Law Enforcement Association of America, amicus curiae, Printz, Mack v. US
The Potowmack Institute
The Law Enforcement Alliance of America as amicus curiae
in support of Petititoners, The United States
Nos. 95-1478 and 95-1503
Supreme Court of the United States
October Term, 1995
JAY PRINTZ, Sheriff/Coroner Ravalli County,
UNITED STATES OF AMERICA,
SHERIFF RICHARD MACK,
UNITED STATES OF AMERICA,
INTEREST OF THE AMICUS CURIAE
The law Enforcement Alliance of America (LEAA) is a
not for profit corporation, organized under the laws
of the Commonwealth of Virginia. It has approximately
50,000 members, 85% of whom are sworn law enforcement
officers. Some of these are chief Law Enforcement
Officers (CLEOs) under the terms of the Brady Act.
Others will be designated to act in the place of the
CLEO. In their capacity as law enforcement officers,
LEAA members will be directly affected by the
provisions requiring ministerial acts of CLEOs.
Sheriff Richard Mack, one of the appellants in this
case has been a member of LEAA for many years.
Further, most LEAA members are gun owners, and are
directly affected by issues touching upon the private
ownership of firearms.
The Question Presented
Whether the delegated powers of Congress, as construed
in New York v. United States, 505 U.S. 144
(1992), include the power which Congress exercised in
the Brady Law, 18 U.S.C. § 922(s)(2), (6)(B) and
(C), to prescribe duties for state Chief Law
Enforcement Officers (CLEOs), beyond those duties
prescribed in the state laws which created their
positions, including compelling the CLEO to make a
reasonable effort to ascertain whether individuals may
lawfully purchase handguns; thereafter to destroy the
records of such transaction, or to provide a written
explanation for an adverse determination.
STATEMENT OF THE CASE
A. Position of the Amicus.
The question presented in this case has been reviewed
in three Circuits. The Ninth Circuit, in Mack v.
U.S., and Printz v. U.S. , 66 F.3d 1025
(9th Cir. 1995), and the Second Circuit, in Frank
v. United States, 78 F.3d 815 (2d Cir. 1996), each
held that the duties which the Brady law compels Chief
Law Enforcement Officers (CLEOs) to perform did not
violate the 10th Amendment, or exceed the delegated
powers of Congress. On the other hand, the Fifth
Circuit, in Koog v. U.S., and McGee v.
U.S., 79 F.3d 452 (5th Cir. 1996), held that the
interim duties, including the duty to perform a
background check, the destruction of records and the
duty to furnish written justification for denials,
violate the constitution.
The Law Enforcement Alliance of America (LEAA)
supports the position of the Appellants, Sheriff Mack
and Sheriff Printz. We believe that the Brady Law is
unconstitutional. It is not a command from a sovereign
power to all who owe a duty of obedience to it.
Rather, it is a set of commands from one sovereign,
which are addressed to officers who are commissioned
and set in place by a separate and distinct sovereign.
Obedience to these commands, by those to whom they are
addressed, is contemplated precisely because of their
character as servants of a separate sovereign. The Act
provides criminal penalties for officers who fail to
put forth a “reasonable effort" to obey its commands,
without providing any guidance as to what might be
considered "reasonable." In sum, it is a law of
doubtful constitutional pedigree which threatens law
enforcement officers with criminal penalties for
failure to meet an unknown standard of performance.
B. Background of the litigation.
Federal law prohibits the transfer of firearms to, or
possession by, members of certain classes of
restricted persons, including, inter alia,
convicted felons, persons dishonorably discharged from
the armed forces, adjudicated mental defectives,
illegal aliens, unlawful drug users, fugitives from
justice, and persons under certain forms of domestic
restraining orders. 18 U.S.C. § 922(d), (g), &
In 1993 Congress enacted the "Brady Law," Pub. L.
103-159, 107 Stat. 1536 (1993), which provides for an
official verification, through an examination of
available records, of the proposed purchaser’s
eligibility to possess a firearm. To this end, the law
requires the U.S. Justice Department to establish a
data base of prohibited persons by the year 1999.
Before that tune, the law creates an interim system
which requires that the background investigations, on
persons seeking to purchase handguns, be conducted by
the "Chief Law Enforcement Officer" (CLEO) for the
district in which the proposed purchaser resides. The
phrase "Chief Law Enforcement Officer" is defined, at
18 U.S.C. § 922(s)(8), as "...the chief of police,
sheriff, or an equivalent officer or the designee of
any such individual." None of these offices are
created under the Federal Constitution, and none of
these officers are servants of the Federal Government.
