Uncertainty Over Checking Gun Buyers

A court ruling against the Brady law forces many states to review background checks

A recent US Supreme Court decision to strike down part of the Brady handgun-control law is not expected to halt efforts nationwide to keep guns out of the hands of criminals.

But the ruling is forcing some states to reexamine the underlying legality of conducting criminal background investigations of all prospective handgun buyers. And it has prompted officials in Arkansas, at least two jurisdictions in Montana, and at least one in Texas to abandon background checks altogether.

Analysts say it is too early to determine how many others may do likewise. Ohio suspended background checks for two days but reinstated them after negotiating a compromise with federal officials.

The 5-to-4 Supreme Court ruling June 27 invalidated a portion of federal law that required all state and local law-enforcement officials to conduct criminal background checks prior to every handgun purchase. Felons, fugitives, the mentally unstable, and anyone convicted of domestic violence were to be denied handguns.

The court's opinion had more to do with the clash of state and federal sovereignty than gun control. The high court ruled that Congress exceeded its authority, because the Brady law required nonfederal officials to pay for and carry out a federal regulatory program - the background checks.

At issue now is whether those same state and local officials will continue to conduct the checks voluntarily.

If not, their decision would knock the teeth out of the Brady gun-control law. The US Justice Department has credited the law with preventing the sale of 250,000 guns to felons, fugitives, and others since 1994.

Observers say most law-enforcement officials in the US support the idea of background checks and are continuing to carry them out on a voluntary basis.

"We have been very encouraged from the response we are hearing of continuing cooperation of police chiefs and sheriffs all across the country," says Robert Walker of Handgun Control Inc., a Washington-based advocacy group.

But because gun control is largely a local issue, analysts say they are unable to pinpoint how many jurisdictions have stopped conducting background investigations and how many others may be considering doing so.

In an effort to head off mass abandonment of the screening system, Attorney General Janet Reno and Treasury Secretary Robert Rubin have invited law-enforcement officials to Washington, perhaps as early as this week, to discuss the background-check issue.

In an open letter to the nation's police chiefs and sheriffs, Ms. Reno emphasizes that background investigations make good sense from a police perspective.

"We expect and hope that the vast majority of law-enforcement agencies in America will continue to run these checks voluntarily because they are saving lives, keeping guns out of the hands of criminals, and are generally in the best interest of law enforcement," she writes.

Checks a 'waste of time'

Others disagree. Richard Mack is one of two sheriffs who challenged the Brady law all the way to the Supreme Court and won. Mr. Mack, who was defeated in his re-election bid as sheriff of Graham County, Ariz., says background checks are a waste of time and money that would be better spent on locking criminals behind bars.

In Arizona, he says, such background checks cost a half million dollars and resulted in two arrests. Nationwide, out of 250,000 felons and fugitives prevented from gaining access to handguns, Mack says, only seven were prosecuted and four went to jail.

"It is ludicrous to waste this much time and money on this type of Washington, D.C., feel-good legislation," he says.

Mack says every criminal in America knows how to buy a cheap handgun illegally on the street. Crooks bent on getting firepower are unlikely to ask permission from cops, he says.

No silver bullet

Michael Chitwood, police chief in Portland, Maine, acknowledges the Brady law is no panacea to end all gun violence. But he sees it as a step in the right direction. "I look at it as a practical, common-sense approach to stopping some types of violence," Chief Chitwood says. "Even if we stop one death, we have accomplished something."

In Ohio and Arkansas, the issue isn't so much ideological as legal. Officials in both states say they support the Brady law, but when the law was overturned it eliminated their legal justification for requiring background checks.

The problem, officials say, is that state legislators in Ohio and Arkansas have never explicitly authorized state law-enforcement officials to conduct the checks. Until the Supreme Court threw out that portion of the Brady law, both states were operating under federal mandates. Twenty-one other states were also operating under federal law (see box below, left). The other 27 states have enacted their own laws authorizing background checks for gunbuyers.

States in a bind

The Arkansas State Police conducted all checks in that state. The agency is meeting with federal officials to identify a possible solution to the state's perceived legal bind.

Following consultations with the US attorney general, Ohio officials arranged a compromise in which the state is now asking all Ohio gun buyers to sign a waiver granting permission for the state to conduct criminal background checks. If a would-be buyer refuses to sign a waiver, his or her file is turned over to the federal Bureau of Alcohol, Tobacco and Firearms, which conducts the background investigation by accessing the same records used by Ohio officials.

Many of these legal difficulties are expected to fade with the expected debut of a national computerized criminal-information system in November 1988.

The national computer system would allow gun dealers and local authorities a fast, easy way to check the background of a would-be handgun buyer.

But many states are far behind schedule in feeding their criminal records into a computerized database, and it remains uncertain how comprehensive the system will be by November 1998.

States Affected by Court Ruling ON GUN CONTROL

* The Supreme Court recently struck down the part of the Brady gun law that requires state and local officials to complete background checks on prospective handgun owners. Many states have their own laws governing gun purchases, but the 23 below use the federal Brady law.












New Mexico

North Dakota




Rhode Island

South Carolina

South Dakota



West Virginia


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