7/01/97 The Supreme Court, The Brady Law, And The National Instant Check
— don’t snatch defeat from the jaws of victory
For Immediate Release
Contact: Kathleen Gennaro (703) 321-8585
July 1, 1997
Say “No” To Instant Registration Check
Don’t Use Brady Decision as Springboard to Push Gun Control
A Message From Larry Pratt, Executive Director
(Springfield, VA) – The Supreme Court decision on the Brady law is a landmark victory not only for gun owners but for all people concerned that the federal government is too large and intrusive.
The Court ruled that Congress cannot commandeer the resources of a state to do its anti-gun bidding. This decision breathes new life into the 10th Amendment and our Republican form of government.
However, many people and organizations are using the ruling against Brady to push for an alternate form of gun control which is worse than that struck down by the Court. Gun owners won in this case, but now many pro-gun people are snatching defeat from the jaws of victory by pushing for a national instant registration check.
The Court ruled that the states cannot be compelled to perform background checks on gun purchasers. But now people are saying that the federal government should perform the task. Why would any sound thinking person suggest that it is better for the federal government to compile a list of gun owners, rather than the states.
Supporters of the instant registration check are either missing the point of Friday’s ruling or are simply concerned with the unfunded mandate provisions of Brady. The unfunded mandate was one argument used to strike a blow at gun registration – it was not all we should have been concerned about. As Sheriff Richard Mack noted, it wasn’t the unfunded part that bothered him, because you couldn’t pay him to run the checks.
The ruling on Brady should be used as a stepping stone towards the restoration of the Second Amendment, not its destruction. The instant check will, in simple terms, lead to the registration of gun owners. Pro-gun Americans should not support the idea of all lawful citizens being forced to go to the government for permission prior to being allowed to exercise their Constitutionally protected right to keep and bear arms. Furthermore, will felons intent on committing crimes first seek government approval before obtaining a firearm illegally?
From Justice Clarence Thomas’ concurring opinion:
(Note: in writing the below, Justice Thomas cited considerable precedent throughout. Those citations are omitted for clarity.)
The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to “administer or enforce a federal regulatory program.” Although I join the Court’s opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. Accordingly, the Federal Government may act only where the Constitution authorizes it to do so.
In my “revisionist” view, the Federal Government’s authority under the Commerce Clause, which merely allocates to Congress the power “to regulate Commerce . . . among the several states,” does not extend to the regulation of wholly intrastate, point of sale transactions. Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must “temper our Commerce Clause jurisprudence” and return to an interpretation better rooted in the Clause’s original understanding. Even if we construe Congress’ authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particulartransactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress’ regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second Amendment similarly appears to contain an express limitation on the government’s authority. That Amendment provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” In the meantime, I join the Court’s opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.