LEAA estimates there are approximately 18,500 local
and state police agencies in the United States. In
addition, according to the National Sheriffs
Association, there are 3,095 Sheriffs. Thus, the
statute purports to cover approximately 2 1-22
thousand individuals as Chief Law Enforcement Officers
During the operation of the interim system, the
proposed purchaser must fill out a form indicating an
intent to purchase a handgun. The dealer must submit
this information to the Chief Law Enforcement Officer
of the place where the proposed purchaser resides. 18
U.S. § 922(s)(1)(A)(iii). The CLEO is required to 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." 18 U.S.C. § 922(sX2). The U.S. Attorney
General has designated two Federal databases as the
"national system" which the CLEO must check. Order
No.1853-94, at 59 Federal Register 9498 (Feb.
If the CLEO finds that the proposed sale would not
violate Federal, State or local law, he is required to
destroy the form and any references to it within
twenty business days. 18 U.S.C. § 922(s)(6XB). On
the other hand, if the CLEO finds that the proposed
purchaser is ineligible to receive a handgun, he must
inform the dealer and, if the purchaser requests,
provide a written justification of his findings within
20 business days. 18 U.S.C. § 922(sX6XC). Should
the CLEO err in barring a purchase, the statute
creates a Federal cause of action against his
jurisdiction for correction and recovery of attorneys’
fees. 18 U.S.C. § 925A.
The Act does not defme "reasonable effort." At a
minimum, a "reasonable effort" must include a search
of the two Federal databases, as well as any state and
local records which might be available. Further, there
are some disqualifying conditions which would be
difficult, if not impossible, for a CLEO to discover.
For example, LEAA is
not aware of any system of records, whether accessible
to law enforcement officers or not, of people who have
ever renounced U.S. citizenship. LEAA does not believe
that there is a registry of individuals who have
received dishonorable discharges from the armed
forces. Is the CLEO expected to attempt to discover
such information as a part of a "reasonable
The requirement that a CLEO make a "reasonable effort"
imposes a substantial burden.
Until the advent of the permanent system, this
substantial burden, reviewing the backgrounds of three
to four million handgun purchases per year, will
continue to fall upon the shoulders of local law
The burden is made more substantial by the fact that a
law enforcement officer who does not perform the
duties imposed by the Brady Law faces criminal
penalties. It is true that the record contains a
memorandum from the Office of Legal Counsel at the
Justice Department, issued March 16, 1994, in which
the Assistant Attorney General expresses the view that
the criminal sanctions of 18 U.S.C. § 924(a)(5)
were not meant to apply to CLEO5. We are not assured.
This memorandum is only an opinion to the Attorney
General, not one of the Attorney General. It is
advisory only, and binds no one. It can be revised or
retracted at any time. In the Old Testament there is
the story of Joseph, who became the Prime Minister of
the Pharaoh, and whose people
prospered in Egypt. Then, as it says in Exodus 1:8,
"(t)here arose a new king in Egypt who knew not
Joseph." If LEAA members can place any confidence in
the claim that they are not subject to criminal
penalties, they can only do so until there is "a new
king in Egypt," that is, until there is some change,
either a change of heart or a change in personnel, at
the Department of Justice, after which law enforcement
officers would again be subject to the criminal
penalties provided in the Act.
Such revision has happened in the past. This Act will
be administered the Bureau of Alcohol, Tobacco and
Firearms (BATF). Congress has documented the fact that
these officials have been known to announce that an
action was legal, and then prosecute the same act
following a "change of management."
The memorandum gives us no assurance that
LEAA members would not be subject to criminal
In the event of future prosecutions, we note that the
performance commanded by the statute, "a reasonable
effort,’ is nowhere defined. The sworn members of LEAA
may, at any time, be asked to perform as the
"designee" of a Chief Law Enforcement Officer. Thus,
our members would be subject to prosecution for
knowingly violating an unknowable standard.
Finally, if the memorandum is correct, LEAA members
may face greater, not lesser, legal jeopardy.
If the special penalty clause of 18 U.S.C. §
924(aX5) does not apply, then a violation of 18 U.S.C.
§ 922(s) is punishable under 18 U.S.C. §
924(aSupp. 1992), the "catchall" clause which provides
felony sanctions for anyone who "willfully violates
any other provision of this chapter."
