High Court To Consider Challenge to Brady Bill

WASHINGTON -- For seven years, a wheelchair-bound James Brady and his wife, Sarah, fought for passage of national legislation to regulate the sale of handguns. They were unrelenting advocates, pitted against the lobbyists of the National Rifle Association.


They watched a bill requiring buyer-background checks die, get revived, cause a congressional standoff and finally, in late 1993, pass both houses to become the first major gun-control law in a quarter century.


The Brady Act, named for the former press secretary who was disabled in the 1981 assassination attempt on President Ronald Reagan, was immediately challenged by local sheriffs, who must perform the background checks, as an unconstitutional infringement on their power.


Now, the most controversial gun-control bill of the era has reached the Supreme Court, just as the justices are questioning whether Congress is imposing too much of its will on local authorities. Oral arguments on the case are set for Tuesday.


"The American people won a great victory over the gun lobby two years ago,'' Brady said at a recent news conference. "I hope, and trust, that the high court will not mess with success.''


Many local sheriffs complain the federal government has no right to force local law-enforcers to carry out Washington's crime policies.


"If we still believe in the notion of 'government by, for and of the people,' how can we go along with this?'' asked Richard Mack, sheriff of Graham County, Arizona.


Under the new law, a gun dealer must give the local sheriff the name of a would-be buyer, then wait five business days to hear back about the person's background before completing the sale. During that time, the sheriff is supposed to check state, local and national crime records and inform the dealer if the buyer is a convicted felon or otherwise would be barred from buying a handgun.


Mack and Ravalli County Sheriff Jay Printz in Montana, whose case is also before the justices, said the background information they must pursue comes from many sources and takes time his deputies could be spending on real crime-fighting.


Lawyers for Mack and Printz refer to a 1992 Supreme Court ruling on a New York case which stated that Congress "may not compel the states to enact or administer a federal regulatory program.'' In that instance, the court relied on the 10th Amendment, which dictates that constitutional powers not given to the federal government, nor explicitly removed from the states' domain, are reserved for the states and the people. It is on 10th-Amendment grounds that the sheriffs are challenging the Brady bill's background-check provisions.


But despite the controlling majority's recent track record on federalism, the Brady provisions could prove the exception to recent court decisions in this area. Solicitor General Walter Dellinger, arguing the government's case, distinguishes the Brady law from the provisions struck down in the New York radioactive waste case, in which the state was commanded to enact state regulation to deal with the waste problem.


"The Brady Act does not require [sheriffs] to make policy; rather ... the act only requires state officials to assist in the application of federal law ... in the course of their ordinary duties,'' Dellinger wrote in his brief.