The Gottlieb-Tartaro Report
Issue 036
July, 1997

SPECIAL REPORT: THE SUPREME COURT BRADY BACKLASH

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Dear Subscriber,

When the U.S. Supreme Court struck down parts of the Brady Act on June 27 in a 5 to 4 decision, the media only hit the high spots. Gun rights supporters need an in-depth analysis. We begin this special report with a detailed summary of THE DECISION, which is correctly styled Printz, Sheriff/Coroner, Ravalli County, Montana v. United States, even though it includes the case Mack v. United States.

Facts of the case: Brady Handgun Violence Prevention Act provisions require the Attorney General to establish a national system for instantly checking prospective handgun purchasers’ backgrounds, and command the “chief law enforcement officer” (CLEO) of each local jurisdiction to conduct such checks and perform related tasks on an interim basis until the national system becomes operative. Petitioners Jay Printz and Richard Mack, the CLEOs for counties in Montana and Arizona, filed separate actions challenging the interim provisions’ constitutionality. In each case, the District Court held that the background check provision was unconstitutional, but concluded that it was severable from the remainder of the Act, effectively leaving a voluntary background check system in place. The Ninth Circuit reversed, finding none of the interim provisions unconstitutional.

The Supreme Court held:

    1. The Brady Act’s interim provision commanding CLEOs to conduct background checks is unconstitutional. Extinguished with it is the duty implicit in the background check requirement that the CLEO accept completed handgun applicant statements (Brady Forms) from firearms dealers.
      1. Because there is no constitutional text speaking to the precise question whether congressional action compelling state officers to execute federal laws in unconstitutional, the answer to the CLEOs’ challenge must be sought in historical understanding and practice, in the Constitution’s structure, and in this Court’s jurisprudence.
      2. Relevant constitutional practice tends to negate the existence of the congressional power asserted here, but is not conclusive. Enactments of the early Congresses seem to contain no evidence of an assumption that the Federal Government may command the States’ executive power in the absence of a particularized constitutional authorization. The early enactments establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions related to matters appropriate for the judicial power. The Government misplaces its reliance on portions of The Federalist suggesting that federal responsibilities could be imposed on state officers. None of these statements necessarily implies that Congress could impose these responsibilities without the States’ consent. They appear to rest on the natural assumption that the States would consent. Finally, there is an absence of executive commandeering federal statutes in the country’s later history, at least until very recent years. Even assuming that newer laws represent an assertion of the congressional power challenged here, they are of such recent vintage that they are not probative of a constitutional tradition.
      3. The Constitution’s structure reveals a principle that controls these cases: the system of “dual sovereignty.” Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution’s text. The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal governments would exercise concurrent authority over the people. The Federal Government’s power would be augmented immeasurably and impermissibly if it were able to impress into its service at no cost to itself the police officers of the 50 States.
      4. Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself. The Brady Act effectively transfers the President’s responsibility to administer the laws enacted by Congress to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control. The Federal Executive’s unity would be shattered, and the power of the President would be subject to reduction, if Congress could simply require state officers to execute its laws.
      5. Contrary to the dissent’s contention, the Brady Act’s direction of the actions of state executive officials is not constitutionally valid under Article I, Section 8, as a law “necessary and proper” to the execution of Congress’s Commerce Clause power to regulate handgun sales. Where, as here, a law violates the state sovereignty principle, it is not a law “proper for carrying into Execution” delegated powers within the Necessary and Proper Clause’s meaning. The Supremacy Clause does not help the dissent, since it makes “Law of the Land” only “Laws of the United States which shall be made in Pursuance [of the Constitution.]
      6. finally, the Court’s jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program. The attempts of the Government and the dissent to distinguish New York v. United States — on grounds that the Brady Act’s background check provision does not require state legislative or executive officials to make policy; that requiring state officers to perform discrete, ministerial federal tasks does not diminish the state or federal officials’ accountability, and that the Brady Act is addressed to individual CLEOs while the provisions invalidated in New York were directed to the State itself — are not persuasive. A “balancing” analysis is inappropriate here, since the whole object of the law is to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty; it is the very principle of separate state sovereignty that such a law offends.
    2. With the Act’s background check and implicit receipt of forms requirements invalidated, the Brady Act requirements that CLEOs destroy all Brady Forms and related records, and give would be purchasers written statements of the reason for determining their ineligibility to receive handguns, require no action on the part of CLEOs such as petitioners, who are not voluntary participants in administering the federal scheme. These provisions are not unconstitutional, but simply inoperative.

