Supreme Court Throws out Crucial Part of Brady Law

By Murray, Frank J. | The Washington Times (Washington, DC), June 28, 1997 | Go to article overview
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Supreme Court Throws out Crucial Part of Brady Law

Murray, Frank J., The Washington Times (Washington, DC)

The Supreme Court shot down a key provision of the Brady gun-control law yesterday, saying the 10th Amendment bars Congress from commandeering police for checks on handgun buyers during a five-day waiting period.

The historic declaration that the states' rights amendment to the Constitution shields state officials from being dragooned into federal service represents the third time this week the justices asserted their power to throw out a high-profile act of Congress.

The decision allows 20 states still subject to the Brady law to stop doing background checks. But gun dealers still must file so-called Brady forms, even if no investigation will be done, and wait five days to deliver a handgun.

Other states are exempt because they have alternative systems. The system thrown out yesterday would have ended in November 1998, when the nationwide federal system is due to be on line.

Nevertheless, the significance to future efforts to order local officials into federal tasks could be enormous.

"The federal government may not compel the states to implement, by legislation or executive action, federal regulatory programs," said the 5-4 opinion written by Justice Antonin Scalia.

The temporary Brady law mandate on police violates the Constitution and threatens state independence and autonomy that could reduce them "to puppets of a ventriloquist Congress," Justice Scalia said.

His majority opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy and Clarence Thomas.

Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

"The majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments," a visibly upset Justice Stevens replied in an unusual 19-minute peroration.

He presided yesterday in the absence of the chief justice and, after delivering his monologue and a warm tribute to marshal's aide William Mathews, who retired after 40 years, declared the court in recess for the summer.

Justice Stevens said the ban on enlisting local officials could jeopardize the response to a national emergency - administering a military draft, enlisting air raid wardens, inoculating children in an epidemic or countering a terrorist. He said Congress likely would respond with new bureaucracies.

Justice Breyer seconded that and, as has become his custom, praised European practices in a separate statement that said the federal systems of Switzerland, Germany and the European Union use state governments to implement federal laws.

That observation was targeted by Justice Scalia, who called "such comparative analysis inappropriate to the task of interpreting a Constitution, though it was of course quite relevant to the task of writing one."

While a "somewhat disappointed" Handgun Control Inc. President Sarah Brady called for legislation to properly authorize background checks for the 16 months until the federal system takes over, the National Rifle Association was delighted.

"We feel vindicated by this decision," said NRA Executive Director Wayne LaPierre. "All along we've favored separating criminals from the law-abiding. We've said the better way to do it is the instant check at the federal level, which we've supported from the start."

In Montana, Ravalli County Sheriff Jay Printz, one of several who challenged the provision, called it "a victory for the American people - not only firearms owners but persons who don't choose to own firearms."

Police organizations predicted most departments will continue to investigate buyers voluntarily, although in the two cases decided yesterday state laws may block that. Montana forbids it, and the opinion said Arizona law also could prohibit compliance.

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