and the rule of law in the Nation generally, and in particular in the Nation’s cities. Indeed, the Association was founded in 1870 to address the Corruption and lawlessness that pervaded New York City at that time and deprived its citizens of the liberty and security that the rule of law exists to ensure. The challenges facing urban America have changed somewhat since that time, but the Association’s mission has not.

the federal action may be. Any construction of the Tenth Amendment that so radically restrains the power of the federal government to enlist the temporary aid of state officers in addressing a dire national problem would disserve both the health and safety of the Nation and the interests of modern federalism.

within five years of the effective date of the Act (i.e., by November 1998), the Department of Justice develop a national criminal background check system to permit instantaneous determination as to whether anything in a prospective purchaser’s history would render the sale unlawfiul. § 922(t).

the power of Congress to regulate interstate commerce and the powers reserved to the states under the Tenth Amendment. The Association’s analysis begins with the assumption that, given the fact that the Brady Act directly regulates commerce in firearms, and given the considerable impact that firearm related crime has on interstate commerc, the Brady Act is manifestly a legitimate exercise of Congressional authority under the Commerce clause. See Mack v. United States, 66 F.3d 1025 (9th Cir. 1995), cert. granted sub. nom. Printz v. United States, 116 S.Ct. 2521 (June 17, 1996).

with the Constitution’s division of authority between federal and state governments." Id

H. The Brady Act Is Not Structurally Offensive to the Tenth Amendment.

position this Court properly rejected in FERC v. Mississippi, 456 U.S. 742, 76 1-62 (1982):

...the 19th century view, expressed in a well-known slavery case, was that Congress "has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it" Kentucky v. Dennison, 24 How. 66, 107, 16 L. Ed 717 (1861).
Recent cases, however, demonstrate that this rigid and isolated statement...— which suggests that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns— is not representative of the law today. While this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations..., there are instances where the Court has upheld federal statutory structures that in effect directed state decisionmakers to take or to refrain from taking certain actions.

However, unlike the onerous and coercive option Congress presented to the states in New York, the interim background provisions are modest measures which do not mandate, or even significantly encourage, the states to legislate or regulate at all. See Frank, 78 F.3d at 827; see also Mack, 66 F.3d at 1030 ("New York was concerned with a federal intrusion on the States of a different kind and much greater magnitude than any involved in the Brady Act. The constitutional evil.. . [was that] the federal government was attempting to direct the States to enact their own legislation or regulations according to a federal formula"). Instead, as the Second Circuit explained, "the Brady Act is an exercise of Congress’s power to regulate individuals." Frank, 78 F.3d at 827. The Ninth Circuit, too, noted that the Act "does not embody a mandate to the ‘States’ in the sovereign sense... The Brady Act is a regulatory program aimed at individuals and not the States." Mack, 66 F.3d at 1031.

Congress is, according to New York, barred under the Tenth Amendment from compelling state legislatures to enact legislation because the federal government may not commandeer the basic decisionmaking processes of state government. This view is reinforced by the Supreme Court’s repeated reference to lode!, which upheld provisions of the

Surface Mining Control and Reclamation Act of 1977 because that statute did not compel the States to enact and enforce a federal regulatory program and thereby take over the States’ legislative processes...The offending provision in New York— because it required States to enact their own regulatory solution— was the sort of unconstitutional legislation alluded to in Hodel

. Frank, 78 F.2d at 828 (citations omitted). Thus, requiring local officials to check available records is simply not, for constitutional purposes, the same thing as hijacking the statehouse.

III. The Brady Act Will Not Blur Political Accountability of State Law Enforcement Officials.

Petitioners’ contentions that the interim provisions will undermine political accountability, however, lack merit.

federal officials could shift the blame for inaction by attributing persistent national problems, such as handgun violence, to the intransigence of local officials.... [or] the possibility that federal officials could consistently surrender responsibility for national problems by invoking abstract notions of "federalism" which would result in dissipation, as opposed to a mere shifting, of political responsibility.

78 F.3d at 828-29. Thus, considerations of political accountability which New York found in the Tenth Amendment support, rather than undercut, the constitutionality of the Brady Act.

IV. The Brady Act Does Not Unduly Burden State Law Enforcement Officers.

from performing the rest of their job to such a degree as to violate the Tenth Amendment.

V. Conclusion

Respectfully submitted,
MICHAEL A. CARDOZO, President
LOUIS A. CRACO, JR., Chair, Committee on Federal Legislation,
ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK.

NOTES

1. See 48 The Record of the Association of the Bar of the City of New York, p. 993 (December 1993). text@note1

2. Specifically, the Brady Act makes it unlawful for a dealer to transfer firearms to a person who: is under indictment for or has been convicted of a crime punishable by one year or more in prison; is a fugitive from justice; is addicted to or is an unlawful user of certam controlled substances; is an adjudicated mental defective or committed to a mental institution; is an illegal alien; has been dishonorably discharged from the military; has renounced United States citizenship; or is subject to certain classes of restraining or protective orders. See 18 U.S.C. § 922(g). text@note2

3. The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, orb the People." US. Const., Amend. X. text@note3

4. Citations herein to the briefs of petitioners Printz and Mack take the forms "Printz Br. at ___" and Mack Br.at ____," respectively. text@note4