The Court declines to address the severability question briefed and argued by the parties: whether firearms dealers remain obligated to forward Brady Forms to CLEOs, and to wait five business days thereafter before consummating a firearms sale. These provisions burden only dealers and firearms purchasers, and no plaintiff in either of those categories is before the Court.

A syllabus of the Brady Act decision can be found on the Internet at http://supct.law.cornell.edu/supct/html/95-1478.ZS.html.

WHAT DOES IT ALL MEAN?

The Supreme Court ruled that the background check part of the Brady Law was unconstitutional for violating the Tenth Amendment to the U.S. Constitution, which reads: “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.”

The Brady Act’s five-day waiting period survived the challenge and remains in effect.

In the Brady Act decision, the High Court held that Congress exceeded its powers by forcing local officials to implement a federal law without the states’ consent, and wryly noted that the feds offered state officials no compensation for their troubles. It was strictly a States Rights, unfunded mandates, decision.

It is important to recall that the Tenth Amendment was neglected for many years. Attorneys once advised clients that arguing the Tenth Amendment in support of States Rights was “an empty box” that would lose in court. Only recently has the U.S. Supreme Court begun to invoke Tenth Amendment restrictions on the federal government. It’s a big change, and appears to reflect a judicial backlash against the centralizing power of the federal government, especially unfunded federal mandates that state or local governments must carry out or face criminal penalties.

The Court’s decision also corrected many practical problems with the Brady Law: The background records check results were underwhelming, with fewer than 2% of buyers initially rejected in the first year. Half of those rejected were later approved to purchase a handgun, according to the congressional General Accounting Office. Many people were wrongfully denied because of poor record keeping and name mix-ups.

Twenty-seven states require their own background checks, and the federal government’s computerized instant check system must be in place by November 1998. Gun control advocates are encouraging states to voluntarily carry out background checks as if the Brady Law’s requirements were still in effect.

Gun owners have supported a computerized point-of-purchase check for years. Instant check systems are on-line in 17 states and are intended to replace the Brady 5-day waiting period next year. Instant checks don’t inconvenience law abiding gun owners and are more likely to snag convicted felons and other disqualified buyers.

Gun rights supporters and police were jubilant at the decision. WAYNE LaPIERRE, executive director the National Rifle Association, said, “We feel vindicated by this decision.”

The Law Enforcement Alliance of America (LEAA), the country’s largest national rank-and-file law enforcement organization, opposed the Brady Act and filed an amicus brief with the Supreme Court seeking to overturn the law.

James J. Fotis, executive director of the LEAA, said, “Cops need to be on the streets protecting the public, investigating crimes, and arresting criminals. But the Brady Act changed that by forcing local law enforcement to waste its time and money — already in very short supply — administering a big-government, feel-good, do-nothing law. We know, and law enforcement officers know, that this is wrong. That’s why one of our members, former Graham County, Arizona Sheriff Richard Mack, challenged the Brady Act’s constitutionality.” MACK left office in January after being defeated in a primary election.

One vote did it: If President Clinton had appointed another Justice, what would have happened? Here’s how the Court voted and expressed its views:

Justice Scalia delivered the opinion of the Court, in which Chief Justice REHNQUIST and Justices O’CONNOR, KENNEDY and THOMAS joined. Justices O’CONNOR and THOMAS filed concurring opinions. Justice STEVENS filed a dissenting opinion, in which Justices SOUTER, GINSBURG and BREYER joined. Justice SOUTER filed a dissenting opinion. Justice BREYER filed a dissenting opinion in which Justice STEVENS joined. Internet links at http://supct.law.cornell.edu/supct/html/95-1478.cpanel.html.

CLINTON ADMINISTRATION RESPONDS QUICKLY TO BRADY DECISION

White House reaction to the Brady ruling came swiftly. President CLINTON, who made the law a centerpiece of his tough-on-crime platform during the 1996 campaign, ordered Attorney General JANET RENO and Treasury Secretary ROBERT RUBIN to remind local officers that they can still conduct background checks on their own until the national system for instant background checks in place by late 1998.

