THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sheriff of Graham County, Arizona,
UNITED STATES OF AMERICA,
Nos. 94-16940; 94-17002
D.C. No. CV-94-00113-JMR
Appeals From The United States District Court For The District Of Arizona,
Hon. John M. Roll, District Judge, Presiding
Argued and Submitted July 11, 1995
San Francisco, California
JAY PRINTZ, Sheriff/Coroner,
Ravalli County, Montana,
UNITED STATES OF AMERICA,
Nos. 94-36193; 95-35037
D.C. No. CV-94-00035-M-CCL
Appeals From The United States District Court For The District Of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted July 11, 1995
San Francisco, California
Before: Herbert Y.C. Choy, William C. Canby, Jr., and Ferdinand F.
Fernandez, Circuit Judges.
David T. Hardy, Tucson, Arizona, for plaintiff-appellee-cross-
Mark I. Levy, United States Department of Justice, Washington, D.C.,
for defendant-appellant-cross-appellee United States of America.
Stephen P. Holbrook, Fairfax, Virginia, for plaintiff-appellant-
Jonathan K. Baum, Katten, Muchin & Zavis, Chicago, Illinois, for
amicus United States Senator Paul Simon.
Richard A. Cordray, Assistant Attorney General, Columbus, Ohio, for
amicus State of Ohio.
James H. Warner, Fairfax, Virginia, for amicus Law Enforcement
Alliance of America.
Randolph D. Moss, Wilmer, Cutler & Pickering, Washington, D.C.,
for amicus Handgun Control, Inc., et al.
Filed September 8, 1995
CANBY, Circuit Judge:
Sheriffs Richard Mack and Jay Printz, in separate actions, challenged the
constitutionality of the Brady Handgun Control Act, P.L. 103-159, 107
Stat. 1536 (1993), codified at 18 U.S.C. § 922(s). The main issue on
appeal concerns the district courts' respective holdings that §
922(s)(2) of the Brady Act, requiring local law enforcement officials to
perform background checks of handgun purchasers, violates the Tenth
Amendment. We conclude that the Act is constitutional, and we accordingly
reverse the judgments of the district courts.
The Brady Act, passed in 1993 as an amendment to the Gun Control Act of
1968, imposes a waiting period of up to five days for the purchase of a
handgun, and subjects purchasers to a background check during that
period.[FN 1] See 18 U.S.C. § 922(s)(1). Within five years from the
effective date of the Act, such checks will be performed instantaneously
through a national criminal background check system maintained by the
Department of Justice, 18 U.S.C. § 922(t), but in the meantime the
background checks must be performed by the Chief Law Enforcement Officer
(CLEO) of the prospective purchaser's place of residence. 18 U.S.C. §
922(s)(2). The Act requires CLEOs to "make a reasonable effort to
ascertain . . . whether receipt or possession [of a handgun by the
prospective buyer] would be in violation of the law ...." Id. The CLEO
performs the check on the basis of a sworn statement signed by the buyer
and provided to the CLEO by a federally-licensed gun dealer. 18 U.S.C.
§ 922(s)(1)(A). If the CLEO approves the transfer, he or she must
destroy the buyer's statement within twenty business days after the
statement was made. 18 U.S.C. section 922(s)(6)(B). If the CLEO
disapproves the transfer, the CLEO must provide the reasons for the
determination within twenty business days if so requested by the
disappointed purchaser. 18 U.S.C. § 922(s)(6)(C).
Richard Mack and Jay Printz, as sheriffs, are the CLEOs in their
respective jurisdictions of Graham County, Arizona, and Ravalli County,
Montana. They brought these actions in their local federal district courts
to challenge the Brady Act's provisions imposing duties upon them. Mack
and Printz both invoked the Tenth and Fifth Amendments. Mack also
challenged the Act as violating the Thirteenth Amendment.
Both district courts held that § 922(s)(2) of the Act, by imposing
on the sheriffs a mandatory duty to conduct background checks, violated
the Tenth Amendment as interpreted by the Supreme Court in U.S. v. New
York, 505 U.S. 144 (1992). See Mack v. U.S., 856 F.Supp. 1372 (D.Ariz.
