Comprehensive Handgun Licensing & Registration: An Analysis & Critique of Brady II, Gun Control's Next (and Last?) Step
Jacobs, James B., Potter, Kimberly A., Journal of Criminal Law and Criminology
The Brady Handgun Violence Prevention Act,(1) which became effective in 1994, imposed a background check on prospective handgun purchasers who seek to buy handguns from federal firearm licensees (FFLs). While the handgun control groups that lobbied for the Brady law have labeled it a success, they are also pushing a supplementary omnibus bill that would create a comprehensive handgun licensing and registration system, in effect, extending Brady to the secondary market of handgun transfers between non-dealers.(2) This Article analyzes the constitutionality and feasibility of this bill's comprehensive handgun licensing and registration provisions.
Part II describes the main features of Brady II.(3) Part III argues that Brady II would be unconstitutional under the Supreme Court's decision in Printz v. United States, which struck down Brady I's requirement that state or local officials carry out background checks of prospective handgun purchasers.(4) Parts IV and V demonstrate the practical difficulties that would bedevil comprehensive handgun licensing and registration.
II. BRADY II'S REGULATORY VISION
In 1995, Congressman Charles Schumer (D-NY), and Senators Bill Bradley (D-NJ) and Charles Lautenburg (D-NJ) introduced the Handgun Control and Violence Prevention Act of 1995(5) (Brady II). It would require all handgun purchasers to obtain a state handgun permit; states with no handgun permit laws would have to enact them.(6) Brady II also requires that handguns be registered before being transferred. Brady II significantly expands Brady I by making it illegal "for any person to sell, deliver, or otherwise transfer a handgun to an individual who is not [an FFL] unless the transferor ... verifie[s] that the transferee possesses a valid State handgun license."(7) It also makes it unlawful for anyone, other than an FFL, to receive a handgun or handgun ammunition "unless the individual possesses a valid State handgun license."(8) The proposed law would prohibit, not only sales by an FFL to an unlicensed purchaser, but handgun sales in the secondary market between private citizens, as well as non-commercial handgun transfers between friends or family members.(9)
Brady II does not leave it entirely up to states to determine the requirements for obtaining a state handgun license. The state handgun license must "at a minimum, meet the following requirements:" (1) licenses shall be issued by the state's chief law enforcement officer (CLEO); (2) they shall contain the licensee's name, address, date of birth, physical description, and a photograph; and (3) licenses shall be valid for a period not to exceed two years.(10) Before granting a state license, the CLEO must verify that: (1) the applicant is at least twenty-one years old; (2) the applicant is a resident of the state (the applicant must present an identification document, such as a driver's license, and a document establishing residency, such as a utility bill or lease); (3) the applicant is not "prohibited from possessing or purchasing a handgun under federal, state, or local law based upon name and fingerprint-based research" in federal and state record systems; and (4) the applicant must have been issued a State handgun safety certificate.(11)
In proposing Brady II, Congressman Schumer argued that a comprehensive handgun licensing and registration scheme for all handgun owners is needed to complete the regulatory framework started by Brady I.(12) Handgun Control, Inc. (HCI), the citizens' organization that drafted Brady II, stated that "[l]icensing of handgun purchasers allows more thorough background checks to be conducted on gun buyers and would help expose gun traffickers by allowing for more accurate tracing of guns found at crime scenes.... Enacting these laws is no longer a choice; it is a necessity."(13)
According to HCI's former executive director, Richard Aborn, HCI decided to switch from an incremental one-step-at-a-time strategy to achieve effective gun control to a comprehensive approach that puts forward the organization's full agenda in one proposal. …