The Brady Handgun Violence Prevention Act (Brady Act) provides that, within five business days of a firearms dealer’s proposal to transfer a handgun, the "chief law enforcement officer" (CLEO) of the transferee’s residence shall make a "reasonable effort" to determine whether the transferee’s receipt or possession of th€Whandgun would be illegal. 18 U.S.C. 922(s)(2). If the CLEO determines that the transferee’s receipt or possession of the handgun would not be illegal, the CLEO shall destroy the records relating to the transfer. 18 U.S.C. 922(s)(6)(B)(i). If the CLEO determines that the receipt or possession of the gun would be illegal, he shall, upon request by the transferee, provide in writing the reason for his determination. 18 U.S.C. 922(s)(6)(C).

of a firearm. 18 U.S.C. 922(t)(1)(A). Under the national instant check system, the transfer may go forward only if the system verifies that the transferee’s receipt of the gun would not be illegal, or if three business days elapse after the dealer contacts the system. 18 U.S.C. 922(t)(1)(B) and (t)(2).

and date of birth. 18 U.S.C. 922(s)(1)(A)(i)(I) and (s)(3)(A). The dealer must then give that information to the CLEO. 18 U.S.C. 922(s)(1)(A)(i)(IlI) and (IV). 4 During the ensuing five-day waiting period, the CLEO "shall make a reasonable effort" to determine whether a legal impediment exists to the proposed sale:

A chief law enforcement officer to whom a transferor has provided notice * * * shall make a reasonable effort to ascertain within 5 business days whether receipt or possession [of the handgun] would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.

even if the CLEO concludes that the purchaser’s receipt of the gun would be illegal.

U.S. Resp. App. 14a-15a. ATF noted finally that, in some circumstances, as when a CLEO has personal knowledge of a gun purchaser, a CLEO may legitimately decide that it is "reasonable" to do no research at all. Id. at 14a.

c. A divided panel of the court of appeals upheld all the challenged provisions. Pet. App. la-25a. The court concluded that the Brady Act does not transgress any "implied limitation on federal power" (id. at 8a), and that there is "nothing unusually jarring to our system of federalism" in the challenged provisions (id. at 9a). The court noted that this Court has rejected the argument that "Congress has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it," as "not representative of the law today." Ibid. (quoting FERC v. Mississippi , 456 U.S. 742,761 (1982)).

whether a transfer of a handgun would be unlawful, and a waiting period during which those checks can take place. The federal government is clearly responsible for the policy choices made in the Brady Act, as it was responsible for establishing, in the Gun Control Act of 1968, the categories of persons to whom firearms may not be transferred.

federal solution. Rather, Congress required that the States devise solutions to that national problem, either by legislating their own solutions to the problem of radioactive waste, or by taking title to the waste and then devising an administrative system for its proper disposition. In that case, Congress commandeered the legislative and administrative policymaking apparatus of the States. That commandeering, the Court held, contravened the constitutional values of federalism by blurring the political accountability of elected officials to the people.

B. The Brady Act does not contravene any other limit on the exercise of federal power that might be found in the structure of federalism. The text of the Brady Act requires only that CLEOs make a "reasonable effort" to conduct the record check, and the Act affords CLEOs broad discretion to determine the scope of that "reasonable effort," in light of their own resources and law enforcement priorities. The Bureau of Alcohol, Tobacco and Firearms, which administers the Brady Act, has made clear in its guidance interpreting the Act that it is generally "reasonable" for CLEOs to choose to fulfill their duties by consulting readily accessible criminal records. Thus, in light of their limited resources and competing obligations, CLEOs can and do meet their obligations by having clerical personnel perform checks of criminal records to the extent possible given the circumstances. The other requirements imposed on CLEOs under the Act are even more clearly de minimis.

the Court, because petitioners lack standing to challenge them.

a national problem, accompanied by federal funding and administered by the federal Bureau of Alcohol, Tobacco and Firearms (ATF). The principal policies of the Brady Act challenged in this case— staying the transfer of a handgun in or affecting commerce pending a limited record check— are readily identifiable as the policies of the national government.

1. This Court’s Decisions Establish That State And Local Officials May Be Required To Apply Federal Law To Private Persons

in the judgment) (noting that principles of federalism are violated only if congressional action "operate[s] to directly displace the States’ freedom to structure integral operations").

Cf. FERC, 456 U.S. at 785 (O’Connor, J., concurring in part and dissenting in part) (describing the crucial interest protected by state sovereignty as "the power to choose subjects for legislationhi,] * * * a fundamental attribute of legislative power").

government— there the judiciary— to further federal ends").