1994); Printz v. U.S., 854 F.Supp. 1503 (D.Mont. 1994).[FN 2] Neither
court enjoined the provisions of the Act requiring CLEOs to explain the
reasons for rejecting a purchase application, § 922(s)(6)(C), and
requiring destruction of records, section 922(s)(6)(B). The Printz
decision noted that the requirement of a statement of reasons became
optional once the mandatory background check was invalidated, and that the
provision for destruction of records was "de minimis."
In Mack, the district court also held that the criminal provisions of the
Act applied to CLEOs, and were void for vagueness under the Fifth
Amendment because they made it a crime for CLEOs to fail to make a
"reasonable effort" to ascertain the lawfulness of a prospective handgun
purchase. The Printz court held that the criminal provisions did not apply
to CLEOs. Finally, the Mack court rejected Mack's Thirteenth Amendment
challenge. Both district courts held that the invalid portions of the Act
were severable, and accordingly refused to hold the entire Act
In both actions, both sides appealed.[FN 3] The sheriffs primarily
dispute the holdings of severability, while the U.S. contends that the
entire Act is constitutional.[FN 4]
I. THE TENTH AMENDMENT CHALLENGE
No one in this case questions the fact that regulation of the sales of
handguns lies within the broad commerce power of Congress.[FN 5] The issue
for decision is whether the manner in which Congress has chosen to
regulate in the Brady Act violates the Tenth Amendment.
The Tenth Amendment provides that "powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or the people." U.S. Const. amend. X.
As a textual matter, therefore, the Tenth Amendment "states but a truism
that all is retained which has not been surrendered." United States v.
Darby, 312 U.S. 100, 124 (1941). By its terms, the Amendment does not
purport to limit the commerce power or any other enumerated power of
In recent years, however, the Tenth Amendment has been interpreted "to
encompass any implied constitutional limitation on Congress' authority to
regulate state activities, whether grounded in the Tenth Amendment itself
or in principles of federalism derived generally from the Constitution."
South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988). Thus, "the Tenth
Amendment confirms that the power of the Federal Government is subject to
limits that may, in a given instance, reserve power to the States." New
York v. U.S., 505 U.S. 144, 157 (1992). The question before us is whether
the Brady Act, by requiring CLEOs to perform background checks on handgun
purchasers, transgressed such an implied limitation on federal power. We
conclude that it did not.
There are numbers of ways in which the federal government is permitted to
secure the assistance of state authorities in achieving federal
legislative goals. First and most directly, the federal government may
coerce the states and their employees into complying with federal laws of
general applicability. Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 (1985).[FN 6] Second, Congress may condition the
grant of federal funds on the States' taking governmental action desired
by Congress. South Dakota v. Dole, 483 U.S. 203 (1987).
These broad categories do not exhaust, however, the means by which the
federal government can enlist state employees in implementing federal
programs. State judicial and administrative bodies may be required to
apply federal law. Testa v. Katt, 330 U.S. 386 (1947); FERC v.
Mississippi, 456 U.S. 742, 760-61 (1982). The federal government may offer
to preempt regulation in a given area, and permit the states to avoid
preemption if they regulate in a manner acceptable to Congress. Hodel v.
Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 290-91
The federal government has been permitted effectively to compel the
states to issue registered rather than bearer bonds. South Carolina v.
Baker, 485 U.S. 505, 514 (1988). Finally, the federal government has been
permitted to require state utility regulators to consider prescribed
federal standards in determining regulatory policies. FERC v. Mississippi,
456 U.S. at 765. In the course of the latter ruling, the Supreme Court
referred to and rejected the "19th century view" that "Congress has no
power to impose on a State officer, as such, any duty whatever, and compel
him to perform it." Id. at 761 (quoting Kentucky v. Dennison, 24 How. 66,
107 (1861)). That view, said the Court, "is not representative of the law
today." Id. "The federal government has some power to enlist a branch of
state government . . . to further federal ends." Id. at 762.