Some CLEO’s do not object to this burden. Others, such
as the Appellants in this case, do object. The Law
Enforcement Alliance of America, with its 50,000
members, supports the position taken by the Appellants
in this litigation. in our view, whatever the merits
or demerits of background checks, Congress has no
constitutional authority to place this burden upon
state and local law enforcement officers.
THE BURDEN WHICH THE BRADY LAW IMPOSES
UPON CHIEF LAW ENFORCEMENT OFFICERS
VIOLATES THE PRINCIPLES OF FEDERALISM
A Member of the British Parliament, writing of the
U.S. Constitution, during the last century, observed:
". . . the men of 1787, feeling the cardinal
importance of anticipating and avoiding occasions of
collision, sought to accomplish their object by the
concurrent application of two devices. One was to
restrict the functions of the National government to
the irreducible minimum of functions absolutely needed
for the national welfare, so that everything else
should be left to the States. The other was to give
that government, so far as those functions extended, a
direct and immediate relation to the citizens, so that
it should act on them not through the States but of
its own authority and by its own officers.
J. Bryce, 1 The American Commonwealth, (1888),
As this Court noted in New York v. United
States, 120 L. Ed.2d 120 (1992), there were
proposals in the Constitutional Convention to have
federal law "carried into execution by the
judiciary and executive officers of the respective
states," but these proposals were rejected. Id., at
143. Madison announced that the practicality of having
federal laws bind "the states as political bodies, has
been exploded on all hands." id.
The Convention instead opted for independent
sovereigns with parallel lines of authority to the
individual. To Congress went limited powers, backed by
the Supremacy Clause, within their sphere. To the
states were reserved all other powers to the extent
they did not conflict with the limited national ones.
The powers delegated by the proposed Constitution to
the federal government are few and defined. Those
which are to remain in the State governments are
numerous and indefinite. The former will be exercised
principally on external objects, as war, peace,
negotiation, and foreign commerce, with which last the
power of taxation will, for the most part, be
connected. The powers reserved to the several States
will extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and
properties of the people....
The Federalist No. 45 (Madison) at 292-93 (C.
Rossiter, ed. 1961).
Behind this division lay not only practical judgments,
but a good deal of history. A central precept of
Anglo-American political thought had long been that
sovereignty was indivisible. A nation-state had but
one repository of the sovereign power. Within the
nation-state one was either the sovereign or a
subordinate, no person or entity might be both.
See, C. Rossiter, The Political Thought of
the American Revolution, ch. 10(1963). To speak of
a subordinate sovereign, a ruling power within a
ruling power, an imperium in imperio, was to display
political ignorance. See, B. Bailyn, The
Ideological Origins of the American Revolution,
(1967), at 198-229.
The way to sidestep this barrier lay in the concept,
derived from Locke and implicit in pre-Revolutionary
American thought, of the people themselves as the
ultimate repository of imperium. E. Morgan, "The
American Revolution Considered as an Ideological
Movement," in Causes and Consequences of the
American Revolution, 172, 178-79, (1966). The
people might then divide their imperium among
two units of government provided that each had a
distinct responsibility. "The federal and State
governments are in fact but different agents and
trustees of the people, constituted with different
powers and designed for different purposes."
Federalist No. 46 (Madison) at 294 (C.
Rossiter, ed. 1961). To this theoretical base the
Framers added practical counsel: to expect one
sovereign to govern another is to invite conflict and
chaos. Hamilton thus stressed the ability of the
federal system to overcome both theoretical
limitations and practical risks, by having each
sovereign govern individuals:
[A] sovereignty over sovereigns, a government over
governments a legislation for communities, as
contradistinguished from individuals, as it is a
solecism in theory, so in practice it is subversive of
the order and ends of civil polity, by substituting
violence in place of the mild and salutary coercion of
Federalist No. 20, at 138.
The leaders of the early Republic knew and grasped
these distinctions. In the Ninth Circuit, Respondents
and their amici attempted to assert historical
precedent contradicting the clear results of 1787. See
Brief for the United States, Mack v. United
States, at 14ff. Their invocations, placed
in correct historical context, fail to support their
claims, which this Court in any event rejected in
New York. It is no accident that the bulk of
their claims arise from proposals for collection of
revenue, and none involve the commerce power. During
the debates of 1787-88, the power over revenue was one
of the most confused areas of discourse. Congress had,
of course, the power to raise money; most envisioned
that the bulk of its funding would come from customs
levies; few had any clear idea of what laws the
Congress might choose to enact if these proved
insufficient. The debate was thus exceptionally prone
to lapse into speculation and hypothetical fears.