In contrast to the unanimous rejection of the challenge to Section 210 of PURPA, the Court in FERC divided sharply with respect to the validity of other challenged provisions, which required that the States "consider" adopting certain energy standards a matter of state law. FERC, 456 U.S. at 761-766. The Court recognized that those requirements— unlike Section 210— implicated significant interests of state sovereignty, id. at 761, but it emphasized that PURPA required only that the States "consider the suggested federal standards," id. at 765. The Court found nothing in PURPA "‘directly compelling’ the States to enact a legislative program." Ibid. 10

reason, because it effectively required each State to devise a state solution to a federally identified problem. See id. at 176. Accordingly, the Court held that both statutory alternatives were unconstitutional because both "commandeer[ed]" the States’ political processes "by directly compelling them to enact and enforce a federal regulatory program." 505 U.S. at 176 (emphasis added). As Justice Kennedy later explained, the portions of the statute that were invalidated in New York were held unconstitutional because Congress had required the States "to enact a certain policy." Lopez, 115 S. Ct. at 1642 (concurring opinion)." 11

also implicate the accountability concerns central to constitutional principles of federalism. See ibid. ("the ability of a state legislative (or, as here, administrative) body— which makes decisions and sets policy for the State as a whole— to consider and promulgating regulations of its choosing must be central to a State’s role in the federal system").

stood in relation to the Court’s expressed concern in New York that Congress had diminished the political accountability of public officials to the people (and had thereby encroached on liberty) by commandeering the machinery of state policymaking in both the legislative and administrative spheres. That concern for political accountability in administrative policymaking was fundamental to the decision in New York. If a State declined to legislate a radioactive waste regulatory regime and was therefore required by the federal statute to take title to such waste, it would have had to resolve administratively the same policy issues that would have confronted the state legislature. In effect, the State’s administrators would have been compelled to create a state-law mechanism to address the national problem foisted on the States by Congress. See 505 U.S. at 175-176.

The critical distinction drawn in New York is, therefore, between Acts of Congress that require States "to enact a certain policy," see Lopez, 115 S. Ct. at 1642 (Kennedy, J., concurring), and those that do not. Petitioners, however, reject that distinction, based on this Court’s observation in New York that the statute then before it did not involve Congress’s "subject[ing] a State to the same legislation applicable to private parties." 505 U.S. at 160. From that sentence, they infer that any federal statutory obligation falling particularly on state or local officials is unconstitutional. That argument, however, misapprehends the Court’s concerns in New York, and it does not explain why constitutional principles of federalism are not implicated when the States are subjected to generally applicable federal legislation.

make policy. In this case, the answer to that question is that Congress has not done so. See pp. 21-23, supra

2. The Framing And Ratification Of The Constitution, As Well As Subsequent History, Demonstrate That Congress May Require State Officials To Assist In The Implementation Of Federal Law

law. See The Federalist No. 15, at 95-96 (Hamilton) (discussing flaws of confederacies requiring coercion against "bodies politic, or communities or States"). The Court’s decision in New York reflects that specific concern, for the State of New York there was coerced by the federal government to exercise its sovereign power of legislation in order to implement federal will. This case, however, does not involve coercion of sovereign States, but the obligation 0 local officials to perform a modest duty in aid of the enforcement of federal law. 12 And in the Plan of the Convention— including the Constitution’s Supremacy Clause— the national government was not prohibited from requiring local officials to assist in implementing federal law. Cf. Ex parte Siebold, 100 U.S. 371, 392 (1880) ("The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity.") In fact, the Framers thought that the execution of federal requirements by state and local officials could serve federalism well, for it would avoid the danger of a remote and unresponsive federal bureaucracy. See The Federalist No. 45, at 312-313 (Madison).

eral authority, would have the pernicious effect of subjecting citizens to two sets of intrusive revenue officers. 13 Supporters of the Constitution responded that Congress

would likely "make use of the State officers and State regulations, for collecting" federal taxes, thus rendering "double sets of officers" unnecessary, and the threat from them illusory. See The Federalist No. 36 at 227 (Hamilton); see also id. at 226 (in assessing and collecting taxes, "[t]he national Legislature can make use of the system of each State within that State"). James Madison argued in particular that, although the federal government would theoretically have the power under the Constitution to collect taxes itself, "it is probable that this power will not be resorted to," and "the eventual collection under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States"). The Federalist No. 45, at 312-313 14 More generally, the Federalists argued that the Constitution would "enable the [national] government to employ the ordinary magistracy of each [State] in the execution of its laws," The Federalist No. 27, at 174 (Hamilton), 15 and

that it was "extremely probable that in other instances, particularly in the organisation of the judicial power, the officers of the States will be cloathed with the correspondent authority of the Union." The Federalist No. 45, at 313 (Madison). See also Samuel H. Beer, To Make A Nation: The Rediscovery of American Federalism 252 (1993) ("Madison himself expected the new federal government to govern through the state governments"); Caminker, 95 Colum. L. Rev, at 1043.

become citizens, "to certify and transmit * * * abstract of such declaration" to the United States Secretary of State; the law also provided that clerks would be penalized $10 for failing to comply. Act of June 18, 1798, ch. 54, § 2, 1 Stat. 567. In 1802, the Seventh Congress directed court clerks to participate in the creation of a national registry of aliens, arid required the clerks to issue certificates to aliens seeking naturalization. Act of Apr. 14, 1802, ch. 28, § 2, 2 Stat. 154-155. These early enactments were related to other early Acts of Congress, such as that passed by the First Congress, providing that aliens seeking naturalization could be admitted to citizenship by any state common law court of record. See Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103. 18

apparatus to screen immigrants, Congress relieved state officials of that obligation. See Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.