Against this background, there would appear to be nothing unusually
jarring to our system of federalism in the Brady Act's requirement that
CLEOs, during a five-year interim period, "make a reasonable effort to
ascertain" the lawfulness of handgun purchases. The obligation imposed on
state officers by the Brady Act is no more remarkable than, say, the
federally-imposed duties of state officers to report missing children, 42
U.S.C. § 5779(a), or traffic fatalities, 23 U.S.C. section 402(a).
Mack and Printz, however, contend that the precedential background set
forth above was changed by U.S. v. New York, 505 U.S. 144 (1992), and that
the federal government is now flatly precluded from commanding state
officers to assist in carrying out a federal program. We do not read New
York that broadly.
Although we concede that there is language in New York that lends support
to the view of Mack and Printz, that language must be interpreted in the
context in which it was offered. New York was concerned with a federal
intrusion on the States of a different kind and much greater magnitude
than any involved in the Brady Act. The constitutional evil that New York
addressed was one recognized by several of the cases already cited: the
federal government was attempting to direct the States to enact their own
legislation or regulations according to a federal formula.
New York involved the constitutional validity of the Low-Level
Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. § 2021b
et. seq. The part of the Act that the Court found to violate the Tenth
Amendment was the so-called "take title" provision. Under that provision,
a State that failed to regulate radioactive waste according to
congressional standards was simply given title to the waste within its
borders (which previously would have been in private hands). The waste
then became the total responsibility of the State as owner. The
alternative to this unacceptable prospect was for the State to legislate
or regulate in a manner that Congress dictated, and "a direct order to
regulate, standing alone, would... be beyond the power of Congress." Id.
at 176. Thus, in response to the government's argument that a strong
federal interest supported the "take title" provision, the Court in New
York stated: "whether or not a particularly strong federal interest
enables Congress to bring state governments within the orbit of generally
applicable federal regulation, no Member of the Court has ever suggested
that such a federal interest would enable Congress to command a state
government to enact state regulation." Id. at 178. In the same vein was
the Court's conclusion after reviewing the debates at the time of the
founding of the Constitution:
We have always understood that even where Congress has the authority
under the Constitution to pass laws requiring or prohibiting certain acts,
it lacks the power directly to compel the States to require or prohibit
those acts. E.g., FERC v. Mississippi.... The allocation of power
contained in the Commerce Clause, for example, authorizes Congress to
regulate interstate commerce directly; it does not authorize Congress to
regulate state governments' regulation of interstate commerce. Id. at 166.
Other decisions of the Supreme Court have recognized this proposition
that the federal government cannot coerce States into performing the
ultimately sovereign acts of legislating or regulating in a manner
specified by the federal government. In Virginia Surface Mining, the Court
noted that the provision of an alternative of federal regulation rendered
federal standards for state regulation permissible; because the State had
a constitutional option, "there can be no suggestion that the Act
commandeers the legislative processes by directly compelling them to enact
and enforce a federal regulatory program." Virginia Surface Mining, 452
U.S. at 288. Similarly, In FERC v. Mississippi, the Court noted that the
federal command that the State "consider" federal alternatives was
constitutional because "[t]here is nothing in PURPA 'directly compelling'
the States to enact a legislative program." FERC v. Mississippi, 456 U.S.
New York, then, is best read as a case that draws a line already partly
delineated in Virginia Surface Mining and FERC v. Mississippi: the federal
government is not entitled to coerce the States into legislating or
regulating according to the dictates of the federal government. Certainly
New York did not purport to overrule Virginia Surface Mining or FERC v.
