Petitioners Brief — Printz v. United States

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

No. 95-1503 CLERK

In The

Supreme Court of the United States

October Term, 1995

SHERIFF RICHARD MACK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR THE PETITIONER

Davip T. Harpy

8987 E. Tanque Verde, Ste. 265

Tucson, AZ 85749

Tel. (520) 749-0241

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether Congress exceeds its Commerce Clause

powers when it orders State officials, themselves neither

engaged in nor interfering with interstate commerce, to

exercise their police powers with regard to commerce.

2. Whether a Federal statute requiring State officials

to investigate and pass upon the background of each

handgun purchaser can be reconciled with the Tenth

Amendment as construed in New York v. United States, 505

U.S. 144 (1992), in that it commandeers a State official's

labor rather than his policymaking. 4

eee

PARTIES TO THE PROCEEDING

All parties to this proceeding are reflected in the

caption; none have parent entities or subsidiaries.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........ccccccccsccscess i

PARTIES TO THE PROCEEDING .................. ii

a iii

pe Be ye yy vi

eRe L ce db veh bcckcceseoncces 1

eek eeehasbebitdvecceetcccccovcecs 1

STATUTES AND CONSTITUTIONAL PROVISIONS

DT MEPEIS RE RESGURSUScbeebeceeeececcccess 1

STATEMENT OF THE CASE........cccccccccccvess 2

(i) Background To The Statute................... 2

(ii) Enactment of the Statute..................... 3

EEE ELLIE 6

(iv) Proceedings in the District Court............ 8

(v) Proceedings in the Court of Appeals......... 9

SUMMARY OF ARGUMENT....................5.. 10

i Per eee bese abes ese eeeees< cocccccees 12

I 18 U.S.C. §922(s) Violates Principles Of Federal-

ism Underscored By The Tenth Amendment... 12

A. 18 U.S.C. §922(s) Cannot Be Justified By Ref-

erence To Rulings Of This Court Antedating

New York v. United States................5. 15

1. Statutes Equally Burdening States And The

Federal Electorate: Garcia v. San Antonio

Metropolitan Transit Authority ............ 15

TABLE OF CONTENTS -— Continued

Page

2. Statutes Singling Out States But Offering

Constitutionally Valid Alternatives:

att ANG FOG o0ccuyerssbis bebeeen

3. Statutes Requiring Non-Discriminatory

Application by State Adjudicators: Testa

B. 18 U.S.C. §922(s) Violates The Parameters Of

Federalism As Recognized By This Court In

New York v. United States .............0005.

1. 18 U.S.C. §922(s) Imposes Substantial

Duties Upon State Officials, In Violation

Of The Tenth Amendment .............

2. The Ninth Circuit’s Attempt To Distin-

guish New York Pails.............-+-+.:-

C. 18 U.S.C. §922(s) Presents A Far More

Egregious Violation Of Federalism Than Was

gf §.. RRP erry or

1. Aggravation Of Misplaced Accoun-

QUE <.o.0 cccecketdencedcagsaindesbonets

2. Lack Of Process Justification...........

3. Mandated Violation Of State Law......

4. Dilution Of Essential Checks And Bal-

5. Impairment Of The People’s Right To

Choose Their Officials .................

Il The Commerce Power Does Not Justify A Fed-

eral Mandate That A State Official, Precluded By

Statute From Interfering With Commerce, Regu-

late Commerce To Federal Specification........

TABLE OF CONTENTS - Continued

Page

Ill The Unconstitutional Portions Of 18 U.S.C.

§922(s) Cannot Be Severed From The Valid Por-

Ns a Be ee he ob a eiebaet ene 40)

A. Severance Is Proper Only Where The Consti-

tutional Portion Of A Statute Is Fully Opera-

tive And In The Manner In Which The

Legislature Intended ................-..++: 40

B. The Unchallenged Portions Of 18 U.S.C.

§922(s) Are Not Fully Operative In The Man-

ner Congress Intended .................+.. 41

1. Severance Would Change The Statute

Into A Form Which Congress Refused To

PDS 6c cnn ce cbedteedicncecccocncovsess 41

2. Severance Would Yield A Statute With

Disadvantages Which Congress Did Not

WIR. civics cesvccveccccercceacdvesesces 42

3. Severance Would Create A Statute Con-

taining Inconsistencies And Incon-

GBTuities. ... 2... ccc cece cece cccnscccees 44

CTL ccc ccccccccccccscccccccccesecveveses 46

TABLE OF AUTHORITIES

Page

Cases

Alaska Airlines v. Brock, 480 U.S. 678 (1987)....... 40, 41

Brown v. EPA, 521 F.2d 827 (9th Cir. 1975),

remanded for consideration of mootness, 431 U.S. 99

GROTFD . vccccccccsccdesceteaseccacd edestcnesooccess 37

City of Burbank v. Lockheed Air Terminal, 411 U.S.

