The Brady Campaign is celebrating 16 years of the Brady Act. I think it would indeed be a good time to reflect on the Brady Act. The fight for the Brady Act was longer than most people today realize. The first Brady Bill was introduced in Congress in February of 1987, by Ohio Representative Ed Feighan and Senator Howard Metzenbaum. Feighan did not stand for re-election in 1994, probably due to his involvement in the House banking scandal. Metzenbaum left the Senate in 1995, and was replaced by a Republican, who defeated Metzenbaum’s son-in-law.
The Brady Act didn’t pass the House of Representatives until 1991. That version required a seven day waiting period on handguns. The excuse for the waiting period was so that local law enforcement would have time to conduct a background check. NRA became very fearful the votes were there in the Senate to pass the Brady Bill there too, so that’s when they hatched the “instant check” language, and tried to get it attached to the Senate bill, but failed. Compromise language was worked out where the waiting period would be reduced, and would no longer apply once an instant background check was feasible. At this point, the Brady Bill started to take the form of what was eventually passed. This “remodeled” Brady Bill passed the Senate in 1991, but the conference version died when there wasn’t enough votes to end debate on the measure. It wasn’t until November 14, 1993 that Congress passed the final Brady Act, with it being signed into law on November 30th, 1993. The law did not go into effect until February 28th of 1994.
It’s not widely known, but a significant aspect of the Brady Act was actually found to be unconstitutional, though not on Second Amendment grounds, but rather federalism grounds (1oth Amendment). The Brady requirement here was at issue:
A chief law enforcement officer to whom a transferor has provided notice pursuant to paragraph (1)(A)(i)(III) shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.
The Sheriff of Ravalli County, Montana, Jay Printz (now an NRA Board member, BTW), and the Sheriff of Graham County, Arizona, Richard Mack, filed suit in federal court over this provision of the Brady Act, arguing that the federal government did not have the authority under the Constitution to commandeer state and local officials to administer a federal program. The case was Printz v. United States once it reached the Supreme Court, and was argued by Steven Halbrook. BTW, the Attorney for Richard Mack was someone I’m sure we all know well.
The practical effect of Printz on the Brady Act was negligible, since it left in place the waiting period. The ruling just meant the local law enforcement was simply not required to conduct any background check despite the language in federal law, and is considered to be a major victory for federalism and the Tenth Amendment.
The original Brady waiting period expired on November 30th, 1998, when the National Instant Background Check System went online. A lot of hard liners are still bitter about NRA pushing NICS, but had NRA not done that, you’d still have a five day waiting period for purchasing guns, in addition to local law enforcement knowing about every gun you buy, and doing Lord knows what with that information other than running a background check. NICS is far from the ideal system, but the alternative was worse. There was no alternate universe where we were going to defeat the Brady Act outright, and I think, for the most part, the NICS is a reasonable compromise.
Unfortunately I believe that NICS will never go away. How else can you satisfy Scalia’s decision that the .gov can regulate firearm sales and prohibit the possesion of firearms by felons/crazies? There would seem to be room in that language to make sure that the buyer is not a prohibited person.
I’d be very surprised if background checks are held facially unconstitutional. It gets into more interesting territory if someone sues over a protracted outage of NICS, or sues because his purchase is delayed by the system when he is clearly qualified to own a firearm.
But even then, the net effect might be the system has to give an up or a down on the person within a reasonable amount of time (say 15 minutes or so), or it moves to approval by default. But how do you deal with a system outage? What if the government could deny the right by simply refusing to operate the NICS system? It would seem that would be impermissible, or the right is meaningless.
“What if the government could deny the right by simply refusing to operate the NICS system?”
and Why can’t they? I don’t see this as any different than the Chicago and DC handgun permit systems that were still active so-to-speak, but seeing as the offices were closed to the public no guns could be registered, and therefor they were effectively banned.
The .gov could simply pull the plug on the NICS and leave everybody at a gunshop buying something new, or transferring a piece hanging out to dry….but I suspect that would get people in Government thrown out of office at best, killed at worse, so they’ll likely pick a different hill to fight over.
NICS was, and is, a compromise with the anti-freedom, anti-firearm crowd. It is wise to remember that, especially the next time they call for more compromise to close some imaginary “loophole” in the existing law. Can we agree that the next compromise must be on their part, and will consist in us getting back some of the natural rights lost to prior anti-gun laws?
Can we agree that the next compromise must be on their part, and will consist in us getting back some of the natural rights lost to prior anti-gun laws?
That’s kind of what HR2640 was.
Sebastian and Weer’d:
Existing law for NICS places a 3-day maximum period of time the Gov’t can delay a transfer of a firearm to a purchaser in the event of outage or issues. If 72 hours elapse without an answer, the transfer can proceed. As I understand it, that “loophole” was placed into the law specifically to prevent the scenario of the Government turning off NICS to prevent firearms from being obtained by the citizenry.
So the government can pull the plug but at best at it will create is a defacto three day waiting period and a metric ton of very pissed off gun owners.
How very…pragmatic of you, Sebastian.
This is by far the most telling passage …
Paul Helmke: “While we celebrate this law as a major success story in our efforts to reduce gun violence, we need to do more …”
“Existing law for NICS places a 3-day maximum period of time the Gov’t can delay a transfer of a firearm to a purchaser in the event of outage or issues. If 72 hours elapse without an answer, the transfer can proceed.”
Very few dealers actually do that, though. There is a fear of liability should they transfer to someone who later comes up as denied/prohibited. At the least there’s a chance of bad publicity should something newsworthy happen. Would any of that really happen? I have no idea, because I know of no dealers in my area who currently do that.
Be glad the NJ supreme court isn’t sitting in judgement of that language – they’d find it “unbelieveable” that the legislature meant for unconditional issue once a time limit expired.