Mississippi, or even to disavow the latter decision's rejection of the
nineteenth century view that the federal government cannot command state
employees. New York can be read consistently with these cases as an
instance where "the etiquette of federalism has been violated by a formal
command from the National Government directing the State to enact a
certain policy, cf. New York." U.S. v. Lopez, 115 S.Ct. 1624, 1642 (1995)
(Kennedy, J., concurring); see also Board of Natural Resources v. Brown,
992 F.2d 937, 947 (9th Cir. 1993) ("direct commands to the states to
regulate according to Congress's instructions" "violate the Tenth
Amendment as interpreted by New York").[FN 7]
There are good reasons for focusing Tenth Amemdment concern on federal
coercion of a State's enactment of legislation or regulations or creation
of an administrative program. These activities are inherently central acts
of a sovereign; if an area of state activity is to be protected from
direct coercion by an implication drawn from the Tenth Amendment,
legislating and regulating are prime candidates. "[T]he power to make
decisions and to set policy is what gives the State its sovereign nature."
FERC, at 761. There is a second reason, also, emphasized in New York
itself. Democratic governments must be politically accountable. When the
federal government requires the States to enact legislation, the enacted
legislation is state legislation. Thus, it will likely "be state officials
who will bear the brunt of public disapproval, while the federal officials
who devised the regulatory program may remain insulated from the electoral
ramifications of their decision." New York, 505 U.S. at 169. When the
federal government itself imposes a requirement on a state official, the
requirement is more clearly an act of the federal government and thus does
not, to the same extent, undermine political accountability.[FN 8]
The Brady Act is not the kind of a federal mandate condemned by New York,
nor does it present the concerns related above. The Brady Act does not
embody a mandate to the "States" in the sovereign sense discussed in New
York, FERC v. Mississippi, or Virginia Surface Mining. The Brady Act is a
regulatory program aimed at individuals and not the States. It is true
that, for a limited period of time, the Act requires state law enforcement
officials, the CLEOs, to make reasonable efforts to assist in carrying out
the federal program. But the CLEOs are not being commanded to engage in
the central sovereign processes of enacting legislation or regulations.
They are not even being asked to produce a state policy, for which the
state must bear political accountability. Instead, they are directed to
serve for a temporary period as law enforcement functionaries in carrying
out a federal program. Their activities are not alien to their usual line
of work, and represent a minimal interference with state functions. In
that sense, their duties are not different from other minor obligations
that Congress has imposed on state officials.
Mack and Printz do not agree that the Brady Act's interference with their
state duties is minimal. They point out that there are many factors that
may make a prospective handgun purchase illegal under the Act. A purchase
is unlawful, for example, if the purchaser is a fugitive, is an unlawful
user of a controlled substance, has been adjudicated a mental defective,
has been dishonorably discharged from the armed forces, has renounced his
citizenship, or is under certain restraining orders involving an intimate
partner. 18 U.S.C. § 922(g). They also contend that it will be unduly
burdensome to give reasons for rejecting a proposed purchase, within 20
days of being requested by the disappointed purchaser. See §
922(s)(6)(C). Mack and Printz point out that they are sheriffs in rural
counties with limited staffs and resources. To research for all of these
disabilities and to give reasons for rejection, Mack and Printz argue,
will either take all of their time or so much of it that they will be
unable to perform their regular county duties.
The government, on the other hand, argues that there is no requirement
that CLEOs pursue all of these avenues of potential disqualification. They
are enjoined only to "make a reasonable effort," § 922(s)(2), and the
statute's only fixed requirement is a search in whatever recordkeeping
systems are available and in a national system. Id. A reasonable effort,
the government contends, might in the circumstances of Mack and Printz
simply be a check of the existing computer records.
