these court decisions declaring the ascertainment and background check provision unconstitutional is that one of the major enforcement provisions of the Act is now enjoined from performance in four states, thus providing ample precedent for similar decisions in other states. This clearly undermines one of the key provisions of the Brady Act and renders this piece of legislation significantly less effective.[138] The courts striking down this provision contend that their rulings are only temporary given that the Brady Act calls for a national background check system by 1998. However, since this system is still [Page 918] three years away from implementation, it has been speculated that the Supreme Court will step in and resolve these opposing interpretations.
VI. The Future of The Brady Act and Other Gun Control LegislationSome observers of the unfavorable court rulings have stated that the Act's provision for the establishment of a national background checking system by 1998,[139] which would relieve the CLEOs' duties, renders moot Fifth and Tenth Amendment challenges.[140] A national background check, however, only salvages the ascertainment and background check provision if such a system can be successfully implemented. A complete and updated national data base by 1998 seems highly unlikely in view of the statistics concerning the number of records currently available at this level.[141]
Even if such a system is achieved, the nature of gun regulation suggests that future legislation will continue to rely on state efforts for successful implementation and enforcement.[142] Proponents of the Brady Act see it as merely the first step towards devising a com- [Page 919] prehensive gun control strategy.[143] The next step that gun control proponents have taken is to lobby for the passage of the Gun Violence Prevention Act of 1994.[144] One of the major sections of this legislation seeks to create a state-based licensing and registration system for handguns.[145] In addition to specific constitutional problems with legislative provisions, all forms of gun regulation will continue to implicate Second Amendment concerns and thus, will face challenges from the NRA.[146] Furthermore, the NRA will continue to lobby for the repeal of the Brady Act and other regulatory measures,[147] as well as lobby for measures which they believe will [Page 920] reduce the crime problem without infringing upon the rights of all citizens.[148]
In conclusion, despite the differing views on gun control, there is relatively little disagreement that crime and violence are serious problems currently facing all citizens of the United States.[149] The fact that these problems continue to face society despite existing laws indicates that further attempts to find a solution are needed. Critics of both sides of the debate are increasingly willing to agree that some form of compromise must be effectuated between groups such as HCI and the NRA in order to facilitate meaningful, political debate leading to the passage of effective anti-crime laws.[150]
* J.D., Seton Hall University School of Law, anticipated 1995.
1. Rorie Sherman, Crime Toll on the U.S.: Fear, Despair and Guns, NAT'L L.J., Apr. 18, 1994, at A1. According to a poll taken by the Journal assessing public views on crime, 62% of the 800 people surveyed nationwide indicated that they were " 'truly desperate' about personal safety." Id. A similar poll conducted by the Journal five years ago found only 34% of those surveyed possessed this same concern. Id. As of November 24, 1994, a running count of homicides by gunshot in New York City totaled 825 victims. The Toll 1, NEWSDAY, Nov. 24, 1994, at A6.
2. Larry Stewart, America's Ignored Epidemic, TRIAL, Oct. 1994, at 7(1). According to Stewart, "[h]andgun violence is the ignored epidemic of the United States, one which costs 24,000 American lives annually. Statistics from the Center to Prevent Handgun Violence show that killings with weapons other than guns have decreased by 11% since 1987, while handgun killings have gone up by 52%." Id. The amount of deaths caused by handguns in this country is extremely disproportionate to the figures from other countries. Firearm Facts (Handgun Control Inc., Wash., D.C.) 1994. "In 1992, handguns were used to murder 36 people in Sweden, 97 in Switzerland, 60 in Japan, 128 in Canada, 33 in Great Britain, 13 in Australia, and 13,220 in the United States." Id.
3. ERIK LARSON, LETHAL PASSAGE: HOW THE TRAVELS OF A SINGLE HANDGUN EXPOSE THE ROOTS OF AMERICA'S GUN CRISIS 226 (1994). Mr. Larson predicts that
[t]he spreading violence evokes the forecasts made by AIDS researchers in the early days of the epidemic. As the disease gained momentum, forward-looking doctors warned that a time was fast approaching when the disease would cease to be a "gay" crisis; that every American, regardless of race, income, or sexual inclination, would soon know someone who was dying of the disease. The same, I think, can now be said of gun violence.
Id.
4. Steven Duke, Clinton and Crime, 10 YALE J. ON REG. 575, 583 (1993). In his article, Duke cites the centrality of gun control to the anti-crime strategy that President Clinton set forth during his presidential campaign. Specifically, the author characterizes gun control legislative measures as "trendy" in the political arena. Id.
5. WAYNE LAPIERRE, GUNS, CRIME, AND FREEDOM 41 (1994). While the social unrest and political assassinations of the 1960's aided the passage of the Gun Control Act, the assassination attempt on President Reagan served as a catalyst for the proposal of the Brady Act. Id. As Sarah Brady noted while lobbying for its passage:
The case of John Hinckley is a vivid reminder of how easy it is for a handgun to fall into the wrong hands. He walked into a Dallas pawnshop, purchased a cheap "Saturday Night Special"-no questions asked, no waiting period to see if he had a criminal or mental illness record-and a few minutes later was on his way, ready to shoot the president of the United States . . . .
Id.
6. The Brady Handgun Violence Prevention Act, Pub.L. No. 103-159, 107 Stat. 1536 (1993) [hereinafter Brady Act]; see also H.REP. No. 344, 103rd Cong., 1st Sess. 9 (1993) [hereinafter H.Rep. No. 344] (recognizing that "the dedication of Mr. Brady and Mrs. Sarah Brady to the campaign for effective control of gun violence, has galvanized a national movement").
7. See Laurel Loomis, A New Look at Gun Control Legislation: Responding to a Culture of Violence, 27 BEVERLY HILLS B.A.J. 160, 167 (1993) (characterizing the Brady Act's goal of attempting to achieve fewer illegal gun purchases as laudable and, while not perfect, is nonetheless a step in the right direction towards reducing crime).
8. Frank v. United States, 860 F.Supp. 1030 (D.Vt.1994). When considering whether Congress had exceeded its authority through its mandates to state officials under the Brady Act, the Frank court noted that although the gun legislation was well-intended, "laudable ends cannot be used to justify unconstitutional means." Id. at 1043.
9. McGee v. United States, 863 F.Supp. 321, 327 (S.D.Miss.1994). According to the McGee court:
The Brady Bill brings into conflict differing views as to the Second Amendment's 'right of the people to keep and bear arms' and views on the responsibility of government to protect its citizens from violence in a society that is becoming increasingly more violent and where fear of violence is becoming the greatest fear of our people.
Id.
