Date: Tue, 10 Dec 1996 22:42:07 -0500 (EST)
From: NRA Alerts <[a--er--s] at [nra.org]>
To: Multiple recipients of list <[r k ba alert] at [mainstream.net]>
Subject: INFO: The Brady Act "Marionettes" Fight Back

December 9, 1996

              THE BRADY ACT "MARIONETTES" FIGHT BACK
                       By Tanya K. Metaksa
                    NRA-ILA Executive Director


December 3rd was a good day for gun owners.  


That's the consensus -- even among the media elite -- on the clash 
between gun owners and the Clinton Administration in the U.S.
Supreme Court December 3.   

The nation's highest court heard oral arguments in the case against
the Brady Act brought by local law enforcement and backed by the NRA
Institute for Legislative Action and the Firearms Civil Rights Legal
Defense Fund.  I observed the heated, hour-long debate.  The court
effectively laid open the constitutional weaknesses of the
centerpiece of the gun control movement.  

Justices took the Clinton Administration down several blind alleys, 
mugging Solicitor General Walter Dellinger at every turn.  The 
Clinton Administration "struggled ... to convince the Supreme Court
that the Brady gun control law does not trample on ...
constitutional principles," the New York Times observed.  The
"Court's sympathies for the states'-rights side of the ongoing
constitutional debate over federalism were very much in evidence."

So committed were justices to realignment of the federal-state
relationship, many "seemed to argue Mr. [Stephen P.] Halbrook's case
for him," said the Washington Times, noting two occasions when
Justice Antonin Scalia advised Halbrook "what your answer should
be." To Justice Scalia, the Brady Act makes states "dance like
marionettes on the fingers of government."  

Much of the debate centered on New York v. United States -- and both
attorneys sought to win over the author of that landmark case,
Justice Sandra Day O'Connor.  In New York, O'Connor wrote, "the
federal government cannot compel the states to enact or administer a
federal regulatory program."  Yesterday, we argued, Congress, in the
Brady Act, brushed aside state and local government while
commandeering local law enforcement to implement a federal
regulatory program (namely, the Brady Act waiting period and checks
on gun purchasers).  

When Mr. Halbrook argued that the Constitution would prohibit
Congress from merely requiring local law enforcement to make records
available, Justice O'Connor rejected his view as "an extreme
position."  But she turned heavier guns toward Mr. Dellinger when
she asked him whether Congress could impose a huge welfare program
on the states without funding such a program.  No, Dellinger said. 
That would be unconstitutional.  The Brady Act, she countered, "is
just a smaller version of that example, is it not?"   

Our argument was clear and, we thought, convincing: state and local
law enforcement are not clerks working for Congress.  Rather, they
are public servants working for their local communities.  Likewise,
State Capitols and Town Councils across America are not museums, but
democracies with powers and prerogatives.  They have the power to
direct their state and local law enforcement.  And the fence line
that protects them against federal commandeering?  The Tenth
Amendment.   

The Government's position seemed to be that Brady is no big deal --
no commandeering, no substantive tasking.  The view of many justices
-- and, we hope, a majority -- is that the magnitude of the task
doesn't matter.  Big or small, the Brady task is unconstitutional.  

Some jousting highlights:

       * Popularity Doesn't Equal Constitutionality.   Mr.
       Dellinger sounded a  familiar anti-gun refrain when he
       told the high court that most police associations like
       gun control.   The press might buy such rhetoric, but the
       high court doesn't.   Chief Justice William H. Rehnquist
       gave the Solicitor General a lesson from Constitutional
       Law 101: the constitutionality of the Brady Act or any
       other law is not determined by how many people like or
       dislike it.   
       
       * Clinton Administration: No Tough Policy Decisions for
       Local Police.  Perhaps no surprise to Clinton observers,
       the Administration's chief problem is accountability. 
       While Mr. Dellinger argued that Congress was only asking
       for information -- and not asking local officials to make
       tough policy decisions -- justices roundly disagreed. 
       The Brady Act forces local law enforcement officers to "a
       real policy choice," Justice David H. Souter insisted.  
       In his view, they must expend limited resources on a
       "reasonable" background check -- or fight crime, patrol
       communities and investigate crime.  That choice, Justice
       Souter said, "can politically be very explosive in some
       communities."
       
Many observers believe the court will side in the sheriffs'
favor.  If so, the Brady case will be the capstone of the
Rehnquist legacy on the new federal-state relationship.  
  
Fearing that the court will strike down Brady, U.S. Rep Charles
Schumer (D-N.Y.) is already talking about introducing
legislation to solve the Tenth Amendment problem by making the
checks contingent on state concurrence and providing monetary
grants.  Schumer notwithstanding, action on the Brady Act by
the 105th Congress is unavoidable.  Even if the court upholds
Brady, the wait sunsets to the Instant-Check in 1998,
contingent on Attorney General certification. 
  
Thus, we can anticipate that the Brady Act will take center-
stage before the U.S. Congress as well as the U.S. Supreme
Court. 
  
=+=+=+=+
This information is provided as a service of the National
Rifle Association Institute for Legislative Action, Fairfax,
VA.
  
This and other information on the Second Amendment and the
NRA is available at: http://WWW.NRA.Org