THE BRADY LAW AND THE LIMITS OF REGULATION
Keeping firearms out of the hands of dangerous and irresponsible persons is one of, if not the primary goal of United States gun control policy.(1) The logic of restricting gun ownership to responsible, law-abiding citizens is immediately apparent and relatively uncontroversial, even to the National Rifle Association.(2) It reflects a widely-shared belief that members of certain social categories pose an unacceptably high risk of misusing firearms.(3) As in the case of denying a driver's license to people who are legally blind, there is a strong consensus that people who have demonstrated certain kinds of irresponsible and unstable behavior should not possess weapons which are capable of injuring or killing the possessor or others.(4) Federal gun control law attempts to strike a balance between permitting law-abiding citizens to obtain firearms with relative ease and preventing certain categories of presumptively irresponsible people from purchasing and possessing firearms. Those that are conclusively presumed irresponsible include ex-felons, former mental patients, drug addicts, juveniles, and illegal aliens.(5)
Both federal substantive criminal law and federal administrative law contribute to the regulatory effort. The former makes it a crime for ex-felons and other ineligible persons to possess a firearm. The federal "felon-in-possession" law makes it a crime for any person convicted of a state or federal felony to possess a firearm;(6) the same prohibition also applies to drug users, former mental patients, and illegal aliens.(7) Such criminal laws, in theory, work ex-ante by deterring ex-felons and other ineligibles from purchasing or even possessing a firearm and ex-post by confiscating their weapons and punishing them for unlawful possession.(8)
Federal regulatory law, especially the recently enacted Brady law, seeks to regulate firearms transfers in such a way that ineligible persons will not even be able to obtain a firearm and therefore, will never have an opportunity to violate the criminal law.(9) Congress established the federal regulatory foundation in the Gun Control Act of 1968,(10) which prohibits the sale of long guns (rifles and shotguns) and handguns to anyone who is: (1) not a resident of the state in which the federal firearms dealer does business;(11) or (2) under eighteen years old for long gun purchases and twenty-one years old for handguns.(12) In addition, the Act prohibits the sale of firearms to anyone who is: (1) under indictment for or has been convicted of a "crime punishable by imprisonment for a term exceeding one year";(13) (2) a fugitive from justice;(14) (3) an illegal narcotics user or addict;(15) and (4) either an adjudicated mental defective or someone who has been committed to a mental institution.(16) The Act also prohibits those listed under [sections] 922(d) from possessing firearms.(17) In 1987, Congress expanded the category of persons ineligible to purchase or possess firearms to include illegal aliens, persons dishonorably discharged from the armed forces, persons who have renounced United States citizenship, and anyone subject to a restraining order for domestic violence, harassment, or stalking.(18) Under this regulatory scheme, a person who seeks to purchase a handgun from a federally licensed dealer must provide the dealer with a written assurance that he or she is not an ineligible purchaser.(19) It is a criminal offense for a dealer to make a sale without such an assurance,(20) or to knowingly sell a firearm to an ineligible person.(21)
The Brady Handgun Violence Prevention Act of 1993(22) furthers this regulatory goal by prohibiting federal firearms licensees (FFLs)(23) from selling handguns to persons who fall into a few categories conclusively presumed to be dangerous and/or irresponsible. These categories include ex-felons, adjudicated mental defectives, former mental patients, illegal drug users and addicts, juveniles, persons dishonorably discharged from the armed forces, persons who renounced U.S. citizenship, and illegal aliens.(24) Brady requires that firearms dealers hold off a proposed handgun sale for up to five business days in order for a background check to be carried out by the chief law enforcement officer (CLEO) in the jurisdiction where the dealer is located. The purchase and sale may only be consummated if the CLEO notifies the dealer that the would-be purchaser is not ineligible or if five business days pass without a response from the CLEO. It is important to stress that Brady's waiting period and background check provisions apply only to the purchase of handguns. Brady does not apply to rifles and shotguns.(25)
An article in this Symposium explicitly endorses and recommends reinforcements and extensions of this combined criminal and administrative regulatory system for keeping firearms out of the hands of irresponsible persons.(26) Philip J. Cook, Stephanie Molliconi and Thomas B. Cole, in Regulating Gun Markets, argue that the gun control legislation applicable to purchases through FFLs should be extended to the secondary gun market.(27) While such a proposal may have surface appeal, when one examines the logic, practicality, and effectiveness of keeping firearms out of the "wrong hands" through regulation of the primary market, much less the secondary market, it is hard to be optimistic. This Article questions whether the federal regulatory strategy for regulating firearms purchases or possession is likely to be successful. In so doing, it provides a case study of how regulatory goals far exceed regulatory capacity and thus generate inexorable pressure for more regulation. Section I illuminates the gaps and unenforceability of the regulatory regime governing the purchase and sale of handguns. Section Il illuminates the practical difficulties that would be involved in attempting to expand the federal regulatory apparatus over handguns to the secondary market.