10. LARSON, supra note 3, at 39. In an attempt to "explain how firearms became lodged in the national psyche as objects of almost sacred stature," Larson cites the creation of a glorified conquering of the Western frontier by the media and entertainment industry. Id. at 39, 196. The myth of the West, according to Larson, was created by nineteenth century writers in an attempt to capitalize on the country's westward expansion. Id. at 41. The glorification of the names and places of the West translated into the popular literature of the time. Id. at 42. Criminals such as Buffalo Bill Cody, Billy the Kid, and Jesse James and locations such as Dodge City, Deadwood, and Tombstone attained legendary status through the western prototype. The literary success of the Western saga was continued by the television and film industry. The ability of this genre to evoke images of this country's roots is one explanation that the author offers for his conclusion that Americans possess a unique enthusiasm for guns. Id. at 51. According to Larson, "[g]uns and violence were integral components of all film and TV westerns. 'Since the western offers itself as a myth of American origins ... it implies that its violence is an essential and necessary part of the process through which American society was established and through which its democratic values are defended and enforced.' The seemless barrage of dime novels, movies, and television conflated guns with history. In this milieu, any attempt to regulate the free flow of guns becomes nothing less than an effort to repudiate history." LARSON, supra note 3, at 51.
11. Id. at 167. Larson is particularly concerned with the material contained in gun magazines and publications such as American Handgunner, Shotgun News, and Kill Without Joy and what he believes is their clear advocation of violence. Id. The detailed descriptions in these publications of how to use weapons, especially guns, to commit heinous acts of violence was especially troubling to the author. Id. at 173. However, Larson does not offer any legislative solution to this problem presumably because of First Amendment free speech guarantees. Kimberley Stallings, Lethal Passage: How the Travels of a Single Handgun Expose the Roots of America's Gun Crisis: A Review, 31 HARV.J. ON LEGIS. 529, 535 (1994) (book review). Yet, Larson suggests that the publishers of such materials should be prosecuted. Id.; see also LARSON, supra note 3, at 180.
12. LARSON, supra note 3, at 197. This medium is thought of as the most powerful tool in stimulating violence. According to Larson:
America's entertainment media provides the last ingredients to the perverse and lethal roux that sustains our gun culture. Today's TV producers and movie directors have not only adopted and amplified the elemental messages of frontier myth-in particular the notion that only a gun can set you free-but so defined guns as to promote the use and proliferation of specific kinds of weapons . . . [the] action movies, 'reality' shows, news broadcasts, novels, and newspapers-play a far greater role in stimulating the country's bloodlust than any other source . . . .
Id. at 196-97.
13. Id. at 5. According to Larson, societal influences subtly suggest to the individual, "[r]each out ... and kill someone." Id. However, while the public seems to accept the proposition that television, movies, and other forms of the communications media promote violence, only 12% in a recent survey responded that they would support legislative efforts to restrict such violence on television. See Sherman, supra note 1, at A19. Despite this apparent consensus, there is currently a movement in Congress to pass the Television Violence Reduction Through Parental Empowerment Act of 1995 to address such an issue. See S.306, 104th Cong., 1st Sess. (1995) [hereinafter "Television Violence Reduction Act"] (attempting to establish methods, such as program rating systems and blocking ability, to enable parents to limit their child's exposure to television violence). While speaking on the impact of television violence on our nation's youth, Rep. Max Baucus (D-MT) commented that:
Our children will witness over 200,000 acts of violence on television by the time they turn 18. A new handgun is manufactured every 20 seconds in America. And many of them end up in the wrong hands . . . . There is much we can do. We can tell the media we will not be consumers of glorified violence.
141 Cong.Rec. S4882 (daily ed. Mar. 27, 1995).
14. See Sherman, supra note 1, at A1 (discussing the increase in the public perception of fear for personal safety).
15. Pub.L. No. 90-615 § 102, 82 Stat. 1214 (1968).
16. 18 U.S.C. § 922(d) (1968). Specifically, the statute prohibits an individual from purchasing and possessing a gun if that individual (1) is under 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 (4) has been adjudicated as a mental defective or has been committed to any mental institution. Id.
17. 18 U.S.C. § 922(c)(1). According to the provision, a purchaser is required to sign and date a form that states:
Subject to penalties provided by law, I swear that, in the case of any firearm other than a shotgun or a rifle, I am twenty-one years or more of age, or that, in the case of a shotgun or a rifle, I am eighteen years or more of age; that I am not prohibited by the provisions of chapter 44 of title 18, United States Code, from receiving a firearm in interstate commerce; and that my receipt of this firearm will not be in violation of any statute of the State and published ordinance applicable to the locality in which I reside . . . .
Id.
18. Robert Dole, The Brady Bill: It's Just Not Enough, 3 KAN.J.L. & PUB. POL'Y 135 (1994). According to Senator Robert Dole (R-KS), relying on the honesty and integrity of the purchaser poses no obstacle to the improper sale of firearms because destructive people maintain little or no respect or understanding for the law. Id. at 136.
19. See LARSON, supra note 3, at 220. Larson speculates as to what future assassination attempt, massacre, or random shooting spree will prompt further legislative action after the Brady Act. Id. at 221.
20. Howell Raines, Reagan Wounded in Chest by Gunman, N.Y. TIMES, Mar. 31, 1981, at A1. While all four men would eventually recover, the image of them immediately following the incident-bleeding on the sidewalk-had a profound effect on the nation's conscience and aroused awareness of the severity of gun violence. H.R.REP. NO. 47, 102nd Cong., 1st Sess. 4 (1991) [hereinafter H.R.Rep. No. 47].
21. See James S. Brady, Congress Didn't Want to See . . . What a Gun Did to Me, N.Y. TIMES, (attesting to the severe disabilities he suffers due to his gunshot wound).
22. H.R.REP. NO. 344, supra note 6, at 9. According to James Brady, " 'One day 12 years ago my life was changed forever by a disturbed young man with a gun. Until that time, I hadn't thought much about gun control or the need for gun control. Maybe if I had, I wouldn't be stuck with these damned wheels.' " Thomas L. Friedman, Clinton Signs Bill on Guns Into Law, N.Y. TIMES, Nov. 30, 1993, at A20.
23. H.R.Rep. No. 344, supra note 6, at 9. According to the report, the Act is the result of a national awareness of gun violence in this country fostered by the example and dedication to the cause demonstrated by Sarah and James Brady. Id.
24. 139 CONG.REC. H10,716 (daily ed. Nov. 22, 1993) (statement of Rep. Derrick). This delay in placing any viable legislation into congressional consideration can be attributed to the strong influence of the National Rifle Association in the political arena at this point in time. See Stephanie Saul, Brady Vows to Keep Pushing Gun Bill, NEWSDAY, Nov. 28, 1991, at 17.