GG CITT oo 0 6.6.0 6000016059 0 6000000065008 00008500800 36

Connally v. Union Sewer Pipe Co., 184 U.S. 540

CODED 5 nocd cccsececpcccesccdencagegdesgnesesscaess 42

Coyle v. Oklahoma, 221 U.S. 559 (1911)........ 16, 22, 34

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir.

1975), remanded for consideration of mootness, 431

US. DD CIDA) onc ccccccccccccsccccccccsaseceress 36, 37

EEOC v. Wyoming, 460 U.S. 226 (1983) .......--.-++-. 36

EPA v. Brown, 431 U.S. 99 (1977)... . 2.6... 62 -c eee e nee 38

Federal Energy Regulatory Commission v. Mississippi,

456 U.S. 742 (1962) .......cccccceeceses 14, 17-21, 40

Fry v. United States, 421 U.S. 542 (1975).......-+.+-- 36

Garcia v. San Antonio Metropolitan Transit Author-

ity, 469 U.S. 528 (1985) ..... 6... cece eee eee: 15, 16, 22

Gibbons v. Ogden, 22 U.S. 1 (1824).....------ +0 35, 36

Gregory v. Ashcroft, 401 U.S. 452 (1991)........-.+++. 34

Hartford Accident & Indemnity Co. v. Wainscott, 41

Ariz. 439, 19 P.2d 328 (1933). ..... 0.666 e eee e eee eees 7

Herb v. Pitcairn, 324 U.S. 117 (1945) ..........-00 05 19

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264 (1981). .........02 cee eeeeees 17, 39

vii

TABLE OF AUTHORITIES - Continued

Page

Houston, East and West Ry. Co. v. United States, 234

Ne CE cos dv eenekdnusst acenuilraivernscuct 37

Jones v. Rath Packing Co., 430 U.S. 519 (1977)........ 36

Maricopa County v. Black, 19 Ariz. App. 239, 506

Se St CEES cenbince cundeedaude enebuecbhnscdes 20

Martinez v. California, 444 U.S. 277 (1980)............ 19

National League of Cities v. Usery, 426 US. 833

PN ao cedisdssdecddedeatvdd dedpaeasskabestcdsl 15

New York v. United States, 505 U.S. 144 (1992)... passim

NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1

Ion 6dbntGigdadwucekesestids sthisedtda skeen 37, 40

Peters v. Fry, 71 Ariz. 30, 223 P.2d 176 (1950)........ 19

Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178

PEt Asa siLechbatecansecncccesddecchnee sdckaceaae 25

State of Maryland v. EPA, 530 F.2d 215 (4th Cir.

1975), remanded for consideration of mootness, 431

Se ie I Sle bee a ee eek ee ge koe 37

Testa v. Katt, 330 U.S. 386 (1947) ............. 18, 19, 21

United States v. Jackson, 390 U.S. 570 (1968) bond easaks 41

United States v. Lopez, 115 S.Ct. 1624 (1995).......... 36

CONSTITUTIONAL PROVISIONS

COUR. GRE AG Be Ge eid eda ketere wekcbbuccdacods 25

U.S. Const., Amendment 10..................... passim

U.S. Const., Amendment 13................c.0s00- 8, 34

See Gl, MUNND EBB, occ cccdacnccdvececcecec passim

viii

TABLE OF AUTHORITIES —- Continued

Page

STATUTES AND REGULATIONS

OB WE. BID cana cwindevecdetscdsdnescucnsutnun 23

BD TRE. Ge on ncn os Seniscdecctcccnvacdsdccen 31

BD UB. Gs cca ccccdevecccoseeacussvcnspins 31

BD UBL. BIRD 0 cc ncccccccecassccusiccnccasctnes 3, 23

WB DE, GE 60 co Svcccuccccenctavesecndccens passim

OD WE, GD 0 evccvccddvcccscudesiesviccctvess 3, 24

BS WSC. GOEBMa) 2. wc ccccccccdcccvcnsccesevvessss 13, 23

OB WG. Ge oo bind cntauuececide sbeetecsteues 3

WD TREC. Gee hee cdaccnccsnevsaneess shone tq 13, 16, 24

BF SR GPSS cc ocecccevacecbessdvadeateccctcubone 31

BF CARR. GEPOR oc ccc cdcuccceductesocucesvensaweda 31

SR | rari re 1

Ri | ire ee ee 8

8 Pr ee er 19

RR, re 21

Arizona Rev. Statutes §11-441........ 6.0.6... ce eee 6, 20

Arizona Rev. Statutes §12-820.02 .......... 6.60. 00ees 25

Arizona Rev. Statutes §13-3108................ 6, 18, 20

Opinion Ariz. Attorney General No. I78-274.......... 6

Order No. 1853, 59 Fed. Register 9498 (Feb. 28,

Be 00s 0s cwcdwdsawedeshosetuetekee sate asec cakais 5

Public Utilities Regulatory Policy Act, Pub. L.