By 12:40 p.m. of June 27, the day the Supreme Court released its Brady decision, the Bureau of Alcohol, Tobacco and Firearms issued a news release stating that provisions which require (their emphasis) a Chief Law Enforcement Officer (CLEO) to conduct a background check on prospective handgun purchasers and to accept the form on which that background check is based, were ruled unconstitutional.

The BATF was swift to point out that the Court left intact all other provisions of the Brady law. “Accordingly:

At the same time, BATF Director John W. Magaw released this

OPEN LETTER TO ALL FEDERAL FIREARMS LICENSEES

The purpose of this letter is to advise you of today’s Supreme Court decision regarding the Brady law in Printz v. United States.

The decision has no effect on the responsibilities of licensees. The Supreme Court ruled only that the Brady law’s requirements for Chief Law Enforcement Officers (CLEOs) to conduct background checks of prospective handgun purchasers and to accept Brady forms violated the Constitution.

Specifically, for licensees in States subject to the 5-day waiting period, the Court left intact the requirement that Federal firearms licensees obtain a statement from purchasers concerning the proposed handgun sale and forward the statement to the CLEO. CLEOs may continue to conduct criminal record checks on a voluntary basis. Licensees must still wait for five days or until they hear from the CLEO before transferring the handgun to the purchaser.

Therefore, licensees subject to the Brady law’s 5-day waiting period must continue to:

    1. Have all handgun purchasers complete the “Brady Form”, ATF Form 5300.35, Statement of Intent to Obtain a Handgun;
    2. Notify the CLEO where the purchaser lives of the information on the Brady form and send a copy of the form to the CLEO;
    3. Wait 5 business days (days on which State offices are open) from the date that the licensee gave notice to the CLEO of the sale before transferring the handgun unless the licensee is notified sooner by the CLEO that the officer has no information that receipt or possession of the handgun by the buyer would violate Federal, State or local law.

Licensees in a State which meets one of the alternatives to the Federal 5-day waiting period must still comply with all requirements of the State’s law.

If you have any questions concerning this decision, contact your local ATF office or the Firearms and Explosives Regulatory Division at 202-927-8300.

(Signed) JOHN W. MAGAW

The Brady law is named after former press secretary James Brady, who was seriously wounded in the assassination attempt on President Reagan. It was passed in 1993 after bitter congressional battles and was strongly opposed by gun owners nationwide.

Practically before the laser printer toner was fused to the Supreme Court’s Brady law decision, gun control proponents on Capitol Hill pledged to go back to the drawing board and find a way around the judiciary’s ruling.

Rep. CHARLES SCHUMER (D-NY) and Sen. HERB KOHL (D-WI) are preparing legislation to require gun dealers to seek background checks from all agencies willing to conduct them.

That’s their way of sidestepping the Supreme Court’s striking down the requirement for local sheriffs and police officers to perform background checks. It would put the onus on firearms dealers, not on public officials. And it would authorize local officials to voluntarily conduct the checks, which gun-control advocates are counting on to continue.

SHUMER said the Court’s decision “may cost more lives than any ruling this century.” It would enable “gun runners” to purchase large quantities of guns in areas that do not voluntarily run checks and resell them elsewhere.

Sen. EDWARD KENNEDY (D-MA) said the high court “only grazed the Brady law,” emphasizing that other portions survived, particularly the 5-day waiting period.

Attorney General JANET RENO said the federal criminal record database would be ready to give instant background, including information of a suspect’s “priors,” by the deadline set in the Brady law, November 1998.

Senate GOP leader Trent Lott charged the department “had delayed implementing an instant check system” and has ignored congressional inquiries about it.

PRELUDE TO DOMESTIC VIOLENCE LAW BEING STRUCK DOWN?

The Brady law decision may foretell the demise of the 1996 law that says anyone convicted of domestic abuse cannot legally own a handgun. An amendment last year to the Federal Gun Control Act of 1968 forbids anyone — police, military or civilian — from owning a gun if he or she ever had a felony or misdemeanor domestic violence conviction.

Police say that unfairly punishes officers with misdemeanor convictions from prior years even if they have perfect records since the incident, by endangering their jobs, which usually require them to be armed.

JIM PASCO, executive director of the Fraternal Order of Police, regretted the Supreme Court’s Brady decision, but said that if the Tenth Amendment ruling applied to Brady, it applies to the domestic violence law as well.

