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  •   Justices Joust Over States' Rights

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, December 4, 1996; Page A20

    The oral arguments yesterday were over the Brady handgun law, but the Supreme Court quickly moved to broader questions of how Congress treats the states.

    Justice Antonin Scalia dismissed the Clinton administration's defense of the Brady Act, which forces local sheriffs to check the backgrounds of would-be gun buyers, saying the rationale would make states "dance like marionettes on the fingers of the federal government."

    But Justice Stephen G. Breyer questioned why it was not "more respectful" of states' rights for Congress to have imposed "minor reporting duties" on the states than a big bureaucratic gun-control system.

    And Justice Anthony M. Kennedy, a potential swing vote in this dispute, observed that each level of government makes policy choices based on costs. "If Congress makes a choice," he said, "it pays for it."

    In short, the session brought to the fore the enduring but delicate balance between federal and state powers – a true constitutional debate in the justices' white marble and burgundy-draped courtroom.

    The law, named for James S. Brady, the former press secretary who was disabled in the 1981 assassination attempt on President Ronald Reagan, requires gun dealers to give the names of potential buyers to the local sheriff or other chief law enforcement officer. The sheriff has five days to check crime records and inform the dealer if the buyer is a convicted felon or otherwise barred from buying a handgun.

    The federal government says the 1993 law has stopped tens of thousands of felons from buying handguns each year.

    But Arizona and Montana sheriffs challenged the background check as a time-consuming infringement on state authority that effectively compels them to carry out a federal program. A federal appeals court sided with the government, comparing the background check with other "minor obligations," such as reporting traffic fatalities.

    The Constitution limits the powers of the states but also dictates that state sovereignty not be infringed by Congress. In recent years, under Chief Justice William H. Rehnquist, the court has been increasingly sensitive to the state side of the equation.

    Stephen P. Halbrook, who represented the sheriffs yesterday, said the Constitution prohibits "requiring states to administer a federal regulatory policy." He argued that the Brady law differs from other mandates that are tied to federal funds and permitted under Congress's spending power. He relied on the Tenth Amendment, which says constitutional powers not given to the federal government are reserved for the states.

    Solicitor General Walter E. Dellinger, defending the gun law before the justices, said Congress has the authority to order the background checks under its power to regulate interstate commerce. He stressed that the law does not require states to adopt any particular policy and leaves the political responsibility for gun control with Congress. Scalia retorted that such an argument relegates states to "marionettes" with no options.

    Noting the mobility of guns, Dellinger said that more than 13,000 handgun murders are committed annually in the United States and called the act "a rough-and-ready way" to gather information on people who should not have access to guns. He said the local responsibility was minor and temporary; the law mandates an instant-check system by 1999.

    Justice Sandra Day O'Connor, who has been one of the court's strongest voices for state authority, stressed that the Brady law does not give states money to carry out the background checks or the option of not joining the program. She offered a hypothetical scenario of a law forcing states to administer federal welfare plans without any federal funds and – over protests from Dellinger – said the Brady law appeared to be a "smaller version" of such.

    Dellinger said the test for whether a federal mandate is constitutional is whether it actually inhibits the states from carrying out their own functions.

    Dellinger said the Brady Act would not be as successful if it was voluntary because counties in which sheriffs refused to check backgrounds would become havens for criminals who wanted to buy guns. "This is a chain that is no stronger than its weakest link," he said.

    A decision in the combined cases of Printz v. United States and Mack v. United States is expected by next summer.

    © Copyright 1996 The Washington Post Company

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