The History of the Controversies Surrounding the Brady Act

Published: 2021-06-22
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Following the assignation attempt against President Ronald Reagan in 1981, the Brady Act was fronted to deal with the problem of gun-related violence in the United States. The Act (a congressional legislation) imposed an obligation on the states to conduct background checks on applicants who sought permits for handgun ownership within their respective areas of jurisdiction (Cook & Ludwig, 2000). These checks commanded security agencies to search for criminal records of prospective handgun owners before granting permits. These developments traced their origins in 1968.The shooting of Martin Luther King Jr. in April 1968, Robert Kennedy in June 1968 and that of John F Kennedy in November 1963 motivated the enactment of the Gun Control Act of 1968(Carter, 2012; Lee, 2015).These assassinations seemed to suggest that there was ease access to guns among members of the public due to loose laws relating to the purchase and use of guns.

The Gun Control Act of 1968 sought to regulate interstate commerce concerning the buying and selling of guns. The Act restricted the movement of guns across the primary market, requiring that interstate transfers of guns be done among manufacturers, importers, and gun dealers. Also, the Act prohibited the sale of firearms to individuals convicted of committing criminal offenses, minors, addicts and defectives (Kopel, 1999). The framers of the Act reasoned that control on the primary handlers of guns would have a trickle-down effect on individual users of guns. However, the process of implementing this law received a lot of opposition from some actors especially the National Rifle Association (NRA). NRA questioned the extent of the role of Congress in regulating interstate commerce and how such regulation affected individual rights especially in relation to gun ownership (Carter, 2012).

The controversy relating to the application of the Brady Act originates from the anti-Federalist philosophy which argues that states and local authorities shall maintain some form of political and economic autonomy in their relationships with the Federal government. According to this argument, independence of the states is critical to keeping the excesses of the Congress and other agents of the Federal government in check. From this perspective, the legal obligation issued by the Congress for states to impose restrictions on prospective gun owners did not hold in the sense that it violated the Tenth Amendment which underscores the semi-autonomy of the states (Thomas, 1999; Ducoff, 1998). As such, most court decisions on issues of the Brady Act center on the principle of sovereignty of the states.

Court determinations of the cases of Mack versus United States and Printz versus United States offer some perspectives on the origins of conflicts between the Federal organs and those of the states regarding the implementation of the Brady Act. In Printz versus United States, the Supreme Court quashed the application of some aspects of the law, terming it unconstitutional. The court argued that despite the good intentions of the Act, its implementation encroached on the principle of dual sovereignty as envisaged in the Tenth Amendment and, therefore, undermined the tenets of American democracy (Thomas, 1999). In Mack versus United States, Mack argued that the mandatory requirement for Chief Law Enforcement Officers (CLEOs) to exercise due diligence in clearing potential gun holders contravened the Fifth Amendment. The court upheld Macks argument by ruling that the criminal liability on CLEOs arising out of the enforcement of the Act was, indeed, a violation of the Fifth Amendment (Ducoff, 1998). Again, this ruling emphasized the principle of dual sovereignty; a Federal legislation failed to compel state officers to perform certain duties.

Summary of the Brady Act

Towards the end of the 1980s, the problem of gun violence in the United States hit crisis levels. Security concerns on illegal gun ownership and the problem of drug-related violence played a vital role in motivating lawmakers to enact this law (Sullivan, 2011). The law sought to address some of the challenges that earlier acts were experiencing in dealing with the movement of guns from dealers to individual owners.

The Brady Act conferred a legal obligation to state employees to assess the eligibility of applications to own guns. The law put a mandatory requirement for state law enforcement agents to carry out background checks on prospective handgun owners. This obligation was to be honored by running the details of the potential gun owners through any state or local record keeping system to ascertain whether possession or ownership of a gun by applicants would amount to the violation of the existing laws (Sullivan, 2011). During the process of ascertaining the criminal records of new potential handgun owners, the state law enforcers were also obligated by this Act to make reasonable efforts to ascertain the criminal history of the applicants. By interpretation, this instruction required law enforcement officers to use all resources within their reach to search for information relating to persons who seek legal permission to own guns. Additionally, the law imposes a penalty on law enforcers who failed to comply (Kopel, 1999; Thomas 1999). This penalty explains the reasons for fear of noncompliance which culminated in litigations as illustrated by Printz versus United States and Mack versus United States cases covered in the preceding discussions.

