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  Court Voids Background Check of Gun Buyer Under Brady Law

By Joan Biskupic
Washington Post Staff Writer
Saturday, June 28 1997; Page A01

The Supreme Court yesterday struck down a key portion of the Brady gun control law, ruling 5 to 4 that Congress overstepped its powers by trying to commandeer the resources of states to carry out federal law.

Issued on the last day of a tumultuous term, the decision imposed another restriction on the power of the federal government, a recurring theme of the court's rulings in recent years.

Voting 5 to 4, the high court invalidated a provision requiring local sheriffs to check the backgrounds of gun buyers, part of a broader law inspired by James S. Brady, who was disabled in the 1981 assassination attempt on President Ronald Reagan. The law marked the first major effort by Congress to regulate firearms in two decades, and passed in 1993 after seven years of fractious debate.

"Congress cannot compel the states to enact or enforce a federal regulatory program," Justice Antonin Scalia wrote for the court, relying on an important 1992 precedent but also narrowly reading the Constitution's grant of congressional powers.

In dissent, Justice John Paul Stevens read aloud for nearly 20 minutes his statement protesting the majority. If Congress believes the Brady Act "will benefit the people of the nation . . . we should respect both its policy judgment and its appraisal of its constitutional power," he said.

The decision is likely to have limited impact on gun control; most states already require background checks and the federal government is developing a nationwide screening system to do the work that currently is left to local law enforcement. But it holds great significance for how Congress writes laws affecting social policy.

Scores of federal laws affecting everything from the environment to transportation require the states to carry them out. And as long as the statutes are rooted in specific provisions of the Constitution, yesterday's ruling would not affect them.

A federal law that conditions highway funds on states enacting certain public safety measures, for example, would be within Congress's powers because of a provision in the spending clause of the Constitution that gives Washington the authority to control federal money.

Similarly, the Constitution's interstate commerce clause gives Congress the authority to regulate activities that occur across state lines, a provision often used to draft environmental, anti-discrimination and public safety regulations.

Yesterday's ruling sends the message that if federal lawmakers are going to get involved in state activities, they must do so carefully. Indeed, Justice Sandra Day O'Connor said in a concurring statement that the ruling does not foreclose a congressional attempt to achieve some of the same goals of the Brady Act, just through different means.

"Congress is . . . free to amend the . . . program to provide for its continuance on a contractual basis with the states if it wishes, as it does with a number of other federal programs," she said.

While in a practical way the rulings may only mean that Congress has to pay more attention to how it writes legislation, the decision nonetheless shows how ready this court is to impose limits on the national government.

Sen. Herb Kohl (D-Wis.), a sponsor of the Brady Act, said he feared that the court's legal reasoning could imperil laws requiring states to report missing children, to get lead out of school drinking water and to publicly disclose where hazardous waste is stored.

"Today's court ruling may make it impossible for Congress to enlist the aid of states to address a broad range of America's problems," Kohl said.

In the past five years, a close but decisive majority has hemmed federal authority and enhanced state powers, by bolstering the 10th Amendment's guarantee of state sovereignty, by limiting congressional power to regulate interstate commerce and by broadly interpreting the 11th Amendment, protecting states from lawsuits to enforce federal rights.

Earlier this week, as the justices were winding down their term, they invalidated a federal law intended to protect religious practices from government interference. The justices said Congress had co-opted the court's power to decide constitutional protection for religion and intruded on the business of the states.

"Constitutional federalism thrives in the Supreme Court," said Jesse Choper, a law professor at the University of California at Berkeley, referring to the diminished federal authority left after the high court term. "This is a majority with a very different vision of the limits of national power and they're willing to enforce those limits."

The country's tradition, most notably since the New Deal era, has been to shore up national government at the expense of the states. But today's court, led by Chief Justice William H. Rehnquist, has been reversing the trend. He has had the consistent support of four other justices: O'Connor, Scalia and Justices Anthony M. Kennedy and Clarence Thomas. Those five faced off against the usual dissenters: Stevens and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

In Scalia's opinion yesterday, he emphasized the dual and concurrent power of the state and federal governments and, in recounting America's constitutional tradition, narrowly construed federal authority.

"It is an essential attribute of the states' retained sovereignty that they remain independent and autonomous . . . ," Scalia said. "It is no more compatible with this independence and autonomy that their [police] officers be dragooned into administering federal law than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws."

Intended to cut down on handgun violence, the Brady law requires gun dealers to give a local sheriff the name of a would-be buyer, then wait five business days to hear back on the person's background. During that time, the sheriff is supposed to check state, local and national crime records, and inform the dealer if the potential buyer is a convicted felon or otherwise would be barred from purchasing a handgun. It is that last provision that was invalidated in yesterday's twin cases.

Montana Sheriff Jay Printz and Arizona Sheriff Richard Mack had challenged the background check, saying it was time consuming and distracted their deputies from enforcing local laws. The sheriffs said states should be protected from such legislative intrusions by the 10th Amendment, which says that constitutional powers not given to the federal government, nor explicitly removed from the states' domain, are reserved for the states and the people.

The sheriffs relied on a 1992 ruling in New York v. United States that said Congress may not force states to enact or run a federal program. In that ruling, the court struck down part of a federal law intended to make states responsible for the low-level radioactive waste they generate by drafting local legislation.

The 9th U.S. Circuit Court of Appeals rejected the sheriffs' claim and upheld the Brady law.

Overturning that lower court decision yesterday, the Supreme Court reaffirmed its holding in the 1992 case. But it went further by saying that Congress cannot commandeer state officers into acting on its behalf.

"By forcing state governments to absorb the financial burden of implementing a federal regulatory program," Scalia wrote, "members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes."

Overall, the majority said that if the text and history of the Constitution fail to explicitly provide for congressional power in a particular area, courts should presume federal lawmakers don't have the power.

Dissenters said the court should look, rather, to see whether anything in the Constitution explicitly denies Congress the power.

Wrote Stevens, "There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I."

© Copyright 1997 The Washington Post Company

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