25. 139 CONG.REC. S17091 (daily ed. Nov. 26, 1993). During the final remarks concerning the Brady Bill, Senator Mitchell recognized the toll that the lengthy debate had on Congress:
I think that while there are many people who will be pleased that it has been enacted, no one is more pleased than we are if for no other reason than the issue is now largely behind us . . . . There will be other issues, maybe other gun issues, but at least as far as the Brady bill is concerned, it has now been passed. It will go to the President.
Id.
26. See 139 CONG.REC. H2828 (daily ed. May 8, 1991). Representative McEwen (D-Ohio), when assessing the character of the gun control debate, noted that "we understand the Nation is unanimous in the effort to try to do something about controlling handguns. The Nation is very much divided as about how to do that. And just as the Nation is divided, the Congress is divided. There are very strong feelings on both sides." Id.
27. 139 CONG.REC. E3054 (daily ed. Nov. 24, 1993). According to Representative Jill L. Long (D-IN), "[t]he Brady bill that is being voted on by the House of Representatives today is not the same Brady bill that I opposed in the past. It is a bipartisan compromise . . . [which] will help in our fight against crime." Id.
28. 139 CONG.REC. S17092 (daily ed. Nov. 24, 1993). When commenting on the version sent for Presidential approval, Sen. Dole expressed his opinion that "the Brady Act is not going to end crime, not going to end people getting guns. In fact, there are conflicting views as to whether it is going to have any impact at all. But it is the law now. If we are standing here a year from now or 2 years from now saying it ought to be changed, that is something else. But at least it is passed." Id.
29. See supra notes 5 and 7 (discussing Sarah Brady's and Jim Brady's belief that a waiting period would have prevented Hinckley's assassination attempt).
30. See H.R.947, 100th Cong., 2nd Sess. (1988) [hereinafter H.R.947]; see also H.R.REP. NO. 47, 102d Cong., 1st Sess. 3 (1991).
31. H.R.947, supra note 30, at 1(b). The bill further required that the applicant supply a name, address, and birth date as it appeared on a valid form of identification. Id.
32. Id. at 2(a).
33. H.R.4916, 100th Cong., 2d Sess. § 903 (1988). This section became familiarly known as the "Brady Amendment." See H.R.REP. NO. 47, 102d Cong., 1st Sess. 10 (1991).
34. H.R.4916, 100th Cong., 2d Sess. § 6213 (1988) [hereinafter "McCollum Amendment"]; see also H.R.REP. NO. 47, 102d Cong., 1st Sess. 10. "Under its terms, the McCollum Amendment required the Attorney General to report back to Congress within one year after the Act's enactment on the system he had developed for allowing dealers to identify immediately and accurately felons who try and purchase firearms." H.R.REP. NO. 47, supra.
35. Dole, supra note 18, at 135 (discussing the failure of the Attorney General to implement such a system to date).
36. See H.R.REP. NO. 47, 102d Cong., 1st Sess. 8 (quoting Letter from Richard Thornburgh, Attorney General, to Thomas S. Foley, Speaker, dated Nov. 20, 1989). According to the Attorney General, "while a comprehensive, accurate system for identifying felons at the point-of-sale simply cannot be fully accomplished in the near term, we must recognize it as a worthwhile goal to be accomplished over time." Id. at 4. The Attorney General proposed a long-range plan to establish a telephone link from dealers to a criminal justice agency responsible for accessing relevant records. Upon an instant check, this agency would then authorize the sale of the handgun. Id. at 5.
37. H.R.467, 101st Cong., 1st Sess. (1989).
38. Semiautomatic Assault Weapons Act of 1989: Hearing Before the Subcommittee on Crime and Criminal Justice of the House Comm. on the Judiciary, 101st Cong., 1st Sess. (1989).
39. For example, statistics released at that time revealed a 97% increase in youth firearm murders since 1984. Youth Homicide and School Violence at Record Levels, New Center Research Shows, HANDGUN CONTROL SEMI-ANNUAL PROGRESS REPORT (Handgun Control, Inc., Wash., D.C.), Jan. 1991, at 6.
40. H.R.7, 102nd Cong., 1st Sess. (1992).
41. Id.; see also, H.R.REP. NO. 344, 103d Cong., 1st Sess. at 7.
42. On November 27, 1992, a roll call vote of the House of Representatives approved this version by the narrow margin of 205 to 203. Id.
43. Id.
44. H.R.1025, 103d Cong., 1st Sess. (1993).
45. See supra note 6.
46. The Act specifically amends the Gun Control Act of 1968 to define handgun as "a firearm which has a short stock and is designed to be held and fired by use of a single hand; and any combination of parts from which [such] a firearm . . . can be assembled." 18 U.S.C. § 922(s)(7)(B)(2).
47. 18 U.S.C. § 922(s)(1)(A)(i)(I). This form requires the purchaser to furnish:
(A) the name, address, and date of birth appearing on a valid identification document . . . of the transferee containing a photograph of the transferee and a description of the identification used;
(B) a statement that the transferee-
(i) is not under indictment for, and has not been convicted in any court of, a crime punishable by imprisonment for a term exceeding 1 year;
(ii) is not a fugitive from justice;
(iii) is not an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act);
(iv) has not been adjudicated as a mental defective or been committed to a mental institution;
(v) is not an alien who is illegally or unlawfully in the United States;
(vi) has not been discharged from the Armed Forces under dishonorable conditions; and
(vii) is not a person who, having been a citizen of the United States, has renounced such citizenship . . .
18 U.S.C. § 922(s)(3)(A)-(B)(vii).
48. 18 U.S.C. § 922(a)(1)(s)(1)(a)(IV). Specifically, the dealer is required to furnish the statement to the CLEO within one day of the application for purchase. Id.
49. 18 U.S.C. § 922(a)(1)(s)(1)(A)(ii)(I).
50. See H.R.REP. NO. 344, supra note 6, at 38 (dissenting remarks of Steve Schiff). One objection raised to such a delegation of responsibility to the CLEO is that the Act represents "an unfunded federal mandate on state and local law enforcement agencies." Id.
51. 18 U.S.C. § 922(a)(1)(s)(2) [hereinafter Ascertainment and Background Check Provision]. According to the Act:
[a] chief legal enforcement officer to whom a transfer has provided notice pursuant to paragraph (1)(A)(i)(III) shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local record-keeping systems are available and in a national system designated by the Attorney General.
Id.
52. 18 U.S.C. § 922(s)(6)(B).
53. 18 U.S.C. § 922(s)(6)(c).