Today as well, several federal statutes require participation by state and local officials in implementing federal regulatory schemes. 21 Under petitioners’ theory, however, those Acts of Congress would be unconstitutional. But as the examples we have given demonstrate, there simply is no flat rule prohibiting Congress from enlisting assistance from state officials in carrying out a federal program. In particular (as the immigration and draft registration examples noted above demonstrate), Congress may call on local assistance to implement a law during an interim period, while the federal government is devising its own permanent administrative machinery. The Brady Act falls securely into that paradigm. 22

B. The Brady Act Imposes No Substantial Burden On The Functions Of Chief Law Enforcement Officere

federal action affecting the States). Such threats, however, are little more than academic hypotheticals, for "the built-in restraints that our system provides through state participation in federal governmental action * * * ensures that laws that unduly burden the States will not be promulgated." Ibid. Furthermore, it is unnecessary here to identify the precise boundaries of any "affirmative limits" that the constitutional structure might impose on federal action, for whatever those outer limits might be, they are not tested by the modest obligations that the Brady Act imposes on CLEOs.

ment exists to a proposed handgun sale. 18 U.S.C. 922(s)(2). By 1999, however, the federal government must establish a national instant background check system, and CLEOs’ obligations under the Act will terminate when such a system is in place. See 18 U.S.C. 922(s)(1) and 922 note. Firearms dealers will then be required to use the federal system to determine whether any legal impediment exists to the sale. 18 U.S.C. 922(t)(1). The temporary nature of the requirement, enacted in response to a national crisis of handgun violence, diminishes constitutional concerns. See pp. 30-31, supra (discussing use of state and local officials in draft registration during World War I); Fry v. United States, 421 U.S. 542, 548 (1975) (emphasizing, in sustaining the application of wage and salary freezes to state employees, that statute was an emergency measure); National League of Cities V. Ursery, 426 U.S. 833, 853 (1976) (stressing that Fry involved a statute of temporary applicability); cf. Wayte v. United States, 470 U.S. 598, 613 (1985) (noting, in rejecting a First Amendment challenge, that the challenged scheme was the "only effective interim solution" to a significant national problem).

reflected the recommendation of state and local law enforcement officials. As the Superintendent of the New Jersey State Police testified before Congress, a CLEO is best situated to perform a record check because he "knows the people in his community. He knows where the complaints come from." 24

See House Report, supra, at 23 (reprinting Congressional Budget Office statement that Brady Act’s financial "impact on any given jurisdiction is likely to be small").

what measures are "reasonable" in any given instance. U.S. Resp. App. 15a. ATF has further noted that "[e]ach * * * CLEO will have to set it[s] own standards based on its own circumstances, i.e., the availability of resources, access to records, and taking into account the law enforcement priorities of the jurisdiction." Id. at 14a-15a.

2. The two additional obligations of CLEOs under the Brady Act are even less onerous. The requirement that a CLEO destroy the records pertaining to a record check if that check does not reveal that the transferee is prohibited from possessing firearms (18 U.S.C. 922(s(6)(B)(i)) is clearly de minimis and therefore without constitutional significance. Sheriff Mack explained that he fulfills that obligation by reminding his secretary "from time to time" to destroy the documents. 5/31/94 Tr. 9.

transmittal of criminal records" to that system. 18 U.S.C. 922 note. Congress has already appropriated $100 million of those funds for disbursement to the States. Violent Crime Control Appropriations Act, 1995, Pub. L. No. 103317, Tit. VIII, 108 Stat. 1777 (1994). The interim statutory requirements are thus emphatically "not an unfunded mandate." 139 Cong. Rec. 516,304 (daily ed. Nov. 19, 1993) (statement of Sen. Mitchell). 28

C. Petitioners’ Commerce Clause Argument Adds Nothing To Their Tenth Amendment Argument.

sale of firearms to persons not lawfully entitled to receive them.

II. EVEN IF ANY OF THE CHALLENGED PROVISIONS OF THE BRADY ACT CONTRAVENES THE TENTH AMENDMENT, NO OTHER PROVISION OF THE ACT SHOULD BE INVALIDATED

period requirements are inseverable from invalid portions of the Brady Act, and are therefore no longer valid law. No such party is presently before the Court, however. Accordingly, petitioners have asked this Court to decide what is, at this point, a purely academic question of severability. Petitioners plainly have a sincere interest in that question, but "a mere ‘interest in a problem" is insufficient to confer standing. Sierra Club, 405 U.S. at 739; cf. United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1018 (1995) (holding that relief should not be provided to nonparties "when a narrower remedy will fully protect the litigants").

