The Brady Handgun Prevention Act and the Community Protection Initiative: Legislative Responses to the Second Amendment?

Orrin G. Hatch* I. INTRODUCTION I want to extend my thanks to the Federalist Society at the J. Reuben Clark Law School for inviting me to share some thoughts on the Second Amendment "right to keep and bear arms."1 The primary federal response I will analyze is the Brady Handgun Violence Prevention Act,2 (Brady Act) named for antigun lobbyist Sarah Brady.3 The Brady Act, by-in-large, requires a waiting period of five state government business days before the purchaser takes possession of the firearm.4 During this waiting period, the chief law enforcement officer (CLEO) must make a "reasonable effort" to determine if a buyer is prohibited from buying a handgun.5 States are exempt from the five-day waiting period if they have their own laws requiring a records check before a handgun purchase.6 The constitutionality of the Brady Act recently went before the United States Supreme Court.7 At oral argument, it was maintained that the Brady Act violates the Tenth Amendment because it requires state officials to enforce federal law and, thus, treats the states as mere administrative appendages of the federal government.s The Court seemed to agree and held that the federal government can not "commandeer" state officers.9 By the terms of the statute, the Brady Act will expire on November 28, 1998.lo Undoubtedly, anti-gun members of Congress will seek to extend the life of the bill. Therefore, it is still important to analyze the Brady Act provisions both to assay the philosophical underpinnings of the Act and to suggest a better approach. I will then focus my remarks on a specific congressional response to protecting the Second Amendment, the Community Protection Initiative of 1997.ll In essence, this Initiative allows qualified current and former state and local law enforcement officers to carry a concealed firearm nationwide, notwithstanding state law.l2 The Initiative also provides for advance congressional approval for states to enter into interstate compacts for the recognition of each other's laws allowing individuals to carry concealed weapons.l3 My firm belief is that implementation of this Initiative will both enhance the Second Amendment and reduce crime. Indeed, protection of the "right to keep and bear arms" and reduction of crime are mutually reinforcing goals. This conclusion is supported by a recent July 1996 study done under the aegis of the University of Chicago.l4 This "mutually reinforcing" belief runs counter to the gestalt of the politically correct, who cry that firearm possession is a root cause of crime-a position that is increasingly intellectually unsupportable. It is my conclusion that the Brady Act is symptomatic of pervasive federal gun control programs that reflect the ideology of the left and of gun control interest groups, and yet does precious little to reduce crime or keep firearms out of the hands of criminals. Gun control today has taken on the mantra of almost religious zealotry. The liberal dominated national media has fostered this ardor to the point where many in the public believe that private ownership of firearms is a major cause of violent crime and the primary reason why the United States' homicide rate is higher than other industrialized nations.l5 The White House propaganda machine, which is perfectly described by the maxim as being "seldom right, but never in doubt," has also promulgated this belief.ls Nevertheless, the underlying assumption-that there is an ironclad correlation between the availability of firearms, especially legally obtainable firearms, and the rise of violent crime-is patently false. Accordingly, we should not be surprised to learn that the effects of implementing many gun control programs, such as the Brady Act, have been disappointing at best and often counterproductive. II. THE BRADY VIOLENCE PREVENTION ACT The Brady Act is a good case for testing the anti-Second Amendment paradigm of gun control and left-leaning groups; to wit: that even lawful possession of firearms is a major cause of violent crime. …