SOGUF, GE Geeks: TEND. vecnsesviccoduscesvevctvcdays 17

TABLE OF AUTHORITIES - Continued

Page

LeGISLATIVE PROCEEDINGS

137 Cong. Record at H2668 (Rep. Staggers) (Daily

Gig TE Gy Bete es ecccccdvcpeenssaccbcccteccts 3, 43

137 Cong. Record H2676 (Daily ed. April 1, 1991)..... 3

137 Cong. Record H2831 (Daily ed. May 8, 1991)

GP. ND oc ves catvvedcebeccsconciuncsive 3, 43

139 Cony. Record at H9093 (Daily ed. Nov. 10,

POU e ve NV enn oebs nds ctadseonne bceededsncnseceshine 42

139 Cong. Record H9095 (Daily ed., Nov. 10, 1993) ..... 4

139 Cong. Record H9107-08 (Daily ed., Nov. 10,

BE Coup wbaeden Ven bubony sas cewnneandecdaceaneress 42

139 Cong. Record H9143-44 (Daily ed. Nov. 10,

aA wads neennesiueeeenbsduceceenshedbvecasced 4, 42

H. R. Rep. No. 103-344, reprinted 1993 U.S. Code,

Cong. & Admin News 1984............. 3, 13, 23, 42

H.R. 7 (102d Cong., Ist Sess.)............00eeeees 41, 43

H.R. Rep. No. 102-47 (102d Cong., 2d Sess.).......... 3

TREATISES AND ARTICLES

Brief for the Federal Parties, EPA v. Brown, No.

ek pak CANT Sa ee 37

Brief of the United States, New York v. United

I a a a 27

David Salmon, The Federalist Principle: Interaction

of the Commerce Clause and the Tenth Amendment

in the Clean Air Act , 2 Col. J. Environ. L. 290

ck eRG6 av Go hcrbeendé Jdcbubinesanends tavedese 39

TABLE OF AUTHORITIES — Continued

Deborah Merritt, Three Faces of Federalism, 47

Vame. F. Tee. Ee CUS co vncscccesedced seve

Pomerat FER. BO: GRREIOIK vicccestcccceaveceves

Federalist No. 28 (A. Hamilton)..................

Federalist No. 45 (Madison)................0+0085

Federalist No. 51 (J. Madison) ..............0005.

James Madison, Notes on Debates in the Federal

Convention of 1787 (A. Koch, ed. 1966).......

Lipner, Imposing Federal Business on Officers of the

State: What the Tenth Amendment Might Mean, 57

Geo. Wash. L. Rev. 907 (1989) ................

Reply Brief of the United States, United States v.

EON, FED. THTR so cc ccccctvccevicescccaneses

Stanley Feldman & William Abney, The Double

Security of Federalism: Protecting Individual Lib-

erty Under the Arizona Constitution, 20 Ariz. St.

Ei BOW CHRD oc edvecccussusezctceaccanuseces

William Brennan, Jr., State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev.

GP CREP cd cccccoeensccacesestetweedccctetense

sooo ae

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported as Mack v. United States, 66 F.3d 1025 (9th Cir.

1995) and is reproduced in the Appendix to the Petition

for Certiorari (“App.”) at 1. The unpublished order of the

Court of Appeals denying the petition for rehearing is

reproduced at App. 24. The opinion of the United States

District Court is reported as Mack v. United States, 856

F. Supp. 1372 (D. Ariz. 1994) and is reproduced at App.

26.

JURISDICTION

On September 8, 1995, the Court of Appeals entered

judgment upholding the validity of the statutory provi-

sions in question. On December 19, 1995, the Court of

Appeals denied Petitioner’s petition for rehearing. The

Petition for a Writ of Certiorari was filed on March 19,

1996 and granted on June 17, 1996. This Court has juris-

diction pursuant to 28 U.S.C. §1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Article L, §8 of the Constitution of the United States

provides:

Congress shall have the power . . . to regu-

late Commerce with foreign Nations, and among

the several States. . . .

Amendment 10 to the Constitution of the United

States provides:

The powers not delegated to the United

States by the Constitution, nor prohibited by it

to the States, are reserved to the States respec-

tively, or to the people.

Pub. L. 103-159, 107 Stat. 1536 (1993), codified as 18

U.S.C. §§922(s)-(t), 924, 925A, is reproduced in full at

App. 51-62.