Moreover, the proposed Constitution itself did seem to
envision that any direct tax needs would be
apportioned out to the states: Art. 1, § 9
provided that "No capitation, or other direct, tax
shall be laid, unless in proportion to the census or
enumeration herein before directed to be taken."
In The Federalist No. 45, at 292, Madison
mentions the possibility that State officers might be
used to collect federal taxes. The context however,
shows that Madison has in mind the possibility of
federal authorities simply asking states to contribute
their quota of the federal needs, and subsequently
using their own officers to collect any shortfall.
Madison envisions a system where the first recourse
would be to excises; the second to "quotas" of tax
figures apportioned among the states and remitted by
them; the third a special state levy or surcharge on
behalf of the federal government. The national
government has the power to collecting internal taxes,
he informs his readers, but it
. . . . is probable that this power will not be
resorted to, except for supplemental purposes of
revenue; that an option will then be given to the
states to supply their quota by previous collections
of their own; and that the eventual collection, under
the immediate authority of the Union, will generally
be made by their own
officers, and according to the rules, appointed by the
Id. at 292. Madison continues that, in the event these
additional collections are needed, it might be
advisable (in modern terms) to "cross-deputize" the
officers: thus state officials may be "clothed with
the corresponding authority of the Union." Id. Such
deputization would, of course, be a grant of
federal power to willing deputies, not a
conscription of state power; there is nothing
in Madison which suggests that he envisioned the state
officials being involuntarily enrolled. Indeed,
conscription would be inconsistent with the central
theme of No. 45, which is the limitation of
federal power vis-avis that of the states, and the
allaying of fears of an overwhelming national
In Federalist No. 36, Hamilton joins his voice
to that of Madison: federal internal taxes are
unlikely; if imposed, they would best be imposed on
items not taxed by states. Critics of the Constitution
have, however, argued that a federal property tax
might be levied, and submitted that the federal
government could hardly have the local knowledge
necessary to value realty: that requires "knowledge of
local details" and must be set by "discreet persons in
the character of commissioners of assessors." Id. at 2
19-220. In that unlikely event, Hamilton responds,
there is a "practical expedient:" Congress might
employ state assessors as its agents:
In other cases, the probability is that the United
States will either wholly abstain from the
objects pre-occupied for local purposes, or will make
use of the State officers and State regulations for
collecting the additional imposition. This will best
answer the views of revenue, because it will save
expence in the
collection, and will best avoid any occasion of
disgust to the State governments and to the people.
Id. at 221-222. Hamilton nowhere proposes that the
state officials be conscripted: that would hardly
avoid "any occasion of disgust to the State
governments." Rather, he suggests that the state
assessors be attached "to the Union by an accumulation
of the emoluments." Id., at 222.
Today, the concept of state officials sharing part
time federal work seems anomalous. It was not so in
the 18th century, when government work at all levels
was largely part time. John Jay served the United
States simultaneously as Chief Justice and as
Ambassador to Great Britain, Oliver Ellsworth as Chief
Justice and Ambassador to France, John Marshall as
Chief Justice and as Secretary of State, Roger Taney
as Attorneys General and as Secretary of War. B.
Schwartz, A History of the Supreme Court, (1993)
Dual, part-time employment was in fact attempted in
the early Republic, as evidenced by the protests of
some states against the voluntary hiring of their
officials. See, generally, D.
Matteson, The Organization of the Government Under the
Constitution, 296-303 (1943, reprinted 1970). During
the First Congress, Virginia voted to prohibit state
officials from simultaneously holding federal jobs,
and Connecticut’s legislature voted to oust Jedediah
Huntington from the office of treasury because he had
been appointed federal collector of the port of New
London, Id. at 296-97, 300.
Other states were less particular. In New Hampshire,
Governor John Sullivan served simultaneously as
federal district judge. New York’s district judge
served also as state judge and state senator. Id. at
299, 303. Congress made no
response to State prohibitions, although Madison
privately complained that enforcement of the Revenue
Act was being retarded by the Virginia statute. Id. at
297. The thought of conscripting state employees
rather than hiring them did not occur to Madison nor,
so far as our records reflect, to any other legislator.
