Brady Bill Tested in Supreme Court
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BETTY ANN BOWSER: In 1981, when a lone gunman attempted to assassinate President Ronald Reagan, his press secretary, James Brady, was also seriously wounded. The fallout from that shooting and from several other widely publicized shooting incidents brought calls for federal legislation that would require criminal background checks on people who want to buy handguns. After much legislative controversy, a bill named after Brady was signed into law in November of 1993.
PRESIDENT CLINTON: It will be step one in taking our streets back, taking our children back, reclaiming our families, and our future.
BETTY ANN BOWSER: Under the Brady Bill, states could refuse to sell handguns to anyone indicted or convicted of a felony, and to those who had ever had a restraining order placed against them. The work of checking those backgrounds was given to state and local chief law enforcement officers. They were required to review the forms within five days, destroy applications of those declared eligible, and inform in writing those who were denied. But at the Graham County Sheriff’s Department in Arizona, Sheriff Richard Mack said he was too busy to do those jobs.
SHERIFF RICHARD MACK, Graham County, Arizona: We have gun problems here, gang problems here. Am I supposed to know those problems so I can check a criminal background check on someone who’s never committed a wrong in their life? Can’t do it.
BETTY ANN BOWSER: Sheriff Mack organized a gun rally to raise money to sue the federal government. He said the requirements were an infringement on states’ rights, a violation of the 10th amendment, which reserves to the states those powers not specifically given to the federal government in the Constitution.
SHERIFF RICHARD MACK: We cannot allow our constitutional rights to be trampled on like our federal government seems to be trampling on them.
BETTY ANN BOWSER: Although many people in this Arizona community are against gun control, some are uncomfortable with the fact that their sheriff is defying the law.
WOMAN: The law says the speed limit right out here is 35 miles an hour and I want to go 45 miles an hour. Because of the law, I have to go 35 miles an hour. If it’s the law, Richie Mack has to abide by it.
MAN: If it is part of the state law, yes, or national law, yes, he should enforce it. If he doesn’t, he ought to step down as sheriff, because he’s duty-bound to enforce all laws.
BETTY ANN BOWSER: Mack won his suit in federal district court, but when the case was appealed to the circuit court, he lost. It will be next spring before the U.S. Supreme Court makes its decision.
JIM LEHRER: And now more on today’s Supreme Court arguments and to Charlayne Hunter-Gault.
CHARLAYNE HUNTER-GAULT: And that more comes from our regular Supreme Court watcher, Stuart Taylor, correspondent with the “American Lawyer” and “Legal Times.” Stuart, what is the issue before the court today?
STUART TAYLOR, The American Lawyer: The essential issue is whether it violates the 10th amendment to the Constitution, which is one of the provisions protecting states’ rights, to require local law enforcement officials, sheriffs, police chiefs, and the like, to do the so-called “background checks” that are part of the Brady Act’s enforcement scheme, at least during the first–for the next couple of years before that changes.
CHARLAYNE HUNTER-GAULT: So it’s a narrow part of the whole Brady Bill.
STUART TAYLOR: It’s a challenge to one piece of the Brady Bill, the piece that puts these obligations on state and local officials to look up records and to tell the gun dealers who’s qualified and who’s not, who’s got a criminal record and who’s not, and do some other follow-up.
CHARLAYNE HUNTER-GAULT: So it’s not a gun control or right-to-bear arms issues, it’s strictly states’ rights?
STUART TAYLOR: That’s correct. Although the National Rifle Association is in the case, flying its flag, the issue before the court has nothing to do with the Second amendment right to bear arms.
CHARLAYNE HUNTER-GAULT: Right. How did the sheriff’s side–the sheriff who brought the case–how did they argue today in the court?
STUART TAYLOR: His essential argument was that under the 10th amendment, especially under a 1992 precedent called New York versus the United States, which said the federal government cannot require states to enact or administer federal regulatory programs, that this federal regulatory program is unconstitutional. In particular, he said, it imposes burdens on the police or the sheriff’s departments when they want to be out solving crimes. Instead, they are having to do this paper work at the behest of the federal government, and he also says that even if the burden was minimal, as the federal government claimed it is, it still would be a violation of state sovereignty.
CHARLAYNE HUNTER-GAULT: And how did that Justices react to that argument?
STUART TAYLOR: They jumped all over him, which they tend to do with people on both sides, but even people who are friendly to him, I think, such as Chief Justice Rehnquist and Justice Sandra Day O’Connor, thought that he pushed it a little too far. He was asked hypothetical questions, testing the limits of his argument, and he was asked, well, would you say it was unconstitutional for the FBI to even come into your office and demand to be able to look at your records, themselves, and he said, yes, it would be. Several of the Justices indicated they thought this was an extreme position. Those words are used by Justice O’Connor, although I don’t think it was so extreme that it would prevent them from voting on his side on the narrow issue that the case does present.