B. Each Of The Challenged Provisions Is Severable From The Remainder Of the Brady Act

enacted." Alaska Airlines, 480 U.S. at 685 (emphasis added). Petitioners’ burden of demonstrating inseverability is especially heavy here, because the Gun Control Act, of which the Brady Act is a part, contains an express severability provision. See 18 U.S.C. 928; p. 2, supra. That provision creates a presumption of severability that may be overcome only by "strong evidence" of a contrary congressional intent. Alaska Airlines, 480 U.S. at 686. 32

useful in conducting the check. The five-day waiting period imposed on dealers by Section 922(s)(1)(a)(ii)(I) would provide the CLEO with a reasonable time in which to conduct the check, and the dealer would be allowed to transfer the weapon after five business days had passed, as is the case with the mandatory record check enacted by Congress. Moreover, a CLEO would have to provide written reasons for rejecting a handgun transfer, under Section 922(s)(6)(C), only if the CLEO voluntarily chose to conduct a record check.

presumption of severability. See Alaska Airlines, 480 U.S. at 686. Petitioners speculate that, of the numerous possible reasons that the earlier bill did not pass, one— the failure to include a mandatory check— was decisive. Such speculation is precarious at best; indeed, the 102d Con— gress failed to approve the Brady Bill even after the mandatory record check provision was inserted. See H.R. Conf. Rep. No. 405, 102d Cong., 1st Sess. 24 (1991). In the end, Congress’s failure to enact a prior version into law reveals nothing about its intent with respect to severability, and certainly nothing so relevant as its express severability provision. 35

refusal to establish a national system of gun registration. Congress’s intent with respect to federal gun registration is irrelevant, however, for under the Brady Act, the dealer sends the background information to the CLEO, not to a federal official. The CLEO would remain free to use that information in a voluntary record check. Moreover, the Brady Act separately restricts CLEOs’ authority to use the information for any purpose other than conducting a record check. See 18 U.S.C. 922(s)(6)(B)(iii).

WALTER DELLINGER
Acting Solicitor General
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor General
MARK B. STERN
STEPHANIE R. MARCUS
Attorneys
OCTOBER 1996

1. Unless otherwise noted, "Pet. App." refers to the appendix to the petition in No. 95-1478. "U.S. Resp. App." refers to the appendix to the United States’ response to that petition. text@note1

2 Since petitioners’ opening briefs were filed, an amendment to the GCA has added, to the categories of persons not permitted by federal law to receive guns, those convicted of certain misdemeanor offenses, having as an element the use or attempted use of physical force or threatened use of a deadly weapon, committed by the spouse, domestic partner, parent, or guardian of the victim. Department of Defense Appropriations Act, 1997, Pub. L. No. 104-208, Div. A, § 101(f), Tit. VI, § 658 (110 Stat. 3009) (Sept. 30, 1996); see 142 Cong. Rec. H 11,743 (daily ed Sept. 28, 1996). text@note2

3. The Brady Act defines the "chief law enforcement officer" as "the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." 18 U.S.C. 922(s)(8). The Brady Act’s interim provisions do not apply in States and Territories that have their own background check requirements. 18 U.S.C. 922(s)(l )(C) and (D); see 59 Fed. Reg. 37,532, 37,534 (1994) (Bureau of Alcohol, Tobacco, and Firearms (ATF) identification of exempt jurisdictions). text@note3

4. ATF has also provided, by regulation, that dealers may request additional, optional information of the transferee (such as the transferee’s height, weight, place of birth, and social security number) to reduce the chances of an erroneous identification of the transferee. See 59 Fed. Reg. 7110 (1994); 27 C.F.R. 178.130(a)(2). text@note4

5. Both petitioners also contended that the Brady Act’s provision for criminal penalties for knowing violations of Section 922(s) (see 18 U.S.C. 924(a)(5)), violates the Due Process Clause of the Fifth Amendment as applied to them. Pet. App. 18a. The court of appeals held (id. at 19a) that petitioners’ due process claim was not ripe for review because, in light of the Department of Justice’s official conclusion that Section 924(aX5) does not apply to CLEOs (see p. 6, supra), petitioners do not face a credible threat of prosecution. Petitioners have not renewed their due process claim in this Court. text@note5

6. Judge Fernandez dissented in part. Pet. App. 22a-25a. He would have held unconstitutional the Brady Act’s interim provisions challenged in this case. See ibid. text@note6