Court challenges to the domestic violence law have been filed.

JESSE CHOPPER, a constitutional law expert at the University of California at Berkeley Law School said the domestic abuse gun ban is now especially vulnerable to a court challenge.

ROBERT PUGSLEY, law professor at the Southwestern University School of Law in Los Angeles, said the signal to watch for is whether lower courts will use the Brady decision as guidance on the domestic violence gun ban.

THE BRADY LAW FAILED ANYWAY

Less than a dozen criminals have been convicted for violating the Brady Handgun Violence Reduction Act since its implementation in 1994. It has failed to live up to its name.

On the other hand, a 16-year, nationwide research study by JOHN LOTT, Jr., the John M. Olin visiting Law and Economics Fellow at the University of Chicago Law School, found that of all the different gun laws, “shall issue,” non-discretionary concealed-carry firearms laws actually do more to deter crime than ineffective waiting periods like the Brady Act.

Lott said, “Passing these [concealed-carry] handgun laws caused murders to decrease by at least eight percent, rapes by five percent, aggravated assaults by seven percent, and robberies by three percent. The percent age drops were the largest in the most urban, most crime-prone counties, and women benefitted much more than men from carrying concealed handguns. No evidence indicated that either waiting periods or background checks lowered crime.”

NRA IN THE HEADLINES AGAIN

Maryland Sheriff JAMES V. ALUISI, the featured “I joined NRA because...” personality in a 1986 People magazine ad, is being expelled for supporting a gun control measure the group opposed, according to a Washington Post story.

Aluisi got into trouble with the NRA after he appeared with 26 other law enforcement officials at a news conference with Maryland Governor Parris N. Glendening (D) to endorse a gun control bill. Aluisi identified himself as an NRA member.

The Maryland State Rifle & Pistol Association filed a complaint last June 24 alleging that Aluisi had violated NRA bylaws by “his public endorsement of the governor of Maryland’s gun control proposals.”

The complaint went to the NRA Ethics Committee, which decided February 6 to refer the matter to the Hearings Committee “with the recommendation that Mr. Aluisi be expelled.”

Aluisi is fighting the expulsion.

Ironically, Aluisi received a form letter from the NRA after expulsion charges were filed against him — it offered him a special $250 discount on a $750 life membership in the NRA and nominated him to the “NRA Legion of Honor.”

AT&T FOUNDATION DENIES GUN CONTROL BIAS — OR DOES IT?

An angry letter from a gun owner in Tucson, Arizona about the AT&T Foundation’s $3 million grant to help the Coalition for America’s Children promote gun control got a flat denial:

“Thank you for your recent inquiry regarding AT&T’s alleged support for gun control. AT&T does not support programs that have a position either for or against gun control.”

A few paragraphs later the flat denial got a little wishy-washy: “While there is information on the website in support of gun control, there is also information on gun safety as it relates to children, along with an article entitled, “The False Promise of Gun Control” that appeared in the Atlantic Monthly.

That sounds to us like AT&T Foundation supports programs that have a position for AND against gun control.

Definitely among the things that make you go “hmmmm....”

JUSTICE DEPARTMENT IN ANOTHER ETHICS FLAP?

The Clinton administration is bracing for another scandal. Seattle-based Assistant U.S. Attorney Tom Wales is promoting a gun control ballot measure in Washington State using government time and resources, charge gun owners.

Wales, who is also president of Handgun Control, Inc’s Washington State affiliate, Washington Ceasefire, and is also chairman of the Political Action Committee sponsoring the ballot measure, denies any wrongdoing, saying he is “on leave” during the days he promotes the initiative.

However, there appear to be numerous irregularities in Wales’ actions. The address he lists on State PAC registration forms is the Seattle office of the United States Attorney. Gun owners have discussed the initiative with him at his office telephone. Receptionists have seen him in the office on days when he was supposed to be “on leave.”

Gun advocates say this type of activity appears to be a direct violation of both the Hatch Act, which limits government employees’ political activities, and of Justice Department Ethics Guidelines.

This flap has national significance because Washington State was the scene of the Clinton administration’s “test case” for socialized health care — which failed both at the federal and state level. Given the administration’s relentless anti-gun policy, could the Tom Wales involvement be another “test case?”