54. 18 U.S.C. § 922(b)(t)(1).
55. See Andrew J. McClurg, The Rhetoric of Gun Control, 42 AM.U.L.REV. 53 (1992) (criticizing the reasoning that both sides of the issue used during the debate). According to McClurg:
Indeed, there seems to be a positive correlation between the importance of an issue, at least as perceived by the populace, and our readiness to resort to bad rhetoric in debating it. Gun control is a premiere example of such an issue. As demonstrated by the debate over the Brady bill, few issues are capable of generating such intense rhetorical conflict among the American people. As with other controversial issues such as abortion and affirmative action, opinions about gun control are almost always passionately held and in diametric opposition . . . Excepting a limited number of scholarly commentaries, discourse on gun control has been plagued by bad rhetoric.
Id. at 57-58.
56. Id. at 58. McClurg argues that:
[t]he Brady bill debate exemplifies the prevalence of poor and defective reasoning in gun control argumentation. At its best, the debate over the Brady bill seldom rose above the level of shrill hyperbole. At its worst, the discussion sank into the muck of name-calling and non-sequitur.
Id. at 58-59.
57. See H.R.REP. NO. 344, supra note 6, at 37 (dissenting remarks of Hon. Lamar Smith). According to Smith "[t]he Brady Bill is no substitute for comprehensive crime control legislation. Instead, passage of H.R.1025 will likely help the criminal by placing restrictions on the self-defense of law-abiding citizens." Id.
58. Id. at 5. According to a House Report, "[c]riminals obtain guns from a number of sources: they steal them, they get them from friends or associates, and they buy them from professional gun runners on the black market." Id.
59. Handgun Control, Inc. was established in 1974 by handgun violence victims. Our Goal: Reduce Gun-Related Injuries and Deaths in America (Handgun Control, Inc., Wash., D.C.) 1994, at 1. This national gun control lobbying organization is currently chaired by Sarah Brady. Id.
60. Founded in 1871, the National Rifle Association of America currently has approximately 3.3 million members. LAPIERRE, supra note 5, at 211.
61. Charles Ogletree, Getting Tough on Crime: Does it Work?, 38 BOST. BAR J. 9 (1994) (maintaining that the existence of over 200 million guns in this country indicates a need for measures such as the Brady Act which is aimed at limiting the amount of guns allowed to enter this realm of public possession).
62. See discussion infra Part VI.
63. See Alex Prud'homme, A Blow to the NRA; The House Takes an Overdue Stand for Gun Control, TIME, May 20, 1991, at 26. According to Prud'homme, the NRA's large membership and budget enabled it to overpower proponents of gun control, thus making it almost impossible to penetrate the interest group's stronghold on Congress. Id.
64. This continuing power on both the federal and state levels is openly recognized by HCI and is deemed a significant obstacle to all future gun control measures. Twenty Years Strong (Handgun Control, Inc., Wash., D.C.) 1994.
65. See discussion infra part VI.
66. See McClurg, supra note 55, at 59. According to McClurg, the only way that this country will ever achieve laws that are effective at preventing violence is to continually assess the debate over gun control. Id.
67. Six months after its enactment, five percent of handgun purchases were stopped during the waiting period. A Law Still Under Fire, U.S. NEWS & WORLD REPORT, August 1994, at 35. These stoppages were speculated to have prevented some serious violence. Id.
68. See Waiting Periods Work (Handgun Control, Inc., Wash., D.C.) Aug. 1993; see also The Case for a Waiting Period (Handgun Control, Inc., Wash., D.C.) 1988.
69. H.R.REP. NO. 47, 102nd Cong., 1st Sess. (1991). According to the Report:
Perhaps one of the most compelling testaments to the urgent need for a Federal waiting period comes from Hinckley himself, who said in an affidavit filed in Federal district court, 'I believe I would not have gone forward with the effort to shoot the President of the United States[.]' if State or Federal laws had required a waiting period before buying a handgun.
Id.
70. See CAL.PENAL CODE § 12071(3)(A) (West 1994) (providing for a fifteen day waiting period for purchase of concealable weapons); CONN.GEN.STAT.ANN. § 29-33 (West 1994) (imposing a two week period for the purchase of pistols and revolvers); FLA.STAT.ANN. § 790.0655(1)(a) (West 1984) (imposing a three day waiting period for handguns). For example, in California, the background checks performed during the waiting period halted 1,900 attempted purchases. Douglas A. Blackmon, Gun Sale Limits Don't Cut Crime, Experts Say, ATLANTA J. & CONST., May 29, 1990, at A9. Furthermore, in Florida, within the first six months of the legislation's enactment, 37 out of a total of 1,425 attempted purchases were denied because of discrepancies found during the performance of a background check within the proscribed period. Gun Control: It Threatens the Right People, TALLAHASSEE DEMOCRAT, Feb. 1, 1985, at A1.
71. Laurel Loomis, supra note 7, at 167. According to Loomis, law-abiding citizens and responsible gun owners should not have any objections to the Act since they are not adversely impacted by the waiting period. Id.; see also James S. Brady, Congress Didn't Want to See . . . , N.Y. TIMES, Apr. 3, 1990, at A23 (observing that "the only inconvenience [of a waiting period] is for the gun dealer who can't pocket the money right away.").
72. LARSON, supra note 3, at 58. Concern among more middle ground gun enthusiasts is that the NRA's inflexible attitude "may soon lead to truly restrictive controls well beyond the simple, yet crucial, regulations now sought by moderate gun-control proponents, such as a mandatory national waiting period between the time a person buys a gun and the day he picks it up." Id. However, gun proponents clearly see more comprehensive measures as their ultimate goal. See discussion infra part VI.
73. David B. Kopel, Why Gun Waiting Periods Threaten Public Safety, INDEPENDENCE ISSUE PAPER (Independence Institute, Golden, CO) Mar. 1991, at 15.
74. Id. at 23. According to Kopel, approximately 7.5 million firearm purchases occur each year. Id. (citing Task Force on Felon Identification System, Report to the Attorney General on Systems for Identifying Felons Who Attempt to Purchase Firearms, (Department of Justice, Wash., D.C.) Oct. 1989, at 34). Estimating that a thorough background check would require at least an hour, he concludes that at least 7.5 million police hours would be devoted to this procedure. Id. For Kopel, this exertion of time and resources is extremely inefficient as it targets law-abiding citizens instead of criminals. Id. From the evidence, the author maintains that:
In the haystack of applications by honest citizens, police would search for a few needles left by the nation's very stupidest criminals. Looking for crime, police officers would be directed into a paperwork enterprise particularly unlikely to lead to criminals. Would not all those millions of police hours be better spent on patrol, on the streets instead of behind a desk?