7. To employ an analogy, Congress, acting within its enumerated powers, may preempt state law and require state courts to apply federal law exclusively as a rule of decision to a controversy. But it would be doubtful that Congress could require state legislatures to change their own state law, at federal command, and then compel state courts to apply that new state law. Thus, for example, Congress might, without giving rise to any constitutional difficulty, enact a federal products liability law that preempted state law, and might thereby require state courts to apply the federal law to the exclusion of state law. A constitutional problem would be encountered only if Congress directed the state legislatures (or state courts) to change their own state products liability law, and apply it as such. Only the latter situation encroaches on the States’ sovereign capacity to make their own law, and only the latter diminishes state officials’ accountability to the people, by promoting the appearance that the States, not the national government, were responsible for the change in the law. might, without giving rise to any constitutional difficulty, enact a federal products liability law that preempted state law, and might thereby require state courts to apply the federal law to the exclusion of state law. A constitutional problem would be encountered only if Congress directed the state legislatures (or state courts) to change their own state products liability law, and apply it as such. Only the latter situation encroaches on the States’ sovereign capacity to make their own law, and only the latter diminishes state officials’ accountability to the people, by promoting the appearance that the States, not the national government, were responsible for the change in the law. text@note7

8. Testa did not itself involve a Tenth Amendment challenge, but its relevance to the jurisprudence of federalism is made clear by the decisions in New York (505 U.S. at 178) and FERC (456 U.S. at 760-762). text@note8

9. Petitioners minimize the relevance of FERC and Testa as limited to the functions of 8tate judges, but that argument is based on a misunderstanding of the Supremacy Clause. It is not only judges, but all state officials, who must adhere to federal law. See U.S. Const. Art. VI ("all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution"); Ex parte Siebold, 100 U.S. 371, 392 (1880) ("The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."); see also Voinovich v. Quitter, 507 U.S. 146, 159 (1993) (noting that state non-judicial official who followed dictates of federal law in drafting apportionment plan "demonstrat.e[d] obedience to the Supremacy Clause"); Caminker, 95 Colum. L. Rev, at 1098 (explaining that "[t]he Supremacy Clause makes all federal laws the supreme law of the land for all individuals and institutions of state government").

10. In rejecting the challenge to PURPA’s mandate that state utility commissioners consider federal energy standards, the Court also stated that, theoretically, the States could avoid the federal requirements by ceasing to regulate in the utilities field altogether. 456 U.S. at 764. But, contrary to the suggestion of petitioner Mack (Br. 18 n.8), that reasoning played no part in the Court’s analysis of the separate requirement that state administrative agencies "implement" FERC rules by enforcing them against private parties. See 456 U.S. at 759-761. The Court also observed that it was highly "unlikely that the States will or easily can abandon regulation of public utilities to avoid PURPA’s requirements." Id. at 767. text@note10

11. The decision in New York also upheld significant portions of the statute under challenge. The Court held that Congress could, pursuant to its power under the Spending Clause, require the States to achieve certain milestones in the regulation of radioactive waste as a condition to receipt of funds collected from federal taxes and placed in an escrow account. 505 U.S. at 171-173. The Court also held that Congress could, pursuant to its commerce power, authorize states to restrict and deny access to radioactive waste generated in other States that did not meet federal deadlines for addressing the disposal of such waste. Id. at 173-174. text@note11

12. Compare Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1124-1125 (1996) (emphasizing limits on Congress’s power to abrogate States’ sovereign immunity, and the "indignity of subjecting a State to the coercive process of judicial tribunals") with Ex parte Young, 209 U.S. 123, 155-156 (1908) (holding that "individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State * * * may be enjoined by a Federal court of equity from such action"). text@note12

13. Patrick Henry anticipated that sheriffs would be required to assist in federal tax collection: "The sheriff comes to-day as a state collector. Next day he is federal." 3 The Debates In The Several State Conventions On The Adoption Of The Federal Constitution 168 (J. Elliot ed. 1987). See also 1 The Debate on the Constitution 217 (Bernard Bailyn ed. 1993) (hereafter Bailyn) ("Cato," arguing that "the necessity to enforce the execution of revenue laws (a fruitful source of oppression)" ‘aould ultimately require a federal standing army); 1 Bailyn 502 ("Brutus," arguing that direct federal taxation "opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community"); id. at 506 ("Brutus," noting that direct taxes "will introduce such an infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and excisemen, that when a man can number them, he may enumerate the Stars of Heaven"); 1 Bailyn 613-616 ("Brutus," discussing generally dangers of double systems of taxation); 1 Bailyn 697 ("Brutus," arguing that national government should only have authority to raise revenue "of such a nature, that the tax should be raised a a * with few officers"); 1 Bailyn 939 (Nathaniel Barrell, at Massachusetts Convention, stating that "a continental collector will not be so likely to do us justice in collecting the taxes, as collectors of our own"); 2 Bailyn 119 ("Letter from John Williams to His Constituents," stating that "direct taxation, and to be collected by officers of Congress, are powers which cannot be granted agreeable to our present constitution, nor will it be very convenient for Congress officers, and our state collectors, to be collecting both at one time"); 2 Bailyn 633 (Patrick Henry, at Virginia Convention, warning that "the salaries and fees of the swarm of officers and dependents on the Government will cost this Continent immense sums," and specifically that "[d]ouble sets of collectors will double the expence"); id. at 635 (Patrick Henry, opposing Federalists’ solution that "one collector may collect the Federal and State taxes," because, "if the Sheriff is to collect for both, a a a his collections will go to Congress"); 2 Bailyn 817 (Melancton Smith, at New York Convention, warning that there would be "two lists of all kinds of officers— supervisors, assessors, constables," and that the two sets of taxing officers "will be hostile to each other"). text@note13