We agree, and the government concedes, that there is likely to be some
point at which a federal statute that enlists the aid of state employees
can become so burdensome to the State that it violates the Tenth
Amendment. Surely the federal government cannot stall the state government
in its tracks by imposing all-consuming federal duties on the State's
employees. We conclude, however, that the Brady Act does not approach that
point. Mack and Printz have not demonstrated that the Act will interfere
unduly with their duties. Indeed, to a considerable degree, the dispute
over the magnitude of the burden imposed upon them is not ripe for
resolution. Mack and Printz have not been subjected to any interpretation
of the Act, or any attempt to enforce it against them, that requires them
to do more than check computer records. On this record, we cannot conclude
that "a reasonable effort" inevitably requires more than this minimum for
Mack and Printz. To perform such computer checks, and to explain reasons
for rejection when and if disappointed purchasers so request, has not been
shown to constitute the kind of interference with state functions that
would raise Tenth Amendment concerns. It follows even more strongly that
the minimal requirement of destruction of records presents no
We also find no support for the Tenth Amendment claims of Mack and Printz
in the cases from our circuit that they cite. See Board of Natural
Resources v. Brown, 992 F.2d 937 (9th Cir. 1993); U.S. v. Best, 573 F.2d
1095 (9th Cir. 1978); Brown v. Environmental Protection Agency, 521 F.2d
827 (9th Cir. 1975), vacated as moot 431 U.S. 99 (1977).[FN 9] In Board
of Natural Resources we held that the Forest Resources Conservation and
Shortage Relief Act violated the Tenth Amendment. Board of Natural
Resources, 992 F.2d at 947. That Act however--akin to the statute in New
York--required the States to issue regulations and was far more demanding
of state officials than the Brady Act. See Board of Natural Resources,
supra. Best applied the National League of Cities governmental function
test, Best, at 1102, which has been abandoned. See Garcia Metropolitan
Transit Authority, 469 U.S. at 531 (overruling National League of Cities).
And Brown, like Board of Natural Resources, involved regulations that
clearly intruded upon a state's sovereignty, unlike the contested
provisions of the Brady Act. See Brown, 521 F.2d at 829-830 (State had to
develop and implement plan for implementing, enforcing, and maintaining
national air standards). Additionally, Brown relied upon the Tenth
Amendment view espoused in Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107
(1861), overruled by Puerto Rico v. Branstad, 483 U.S. 219 (1987), that
"the Federal Government... has no power to impose on a State officer, as
such, any duty whatsoever...." See Brown, 521 F.2d at 841. As the Supreme
Court has made clear, the view espoused in Kentucky v. Dennison is no
longer representative of the law. FERC, 456 U.S. at 761.[FN 10] We
therefore reject Mack's and Printz's Tenth Amendment challenges to the
Brady Act.[FN 11]
II. THE FIFTH AMENDMENT VAGUENESS CHALLENGE
Section 924(a)(5) of the Act provides that "[w]hoever knowingly violates
subsection (s)" of the Act is subject to fine or imprisonment or both.
Mack and Printz contend that this provision subjects them to criminal
liability for failing to "make a reasonable effort" to ascertain whether a
particular purchase would violate the law, as required by section
922(s)(2). So construed, the criminal provision is unconstitutionally
vague, according to Mack and Printz, because a person of reasonable
intelligence has no way of knowing what may constitute a "reasonable
It is not at all clear, however, that § 924(a)(5) is intended to
apply to the Act's requirements imposed upon CLEOs. Indeed, the Montana
district court viewed the criminal prohibition as ambiguous in that
regard, and concluded that it did not apply to CLEOs.
We decline to reach this issue, however, because it is not ripe.[FN 12]
Mack and Printz have not been charged under the Act with any criminal
violations, nor are they likely to be. The U.S. represented during oral
argument that the Justice Department's official position is that the
criminal sanctions of the Brady Act do not apply to CLEOs. Because Mack
and Printz do not face a "credible threat of prosecution," San Francisco
County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 821 (9th Cir. 1987),
aff'd 489 U.S. 214 (1989), there is no "case or controversy." See Campbell
v. Wood, 18 F.3d 662, 680 (9th Cir.), cert. denied, 114 S.Ct. 2125
(1994).[FN 13] In the extremely unlikely event that a criminal prosecution
is one day brought against a CLEO, the constitutional objection may be
raised in defense at that time.
We therefore vacate the ruling of the District Court of Arizona that the
criminal provisions apply to CLEOs and are void for vagueness, as well as
the ruling of the District Court of Montana that the criminal provisions
do not apply to CLEOs. These claims are to be dismissed as unripe.