Id.
Kopel's conclusion is further strengthened by the fact that evidence gathered in the first few months of the Act's enforcement indicate that a background check consumes from two to six hours of the CLEO's time.
75. Kopel, supra note 73, at 23. This contention, however, may be weakened by the interpretation that the CLEOs are granted broad "discretion" in determining how much time they can devote to each search. See infra notes 111-115 and accompanying text discussing the Assistant Attorney General's interpretation that the Act affords CLEOs broad discretion in enforcing its provisions.
76. See David I. Caplan, Constitutional Rights in Jeopardy: The Push For 'Gun Control' (NRA Institute for Legislative Action, Wash., D.C.) 1991, at 6-7. Some authors have suggested that gun control legislation is especially discriminatory against women, as they are increasingly the victims of violent crimes. Id. Accordingly, "[t]o leave a woman only to her fists or voice for self-defense seems the veriest discrimination against women." Id. However, this argument is weakened by statistics indicating that a far greater percentage of women are killed by guns than the number that use the weapon to kill in self-defense. Study Details Use of Handguns by Women, STAR TRIBUNE, July 20, 1994, at 7A (stating that in 1992, 1,098 women were the victims of fatal handgun shootings as compared to 26 fatal incidents of women using these guns in self-defense). The obvious weakness in these statistics, however, is that there is no data as to how many occasions women used guns in self-defense, including those which did not result in the death of the attacker.
77. Kopel, supra note 73, at 27. The Act attempts to address this concern by allowing an individual to obtain a waiver of the waiting period when there exists a threat of "imminent harm" to that individual or a member of his or her family. In order to obtain such a waiver, however, the individual must obtain a written statement from the CLEO authorizing an immediate purchase. Id. Kopel argues that this burden to obtain the exemption, while it may appear minimal, will adversely affect those persons who are most often the victims of violent crime. Kopel, supra note 73, at 27. According to Kopel:
In practical terms, it is very doubtful that a potential crime victim (particularly the poor and minorities who are the victims of most violent crime), will be able to obtain a rapid appointment with the police administrator who will issue a gun authorization. If the administrator is out of town, or busy, or uninterested, the victim is out of luck.
Id. Kopel further notes that only threats to the victim's life would be covered under the purview of the Act. See H.R.7, § (a)(1)(B). Thus, he contends that violent crimes such as rape or aggravated assault may not be covered because these crimes were not always life threatening. Kopel, supra note 73, at 27. Yet, the current Act appears to diminish this argument as it applies, not only to threats to one's life, but also those of "imminent harm."
78. Kopel, supra note 73, at 23.
79. See U.S. CONST.AMEND. II. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Id. According to one author, "[t]hroughout history, this amendment has been the rallying cry of those who resist attempts by federal and state governments to enact legislation relating to gun possession and use." Loomis, supra note 7, at 160.
80. Jon Vernick et. al., Gun Control Won't Stop Violence, but it Can Limit it, BALTIMORE SUN, Oct. 26, 1994, at 15A.
81. H.R. No. 344, supra note 6, at 9. Over the past three years, studies have indicated that Americans support the enactment of gun control laws. Specifically, according to a 1993 Gallup poll, handgun purchase waiting periods were favored by 88 percent of Americans. Id. Furthermore, 1991 national polls indicated that over 70 percent favored stricter gun control measures such as handgun registration and prerequisite police-issued permits for gun purchasers. Id.; see also Two Decades of Progress, PROGRESS REPORT (Handgun Control, Inc., Wash., D.C.), Aug. 1994 (stating that a recent Time/CNN survey indicates that 70% of Americans support stricter gun control legislation).
82. See Sherman, supra note 1, at A1. According to a 1994 poll of public attitudes towards crime, despite a growing fear of violence, "[a] clear majority of Americans (75 percent to 85 percent) are unwilling to give up basic civil liberties even if doing so might enhance their personal safety." Id.
83. CAPLAN, supra note 76, at 1. Caplan argues that any attempt to interpret the Second Amendment as conveying only a collective right to bears arms necessarily requires other sections of the Bill of Rights to be similarly read. Id. at 2, 9. He asserts that this position is justified because both the First and Fourth Amendments, like the Second, incorporate the phrase "the right of the people." Id. "Accordingly, any restrictive 'collective right' interpretation, limiting the Second Amendment's 'right of the people to keep and bear arms,' by equal logic threatens the individual liberties otherwise thought to be secured by the First and Fourth Amendments regarding peaceable assemblies, and searches and seizures." Id. at 2.
84. See NRA and the Second Amendment (NRA Institute for Legislative Action, Wash., D.C.), reprinted in THE AMERICAN RIFLEMAN, Oct. 1990. The NRA is committed to defending an individual's right to possess a gun and thus avoid a situation where "American citizens [would have to] seek police permission before exercising their constitutional rights." Id.
85. See Richard Gardner, Vigilance on Behalf Of Liberty: The Second Amendment in its 200th Year (National Rifle Association, Wash., D.C.) 1991. According to authors such as Gardner, the Framers intent was to grant citizens an individual, not collective, right to possess arms. Id. at 2. Citing the views of such famous American leaders as George Mason, Thomas Jefferson, John Adams, Samuel Adams, Richard Henry Lee, and James Madison, the NRA contends that the Drafters intent was to grant an inalienable right to the people. NRA, TEN MYTHS ABOUT GUN CONTROL 28-29 (1994). For example, the NRA notes James Madison belief that "[the Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation . . . [when] the governments are afraid to trust the people with arms." Id. at 29.
86. See United States v. Cruikshank, 92 U.S. 542 (1876) (recognizing that the right of individuals to bear arms predates the Constitution); Presser v. Illinois, 116 U.S. 252 (1886) (holding that the states cannot issue prohibitions against this right); United States v. Verdugo-Urquidez, 110 S.Ct. 3039 (1990) (holding that the use of the term "the people" in the Second Amendment refers to all citizens).
87. See LOOMIS, supra note 7, at 160. The author concludes that "[t]he Second Amendment's guarantee of a 'right to bear arms' is specific to the historical context within which it was written. The constant threat of violence and the lack of a standing army made individual ownership and use of firearms a physical and political necessity." Id. at 168. However, today, our lives depend on more aggressive measures to prevent harmful gun use. Id.
88. 307 U.S. 174 (1939).
89. Id. at 175.
90. Id. at 178. According to the Court, the Second Amendment's protections extend only to weapons that have "some reasonable relationship to the preservation or efficiency of a well-regulated militia." Id.