STATEMENT OF THE CASE

The present case involves constitutional challenges to

Pub. L. 103-159, 107 Stat. 1536 (1993) (“Brady Act”),

which amended the Gun Control Act of 1968, codified as

18 U.S.C. §§921 et seq.

(i) Background to the Statute

The Gun Control Act of 1968 prohibited the receipt of

firearms by certain categories of persons, generally

including those convicted of certain offenses, undocu-

mented aliens, users of illicit drugs, those who have been

the subject of certain mental adjudications, those given

dishonorable military discharges, persons who have

renounced American citizenship, and those subject to

certain domestic restraining orders. 18 U.S.C. §922(g), (n).

Under the 1968 Act, persons engaged in the business

of dealing in firearms were required to obtain Federal

licenses. 18 U.S.C. §922(a)(1). An individual purchasing a

firearm from a Federally-licensed dealer was required to

certify that he or she fell within none of the forbidden

categories; the certification was available for inspection

bv Federal agents, who might bring charges as appropri-

ate. 18 U.S.C. §923(g)(1)(A),(B); 27 C.F.R. §§178.124,

178.161.

(ii) Enactment of the Statute

Concerned that prohibited purchasers were defying

these restrictions, the 102d Congress weighed creation of

additional barriers. These ultimately took form as H.R. 7,

which would have required licensed dealers to notify

local police of a handgun sale and make no transfer until

seven days had passed. See H.R. Rep. No. 103-344 (103d

Cong., Ist Sess.) at 13-14 reprinted 1993 U.S. Code, Cong.

& Admin. News at 1990-91. H.R. 7 thus gave an oppor-

tunity for a background check, but imposed no mandate.

“No duty is created for the chief of police.” H.R. Rep. No.

102-47 (102d Cong., Ist Sess.) at 12.

The voluntary arrangement drew opposition. Sheriffs

“might check, they might not check. There is no require-

ment.” 137 Cong. Record H2676 (Daily ed. April 1, 1991)

(Rep. Fields). “[W]hy does HR.7 provide for an optional,

but not mandatory, background check . . . ?” Id. at H2668

(Rep. Vucanovich). “[I]t does not even ensure that a check

is done.” Id. at H2831 (May 8, 1991) (Rep. Ballenger).

H.R. 7 failed of passage.

In drafting what became Public Law 103-159, the

103d Congress took a different approach. The resulting

statute envisioned an eventual “permanent system”

under which handgun purchasers would be checked

against an automated Federal database of prohibited

buyers. 18 U.S.C. §922(t).

Since Federal officials attested that years would pass

before the required Federal database existed,' the statute

created an “interim system” which relied on State author-

ities, and unlike H.R. 7 commanded action rather than

provided an opportunity. 18 U.S.C. §922(s). The interim

system would function until a Federal system became

operational, or for a maximum of five years. Under it,

local officials would be “required” to perform back-

ground checks on each handgun purchaser. H.R. Rep. No.

103-344 at 7, reprinted as 1993 U.S. Code, Cong. & Admin.

News at 1984. Proposals by Rep. Schiff to make the State

role voluntary by changing “shall” to “may” were

rejected in subcommittee and committee. See H.R. Rep.

No. 103-344 at 38-39, reprinted 1993 U.S. Code, Cong. &

Admin. News at 2008-09. When Rep. Schiff attempted to

renew his proposal on the floor, the bill’s sponsor

rejoined, “The mandatory requirement is the right

requirement,” 139 Cong. Record at H9095 (Daily ed., Nov.

10, 1993) (Rep. Hughes), and the attempt was twice voted

down. Id. at H9093, H9143-44.

Under the interim system, Federally-licensed fire-

arms dealers are required to send a form giving notice of

each proposed handgun sale to their “Chief Law Enforce-

ment Official” (CLEO),? a term defined to include State,

' The Attorney General advised Congress that “enormous

tasks remain” in creating the Federal system and that “It is a

near certainty that a national instant-check system is more than

five years away ...” 139 Cong. Record at $16314 (Daily ed.,

Nov. 19, 1993). See also id. at H9130 (Rep. Schumer).

? Under some conditions, the dealer may have alternate

modes of compliance available. Forms of compliance applicable

to ordinary handguns are: (1) notify the CLEO and wait a

and not Federal, officials. 18 U.S.C. §922(s)(8). The CLEO

is in turn required to make a “reasonable effort” to ensure

that each purchaser so reported is permitted to receive

firearms by all Federal, State, and local laws. 18 U.S.C.

§922(s)(2). At minimum, this effort must include research

into such Federal databases as the Attorney General may

direct. Id. Pursuant to this mandate, the Attorney General

issued Order No. 1853-94, commanding State CLEOs to

consult two Federal databases. 59 Fed. Register 9498 (Feb.

28, 1994).

