Few topics in America generate more heat among conservatives than efforts to limit the sale of handguns. But as the Supreme Court heard arguments yesterday over the constitutionality of such a law - the Brady Act - what emerged is a power struggle of even greater contention and relevance.
This case represents the first time the nation's highest court has linked a sensitive social issue, like gun control, to the issue of federalism - the effort begun during the Reagan administration to restrict federal influence on state and local authority. In recent rulings, the justices have tended to curb congressional power.
At the heart of this dispute: Do state officials have the right to refuse "reasonable efforts" required by acts of Congress?
During a spirited hour of argument, the high court justices focused on the question of what was "reasonable" for states to do - in a manner that seemed skeptical of the position taken by the Montana and Arizona sheriffs who said they felt they were under no obligation to carry out the requirements of the Brady Act. At one point, Justice Sandra Day O'Connor, a crucial swing vote and sympathetic to states rights, told the lawyers for Sheriffs Jay Printz and Richard Mack they were adopting an extreme position. Several justices, however, also probed into the government's argument asking how it could ensure accountability and not simply leave state officials to "dance like marionettes on the fingers of federal officials," as Justice Antonin Scalia said.
The act was named for James Brady, President Reagan's first press secretary, who was wounded in an assassination attempt on the president by a gun purchased overnight. The law, passed in 1993 after years of debate, was designed to make it less easy for felons to buy guns - by creating a five-day waiting period to check prospective owners.
The Brady Act expanded the Gun Control Act of 1968, which prohibited the sale of guns to convicted felons or those considered violent. What Sheriffs Mack of Graham County, Ariz., and Printz of Ravalli County, Mont., are challenging is a temporary part of the act requiring state and local officials to screen gun buyers - until the federal government's database goes on line, probably in late 1998.
Should the court rule in favor of Mack and Printz, the social and legal implications would be dramatic, according to experts.
It would be easier, for example, to buy a handgun quickly since there would be no required waiting period (though many states are expected to continue with background checks). Studies in the early 1990s indicate some 27 percent of felons bought handguns at retail shops. Justice Department statistics show that since the Brady Act became law, some 100,000 felons have been deterred from buying handguns. That figure could thus change.
Moreover, if the court should strike down the Brady Act, it would be the most significant constitutional victory for "federalism" to date. Such a ruling would signal a strong new direction for the court in the area of states rights and would alarm opponents. A brief filed by 11 Senate Democrats states that the case against the Brady Act provisions are "simple in appearance, yet radical in effect ... [holding] that the federal government may never direct a state or local official to perform any act, no matter ... how trivial."
Federalism is seen as allowing states to take their own positions on issues now governed by the federal government, ranging from immigration to the environment.
In recent years, conservatives on the court have slowly built a line of legal victories for federalism, albeit by narrow margins. The precedent was set in 1990, in a case called New York v. US, when the court ruled that states were not under obligation to follow federal regulations with regard to certain types of low-level radioactive waste. Writing for the court, Justice O'Connor stated that "states are not mere political subdivisions of the United States.... The Government may not compel the States to enact or administer a federal regulatory program."
In a split (5 to 4) decision in 1995 the court voted for the first time in 60 years (Lopez), to restrict the powers of Congress. In one of the most significant cases last year, Seminole Tribe, the court also in a 5 to 4 decision restricted the power of Congress to bring legal suit against the states.
"It will be a big deal if the court doesn't uphold the bill," says law professor Mark Tushnet of Georgetown University. "It will indicate again a willingness to limit Congress's power. But this time it won't be in what seems a technical area of the law, but on a high-profile social issue."
The current case arose when Mack and Printz sued the government, saying that the screening process for gun buyers was depleting their resources, was not supported by state law, and violates the 10th Amendment.
The two sides in the case also represent a cultural and regional divide. Mack and Printz combine an insistence on their constitutional right to bear arms with a deep suspicion of Washington and its ways. "The people in [the West] are very different from people in places like Boston or the East Coast when it comes to guns," says Paul Seby, a Denver attorney who filed a brief on behalf of a Wyoming sheriffs association, "We do not want someone sitting in Washington, D.C., dictating to us."