I. Regulating the Primary Market in Firearms
A. PASSAGE OF THE BRADY BILL
A few years after John Hinkley's attempted assassination of President Ronald Reagan and Press Secretary James Brady on March 30, 1981, proponents of stricter gun control, led by Handgun Control Inc.,(28) began a vigorous lobbying effort for a federal law that would prevent criminals, the mentally disturbed, and other irresponsible or dangerous individuals from obtaining handguns. Gun control advocates proposed a waiting period and a background check to be carried out by the CLEO in the particular FFL's jurisdiction to determine whether a prospective gun purchaser fell into one of the ineligible categories.(29) Although it was already a serious felony for an ineligible person to purchase a handgun, supporters of the Brady bill predicted that the bill would save lives by preventing dangerous people from obtaining handguns. This position was seemingly based upon two assumptions: (1) that under the existing regulatory system, ineligible persons were illegally purchasing handguns from FFLs by falsely claiming to be eligible; and (2) that the delay in effectuating the purchase/sale caused by the background check would prevent some misuse of firearm by imposing a "cooling-off period,"(30) during which time the would-be purchaser, whether eligible or not, would get his or her murderous impulses under control.(31) Gun control advocates and some politicians and editorial writers claimed that the Brady bill would "save lives--potentially thousands of lives":(32) "[i]f the Brady bill were enacted this afternoon, it could begin saving lives within hours .... "(33)
Brady was first introduced in the 100th Congress in February 1987 by Representative Edward F. Feighan and Senator Howard Metzenbaum, both Democrats from Ohio,(34) but was defeated by a House vote of 228-182.(35) In the 101st Congress, the same bill(36) died without a floor vote.(37) In the 102d Congress,(38) the House passed the bill by a vote of 239-186,(39) but a Senate filibuster prevented passage.(40) Finally, on November 25, 1993, after a long and contentious struggle in the 103d Congress, Brady becaine law.(41)
B. THE BRADY REGULATORY MACHINERY
To prevent the sale of handguns to irresponsible persons, Brady requires FFLS to obtain from would-be handgun purchasers photo identification and a written statement.(42) If the FFL is satisfied that the would-be handgun purchaser's identification is legitimate, the FFL must forward to the CLEO within one day the completed U.S. Bureau of Alcohol, Tobacco & Firearms' (BATF) "Brady Fonn."(43) The purchase is then delayed until approved by the CLEO, or until five business days have passed without a response from the CLEO, in which case the sale may proceed.(44)
There has been some controversy over what kind of background check the CLEO must conduct. The law states only that the CLEO "shall make a reasonable effort to ascertain within five business days whether receipt or possession would be in violation of the law, including research in whatever state and local recordkeeping systems are available and in a national system designated by the Attorney General."(45) On its face, this law could mean an effort as cursory as checking local criminal records or as comprehensive as making inquiries of federal, state, local, and private institutions and agencies responsible for dealing with crime, mental health, immigration, and drugs.
The requirement that the CLEO conduct a background check has been challenged by some local law enforcement officials, who claim that, under the Tenth Amendment, Congress lacks authority to require local government officials to set up and carry out federally-imposed regulatory operations.(46) In defending the background check provision, the government has argued that the meaning of reasonable effort is left to the discretion of each CLEO and that it should be "left to the discretion of the CLEO to establish enforcement standards based upon the jurisdiction's resources which, depending on the area, could entirely negate the research obligation."(47) Further, BATF interprets the reasonable effort language as requiring "`some minimal effort to check commonly available records.'"(48) Therefore, it seems that a reasonable background check means whatever the CLEO wants it to mean, depending on available resources and the type of records available in that jurisdiction.
Once the background check is complete, and if the sale is approved, all records of the purchaser's application and background check must be destroyed by the CLEO, including the purchaser's statement and any other record containing information derived from that statement.(49) Failure to comply with these provisions is a criminal offense punishable by a fine of not more than $1,000, imprisonment for not more than one year, or both.(50) If the sale is disapproved and the rejected purchaser requests an explanation, the CLEO must provide the rejected purchaser with a written explanation within twenty days of rejection.(51) It is important to note that Brady does not provide for arrest of an ex-felon who has attempted to purchase a handgun. In fact, there is no federal law making attempted possession by a felon a crime. A rejected purchaser can be prosecuted only for making a false statement; if the rejected purchaser lied on the Brady Form regarding a past felony record or one of the disabilities, he could be prosecuted for knowingly making a false statement to an FFL.(52) It is unlikely, however, that a rejected purchaser would be arrested and charged for making false statements.(53) As one BATF official stated, "[t]ry getting a U.S. attorney to take that case."(54)
C. EVALUATING BRADY
Gun control advocates hailed Brady as the most important federal gun control legislation of this generation. Its passage was greeted with predictions of a safer, more secure society.(55) President Clinton called Brady "step one in taking our streets back, taking our children back, reclaiming our families and our future."(56) Sarah Brady said, It will begin to make a difference. It will begin to save lives."(57) Jaines Brady stated, "What we are witnessing today is more than a bill signing, it is an end of unchecked madness and the commencement of a heart-felt crusade for a safer and saner country."(58) Even John Hinkley, Jr. praised the new law.(59)
Before the Brady law officially went into effect on February 28, 1994, gun control advocates predicted that 100,000 handgun purchases, out of 3.5 million, would be prevented annually.(60) For supporters of Brady, every rejection of a handgun sale to an ineligible person constitutes one less armed and potentially dangerous person to threaten others. One year after Brady became effective, the law was declared a success. According to a survey by BATF, Brady prevented 41,000 people from purchasing handguns.(61) BATF examined a random sample of 441,545 applications for handgun …