Justices Hint at Voiding Part of Brady Act

The Supreme Court justices strongly hinted Tuesday that they will void part of the Brady handgun registration law that requires local police to check the criminal histories of potential buyers.

During oral arguments, the court’s conservative justices said they were troubled that the federal measure “commandeers” local officials and forces them to work part time for the federal government.

Unlike most federal laws, which induce state and local agencies to carry out federal initiatives by threatening to withhold federal funds, the Brady Act of 1993 flatly requires local officials to conduct background checks of gun buyers during a five-day waiting period.

Seizing on this provision, lawyers for the National Rifle Assn., representing a Montana county sheriff, urged the high court to strike down the measure.

While that argument may well succeed in the high court, it would not mean the end of the handgun law or the practice of conducting background checks because it would not void state laws or alter a second major element of the law--a required five-day waiting period for handgun purchases. That waiting period will continue to provide police chiefs with the time they need to conduct background checks, which are being carried out in most areas of the country voluntarily or under state laws.

If the court voids part of the Brady Act, the ruling “will not mean anything for California,” said Luis Tolley, western director for Handgun Control Inc. in Los Angeles.

Under California law, those who want to buy a handgun must submit personal identification and wait 15 days for the state Department of Justice to check to see if the potential buyer has a criminal record or has been confined for mental illness. If not, the gun sale can proceed.

The California law was on the books before the Brady Act. Even if the Supreme Court were to strike the federal requirement, the state system would remain in effect. Government lawyers told the high court that half of the states have their own systems of background checks.

Since February 1994, the Brady Act has resulted in an average of 85 ex-felons per day being blocked from buying a handgun, according to a study released in August. But handgun violence remains epidemic, federal officials say. The nation still suffers about 13,000 handgun murders each year.

Because of the “extraordinary mobility of handguns,” the United States needs a uniform, national system of background checks to prevent weapons from being sold to criminals, Solicitor General Walter Dellinger argued before the court Tuesday. Relying on local sheriffs to check criminal records “is a rough-and-ready way to get the most readily available information,” he said.

By 1998, the Justice Department is supposed to have a national computerized system in place that will allow instant checks of criminal records. Until then, local sheriffs will play the critical, and often time-consuming, role of conducting the checks in some states.

The case before the court was brought by Jay Printz, the sheriff in Ravalli County, Mont. Printz testified in a lower court that conducting background checks required by the Brady Act consumes one or two hours per week of his time.

The U.S. 9th Circuit Court of Appeals in San Francisco rejected his challenge, finding that time commitment a minimal burden. But the U.S. Supreme Court agreed to hear his appeal in Printz vs. U.S., 95-1478.

Arguing for Printz, Stephen P. Halbrook told the court that the 10th Amendment bars Congress from “commandeering a sheriff’s department” and requiring its officers “to administer a federal regulatory policy.”

Halbrook relied on a 1992 opinion by Justice Sandra Day O’Connor that struck down a federal law requiring states to put a nuclear waste dump within their borders. In that case, O’Connor said Congress may not “commandeer” state or local officials and force them to carry out federal tasks.

Because the justices are likely to be sharply divided over the Brady Act, it will likely be six months or more before a ruling is issued.