91. See LOOMIS, supra note 7, at 168.
92. See Jay R. Wagner, 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) (concluding that, if challenged, the Brady Act would withstand constitutional scrutiny). In his article, Jay R. Wagner anticipates that the passage of the Brady Bill would prompt a constitutional challenge on the grounds that such legislation violates the Second Amendment. Id. at 1408. Accordingly, Wagner proposes a constitutional analysis for the courts to employ when reviewing federal gun control legislation. Id. at 1444-57. The author concludes that "the Framers of the Constitution intended the right to keep and bear arms to be an individual right." Id. at 1445. However, Wagner believes that even assuming the existence of an individual right to bear arms, certain types of gun control legislation are able to survive strict constitutional scrutiny. Id. at 1455. When subjecting the Brady Bill to such an analysis, Wagner contends that the government's interest in improving public safety by decreasing handgun violence must be weighed against the individual's right to keep and bear arms. Id. at 1453. In his analysis, the author asserts that the government's interest in preventing felons from obtaining handguns legitimately furthers its goal of "decreasing the number of firearms used in violent crimes." Id. at 1453-54. However, he points out that the government must employ the least restrictive means when burdening individual rights in order for the legislative measure to be constitutional. Id. at 1455. When applying this test, Wagner concludes that:
[t]he Brady Bill very likely meets this standard. The current version of the bill would require law-abiding citizens to wait only seven days before obtaining possession of a handgun, a minimal burden on the right to bear arms. Furthermore, the Brady Bill is keenly crafted to achieve its purpose. The bill requires the police to check the background of potential handgun purchasers during the waiting period. This requirement is probably the most direct and effective means of preventing felons from purchasing firearms. In sum, the Brady Bill would impose only minimal burdens on the right of law-abiding citizens to keep and bear arms while directly furthering a compelling state interest. [citations omitted]
Id. Consequently, while Wagner believes in the individual right to bear arms, he contends that the Brady Act does not impermissible infringe upon such a right. Id. Therefore, while arguing for constitutional challenges to legislation such as the Brady Bill, he advocates this position so that "a line of case law . . . develop[s] that will set the parameters for permissible gun control regulation." Id. at 1459.
93. See discussion infra Part V.
94. Keith Schneider, Fearing a Conspiracy, Some Heed a Call to Arms, N.Y. TIMES, NOV. 14, 1994, at A1. According to the article, citizen formed militias have been organizing in at least twenty states including Michigan, Florida and Washington. Id. An increase in the number of members in such groups was noticed after the passage of the Brady Act. Id. The majority of members in such groups are said to be "good, honest, hardworking people who [are] concerned about the Federal Government dictating to the states about gun control." Id. However, there still exists a fear that these groups primarily consist of white supremacists who have distorted the gun control issue for their own purposes. Id.
95. See William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994). Van Alstyne emphasized the importance of the NRA's perspective to future attempts by Congress to pass gun control measures. According to Van Alystyne:
The point to be made with respect to Congress and the Second Amendment is that the essential claim (certainly not every claim-but the essential claim) advanced by the NRA with respect to the Second Amendment is extremely strong. Indeed, one may fairly declare, it is at least as well anchored in the Constitution in its own way as were the essential claims with respect to the First Amendment's protection of freedom of speech as first advanced on the Supreme Court by Holmes and Brandeis, seventy years ago. And until the Supreme Court manages to express the central premise of the Second Amendment more fully and far more appropriately than it had done thus far, the constructive role of the NRA today, like the role of the ACLU in the 1920s with respect to the First Amendment (as it then was), ought itself not lightly to be dismissed. Indeed, it is largely by the 'unreasonable' persistence of just such organizations in this country that the Bill of Rights has endured.
Id. at 1255.
96. McGee v. United States, 849 F.Supp. 1147, 1148 (S.D.Miss.1994). The McGee court specifically noted that
[d]etermining what is or is not in the best interest of the United States and its people under the commerce clause of the Constitution is a legislative function, not a judicial function. Although, under the "separation of powers" principles laid out in our Constitution the courts do have the responsibility for determining if Congress in carrying out its legislative powers violates the Constitution. Consequently, this Court has no jurisdiction, no authority, no power, to question whether the Brady Bill is good policy or bad policy. That is simply not a function of the courts. The authority and responsibility of this Court is limited to a determination of whether or not the provisions in question violate the Constitution.
Id.
97. A Law Still Under Fire, US NEWS & WORLD REP., vol. 117, No. 7, 35. According to the article, "[i]n the endless fight over guns in America, controls are no sooner enacted than they are taken to court. The latest battleground is the federal Brady law . . . " Id.
98. See Robert Green, Brady Wins Long Battle For Gun Control, REUTERS, Nov. 24, 1993, at 1.
99. See, e.g., Printz v. United States, 854 F.Supp. 1503 (D.Mont.1994); Mack v. United States, 856 F.Supp. 1372 (D.Ariz.1994); Frank v. United States, 860 F.Supp. 1030 (D.Vt.1994); McGee, 849 F.Supp. at 1147; Koog v. United States, 852 F.Supp. 1376 (W.D.Tex.1994).
100. See LAPIERRE, supra note 5, at 11-21. The Act has been seen as causing a clash between this "right to bear arms" and the belief that the government should intervene and protect innocent citizens from the violence resulting from the use of guns. McGee, 863 F.Supp. at 327. In the judicial arena, no federal courts have ever held a piece of gun legislation unconstitutional under the Second Amendment. E.J. Montini, Anti-Violence Group Has Gun in its Sights, ARIZ.REP., Oct. 24, 1994, at B1.
101. See McGee, 863 F.Supp. at 327; Frank, 860 F.Supp. at 1043 n. 15; Printz, 854 F.Supp. at 1507.
102. See Printz, 854 F.Supp. at 1507. As the Printz court recognized, "[t] his is not a case about the Second Amendment. This case turns on the proper relationship between the federal government and the several states, and in particular, on the constitutionality of the federally imposed, unfunded mandates to the states." Printz, 854 F.Supp. at 1507; see also Frank, 860 F.Supp. at 1043 n. 15.
103. 18 U.S.C. § 924(a)(5) (1993). This section provides that, "[w] hoever knowingly violates subsection (s) or (t) of section 922 shall be fined not more than $1,000, imprisoned for not more than 1 year, or both." Id.
104. See Ascertainment and Background Check Provision, supra note 51.
105. See U.S. CONST.AMEND. X. The Due Process Clause of the Fifth Amendment specifically states that no person can "be deprived of life, liberty, or property without due process of law." Id.
106. See, e.g., Ascertainment and Background Check Provision, supra note 51 and accompanying text. For example, the CLEO must perform some type of background check. Id.
