Sheriffs, perhaps especially in the West, object to being pushed around. Richard Mack and Jay Printz resented the pushing around they were experiencing under the Brady Act. They sued, and now the Supreme Court has agreed once more to ponder a constitutional issue as old as the republic itself.
Mack is sheriff of Graham County, Arizona. Printz is sheriff of Ravalli County, Montana. The Brady Act of 1993 compels them to do certain things they don't want to do.Under Brady, whenever a person seeks to buy a firearm, the dealer must notify the chief law enforcement officer of his county or city. The CLEO (as he is known) has five days in which to complete a background check of the purchaser.
This is more than a merely perfunctory riffle through a box of filing cards. Printz puts it this way:
"To determine whether a person has been indicted for or convicted of a felony, a CLEO must search arrest, conviction and appellate records of pardons, ex-punge-ments and restoration of civil rights. The definition of `convicted' under the act requires the CLEO to research the laws of potentially all 50 states and federal law."
This is not all. The Brady Act is not directed solely against felons. The law applies to anyone who may be "otherwise prohibited by law from buying a gun." Thus the act imposes upon sheriffs and police chiefs a duty to search medical records to determine if the customer uses drugs or has ever been committed to a mental institution. Still more, the CLEO must consult records of fugitives, dishonorable discharges and expatriate citizens. In domestic relations cases, husbands (and sometimes wives) may be under restraining orders.
These checks are not optional. They are mandatory. The sheriffs SHALL do thus and such. And in one narrow reading of the act, a sheriff who fails to make a "reasonable effort" to check a buyer may himself be subject to fine and imprisonment.
Mack and Printz, and hundreds of other law officers, take the view that the Brady Act violates the 10th Amendment to the Constitution. In that view they stand on historic ground.
After the Constitution of 1787 was adopted, the signatory states insisted on amendments. The one amendment most widely demanded was the 10th. It seemed more important than freedom of religion, freedom of the press or freedom from unreasonable search and seizure. It was more important than a right to trial by jury.
The 10th Amendment runs to only 28 words, but every word counts. "The powers not delegated to the United States BY THE CONSTITUTION, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
In the famous Darby case of 1941, upholding the Fair Labor Standards Act, Justice Harlan Stone dismissed the 10th out of hand: "The amendment states but a truism that all is retained which has not been surrendered." The 10th, said Stone, is nothing more than a declaratory statement of the federal/state relationship. Half a century later, Justice Sandra Day O'Connor regrettably remarked that the amendment is "essentially a tautology."
Nonsense! The 10th Amendment is the key that unlocks the house of our fathers. The national government may exercise only those powers delegated to it "by the Con-sti-tu-tion." If the power is not delegated, it does not exist. This was the argument of the two sheriffs. Nowhere in the Constitution is a power delegated to Congress to compel state employees to administer federal law.
Two judges of the U.S. Court of Appeals for the 9th Circuit ruled against Mack and Printz last September, but a third judge, Ferdinand F. Fernandez, eloquently dis-sented. The effect of the Brady Act, he said, is to allow Congress "to dragoon state officials directly."