In the event the information the CLEO obtains proves

to be incomplete or unclear — e.g., it reflects a conviction

for which the purchaser contends his civil rights have

been restored - CLEOs were instructed to refuse

approval, shift the burden of going forward to the pur-

chaser, and to require him to prove his legal status.*

maximum of five business days for clearance; (2) verify that the

purchaser holds a permit under an appropriate State firearms

permit law; or (3) obtain approval through a State system that

verifies legal eligibility to purchase. 18 U.S.C. §922(s)(1)(A), (C),

(D).

3 If the buyer wants to contest his/ her status, you can be in

the position of shifting the burden of tracking down

absolute proof to the buyer. If the buyer can furnish

you with criminal disposition records or other

documents that establish that he/she is not

prohibited from receiving or possessing a handgun,

you could then notify the FFL [dealer] that you have

withdrawn your objection to the sale.

Bureau of Alcohol, Tobacco and Firearms, “Open Letter to State

and Local Law Enforcement Officials,” Excerpts of Record on

Appeal at 28, reproduced at Appendix to Brief for the United

States, Printz v. United States, No. 95-1478, at 17a.

If the CLEO found no bar to the purchase, the statute

commanded him to destroy the form and any references

to it within twenty business days. 18 U.S.C. §922(s)(6)(B).

If he found a bar, he must so inform the dealer and, if the

purchaser requests, provide a written justification of his

findings. 18 U.S.C. §922(s)(6)(C). Should the CLEO err in

barring a purchase, the statute creates a Federal cause of

action against his jurisdiction for correction and recovery

of attorneys’ fees. 18 U.S.C. §925A. Any violation of

§922(s) is a Federal offense, punishable by up to a year’s

imprisonment. 18 U.S.C. §924(a)(5).

(iii) Facts

Petitioner Richard Mack is Sheriff, and thus CLEO, of

Graham County, Arizona. As Sheriff, he is responsible for

maintaining the peace of its 28,000 residents. Joint

Appendix [“J.A.”] at 4, 8.

The duties of the sheriff are defined by Title 11,

Arizona Revised Statutes, J.A. 4, and do not include

adjudicatory functions. The sheriff is charged with main-

taining the peace, arresting offenders, suppressing riots,

attending the courts when danger is apprehended, main-

taining the jail, serving process, and conducting search

and rescue operations. A.R.S. §11-441. Sheriff Mack’s

office had never handled duties similar to those imposed

by the Federal statute; it had no mechanism for carrying

them out and had no budget for their accomplishment.

J.A. 9. State law forbids counties to impose regulations on

the sale, ownership, or possession of firearms. A.R.S.

§13-3108; Op. Ariz. Att’y Gen. No. 178-274.

To the extent Sheriff Mack attempted to perform the

Federal duties, he incurred civil liability. Under Arizona

law, a county official who expends funds in excess of

statutory authority is personally liable for their refund,

J.A. 9, in an action which may be brought by any tax-

payer. A.R.S. §§11-641, 642.4 The county had given Sheriff

Mack no budget for background checks. J.A. 9.

Sheriff Mack has twelve sworn officers — including

nine patrol deputies - to discharge his statutory duties

for a 4,500 square mile jurisdiction. J.A. 8. Allowing for

special details and leave time, he is able to average 1.5

deputies on patrol at any given time, to cover an area

nearly the size of Connecticut. Id.

Under the new Federal mandate, Sheriff Mack was

obliged to make reasonable attempts to verify that each

handgun sold by the county’s Federally-licensed dealers

was being soii to a lawful purchaser. The work diverted

one to two man-hours of effort per day. Appendix to

Petition for Certiorari [“App.”] 65. In the first three

months, Sheriff Mack reviewed eighty to ninety proposed

purchases. Id. Of these, one proved questionable; the

purchaser disputed the finding, contending that his civil

rights had been restored following the out-of-state con-

viction. Sheriff Mack followed the procedure advised,

and indicated that the purchaser must provide proof of

the restoration. Id. The constituent left in anger. Id.

* Good faith - even reliance on advice of counsel - is no

defense. Hartford Accident & Indemnity Co. v. Wainscott, 41 Ariz.

439, 19 P.2d 328 (1933).

Sheriff Mack undertook the labor of background

checks only because the Federal statute compelled it. J.-A.

9. His constituents subsequently blamed him for wasting

county resources on the checks. App. 65-66. Some depu-

ties have refused to assist, citing State rulings which

forbid him to discipline employees for refusal to follow

unconstitutional orders. J.A. 10.

(iv) Proceedings in the District Court

On February 28, 1993, Sheriff Mack commenced an

action in the United States District Court, District of

Arizona, invoking its jurisdiction under 28 U.S.C. §1331.

He sought declaratory and injunctive relief establishing,

inter alia,® that 18 U.S.C. §922(s) is violative of the Tenth

Amendment and exceeds the Article | commerce power

insofar as it orders a State official, not restricting or

affecting the relevant commerce, to regulate and affect it.