Another vital aspect of the Act was that it responded to the effects of the crisis of gun-related violence in the United States. In the wake of the bills proposal, crime rates and street violence had reached crisis proportions. The goal of the enactment of this law was to involve state organs in dealing with the problem of ease availability of guns in the secondary markets- guns availability to individuals. Some of the tools used to achieve this objective were the imposition of a five-day waiting period for purchases of guns to be actualized (Carter, 2012; Kopel, 1999). This period enabled background checks to be done before a permit is issued. Further, the waiting period was meant to reduce buying of guns as a result of impulse, an act which was considered favorable for the occurrence of shootings motivated by runaway temper (Carter, 2012).The law also intended to prevent any collusion between licensed vendors and buyers. This is because earlier laws did not place any responsibility on the vendor to verify the eligibility of the potential handgun owners. According to the Act, vendors were obligated to facilitate the documentation of the prospective gun owners in preparation for screening from the local authorities (Carter, 2012). By requiring vendors to collaborate with local security agencies, the framers expected that the vendors would play a bigger role in screening the potential gun owners. It was also anticipated that enhanced screening would reduce the number guns being sold to ineligible persons.

How the Framing of the Act affected Policy Intentions

Sarah Brady (the wife of the press secretary who was critically injured during the assassination attempt on then President Reagan) began a campaign for simple background checks to be conducted on prospective owners of handguns. These humble propositions ended up in Congress where a lengthy debate was conducted (Sullivan, 2011). Several amendments were introduced to accommodate views of various parties of interest and policy intentions of the legislation.

The Brady Bill was introduced in the Congress in 1987.The Bill faced fierce opposition from high-profile politicians and the National Rifle Association (Sullivan, 2011).The Bill was introduced in the Senate by Howard Metzenbaum( a Democrat from Ohio) whereas Edwards Feighan( a House Representative from Ohio on Democratic Party) presented the bill in the House of Representatives for debate. However, the National Rifle Association, through the support of politicians defeated the Bill. Leaders who orchestrated the defeat included Bill McCollum (Republican), President Bush Senior (who had a record of opposing the waiting periods in the purchase of guns) , Speaker of the House of Representatives, Tom Foley, Bernie Sanders (an Independent), among others (Carter, 2012).According to Carter, most politicians made the decision to oppose the Bill so as to escape the wrath of the voters who mostly held the views similar to those the National Rifle Association (NRA).

Proponents of gun control and regulation argued that the proposals in the Bill would deny potential killers the means to cause deaths. Although the previous legislations such as the Gun Control Act of 1968 required that guns must not be sold to drug addicts, mental defectives,' and felons, among others, the Brady group observed that criminals were accessing guns easily due to lack of assessment of their background information regarding their criminal records. For instance, the Brady group proposed a seven-day waiting period during which such background checks were to be conducted so as to ascertain eligibility for gun ownership. The group contended that seven days were adequate to enable background checks as well as allow individuals seeking guns out of an impulse to cool off(Lee,2015; Carter,2012).

The NRA opposed the bill arguing that it was an attempt to bar eligible citizens from owning guns. The group further argued that the controls would not reduce crime rates. In their interpretation, it was geared at inconveniencing law-abiding citizens from owning guns. In 1988, political opponents of the Bill, backed by NRA, defeated the Bill. For instance, NRA association used at least $3 million to make aggressive media campaigns and grassroots mobilizations with the intention of discrediting the Bill (Carter, 2012). In 1991, the NRA sponsored a bill, through Representative Harley O. Staggers, to amend the Brady Bill. Staggers proposed that background checks should require gun dealers to reach the FBI so as to get instant confirmation of the eligibility of the prospective handgun owners. This proposal was meant to facilitate for instant check for eligibility of purchasers of guns. Some of the proposals were meant to water down the Bill. However, this proposal failed because there were no technological capabilities at the time which could facilitate instant confirmations with the FBI (Cater, 2012; Lee, 2015).As a result, the House rejected Staggers proposal.

Despite NRAs failure to successfully push for the adoption of the substitute bill, some changes were introduced to the Brady Bill to incorporate the views of the organization. According to Carter (2012), the seven-day waiting period proposed by the Brady group was amended and reduced to five days. This amendment was sponsored by Representative Charles Schumer (Democrat). This proposal was rejected by the Brady group who argued that the five-day period would violate state rights since some states had a waiting period of more than five days. In effect, a clause was introduced requiring the attorney general to put up a national- wide system that would enable instant checks on the background of new potential gun owners before receiving permits from local authorities. This requirement was to be implemented within a period of five years. The introduction of this clause through consensus prevented another setback to the Bill culminating into its passage in 1993.

Consensus building and political events in the United States in the 1992 election played a pivotal role in ensuring the passage of the Brady Bill. For instance, the then Senate minority leader Bob Dole and Senate Majority George Mitchell initiated several negotiations which enabled the Bill to avoid another filibuster from th...

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