CHARLAYNE HUNTER-GAULT: All right. We’ll get to the vote in a minute–your predictions. But what about the government and how it presented its case, how it defended its position?
STUART TAYLOR: Acting Solicitor General Walter Dillinger, who argued for the government in this case, made a lot of points. The essence of it was this imposes a rather small, minimal obligation on state and local officials. It’s not a huge regulatory program that drains their resources, and that the Constitution, as a matter of flexibility and efficiency, allows the federal government to impose some such obligations, as long as they’re purely administrative, they’re not requiring them to enact a new policy, and he stressed that there are 13,000 handgun murders in this country every year, that it would take a huge federal bureaucracy to do this itself, as opposed to enlisting the help of state and local officials, and that the court should allow this as a reasonable accommodation of state and federal governments.
CHARLAYNE HUNTER-GAULT: And how did the court react to this argument?
STUART TAYLOR: They gave him a harder time, I’d say, on the whole than they gave his adversary. In particular, I thought I could count five votes to strike this law down. They kept pounding on him to–with the fact that, in fact, this law–even if the obligations are fairly small–does put the sheriffs in a rather tight spot if their constituents, for example, don’t want them enforcing this law. They are in a position of choosing, well, how hard should I enforce it. The federal government is putting an obligation on the–to do these thorough background checks. My constituents don’t want me doing thorough background checks. What am I supposed to do? And even Justice Souter, who one might have thought compared to some of the others would be sympathetic to the government’s position, Dillinger’s position, suggested that they thought this law might fall on the wrong side of the constitutional line.
CHARLAYNE HUNTER-GAULT: Because the principle is the principle, even if the small burden on the sheriffs, it’s still–their argument’s still a violation of the state’s rights?
STUART TAYLOR: It’s partly that it’s more than a trivial burden, and it was partly that the sort of burden it is, it’s not just a matter of spending time doing scut work. It also involves policy decisions because the law gives the sheriff some discretion to decide what’s a reasonable effort, and that is a shift of political accountability from the federal government to the states, some of the Justices indicated.
CHARLAYNE HUNTER-GAULT: Now, you said a minute ago that you thought this was going to go five–at least five of the Justices would vote to overturn.
STUART TAYLOR: It’s dangerous to make predictions, but it seemed as though you could count five votes to do that, in particular, Justices O’Connor and Kennedy, who are usually on close cases that have an ideological component, as this one does–the swing justices. Both of them made statements that sounded a lot like they think this law is unconstitutional. For example, Justice Kennedy said, “If Congress wants to have some huge program, I suppose it can pay the costs of it.” And the idea is that this violates the whole idea of state sovereignty by allowing Congress to sort of take the credit over controlling guns, while imposing the cost and the burden of enforcement on state and local officials. And both he and others, including Justice Scalia, indicated that conflicts with state sovereignty.
CHARLAYNE HUNTER-GAULT: And when you say ideologically loaded, you mean in terms of the issue of gun control, or state’s rights, or just what?
STUART TAYLOR: State’s rights. This case is the latest in the sequence in the last few years in which four or five members of the court, depending on the case, have been pushing to revive state’s rights and to revive the 10th Amendment as a limit on the power of Congress to regulate the states to a degree that has not been the case in recent decades. And the more conservative members of the court are the ones who are pushing hardest to do this. And Justice Kennedy is the one they usually need to get on their side to get a fair vote, and it sounded like he was on their side.
CHARLAYNE HUNTER-GAULT: What will it mean, if, for example, your prediction holds true? What would that mean for the Brady Bill, itself?
STUART TAYLOR: It wouldn’t necessarily wipe out the Brady Bill. The Brady Bill–all this goes to what are called the transitional provisions, the interim provisions, because as of 1998, late 1998, about two years from now, there’s supposed to be a whole new federal instant background check mechanism.
CHARLAYNE HUNTER-GAULT: So this would be moot?
STUART TAYLOR: It would all be moot. No waiting period, because the dealer could supposedly check with the FBI and make a decision on the spot. The interim provisions which were to last five years and have already gone three years say five-day-waiting period. This gives the local sheriff or whoever a chance to check the background, and what this would maybe knock out is the obligation of the sheriff to check the background. Some sheriffs would do it voluntarily anyway.
CHARLAYNE HUNTER-GAULT: And we’ll know when, approximately June–
STUART TAYLOR: June, I would guess.
CHARLAYNE HUNTER-GAULT: All right. Thanks, Stuart.
STUART TAYLOR: Thank you.