III. THE THIRTEENTH AMENDMENT CHALLENGE
Mack also challenges the Brady Act as violating the Thirteenth Amendment.
The Thirteenth Amendment provides that "[n]either slavery nor involuntary
servitude, except as a punishment for crime... shall exist within the
U.S., or any place subject to their jurisdiction." U.S. Const. amend.
XIII. According to Mack, section 922(s) requires him to perform labor for
the U.S. or face legal sanctions, even though he is not a federal employee.
Unlike a slave, however, Mack can quit work at any time. By doing so, he
escapes all compulsion. The requirements of the Brady Act are not placed
on Mack personally; the duties that are imposed attend the office. Thus
the Brady Act does not coerce Mack "by improper or wrongful conduct" into
service by causing and intending to cause him "to believe that he... has
no alternative but to perform the labor." Brogan v. San Mateo County, 901
F.2d 762, 764 (9th Cir. 1990)(citation omitted). The fact that Mack, if he
continues to be sheriff, must perform certain duties as a condition of his
employment, does not violate the Thirteenth Amendment. Cf. U.S. v. 30.64
Acres of Land, 795 F.2d 796, 800-01 (9th Cir. 1986) (requiring lawyers to
perform pro bono services does not violate Thirteenth Amendment because
requirement is a condition of practicing law).
The Brady Act violates neither the Tenth nor Thirteenth Amendment. Mack
and Printz's Fifth Amendment vagueness challenge is not ripe. Accordingly,
the district courts' injunctions prohibiting the United States from
enforcing the disputed provisions of the Brady Act are vacated, and the
district courts' judgments are reversed insofar as they invalidate
portions of the Act. The portions of the cross-appeal in Mack and the
appeal in Printz that challenge the district courts' rulings of
severability are dismissed as moot; in all other respects the rulings
challenged by Mack and Printz, are affirmed. The cases are remanded with
instructions to dismiss the vagueness challenges as unripe. The United
States is entitled to its costs on appeal.
No. 94-16940 (Appeal by U.S.) REVERSED.
No. 94-17002 (Cross-appeal by Mack) AFFIRMED in part and DISMISSED in
No. 94-36193 (Appeal by Printz) AFFIRMED in part and DISMISSED in part.
No. 95-35037 (Cross-Appeal by U.S.) REVERSED.
FERNANDEZ, Circuit Judge, concurring and dissenting:
I concur in parts II and III of the majority opinion, but I respectfully
dissent from part I.[FN 1]
This case makes palpable the notion that the states are just a part of
the national government, a notion that was rejected when this country was
founded. Congress has previously attempted to order the states to
legislate or regulate in particular ways, and it has failed at that. See,
e.g., New York v. U.S., 505 U.S. 144 (1992); Board of Natural Resources v.
Brown, 992 F.2d 937 (9th Cir. 1993); cf. U.S. v. Best, 573 F.2d 1095, 1102-
03 (9th Cir. 1978). That is to say, Congress has failed when it has not
given the states the option to avoid the intended yoke. See, e.g., FERC v.
Mississippi, 456 U.S. 742 (1982); see also Hodel v. Virginia Surface
Mining & Reclamation Ass'n, Inc., 452 U.S. 264 (1981); Brown v. EPA,
521 F.2d 827 (9th Cir. 1975), vacated by 431 U.S. 99 (1977), on remand to
566 F.2d 665 (9th Cir. 1977). Even those determinations are not without
their problems because they could lead to a "dismemberment of state
government." See FERC, at 2150 (O'Connor, J., dissenting).
Now Congress has avoided those issues, but it has done so by eliminating
the niceties of the federal-state relationship entirely. Rather than
ordering state legislatures or agencies to adopt a scheme for vetting
requests for gun transfers, Congress has avoided that hindrance and
dragooned the state officials directly. Under this new approach, the
states have nothing to say about it. Their officials are ordered to become
part of a federal gun control program at the state's own expense and are
ordered to engage in various tasks necessary to administer that program.