107. See Frank, 860 F.Supp. at 1035. In order to assess standing, the courts examine whether the plaintiff "has suffered, or is in imminent danger of suffering, a distinct and palpable 'personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.' " Id. (citing Allen v. Wright, 468 U.S. 737, 751 (1984)).
108. See Frank, 860 F.Supp. at 1035; Printz, 854 F.Supp. at 1507; McGee, 863 F.Supp. at 325; Mack, 856 F.Supp. at 1376; Koog, 852 F.Supp. at 1380-81. The courts have considered the provisions separately when assessing the standing issue. Id.
109. Id.
110. Printz, 854 F.Supp. at 1510; Frank, 860 F.Supp. at 1036; McGee, 863 F.Supp. at 324; Koog, 852 F.Supp. at 1388.
111. Memorandum from Assistant Attorney General Walter Dellinger to Attorney General Janet Reno (March 16, 1994) (on file with the Seton Hall Legislative Journal) [hereinafter Dellinger Memorandum].
112. Id. at 2. When examining the legislative history of the Act, Dellinger points to the fact that the 1991 version of this legislation which failed to become law included the penalty provision but did not contain the CLEO's "reasonable efforts" provision that the Act now contains. When the ascertainment and background check provision addition was discussed in the 1992 version of the Act, Congressional members did not contemplate that its inclusion would impact the criminal penalty provision. "In fact, there was never any suggestion that the criminal sanction applied to CLEOs. Such congressional silence strongly supports the conclusion that Congress did not intend to apply 18 U.S.C. s. 924(a)(5) to CLEOs." Id.
113. According to Dellinger, the Supreme Court has repeatedly stated that courts should be careful when interpreting federal statutes not to quickly surmise that such legislation is "intended to intrude into state governmental processes or to change the traditional relationship between federal and state institutions." Id. at 3. Consequently, the standard for finding this Congressional intent to alter this federal/state relationship must be "unmistakably clear in the language of the statute." Id. (citing Gregory v. Ashcroft, 111 S.Ct. 2395, 2401 (1991)). For Dellinger, the absence of a specific reference in the penalty provision to CLEOs indicates that such a burden has not been satisfied. Id.
114. Id.
115. Dellinger Memorandum, supra note 111, at 2. Dellinger concluded that:
[t]he use of the term "reasonable effort" reflects Congress' apparent attempt to vest discretion in CLEOs by providing a flexible statutory requirement. This elasticity, though common in civil statutes, is unusual in criminal laws because it does not clearly define a punishable act. It would be difficult to prosecute a CLEO for failing to make "a reasonable effort," and such prosecution could be subject to a Fifth Amendment due process challenge.
Id. The interpretation that the Act vests the CLEO with discretion and flexibility in enforcement is supported by the BATF interpretation.
116. Id. at 3.
117. See Koog, 852 F.Supp. at 1388. This absence of a threat of criminal prosecution has also prevented CLEOs from obtaining a preliminary injunction while they challenge the Act. For example, in McGee v. United States, 849 F.Supp. 1147 (S.D.Miss.1994), a county sheriff charged with enforcing the background check provision of the Act filed suit seeking a preliminary injunction while he challenged the constitutionality of the mandate. Refusing to reach the plaintiff's constitutional claim, the court restrained its holding solely to the preliminary injunction. Id. at 1148. According to the court, the plaintiff could not sustain his burden of proof as to any of the four factors necessary for an injunction to issue. Id. at 1149. The McGee court stated that in order for a preliminary injunction to issue in the case, the county sheriff had to establish " '(1) a substantial likelihood of success on the merits; (2) a substantial threat that [he] will suffer irreparable injury if the injunction is not issued; (3) [his] threatened injury outweighs any damage the injunction may do to his opponent; and (4) that the injunction will not disserve the public interest.' " Id. (citing United Offshore Co. v. So. Deepwater Pipeline, 899 F.2d 405, 407-408 (5th Cir.1989)). Most significantly, with respect to requiring the plaintiff to demonstrate irreparable injury, the court relied on the fact that the Bureau of Alcohol, Tobacco and Firearms had interpreted the Act as imposing no criminal penalties on the plaintiff concerning his performance of the background check and further, gave great latitude and discretion to the CLEO in exercising a reasonable effort in the performance of this check. Id. at 1149. See also Open Letter To State And Local Law Enforcement Officials (Bureau of Alcohol, Tobacco and Firearms, Washington, D.C.) (Jan. 1994) (discussing the CLEOs duties under the Act) [hereinafter BATF Open Letter]. Consequently, the court found that in light of the BATF interpretation of the Act, the plaintiff could not sufficiently demonstrate the irreparable injury prong of the preliminary injunction test. McGee, 849 F.Supp. at 1149. Therefore, the McGee court refused to grant an injunction to the sheriff. Id. The effect of such a ruling preserves the CLEO's duty to perform a background check, even while he or she pursues a constitutional challenge to the Act's provisions.
118. Mack, 856 F.Supp. at 1378.
119. Id. at 1377. The court also refused to follow the BATF Open Letter's conclusion that CLEOs are not subject to the Act's penalty provision. Id. The BATF's position was not followed by the court even though it recognized that the BATF was the federal agency charged with implementing the provisions of the Act. Id. at 1376.
120. Id.
121. Id. The Act specifically exempts CLEOs from any threat of civil liability. The other courts considering this issue have been willing to read this specific exemption of civil liability as an indication that Congress did not intend criminal liability to extend to the CLEOs. However, the Mack court concluded that "[it] is difficult to conclude that Congress meant to preclude criminal liability simply because civil liability has been removed." Id. at 1377 n. 4.
122. Id. at 1376.
123. Id. at 1377. According to the Mack court, "[u]nder the plain meaning of the statute, Mack is under threat of criminal penalties and thus possesses an injury that can be redressed." Id.
124. Mack, 856 F.Supp. at 1381.
125. Id. at 1381-82.
126. Id. at 1378.
127. Printz, 854 F.Supp. at 1512. According to the Printz court:
The Act mandates CLEOs perform three tasks upon receiving notice from a transferor: ascertain whether receipt of the handgun would be in violation of law; perform a background check; and if the CLEO ascertains that the transferee is eligible to receive the handgun, destroy the statement within twenty days; but if the CLEO ascertains that the transferee is ineligible, and the transferee requests, provide the reasons for the determination within twenty days.
Id.
128. Printz, 854 F.Supp. at 1512-13; Koog, 852 F.Supp. at 1381-84.
129. Id.
130. Koog, 852 F.Supp. at 1387.
131. Id. According to the court, "by giving state law enforcement officers wide discretion to determine what are reasonable background searches, the act falls short of imposing requirements on state officials." James Podgers, Gun Law Under Fire: Court Challenges to Brady Bill Produce Conflicting Results, ABA JOURNAL, Aug. 1994, at 83.
