Brady Law Faces Key Test In Supreme Court Session

In a lively session, the Supreme Court on Tuesday heard arguments that Congress exceeded its authority when it passed the federal Brady law, which orders local law enforcement officials to conduct background checks on prospective gun owners.

Several justices seemed sympathetic to the position of two sheriffs who are challenging the law on the ground that it improperly saddles local officials with federal responsibilities.

The sheriffs, from Arizona and Montana, say the law violates the Constitution’s 10th Amendment, which leaves to the states those powers not directly granted to Congress - meaning that federal lawmakers can’t order state officials around.

“These departments could have plenty of staff and not much to do, and these requirements would still be unconstitutional,” argued Stephen Halbrook, attorney for the sheriffs. “Regardless of the burden or lack thereof, these commands are not constitutional.”

The case is among the most closely watched of the Supreme Court’s term because it could help clarify the relationship between the states and the federal government.

Under the Brady law, local officials are required to make a “reasonable effort” to determine if the prospective buyer is prohibited from getting a gun. Those prohibited from buying a gun include felons, illegal immigrants, people who were dishonorably discharged from the military and the mentally ill.

The act’s supporters say it is necessary to curb the more than 13,000 handgun murders a year. The law is named after James Brady, former President Ronald Reagan’s press secretary, who was critically wounded during the 1981 assassination attempt on Reagan.

Brady and his wife, Sarah, were in the packed courtroom Tuesday, as was Sheriff Jay Printz of Ravalli County, Mont. Printz, along with Sheriff Richard Mack of Graham County, Ariz., is challenging the mandatory background checks.

The sheriffs have not challenged the law’s five-day waiting period for prospective gun buyers, and they acknowledge they’ll have no constitutional claim once a national system for checking backgrounds is up and running by 1998.

Throughout the argument, justices sought to distinguish the Brady law from existing congressional mandates, such as requiring that states enforce a drinking age of 21 or that they report traffic fatalities.

Halbrook said in those cases Congress either offered the states grants to enforce the law or gave them the option that it would step in if the states did not act. That isn’t the case with the Brady law, Halbrook said.

Justice Sandra Day O’Connor asked whether Congress could pass a law requiring every state to administer a federal welfare plan without giving states any money to implement it or any other option.

Acting Solicitor General Walter Dellinger acknowledged that such a program could run afoul of the Constitution, particularly if it allowed Congress to shirk its political accountability.

“This is just a smaller version of that example, is it not?” O’Connor then asked about the Brady law.

Dellinger said no, arguing that the law is reasonable and does not distort the balance of power between the states and federal governments.

“The relevant records are (with) local law enforcement … Congress didn’t do this simply to offload its burden,” Dellinger said. “It’s a rough and ready way to get the most readily available information with a minimal burden.”

Justice Antonin Scalia seemed particularly hostile to the law’s requirements, often assisting Halbrook when he got a tough question from another justice, and then vigorously questioning Dellinger.

“When the federal government executes the laws, they have to pay for the execution,” Scalia said. “It’s much easier to impose an obligation on the states to do it, and the state legislatures can take the heat for raising the taxes.”

The court is expected to rule in the case by next summer.