Wales’ boss, the United States Attorney for Western Washington, Katrina Pflaumer, has not commented. She is a cash contributor to the initiative campaign.

STATE NEWS ROUNDUP

CALIFORNIA: SB 513, a one-gun-a-month bill, to be heard this month. Makes it a misdemeanor to purchase more than one gun a month. Recent amendments exempt collectors, movie studios, law enforcement agencies, and those whose firearm is stolen.

SB 789 passed the Senate Natural Resources and Wildlife Committee unanimously. Increases penalties on poaching and forces judges to hear poaching incidents. Odd pairing: Gun groups and Fund for Animals allied on this bill introduced by the Sierra Club.

SB 517, protects shooting ranges from nuisance litigation based on noise pollution, to be heard this month.

AB 991 passed the Senate Public Safety Committee unanimously. It requires registration of all firearms brought into the state by new residents. Will probably make it to the Governor’s desk.

AB 1124, requires that newly purchased firearms be sold with a trigger lock, to be heard this month.

OHIO: HB 504 Right to Carry legislation has been introduced. HB 275 passed the House on an 83 to 3 vote and now moves to a Senate subcommittee. HB 275 reclassifies any vehicle driven on agricultural zoned land and would allow farmers to carry a loaded firearm there. Present law allows carry only in tractors and combines but not cars and trucks. HB 209, a range protection bill, will be considered by the full Senate.

TEXAS: Governor Bush signed HB 2909, right to carry reform, into law.

BRITISH GUN BAN LAW GOES INTO FORCE

British police have begun accepting handguns from private owners under a tough gun-control law enacted after the Dunblane massacre in 1996. Thomas Hamilton, a 43-year-old loner with a grudge, killed 16 kindergarten children and their teacher and wounded another 12 children and two teachers before shooting himself to death.

Handgun owners must surrender their weapons at police stations by the end of September. Thereafter, ownership of all but the smallest caliber weapons will be illegal. Penalty for possession is up to 10 years in prison.

Police around the country have hired extra staff to organize the surrender of an estimated 160,000 handguns previously owned legally.

The new Labor government of Prime Minister Tony Blair has introduced a bill to extend the ban to .22-caliber handguns. Target shooters oppose the bill, saying it would wipe out their sport. Gun club members now legally own 40,000 .22-caliber handguns.

BRITISH TO BAN EVEN TOY GUNS

The Labor government is preparing to ban the sale of imitation guns. Police have warned that criminals will turn to replica weapons once new firearms controls take effect. Half of all firearms incidents in Avon and Somerset involved fake weapons, police reported last year.

Home Office minister Alun Michael was reported to be looking for ways to discourage sale of replica weapons before legislation outlaws them. Imported guns that have been modified to stop them from being fired are of particular concern, because experts say they can easily be reactivated.

The British Shooting Sports Council strongly condemned the move. Spokesman Graham Downing said, “If Thomas Hamilton had used a replica firearm, nobody would have been injured.”

Gun owners are also preparing a £500 million claim, the biggest ever brought against the government, to compensate dispossessed gun owners. The £150 million being offered is seen as inadequate. If successful in the European Court, it would be an embarrassing setback for the Home Office.

PARTING SHOT

THE CONCURRING OPINION OF JUSTICE CLARENCE THOMAS

No one seems to have noticed, but Second Amendment advocates got a significant boost in the Brady case in the concurring opinion of Justice Clarence Thomas. Here are excerpts:

“The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second Amendment similarly appears to contain an express limitation on the government’s authority. That 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.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment.”

Justice Thomas added in a footnote that the Court’s most recent treatment of the Second Amendment was United States v. Miller, 307 U.S. 174 (1939), which reversed a District Court’s invalidation of the 1934 National Firearms Act. This case did not define the substantive right protected by the Second Amendment.

Returning to his text, the Justice said, “If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections.”

Here Justice Thomas said in another footnote: “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the “right to keep and bear arms,” is, as the Amendment’s text suggests, a personal right.” Among half a dozen scholars, Justice Thomas cited our colleague Don Kates and his Michigan Law Review article, “Handgun Prohibition and the Original Meaning of the Second Amendment.”

“As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” ... In the meantime, I join the Court’s opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.”

If that isn’t an invitation to find an appropriate case, what is?

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