Mack
Mack v. United States
Opinion
Lead Opinion
Canby, J.
Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.
Sheriffs Richard Mack and Jay Printz, in separate actions, challenged the constitutionality of the Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993), codified at 18 U.S.C; § 922(s). The main issue on appeal concerns the district courts’ respective holdings that section 922(s)(2) of the Brady Act, requiring local law enforcement officials to perform background checks of handgun purchasers, violates the Tenth Amendment. We conclude that the Act is constitutional, and we accordingly reverse the judgments of the district courts.
FACTS
The Brady Act, passed in 1993 as an amendment to the Gun Control Act of 1968, imposes a waiting period of up to five days for the purchase of a handgun, and subjects purchasers to a background check during that period. 1 See 18 U.S.C. § 922 (s)(1). Within five years from the effective date of the Act, such checks will be performed instantaneously through a national criminal background check system maintained by the Department of Justice, 18 U.S.C. § 922 (t), but in the meantime the background checks must be performed by the Chief Law…
Concurrence in Part
Fernandez, J.
concurring and dissenting.
I concur in parts II and III of the majority opinion, but I respectfully dissent from part I.
This ease makes palpable the notion that the states are just a part of the national government, a notion that was rejected when this country was founded. Congress has previously attempted to order the states to legislate or regulate in particular ways, and it has failed at that. See, e.g., New York v. United States, 505 U.S. 144 , 112 S.Ct. 2408 , 120 L.Ed.2d 120 (1992); Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir. 1993); cf. United States v. Best, 573 F.2d 1095, 1102-03 (9th Cir.1978). That is to say, Congress has failed when it has not given the states the option to avoid the intended yoke. See, e.g., FERC v. Mississippi, 456 U.S. 742, 766 , 102 S.Ct. 2126, 2141 , 72 L.Ed.2d 532 (1982); see also Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 , 101 S.Ct. 2352 , 69 L.Ed.2d 1 (1981); Brown v. EPA, 521 F.2d 827 (9th Cir.1975), vacated by 431 U.S. 99 , 97 S.Ct. 1635 , 52 L.Ed.2d 166 (1977), on remand to 566 F.2d 665 (9th Cir.1977). Even those determinations are not without their problems because *1035 they could lead to…