Voluntary employment, and that with the concurrence of
the state, was the avenue pursued.
Respondent additionally invoked certain enactments of
the early Republic requiring state court clerks to
record petitions for naturalization and provide
certificates reflecting the same. Brief for the United
States at 15-16. Again, this must be placed in
historical context. Naturalization was initially a
state affair; the Framers were concerned by the
disparate systems and standards used in various states
to naturalize citizens. See, Federalist No.
42 (Madison) at 269-70. The response was creation
of a Congressional power to "establish a uniform rule
of,naturalization," Art. I, § 8. Providing for
uniform procedures to be followed was simply an
effectuation of this express grant of power.
It may in any event be observed, with regard to
Respondent’s statutory citations, that enactment of a
statute does not prove its constitutionality.
An early Court in an opinion written by John
Marshall’s successor noted that the States had
often assisted in Federal administration as a matter
of comity, not coercion. Kentucky v. Dennison,
65 U.S. (24 How.) 66, 108-09 (1861) ("It is true that
in the early days of the Government, Congress relied
with confidence upon the
cooperation and support of the States, when exercising
the legitimate powers of the General Government, and
were accustomed to receive it, upon principles of
comity ... where no such duty was imposed by the
In particular, use of state courts
to process naturalizations ceased when the states
began to object.
That States voluntarily aided the
new government should not be read as a waiver of their
right to object should it, centuries later, proclaim
them its serfs.
Strangely, the United States also cited as precedent
the enactment of the Fugitive Slave Acts, Brief of
the United Stares at 16, n.13. Apart from the fact
that these were enacted pursuant to a specific grant
of authority over states, Art. IV, § 2, they are
hardly a model of cooperative federalism. The conflict
over these enactments did much to bring on exactly the
internecine conflict which Madison had hoped to avoid;
they are today, like other legislation of the period,
"a mere preamble a title page to a great tragic
volume." C.F. Adams, ed., 4 Memoirs of John Quincy
Adams 502 (1876).
The early Republic, like its Framers, claimed no power
to conscript state officials, nor to command their
acts save in
the rare cases where the Constitution expressly
required them to follow federal standards.
THE BURDEN WHICH THE BRADY LAW IMPOSES
UPON CHIEF LAW ENFORCEMENT OFFICERS
VIOLATES THE 10TH AMENDMENT
Joseph Story made the following observation regarding
the limitations to the powers of the Federal
J. Story, A Familiar Exposition of the Constitution
of the United States, (1840), at 216.
The Government of the United States is one of limited
powers; and no authority exists beyond the prescribed
limits, marked out in the instrument itself. Whatever
powers are not granted, necessarily belong to the
respective States, or to the people of the respective
states, if they have not been confided by them to the
Citizens of the United States owe allegiance to two
sovereigns, the state of their residence, and the
United States. The powers of the two sovereigns are
different, but they are not necessarily in conflict.
Chief Justice Waite, in United States v.
Cruikshank, 94 U.S. 542 (1875), at 550, said that
the powers of the Federal government "...are limited
in number, but not in degree. Within the scope of its
powers, as enumerated and defined, it is supreme and
above the States, but beyond, it has no existence."
The power to regulate the sale of firearms, if
Congress has such a power, must be found in the power
interstate commerce. Article I, section 8 of the
Constitution gives Congress the power "(t)o regulate
Commerce with foreign Nations, and among the several
States..." This is a plenary power which may extend to
matters purely intrastate, and may even preempt
explicit state law. See, e.g., Fry v. United
States, 421 U.S. 542, 547 (1975); Heart of
Atlanta Hotel v. United States, 379 U.S. 241, 262
(1964). However, the Constitution places limits upon
this plenary power. See, e.g. United States v.
Jackson, 390 U.S. 570 (1968).
Justice O’Connor, in New York v. United States,
120 L. Ed.2d 120 (1992), clearly defines those limits.
The issue was an act regulating nuclear wastes. The
act provides incentives to encourage states to perform
certain functions relating to nuclear waste disposal.
Justice O’Connor found no fault with these provisions.
The act also provided that a state must either enact
legislation which is congruent with, and complementary
to, Federal regulation of nuclear wastes, or take
title to all nuclear wastes generated within the
state. Justice O’Connor found that this provision
exceeded the limits of the authority conferred upon
Congress by the Constitution. Because an instruction
to state governments to take title to waste, standing
alone, would be beyond the authority of Congress, and
because a direct order to regulate, standing alone,
would also be beyond the authority of Congress, it
follows that Congress lacks the power to offer the
States a choice between the two.