132. Printz, 854 F.Supp. at 1513. According to the court, New York v. United States, 112 S.Ct 2408 (1992), expressly stated that "the states cannot be commandeered to enact and enforce a federal regulatory program." Id. (citing New York, 112 S.Ct. at 2420).
133. Printz, 854 F.Supp. at 1517 (holding the provision unconstitutional); Koog, 852 F.Supp. at 1388 (holding the provision constitutional).
134. See Mack, 856 F.Supp. 1375; Frank, 860 F.Supp. at 1043; McGee, 863 F.Supp. at 327-28.
135. See McGee, 863 F.Supp. at 327.
136. Id.
137. Id. According to the McGee court, there is still a five-day waiting period, purchasers of handguns must still provide certain information to gun dealers, which in turn must be provided to the chief local law enforcement officer, who then will have the option 'to cooperate' or 'not cooperate' with federal officials in carrying out the provisions of Brady. Id.
138. Id. The court recognized that "[d]eleting Section 922(s)(2) obviously will weaken the Brady Bill and eliminate a part of the total Congressional statutory scheme for dealing with handgun purchases." Id.
139. See 18 U.S.C. § 922(1)(B)(2).
140. Podgers, supra note 131, at 84. According to Podgers, "[w]hile the issues raised in Koog and Printz relate closely to the ongoing, general give-and-take between the federal and state governments over powers under the 10th Amendment, they may soon be moot regarding background checks for handgun purchasers required by the Brady Act." Id.
141. Only 17 Percent of Records Ready for Brady Law, LEGAL INTELLIGENCE, Feb. 11, 1994, at 5. Forecasting the background checking records accessibility on a national level when the Act took effect in February 1994, it was reported that only 17.5 million out of a total of 53.3 million criminal history records were capable of national exchange. Id.
142. See Frank, 860 F.Supp. at 1038 (citing Letter from Janet Reno, Attorney General, to Charles Schumer, Representative (Nov. 9, 1993)). The Frank court recognized that Reno maintained that state or local officials are best equipped to assess the fitness of gun purchasers in their areas. In fact, she even urged Congress not to enact the 1998 date to establish a federal system. According to Reno:
Background checks performed by local police remain the most effective means of screening out ineligible gun buyers. It is local law enforcement who best know the residents and residencies within their communities. Local law enforcement can check to see if a given purchaser resides at the given address, and can access local, county, state, and national records whether they are in file folders or computerized.
Id. Consequently, while a federal system may alleviate the tension that the Act places on the relationship between the government and the states, the purpose of conducting such an investigation may be thwarted.
143. Two Decades of Progress, PROGRESS REP. (Handgun Control Inc., Wash., D.C.) Aug. 1994 at 1.
144. See H.R.3932, 104th Cong., 1st Sess. (1994); S.1882, 104th Cong., 1st Sess. (1994) [hereinafter Brady II]. Senator Howard Metzenbaum (D-OH) and Representative Charles Schumer (D-NY), who also sponsored the Brady Act, introduced this legislation. According to a statement on the bill released by Handgun Control Inc., the legislation's primary group supporter, Brady II "is the first comprehensive gun control package since the Gun Control Act of 1968. It addresses all aspects of gun violence, including illegal gun trafficking, accidental shootings and suicides, and the proliferation of deadly non-sporting weapons." "Brady II" The Gun Violence Prevention Act of 1994: S.1882/H.R.3932, SUMMARY OF MAJOR PROVISIONS (Handgun Control Inc., Wash., D.C.) Oct. 1994 at 1 [hereinafter "Brady II Summary"].
145. Brady II Summary, supra note 144. This provision seeks to establish "a system of state-based licensing and registration and makes it illegal for anyone, including a private citizen, to sell a handgun to anyone who does not possess a valid State handgun license. Seven days must elapse before the sale can be completed and a registration form must be sent to the appropriate State law enforcement agency." Id. Specifically, this legislation currently has four sections entitled: Licensing and Registration, Restrictions on Firearms Possessions, Restrictions on Gun Sellers, and Prohibited Weapons. Id. at 1-2.
146. See Caplan, supra note 76, at 9. According to Caplan, it is important to fight legislative efforts to pass gun regulations because once enacted, there is a "strong legal presumption of constitutionality of all congressional acts." Id. Consequently, Caplan believes that if lawmakers continue to pass such legislation, it will become even harder to successfully challenge the constitutionality of these laws in the courts. Id. Caplan argues that:
[s]uch a presumption becomes even stronger when legislators who vote for legislation eroding a constitutional right keep winning elections¾courts follow the election returns. Accordingly, it is clear that the legislative process can erode and ultimately even abolish constitutional rights of all kinds. That is why it is important to realize that any restrictive or prohibitory 'gun control' legislation threatens the Second Amendment and hence similarly threatens the rest of the Bill of Rights.
Id. Therefore, Caplan concludes that the preservation of our individual constitutional liberties depend upon the willingness to oppose all gun legislation that limits the Second Amendment's guarantee of a right to bear arms. Id.
147. Id. Caplan echoes the NRA's resolve to fight against both existing and future gun control restrictions when he asserts that "those who cherish liberty under the Constitution must oppose any restrictive 'gun control' legislation¾whether past, present, or future¾as well as any other legislation encroaching on constitutional rights. All free men should proudly support legislation repealing any and all restrictive aspects of previously enacted 'gun control' legislation. Id.
148. NRA FIREARMS FACT CARD 1994 (NRA Institute For Legal Action) Jan. 1994. In order to strengthen its efforts to offer alternatives to gun control legislation, the NRA established CrimeStrike. This organization has actively supported such legislative initiatives as life imprisonment for third time convicted violent felons, longer minimum sentences, and a victim's rights amendment to state constitutions allowing for court participation and entitlement to notification before parol or early release. Id.
149. See McClurg, supra note 55, at 57 n. 11.
150. See Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 659 (1989). When discussing the future of the Second Amendment as a viable provision under the Bill of Rights amidst the gun control debate, the author noted that
[i]t is important to remember that one will still need to join up sides and engage in vigorous political struggle. But it might at least help to make the political sides appear more human to one another. Perhaps 'we' might be led to stop referring casually to 'gun nuts' just as, maybe, members of the NRA could be brought to understand the real fear that the currently almost uncontrolled system of gun ownership sparks in the minds of many whom they casually dismiss as 'bleeding-heart liberals.' Is not, after all, the possibility of serious, engaged discussion about political issues at the heart of what is most attractive in both liberal and republican versions of politics?
Id.