14. See also 2 Ballyn 655 (Madison, at Virginia Convention, noting that Congress "may even refer to the State systems of taxation"). text@note14

15. In using the term "magistracy," Hamilton plainly included executive officials. See The Federalist No. 27, at 175 (Hamilton) (noting that, by virtue of the Supremacy Clause, "the Legislatures, Courts and Magistrates of the respective [States] will be incorporated into the operations of the national government, as far as its just and constitutional authority extends, and will be rendered auxiliary to the enforcement of its laws") (emphasis omitted); see also The Federalist No.44 (Madison) (referring generally to "State magistracy"); The Federalist No. 47, at 325-331 (Madison) (discussing role of "executive magistrate"); 2 Bailyn 618 (Madison replying to Patrick Henry, in Virginia Convention, referring to States’ election of their "first Magistrate"). See generally Black’s Law Dictionary 951 (6th ed. 1990) ("In its widest sense [magistracy] includes the whole body of public functionaries[.] * * * In a more restricted (and more usual) meaning, it denotes the class of officers who are charged with the application and execution of the laws."). text@note15

16. Legislation enacted by the early Congresses provides an important guide to understanding the Framers’ constitutional plan. E.g., Myers v. United States, 272 U.S. 52, 175 (1926); Burrow-Giles Lithographic Co. v. Sarony1 U.S. 53, 57 (1884); see also Miatretta v. United States, 488 U.S. 361, 398-401 (1989); Marsh v. Chambers, 463 U.S. 783, 786-792 (1983). text@note16

17. Naturalization acts subsequent to 1790 made clear that the clerks receiving such declarations included state court clerks. See Act of Jan. 29, 1795, ch. 20, § 1, 1 Stat. 414 (1795) (requiring alien to declare "on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states"). A subsequent law passed by the Seventh Congress also reflects that understanding. See Act of Apr. 14, 1802, ch. 28, § 1, 2 Stat. 153 (1802) (alien "shall have declared, on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states"). text@note17

18. Federal courts were not authorized to naturalize aliens until 1795. Act of Jan. 29, 1795, ch. 20, § 1,1 Stat. 414. text@note18

19. See Proclamation of May 18, 1917, 40 Stat. (Part 2) 20; Registration Regulations Prescribed by the President Under Authority of the Act of Congress Approved May 18, 1917 (Regulations). See especially Regulations © 9: "As far as possible, the execution of the law in each State will be accomplished by State, county, and municipal officers and agencies." Because those Regulations were not printed in the regular serial set of government documents, we have lodged a copy with the Clerk of this Court and provided petitioners with a copy. text@note19

20. See generally John Whiteclay Chambers 11, To Raise An Army: The Draft Comes to Modern America 181-182 (1987); Report of the Provost Marshal General to the Secretary of War on the First Draft Under the Selective Service Act, 1917, at 7 (1918). text@note20

21. E.g., 42 U.S.C. 5779(a) (requires state and local law enforcement agencies to report cases of missing children); 23 U.S.C. 402(a) (requires state officials to implement highway safety programs and to report traffic fatalities); 42 U.S.C. 11001, 11003 (requires comprehensive data collection and reporting, as well as the creation of state emergency response commissions, with respect to the release of hazardous substances); 15 U.S.C. 2645 (requires governors to conduct certain reporting and approval activities with respect to local educational agencies); 20 U.S.C. 4013 (requires governors to submit plans for asbestos abatement and follow certain reporting procedures); 42 U.S.C. 6933 (requires inventories of state hazardous waste sites); 42 U.S.C. 6991a (requires governors to inventory underground storage tanks). text@note21