The District Court (Roll, J.), relying upon this Court's

decision in New York v. United States, 505 U.S. 144 (1992),

declared unconstitutional those parts of 18 U.S.C. §922(s)

which imposed duties upon State officials. The District

Court rejected Federal attempts to distinguish New York

5 Sheriff Mack also contended that the duties imposed were

void for vagueness, and that_they violated the Thirteenth

Amendment by requiring personal service under pain of law.

The Court of Appeals ultimately held the vagueness contention

unripe, and that the Thirteenth Amendment was not violated

since State servants could avoid involuntary Federal servitude

by resigning their office. App. at 16-19. As will be discussed

infra, the latter conclusion raises its own Tenth Amendment

difficulty.

on the claim that New York precluded only commandeer-

ing of State legislatures or other policymakers, while 18

U.S.C. §922(s) commanded State enforcement of Feder-

ally-designated policy:

True, the Brady Act does not require the state to

legislate in order to enforce its provisions. In

this respect, however, it is more like the “take

title” section of the unconstitutional statute in

New York which essentially operated on default.

This provision was found to be constitutionally

defective even though no affirmative action was

demanded of the state.

App. 42. The District Court did not strike the entire of

§922(s), holding instead that the unconstitutional portion

could be severed. App. 46-49.

(v) Proceedings in the Court of Appeals

A divided Court of Appeals reversed the judgment of

the District Court holding portions of the statute uncon-

stitutional. The majority disposed of the Commerce

Clause issue with a footnote observing that firearms

move in and affect interstate commerce. App.5 n.5. It

dealt with the Tenth Amendment objection by concluding

that New York does not bar mandates to enforce, as

opposed to enact, designated Federal programs:

The Brady Act is not the kind of a federal man-

date condemned by New York, nor does it pre-

sent the concerns related above. .. . [T]he

CLEOs are not being commanded to engage in

the central sovereign processes of enacting legis-

lation or regulations. . . . Instead, they are

directed to serve for a temporary period as law

enforcement functionaries in carrying out a fed-

eral program.

App. 12-13. The majority recognized only one limit to the

Federal power to commandeer officials: a Congressional

mandate might be impermissible if it “stall[ed] state gov-

ernment in its tracks by imposing all-consuming federal

duties on the State’s employees.” App. 14.

In dissent, Judge Fernandez argued that the enforce /

enact distinction was inconsistent with New York, and

that, if such a distinction could be drawn, mandated

enforcement would be the greater infringement of federal-

ism:

Rather than ordering state legislatures or agen-

cies to adopt a scheme for vetting requests for

gun transfers, Congress has avoided that hin-

drance and dragooned the state officials directly.

Under this new approach, the states have noth-

ing to say about it. Their officials are ordered to

become part of a federal gun control program at

the state’s own expense and are ordered to

engage in various tasks necessary to administer

that program.

App. 21.

From the Circuit ruling Sheriff Mack petitioned for

certiorari on March 19, 1996. This Court granted the

petition on June 17, 1996.

SUMMARY OF ARGUMENT

In enacting 18 U.S.C. §922(s), Congress chose to vio-

late Tenth Amendment principles this Court enunciated

in New York v. United States, 505 U.S. 144 (1992) (“New

York”). Concerned over illicit acquisitions of firearms

from Federal licensees, Congress commanded State offi-

cials to check Federal forms against Federal databases and

Federal restrictions. It commanded Sheriff Mack - a

county official with powers limiting to maintaining the

peace and enforcing the law — to serve as a Federal

adjudicator. The only compensation for the duty is exposure to

civil liability: should he bar a purchase, Congress granted

the prospective buyer a cause of action against his county,

with recovery of attorneys’ fees. In commandeering the

Sheriff's services, Congress placed him in a dilemma

between violating Federal law, which requires him to

approve or restrict gun purchases, and violating the law

of his State, which forbids county officials to regulate

firearms acquisition. He faces Federal criminal and civil

liability should he fail to undertake the task, and State

civil liability should he devote county resources to it.

The Congressional command cannot be justified by

reference to caselaw antedating New York. This is not a

situation where Congress has subjected a State to burdens

imposed on the Federal electorate, so that the reactions of

the latter offer some measure of protection against excess.

Rather, Congress has driven a wedge between the inter-

ests of the State official and the electorate: the burden on

the public - a undesired delay in consummation of a

transaction — stands in inverse relation to the degree to

which the State official assumes his burden by dropping

his other tasks and complying with the Federal mandate.

Nor is this a case where a State adjudicator, having

appropriately general jurisdiction, is commanded to

apply Federal law in the discharge of his existing duty.

Sheriff Mack is no adjudicator, he holds narrowly-defined

powers, and these have never encompassed determina-

tions of the type he is now commanded to make.