Those officials must make a "reasonable effort" to decide whether receipt
of a weapon by a proposed transferee "would be in violation of the law" of
the U.S. 18 U.S.C. § 922(s)(2). Those efforts must include "research
in whatever State and local recordkeeping systems are available and in a
national system designated by the Attorney General." Id. And the work must
be done within five business days. Id. The officials must also dispose of
the materials and may not make any use of them other than that directed by
Congress. Id. § 922(s)(6)(B). They must provide written explanations
for negative determinations upon request. Id. section 922(s)(6)(C).
Presumably those officials must also adopt appropriate procedures for the
carrying out of those functions. Perhaps that is not forced administration
of the federal gun regulation program, but I fail to see why it is not.
Of course, the states are to bear the full cost of these tasks, and,
unless the states adopt a local permit system, they cannot opt out of the
federal program. If a state does not choose to engage in the regulation of
this part of commerce - commerce in weapons - that makes no difference at
all. In other words, state officials are conscripted by the federal
government to fulfill its purposes and they can do nothing about that.
The government argues that this is much more respectful of state
sovereignty than the legislation struck down in New York. I do not agree.
If the Tenth Amendment has anything to do with the separate sovereign
dignity of the states, it is difficult to see how that dignity is not
undermined by the reality of a command that they commit their resources to
the carrying out of this kind of federal policy, whether they like it or
Moreover, we are not dealing with a situation where a state seeks to stay
in the business of regulating commerce in weapons. Quite the contrary.
This legislation impacts states that do not wish to do so. I assume that
the Supreme Court meant what it said when it said:
States are not mere political subdivisions of the U.S. State governments
are neither regional offices nor administrative agencies of the Federal
Government. The positions occupied by state officials appear nowhere on
the Federal Government's most detailed organizational chart. The
Constitution instead "leaves to the several states a residuary and
inviolable sovereignty," reserved explicitly to the States by the Tenth
Whatever the outer limits of that sovereignty may be, one thing is clear:
The Federal Government may not compel the States to enact or administer a
federal regulatory program. New York, 112 S.Ct. at 2434-35.
This legislation is a step toward concentrating power in the hands of the
federal government, for it treats state officials and workers as if they
were mere federal employees. It makes every CLEO's office an office of the
federal bureaucracy, funded by the states, but directed from Washington.
The time to stop this journey of a thousand miles is at the first step.[FN
Therefore, I respectfully dissent from the majority's determination that
the statute does not violate the Tenth Amendment.
FN1. The waiting period and background check prescribed by the Act are
not required in States that have permit systems meeting standards
prescribed by the Act. 18 U.S.C. § 922(s)(1)(C), (D).
FN2. Four other district courts have ruled on whether the interim
provisions of the Brady Act violates the Tenth Amendment. See Romero v.
U.S., 883 F.Supp. 1076 (D.La. 1995) (provisions of Brady Act requiring
CLEOs to perform background checks, destroy sworn statements, and provide
written response to those denied a handgun, held unconstitutional); Frank
v. U.S., 860 F.Supp. 1030 (D.Vt. 1994) (provision of Brady Act requiring
CLEOs to perform background checks unconstitutional); McGee v. U.S., 863
F.Supp. 321 (S.D.Miss. 1994) (same); Koog v. U.S., 852 F.Supp. 1376
(W.D.Tex. 1994) (interim provisions not unconstitutional).
FN3. Handgun Control, Inc., et al., Senator Paul Simon, and the State of
Ohio, have filed briefs as amici curiae in support of the U.S.. The Law
Enforcement Alliance of America filed an amicus curiae brief in support of
FN4. The U.S. also argues that, if the disputed provisions are
unconstitutional, the injunction should prevent enforcement only against
the two sheriffs because they did not bring class actions. Our disposition
of the appeal makes it unnecessary for us to address this contention.