Id., at 150.
In this case, the States are presented with a choice:
either enact legislation establishing an "instant
check," or allocate police resources to make a
"reasonable effort to ascertain...". The fact that the
statute only compels individual CLEOs, rather than the
state government, is irrelevant. If this construction
were permitted, Congress could evade the decision
in New York, supra, by commanding individual
members of the legislature, rather than the
legislature as a whole. The Brady Act commands: either
enact legislation, or implement Federal legislation.
By doing so, it exceeds the limits of the authority of
The Court of Appeals for the Fifth Circuit, in Koog
v. U.S., 79 F. 3d 452(5th Cir. 1996), held that
the Brady Law, to the extent that it compels Chief Law
Enforcement Officers to perform ministerial duties, is
unconstitutional. The Fifth Circuit based its decision
on the decision of this Court in New York v.
U.S., 120 L. Ed.2d 120 (1992), which, it said,
central to the question before us." New York is
also central to this case.
In New York the issue was a challenge to the
Low-Level Radioactive Waste Amendments of 1985. This
statute provided several incentives to induce States
to conform with the directives of the federal
government on the disposal of nuclear wastes. The Act
offered financial grants to States which complied. It
provided for federal pre-emption in instances in which
a State chose not to comply. This Court found that
these provisions were within the permissible powers of
Congress, and did not transgress the powers reserved
under the 10th Amendment.
The Act also provided that States could choose whether
to enact regulations, as prescribed by Congress, or
take title to the waste from the parties who generated
it, and assume liability both for the disposal of such
wastes, and for any damages. This provision was found
to lie outside of the enumerated powers and to be
inconsistent with the Tenth Amendment.
In reaching this decision, this Court distinguished
Tenth Amendment cases in which the issue was the
authority of Congress to subject state governments to
generally applicable laws. These cases include
Garcia v. San Antonio Metropolitan Transit
Authority, 469 US.. 528 (1985)(Fair Labor
Standards Act); Fry v. U.S., 421 U.S. 542
(1975)(wage stabilization), and South Carolina v.
Baker, 485 U.S. 505 (l988)(tax exemption on the
interest on municipal bonds). Id., at 140. The Court
found these cases inapposite since the legislation at
issue, in New York, was not applicable to private
parties. Instead the issue was ". . .the circumstances
under which Congress may use the States as implements
of regulation." Id.
The Court began its analysis by observing that
"Congress may not simply commandeer the legislative
processes of the States by directly compelling them to
enact and enforce a federal regulatory program." Id.,
citing Hodel v.Virginia Surface Mining &
Reclamation Ass’n, 452 U.S. 264, at 288 (1981).
Congress may, however, use a variety of means to
induce states to assist in regulatory programs. For
example, under the spending power, "Congress may
attach conditions to the receipt of federal funds."
Id. Or Congress may offer States the choice of
regulating in accordance with Congressional wishes, or
having State regulation pre-empted by federal
regulation. Id., at 144-145.
In Hodel, and in Federal Energy Regulatory
Comm'n v. Mississippi, 456 U.S. 742 (1982) (FERC),
there were incentives offered to the States for
undertaking certain regulatory programs. There was
also the option of federal preemption if the States
chose not to act. In neither case were the States
compelled to enact legislation, nor to promulgate
regulations. In fact, the court observed, ". . . this
Court never has sanctioned explicitly a federal
command to the States to promulgate and enforce laws
and regulations." Id.
Such a command is not permissible because the power of
the national government operate diirect1y upon the
people, not on the States.
In providing for a stronger central government,
therefore, the Framers explicitly chose a Constitution
that confers upon Congress the power to regulate
individuals, not States. As we have seen, the Court
has consistently respected this choice. We have always
understood that even where Congress has the
authority.. . to pass laws requiring or prohibiting
certain acts, it lacks the power directly to compel
the States to require or prohibit those acts.
After explaining the principles to be applied in
construing the Tenth Amendment, the Court then
addressed the arguments of the Government in defense
of the "take title" provisions, and against the
prohibition on such legislation.
* * *
The allocation of power contained in the Commerce
Clause, for example, authorizes Congress to regulate
interstate commerce directly; it does not authorize
Congress to regulate state governments’ regulation of
interstate commerce. Id., at 144.