The statute at issue clearly fails the standards of New

York. The enact/enforce distinction drawn by the Circuit

below is untenable. 18 U.S.C. §922(s) differs from the statute

at issue in New York only in that it involves a more striking

violation of constitutional norms. The State legislature is not

commandeered; its functions are usurped. State officials

must follow Congressional commands even if in so doing

they violate State law. The people cannot fix the powers of

the offices they create, determine the allocation of the

resources they provide, or elect any citizen unwilling to carry

out whatever duties Congress may have assigned.

If Congress can usurp the role of the State legislature

and flatly command State officials to carry out its policies -

indeed, to exceed their defined powers and to violate State

law — then federalism is not merely impaired: it is dead. The

State’s residual sovereignty is an empty shell; its legislature

cannot command even its own public officials.

ARGUMENT

18 U.S.C. §922(s) Violates Principles Of Federalism

Underscored By The Tenth Amendment

18 U.S.C. §922(s) invents the post of “Chief Law

Enforcement Official,” (“CLEO”), specifically defining it

to include only those holding State office. Indeed, Con-

gress rejected committee amendments which proposed to

have the CLEO’s tasks undertaken by Federal employees.

See H.R. Rep. No. 103-344, at 38-39, reprinted 1993 U.S.

Code, Cong. & Admin News at 2008.

The duties of the invented post are onerous. The

CLEO must make reasonable efforts to ensure that each

purchaser of a handgun from a Federally-licensed dealer

is not barred from purchasing by any Federal, State, or

local law. 18 U.S.C. §922(s)(2). Merely insuring that a

person is not barred from gun ownership under Federal

law requires making a determination that he does not fall

into any one of eight categories, ranging from persons

convicted of a “crime punishable by more than a year’s

imprisonment” (but excluding those who have received

restorations of civil rights or Federal “relief from disabil-

ities”) to those with dishonorable military discharges or

who have renounced citizenship. 18 U.S.C. §922(g).

Where available records leave room for doubt, the CLEO

must shift the burden of proof to the purchaser and

assess the weight of the documentation he provides.® If

he errs in denying clearance, Congress has given the

rejected buyer a cause of action against his county, with

recovery of attorneys’ fees. 18 U.S.C. §925A.

Sheriff Mack has but a limited force — averaging 1.5

deputies on patrol at any given time — to maintain the

peace in an area nearly the size of Connecticut. J.A. 8. The

Federal mandate commandeers one to two man-hours of

effort per day from this resource. App. 65. The result has

been of no benefit to his office or his county. In three

months of compelled effort, his office found exactly one

purchase which was even questionable. App. 65-66.

This commandeering of State resources, and require-

ment that they be used in violation of State law, marks an

exceptionally clear Tenth Amendment violation. It cannot

be justified by reference either to New York or to rulings

which antedate that decision.

Indeed, to defend the statute at issue the United States

must reverse the Tenth Amendment interpretation it

espoused in New York. There, the United States took pains to

distinguish its facts from those of a hypothetical mandate to

regulate private activity to Federal specification, contending

that the latter would mark a worse violation of federalism:

[C]Jonstruction of a state-owned facility -

although it would require a significant commit-

ment of state resources - is qualitatively differ-

ent from the implementation of federal policies

regulating private activity, which would trans-

form state administrative bodies into ‘field

offices of the national bureaucracy.’ FERC v.

Mississippi, 456 U.S. at 777.

Brief of the United States, New York v. United States, at

36-37. Only two years ago, the United States reiterated

this position: compelled State enforcement of Federal law

would comprise the archetypical violation of New York.’

7 See Reply Brief of the United States, United States v. Lopez

(No. 93-1260) at 10:

Under this Court’s decision in New York v. United

States, supra, very different constitutional issues

would be presented if Congress imposed statutory

requirements or prohibitions directly upon state and

local educational officials, or if Congress mandated

that state and local governments assume

responsibility for the enforcement of federal law.

To defend 18 U.S.C. §922(s), the United States must

now contend that forcing States to implement “federal

policies regulating private activity” and to “assume

responsibility for the enforcement of federal law” are

exemplars of federalism and not of its most egregious

violation.

A. 18 U.S.C. §922(s) Cannot Be Justified By Refer-

ence To Rulings Of This Court Antedating New

York v. United States.

1. Statutes Equally Burdening States And The

Federal Electorate: Garcia v. San Antonio

Metropolitan Transit Authority.

Pre-New York Tenth Amendment case law evolved in

two contexts. The first involved coverage of generally

applicable Federal legislation, such as that regulating

employment. Here the original landmark was National

League of Cities v. Usery, 426 U.S. 833 (1976), which held

minimum wage provisions inapplicable to key State

employees.

Usery was overruled by Garcia v. San Antonio Metro-

politan Transit Authority, 469 U.S. 528 (1985), in which the

Court suggested that the political process itself could

protect States in the context presented: where the burden

imposed by the legislation was equally applicable to the

voting citizenry, the electoral process would ensure that it

was not oppressive. 469 U.S. at 554.