22. Of course, it is possible to imagine hypothetical situations in which Congress might impose intolerable burdens on state and local governments in the execution of federal law. But as Justice Frankfurter noted of a similar issue in New York v. United States, 326 U.S. 572, 583 (1946), "[t]he process of Constitutional adjudication does not thrive on conjuring up horrible possibilities that never happen in the real world and devising doctrines sufficiently comprehensive in detail to cover the remotest contingency." And as Alexander Hamilton observed 150 years earlier about the Anti-Federalists’ speculations of federal destruction of state autonomy, "[t]he moment we launch into conjectures about the usurpations of the foederal Government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured." The Federalist No. 31, at 197. In fact, while Congress has the authority, in the exercise of its enumerated powers, to require the assistance of state and local officials in carrying out federal law, it has not exercised that authority routinely— which suggests that the fundamentally political safeguards in the Plan of the Convention that "preserv[e] the States’ interests" have operated with success, and will continue to protect the States from undue intrusions by Congress. Cf. Garcia, 469 U.S. at 552-554; id. at 556 ("The political process ensures that laws that unduly burden the States will not be promulgated."). text@note22

23. Accord Brady Handgun Violence Prevention Act: Hearings on H.R. 1025 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, lOSd Cong., 1st Se88. 90 (1993) (Hearings on H.R. 1025) (statement of Rep. Schumer); id. at 89 (testimony of Ass't Attorney General Acheson); Brady Handgun Violence Prevention Act: Hearings on H.R. 7 Before the Subcomm. on Crime and Criminal Justice of the House Comm. on the Judiciary, 102d Cong., 18t Seas. 15 (1991) (statement of Rep. Sangmeister). text@note23

24. Waiting Period Before the Sate, Delivery, or Transfer of a Handgun: Hearings on H.R. 975 and H.R. 155 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 100th Cong., 1st, 2d Seas. 243(1987 and 1988) (Hearings on H.R. 975 and H.R. 155). text@note24

25. As one law enforcement leader explained, the Act gives "Et]he law enforcement executive * * * discretion to determine what procedure best suits his or her agency." Hearings on HR. 1025, supra, at 254 (testimony of Exec. Director of Police Executive Research Forum). Even before passage of the Brady Act, local law enforcement officials undertook similar record checks for a variety of purposes. A local official testified before Congress that, prior to the Brady Act, he would "run probably two or three checks a day in some cases on people who have been stopped for various things." Hearings on HR. 975 and H.R. 155, supra, at 124 (testimony of Vice Pres. of Ohio Union of Patrolmen’s Ass’n). text@note25

26. Petitioners’ testimony in the district courts in these cases is difficult to reconcile with the account they now propose of the Brady Act’s impact on their offices. Petitioner Mack testified that he generally relied on a computer check to meet his Brady Act responsibilities; his office performed an average of one check per day, conducted by a dispatcher in his office and then reviewed by the sheriff or his undersheriff. 5/31/94 Tr. 6-7. Petitioner Printz offered no testimony about the burdens actually imposed on his office by the Act. He identified a series of records that might be relevant to an extensive background check of a person seeking to purchase a handgun, 95-1478 text@note26

27. Cf. South Carolina v. Baker, 485 U.S. at 529 (Rehnquist, C.J., concurring in the judgment) (concluding that requirements at issue had no "substantive effect" on significant state functions). In analogous areas of separation of powers, the Court has emphasized that minimal intrusions do not raise i8sues of constitutional magnitude. See Morrison v. Olson, 487 U.S. 654, 691 (1988) (upholding limitation on President’s power to remove special prosecutor because it does not "unduly trammel[] on executive authority"); Helvering v. Gerhardt, 304 U.S. 405, 421 (1938) (to establish tax immunity, State would have to show that "the burden upon the state function is actual and substantial, not conjectural"); Department of Taxation & Finance v. Milhelm Attea & Bros., 114 S. Ct. 2028, 2035-2036 (1994) (reconciliation of state and tribal powers is not governed by a "rigid rule" based on "mechanical or absolute conceptions of state or tribal sovereignty," and the general rule that a State may not regulate Indian traders is not contravened by a state law imposing "minimal burdens" on reservation retailers). text@note27

28. That funding augments the significant pre-existing federal commitment in the area of criminal history records. Under the formula grant program established by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, the United States provided nearly $850 million to States in fiscal years 199’2 and 1993. Sec 95-1503 J.A. 12, 16. Five percent of the grant money (over $40 million in 1992 and 1993) must be used for improving state criminal history records. Id. at 23-24; 42 U.S.C. 3759(a). text@note28

29. In FERC, the State of Mississippi made a similar argument, that PURPA violated the Commerce Clause in addition to the Tenth Amendment, because the Commerce Clause did not empower Congress to direct States to regulate. 456 U.S. at 754-755. The Court concluded that the Commerce Clause supported Congress’s exercise of regulatory authority. Id. at 755-758. text@note29

30. By contrast, the continuing validity of the requirement that CLEOs provide notice to transferees of their reasons for concluding that a proposed transfer would be illegal is properly before the Court. Petitioners presented a Tenth Amendment challenge to that provision. This Court has, under similar circumstances, considered the continuing validity of statutory provisions that were upheld against constitutional challenge but were related to other parts of the statute that were successfully challenged. See New York v. United States, 505 U.S. at 186-187. Petitioners also have Article III standing to challenge that provision, because it directly affects them. text@note30