First, the Government argued that this prohibition can
be overcome if the federal interest is important
enough. The Court responded:
The Government also argued that".. . the Constitution
does, in some circumstances, permit federal directives
to state governments." The Court responded that
"(v)arious cases are cited for this proposition but
none support it." Id.
No matter how powerful the federal interest
involved, the Constitution simply does not give
Congress the authority to require the States to
regulate. The Constitution instead gives Congress the
authority to regulate matters directly and to pre-empt
contrary state regulation. Where a federal interest is
sufficiently strong to cause Congress to legislate, it
must do so directly; it may not conscript state
governments as its agents. Id., at
The Brady law compels State officers (Chief Law
Enforcement Officers, or "CLEOs") to perform a
background investigation of potential handgun
purchasers, then either to destroy the records of the
investigation if the result is negative, or furnish,
if requested, a written explanation if the potential
purchaser appears to be ineligible to possess a
firearm. Like the "take title" provisions in New
York, the Brady Law is a direct, and unavoidable
command to state officials. Like the "take title"
provisions, it violates the Tenth Amendment and
exceeds the Commerce Clause powers.
THE BACKGROUND CHECK PROVISIONS
ARE NOT SEVERABLE FROM THE REMAINING
PROVISIONS OF THE ACT.
There is a presumption that the inclusion of an invalid
provision, in the same section with a valid provision,
indicates that the legislature intended that if the
one cannot be given effect, that the other should also
fail. See, e.g., Carter v. Carter Coal Co., 298
U.S. 238 (1936).
As is noted in footnote 3, supra, there was an attempt
to make the background check, by the CLEO, optional,
and the Congress rejected this. Thus, the waiting
period and the background check were considered
inseparable by the Congress. Further, the waiting
period, without the background check, was offered to
each successive Congress for many years. In each case,
the bill was rejected. The legislature intended that
the waiting period accompany, and facilitate, a
background check. The two should fail together.
This Court should reverse the judgment of the Ninth
Circuit Court, find the Brady law unconstitutional,
and that the background check provisions are not
severable from the remaining provisions of the Act.
James H. Warner
Attorney for Amicus Curiae
Law Enforcement Alliance of America
1. Interestingly, when Congress was considering the
Brady Bill, it was suggested that Federal Agents might
perform the background checks. This was rejected
because it would have been too burdensome upon the
Federal Agents. HR.. Rep. No. 103-344, 103rd Cong.,
1st. Sess., at 7(1993).
2. "The Constitution Subcommittee also received
evidence that the Bureau has formulated a requirement,
of which dealers were not informed, that requires a
dealer to keep official records of sales even from his
private collection. BATF has gone farther than merely
failing to publish this requirement. At one point,
even as it was prosecuting a dealer on this charge
(admitting that he had not criminal intent) the
Director of the Bureau wrote Senator S. I. Hayakawa to
indicate there was no such legal requirement. And
that it was completely lawful for a dealer to sell
from his collection without recording it." Subcomm.
On the Constitution, Sen. Judiciary Comm., The Right
to Keep and Bear Arms 97th Congress.2d Sess. At 22
(1982). The case referred to is documented at
Hearings on S. 1030 before the Senate Judiciary
Comm., 97th Cong.2d Sess. At 60-62 (1982); one
director of the prosecuting agency opined that the
questioned conduct was and had always been legal; his
replacement, in a statement filed with the court,
avowed that this was a mistake.
3. In any case, the Office of Legal Counsel has
overlooked the legislative history. In fact, proposals
to snake the background check optional for
CLEOs were considered and rejected in both the
Subcommittee On Crime and the House Judiciary
Committee. Congress’ rejection of the amendment makes
no sense unless the result was intended to mean
exactly what it says: CLEOs must carry out the program
or risk sanctions. We cannot safely assume that future
officials will overlook the statutory history.
4. If it did, quaere the effect of enactment
of the Alien and Sedition Act.
5. Dennison’s result was of course overruled in
Puerto Rico v. Branstad, 483 U.S. 219 (1987).
This has no effect on the Court’s observations of the
voluntazy nature of state compliance m the early days
of the nation.
6. ". . . the naturalization act of March 26, 1790,
gave state judges jurisdiction over its operation,
though the citizenship conferred was federal. Later,
in some states the state courts were forbidden to act
in the matter and the courts decided that the
prohibition was within the power of the state
legislatures." Matteson, supra, at 296.
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