Comprehensive handgun licensing & registration: an analysis & critique of Brady II, gun control's next (and last?) step.

Author:Jacobs, James B.

    The Brady Handgun Violence Prevention Act,(1) which became effective in 1994, imposed a background check on prospective handgun purchasers who seek to buy handguns from federal firearm licensees (FFLs). While the handgun control groups that lobbied for the Brady law have labeled it a success, they are also pushing a supplementary omnibus bill that would create a comprehensive handgun licensing and registration system, in effect, extending Brady to the secondary market of handgun transfers between non-dealers.(2) This Article analyzes the constitutionality and feasibility of this bill's comprehensive handgun licensing and registration provisions.

    Part II describes the main features of Brady II.(3) Part III argues that Brady II would be unconstitutional under the Supreme Court's decision in Printz v. United States, which struck down Brady I's requirement that state or local officials carry out background checks of prospective handgun purchasers.(4) Parts IV and V demonstrate the practical difficulties that would bedevil comprehensive handgun licensing and registration.


    In 1995, Congressman Charles Schumer (D-NY), and Senators Bill Bradley (D-NJ) and Charles Lautenburg (D-NJ) introduced the Handgun Control and Violence Prevention Act of 1995(5) (Brady II). It would require all handgun purchasers to obtain a state handgun permit; states with no handgun permit laws would have to enact them.(6) Brady II also requires that handguns be registered before being transferred. Brady II significantly expands Brady I by making it illegal "for any person to sell, deliver, or otherwise transfer a handgun to an individual who is not [an FFL] unless the transferor ... verifie[s] that the transferee possesses a valid State handgun license."(7) It also makes it unlawful for anyone, other than an FFL, to receive a handgun or handgun ammunition "unless the individual possesses a valid State handgun license."(8) The proposed law would prohibit, not only sales by an FFL to an unlicensed purchaser, but handgun sales in the secondary market between private citizens, as well as non-commercial handgun transfers between friends or family members.(9)

    Brady II does not leave it entirely up to states to determine the requirements for obtaining a state handgun license. The state handgun license must "at a minimum, meet the following requirements:" (1) licenses shall be issued by the state's chief law enforcement officer (CLEO); (2) they shall contain the licensee's name, address, date of birth, physical description, and a photograph; and (3) licenses shall be valid for a period not to exceed two years.(10) Before granting a state license, the CLEO must verify that: (1) the applicant is at least twenty-one years old; (2) the applicant is a resident of the state (the applicant must present an identification document, such as a driver's license, and a document establishing residency, such as a utility bill or lease); (3) the applicant is not "prohibited from possessing or purchasing a handgun under federal, state, or local law based upon name and fingerprint-based research" in federal and state record systems; and (4) the applicant must have been issued a State handgun safety certificate.(11)

    In proposing Brady II, Congressman Schumer argued that a comprehensive handgun licensing and registration scheme for all handgun owners is needed to complete the regulatory framework started by Brady I.(12) Handgun Control, Inc. (HCI), the citizens' organization that drafted Brady II, stated that "[l]icensing of handgun purchasers allows more thorough background checks to be conducted on gun buyers and would help expose gun traffickers by allowing for more accurate tracing of guns found at crime scenes.... Enacting these laws is no longer a choice; it is a necessity."(13)

    According to HCI's former executive director, Richard Aborn, HCI decided to switch from an incremental one-step-at-a-time strategy to achieve effective gun control to a comprehensive approach that puts forward the organization's full agenda in one proposal.(14) HCI felt that a comprehensive approach is the only way to have a significant impact on reducing gun violence. According to Aborn, other legislative issues, for example, health care, social security, and the environment, are not dealt with in such an incremental fashion; "You have the Clean Air Act, not the Clean Air Act only over New York State."(15) Additionally, HCI wanted to respond to accusations by the National Rifle Association that HCI had a "secret plan" to ban all firearms and that each new piece of gun control legislation was a step in that direction. Aborn stated, "We wanted to put all our cards on the table."(16)


    The Supreme Court's decision in Printz v. United States(17) makes the constitutionality of Brady II as currently drafted very doubtful. In Printz, chief law enforcement officers (CLEOs) in Arizona and Montana challenged the Brady I requirement that state law enforcement officials conduct background checks of prospective handgun purchasers.(18) In declaring Brady I's use of CLEOs to conduct background checks unconstitutional, the Court stated that "[t]he federal Government may not compel the States to enact or administer a federal regulatory program. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule."(19) The Court reasoned that the Framers rejected the concept of a central government that would act upon and through the states, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people.

    The Constitution's structure reveals a principle that controls these cases: the system of "dual sovereignty."

    Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty" [that] is reflected throughout the Constitution's text.... Residual state sovereignty was also implicit . in the Constitution's conferral upon Congress of not all governmental powers, but only discreet, enumerated ones, which implication was rendered express by the Tenth Amendment's assertion that "[t]he 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."(20) Further, the Court rejected the claim that the Brady Act was constitutional pursuant to Congress' power to enact all laws necessary and proper to carrying out its gun control objectives under the Commerce Clause. The Court held that when a law purporting to regulate commerce "violates the principle of state sovereignty ..., it is not a `Law ... proper for carrying into Execution the Commerce Clause,' and is thus merely an act of usurpation."(21) Justice Scalia stated:

    Congress cannot compel the States to enact or enforce a federal regulatory program ... [nor may it] circumvent that prohibition by conscripting the States' officers directly. The Federal Government may neither issue directives requiting the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.(22) The decision, of course, left it open to CLEOs to voluntarily continue conducting background checks. Following Printz, ATF issued a press release and letter to all FFLs explaining that they were still required to: (1) have potential purchasers fill out the Brady Form; (2) forward the Brady Form to the CLEO (who may conduct a voluntary background check); and (3) hold up sale of the handgun until they receive a green light from the CLEO or wait five business days, whichever comes first.(23) Nevertheless, Printz dealt a serious blow to the federal government's ability to enlist state law enforcement personnel to enforce federal gun control regulations. Brady II, as currently drafted, would almost certainly be unconstitutional because it violates the Supreme Court's holding in Printz, that the federal government may not commandeer state officials to enforce or administer a federal regulatory scheme. Brady II requires much more action on the part of state officials than Brady I. Under Brady II, state officials would have to set up and administer a huge licensing system, design curriculum for and conduct handgun safety classes, issue safety certificates, process the applications of huge numbers of firearms owners and revoke the registrations of certain owners.(24) The Bill also specifies that a handgun license would only be good for two years;(25) therefore, there would be a continuous process of reviewing and renewing licenses. In a post-Printz world, Congress must find some other way to implement this licensing scheme.

    Future federal law could try to tie state participation to receipt of federal funds; in other words, if a state wants federal money for more police, improved technology and new programs, then that state must administer and enforce the gun control regulations specified in the Brady II proposal. Such tactics are not unusual. For example, Congress has made receipt of federal transportation and highway money contingent on states passing a twenty-one-year-old minimum drinking age and laws requiring the wearing of seat belts and the use of infant/child car seats, among others.(26) The same strategy could be used to assure state participation in handgun control. This strategy would be unlikely to succeed, albeit not because of constitutional infirmities. First, states with strong pro-gun citizenries and lobbies, i.e. the very states that have no state handgun regulations, would surely choose to forego the federal funds.(27) This would be a major, probably fatal problem.(28) If even a few states do not participate, handguns could continue to migrate from states with relaxed gun laws to states with strict gun controls...

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