31. In addition to the district court decisions in these cases (see Pet. App. 61a-66a; 95-1503 Pet. App. 46-49), see McGee v. United States, 863 F. Supp. 321, 327 (S.D. Miss. 1995), aff’d sub nom. Koog v. United States, 79 F’.3d 452, 462-463 (5th Cir. 1996), petition for cert. pending, No. 95-2052; Frank v. United States, 860 F. Supp. 1030, 1044 (D. Vt. 1994), aff’d in part, rev’d in part, 78 F.3d 815 (2d Cir. 1996), petition for cert. pending, No. 96-2006; Romero v. United States, 883 F. Supp. 1076, 1088-1059 W.D. La. 1994), appeal pending, No. 95-30355 (5th Cir.). text@note31

32. Petitioner Printz erroneously relies on Alaska Airlines (Br. 47-48: for the proposition that the general severability provision of the GCA does not apply to the Brady Act because the Brady Act added a "new program." In Alaska Airlines, the Court expressed doubt about the applicability of the preexisting severability clause of the Federal Aviation Act of 1958 (FAA) to the challenged provisions of the Airline Deregulation Act of 1978 (ADA), because, although other parts of the ADA did amend the FAA, the challenged provisions did not do so. See 480 U.S. at 686-687 n.8. The Brady Act, by contrast, was enacted as an amendment to the Gun Control Act, and became an integral part of it, Section 102(a)(l) of the Brady Act begins, "Section 922 of title 18, United States Code, is amended by adding the following:", after which it enacts into law a new Subsection 922(s) of Title 18. See Pet. App. 76a; 107 Stat. 1536. The GCA comprises Sections 921 through 928 of Title 08. Section 922, before passage of the Brady Act, included a lengthy list of prohibited acts. The Brady Act made the firearms dealer’s failure to wait five days or the result of a CLEO’s record check before transferring a handgun one of those prohibited acts. See 18 U.S.C. 922(s)(1). Cf. Leavitt v. Jane L., 116 5. Ct. 2068, 2070 (1996) (noting that the severability provision of the Utah abortion code predated the provisions invalidated by the Tenth Circuit, which were enacted as amendments to that code, and held severable by this Court). text@note32

33. Severance of the invalid parts of the Act would also further Congress’s intent to provide a cooling-off period for gun sales to reduce crimes of passion. Brady Act supporters saw the cooling-off period as a significant benefit of the legislation. See, e.g., 139 Cong. Rec. S16,323 (daily ed. Nov. 19, 1993) (statement of Sen. Kohl); id. at S16,319 (statement of Sen. Murray); id. at S16,324 (statement of Sen. Lautenberg); id. at H9089 (daily ed. Nov. 10, 1993) (statement of Rep. Derrick); id. at H9106 (Rep. Roukema); id. at H9110 (statement of Rep. Schenk). Congress also expressed its support for cooling-off periods by defeating amendments intended to preempt state waiting periods enacted for that purpose. See 139 Cong. Rec. S16,307-S16,321 (daily ed. Nov. 19, 1993); id. at H9141 (daily ed. Nov. 10, 1993). text@note33

34. Petitioner Printz’s reliance (Br. 48-50) on Leavitt v. Jane L, 116 S. Ct. 2068 (1996), is misplaced. First, the Leavitt decision applied Utah severability law. Id. at 2069. Second, to the extent that Leavitt is relevant, it supports a holding that the challenged provisions of the Brady Act are severable. In reversing the Tenth Circuit, which had refused to sever provisions of a Utah statute, this Court explained:

Every legislature that adopts, in a single enactment, provision A plus provision B intends (A + B)[.] * * * The relevant question * * * is not whether the legislature would prefer (A + B) to B, because by reason of the invalidation of A that choice is no longer available. The relevant question is whether the legislature would prefer not to have B if it could not have A as well.

Id. at 2071. text@note34

35. Cf. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988) ("This Court generally is reluctant to draw inferences from Congress’ failure to act."); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 382 n.h (1969) ("unsuccessful attempts at legislation are not the best of guides to legislative intent"). Petitioners seek to draw support from the fact that a handful of legislators stated that the mandatory check was decisive in their support of the bill. That evidence, however, does not override the more persuasive point that, even without a mandatory record check, the rest of the Brady Act would further Congress’s objectives. See EEOC v. Hernando Bank, Inc., 724 F.2d 1188, 11911192 (5th Cir. 1984) (act severable even though a legislator opined both that unconstitutional provision was "integral" to the act and that the act’s lack of severability clause was intentional). Moreover, since Congress did enact the mandatory provision, it is unsurprising that legislators who would have also supported a waiting period and voluntary record check as a second-best preference did not speak to that point. text@note35