FN5. Nor is any question raised by the Supreme Court's recent decision in
U.S. v. Lopez, 115 S.Ct. 1624 (1995), holding that Congress lacked
authority under the commerce clause to enact the Gun Free School Zones
Act. Unlike the statute in Lopez, the Brady Act regulates the sale of
handguns and thus directly regulates commerce. The Brady Act is an
amendment to a comprehensive federal scheme for the regulation of firearms
sales that unquestionably affect interstate commerce. The legislative
history of the Brady Act also contains findings that gun violence affects
commerce, and we accept those findings. See H.R. Rep. 103-344, 103rd
Cong., 1st Sess., reprinted in 1993 U.S.C.C.A.N. 1984, 1985.
FN6. It is true that this principle was rejected for certain state
functions in National League of Cities v. Usery, 426 U.S. 833 (1976), but
National League of Cities was expressly overruled in Garcia, 469 U.S. at
557, and Garcia remains the law controlling us.
FN7. Thus we conclude that when the Court in New York stated that "[t]he
Federal Government may not compel States to enact or administer a federal
regulatory program," the Court meant "administer" in the sense of being in
charge of a program and making policy decisions with respect to the
program. New York, 505 U.S. at 188.
FN8. We recognize that some individuals may criticize local officials for
implementing federal regulations. But when federal regulations are imposed
by the federal government, political accountability by the federal
government for those regulations remains.
FN9. Although the Supreme Court vacated Brown, on remand we stated:
"Except as modified herein, we continue to regard, or once more adopt if
necessary, our opinion in Brown I as the law of this circuit." Brown v.
EPA, 566 F.2d 665, 666 (9th Cir. 1977). For reasons discussed later in the
text, however, the precedential value of Brown is limited.
FN10. The Law Enforcement Alliance of America, as Amicus Curiae, argues
that the method by which the Brady Act was enacted violates the
"structuralist" test articulated by Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985), under which the States are
protected from overreaching by the federal government primarily by "the
workings of the National Government itself, rather than in discrete
limitations on the objects of federal authority." Id. at 552. The Court in
New York has indicated that Garcia is limited to statutes that subject "a
State to the same legislation applicable to private parties." New York,
505 U.S. at 160. But even if we assume that Garcia's structuralist test
were applicable, we cannot accept the Law Enforcement Alliance's view that
the Brady Act would fail the test. There is no showing that the States
affected were "deprived of any right to participate in the national
political process" or were "singled out in a way that left [them]
politically isolated and powerless." South Carolina v. Baker, at 513.
FN11. Because we hold that the Brady Act does not violate the Tenth
Amendment, we do not consider whether § 922(s)(2) is severable from
the remainder of the Act, or whether the district courts erred in issuing
injunctions that applied statewide.
FN12. Mack and Printz also make a vagueness argument based on their
exposure to civil proceedings. Neither Mack nor Printz has been subjected
to civil proceedings, nor have they pointed to any civil proceeding to
which they would be subject that would violate the Fifth Amendment. In any
event, because this issue was not raised below, we decline to reach it.
FN13. Mack and Printz also suggest that they need not face a reasonable
threat of prosecution. None of the cases that they cite support this
proposition, however. See Board of Natural Resources, 992 F.2d at 945
(plaintiff showed injury in fact); Epperson v. Arkansas, 393 U.S. 97
(1968) (Court did not reach the justiciability issue); Beacon Journal Pub.
Co. v. Unger, 532 F.Supp. 55, 58 (N.D.Ohio 1982) (plaintiff showed injury
in fact); Brown v. EPA, 521 F.2d at 831 & 829 n.1 (the EPA had already
given a notice of violation.); Gentile v. State Bar, 501 U.S. 1030 (1991)
(plaintiff charged with violation); Babbitt v. Farm Workers, 442 U.S. 289,
299-300 (even though plaintiffs did not face an imminent threat of
prosecution, statute was "sure to work the injury alleged," and so Court
found a case or controversy).
FN1. Given the majority's decision, I see no need to discuss the criminal
provisions of this law, the severability of the law's provisions, or the
breadth of the injunctions imposed by the district courts.
FN2. Cf. Lao-tzu, Bartlett's Familiar Quotations 65, quotation 1, (1980).
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