18 U.S.C. §922(s) plainly falls outside the parameters

of Garcia. By burdening State and private employers

alike, the statute in Garcia created a natural alliance of

interests. The dynamics of the statute here instead func-

tion to “divide and conquer.” Sheriffs are burdened by

performing the checks; the electorate is not. Indeed, the

public is burdened most severely when the sheriffs do not

perform the checks: in that event each purchaser must

wait the full five business days. The national sovereign

aggravated the division of interests by on the one hand

commanding the sheriff to withhold approval if records

are incomplete, see note 3, supra, and on the other grant-

ing the citizen the right to sue him, and recover attor-

neys’ fees, if he fails to approve a qualified buyer. 18

U.S.C. §925A.

2. Statutes Singling Out States But Offering

Constitutionally Valid Alternatives: Hodel

And FERC

In deciding Garcia this Court did not rule out sub-

stantive limitations on Federal power in contexts other

than those presented by a statute equally burdening pri-

vate parties and the States:

These cases do not require us to identify or

define what affirmative limits the constitutional

structure might impose on Federal action affect-

ing the States under the Commerce Clause. See

Coyle v. Oklahoma, 221 U.S. 559 (1911).

469 U.S. at 556. The reference to Coyle - which had

rejected Congressional attempts to prevent the relocation

of a State capital - suggested what those “affirmative

limits” might comprise. Coyle remained good law

because, unlike the wage and hour law upheld in Garcia,

the statute invalidated in Coyle applied only to a State

government — indeed, it could apply only to a State gov-

ernment.

This admonition proved too subtle a caution to

restrain Congressional appetites. The second aspect of

pre-New York case law evolved out of Federal attempts to

target State officials for performance of desired Federal

services.

For a time, a definitive holding on the Tenth Amend-

ment could be avoided. Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264 (1981), posed a challenge

to the Surface Mining Act. That act imposed Federal

regulations on coal mining, but excepted those States

whose regulatory system met certain Federal standards.

The Court found no constitutional violation: imposition

of Federal regulations would be justified as Commerce

Clause pre-emption and States were afforded this as an

alternative to accepting the Federal standards. If a State

declined to comply, “the full regulatory burden will be

borne by the Federal government.” 452 U.S. at 288.

Hodel was quickly followed by Federal Energy Regula-

tory Commission v. Mississippi, 456 U.S. 742 (1982)

(“FERC”). The statute at issue was the Public Utilities

Regulatory Policy Act (“PURPA”), Pub. L. 95-617, 92 Stat.

3119, which required that State utility commissions

implement certain regulations and that they provide cer-

tain administrative relief.

A sharply divided Court upheld the requirements

against Tenth Amendment attack. Although the statute

provided no express exception, the majority noted that

States could escape its mandate by withdrawing from

regulating interstate commerce, i.e., electrical power dis-

tribution. 456 U.S. at 765.

18 U.S.C. §922(s) stands in sharp contrast to the Sur-

face Mining Act and to PURPA. Here, State officials can-

not escape the mandate by accepting Federal pre-emption

or by simply withdrawing from regulating the field.

Indeed, the Sheriff's county has been withdrawn from the

field by statute. A.R.S. §13-3108.

3. Statutes Requiring Non-Discriminatory

Application By State Adjudicators: Testa v.

Katt And FERC.

In discussing PURPA’s requirements that State util-

ities commissions adjudicate certain disputes, and its

establishment of a private cause of action to review cer-

tain decisionmaking, the FERC majority suggested in dic-

tum® that the situation might be analogized to that

presented by Testa v. Katt, 330 U.S. 386 (1947), see 456 U.S.

at 760. Testa had involved a refusal by Rhode Island

courts to entertain treble-damage suits under Federal

wartime price controls: the State court had treated these

as extrajurisdictional “penal statutes” which it need not

enforce. Testa held that the resulting discrimination

against Federal causes of action offended the Supremacy

Clause; courts of general jurisdiction by definition decide

all legal issues brought before them, and a constitutional

8 After discussing the analogy, the majority notes that “it

plainly is not necessary” to reach the issue since PURPA

allowed the State to escape the mandate by withdrawing from

the field. 456 U.S. at 764.

Federal statute is, by virtue of the Supremacy Clause, the

“law of the land.” Testa stressed that the courts involved

possessed “adequate and appropriate jurisdiction” under

State law to handle this manner of adjudication. 330 U.S.

at 394.

Testa posed an exceptional case: a State court which

treated Federal law as if it were a foreign statute. Its

citation of Herb v. Pitcairn, 324 U.S. 117 (1945), by way of

contrast, see 330 U.S. at 394, underscores the limits of its

holding. Herb had remanded, for consideration as an

independent State ground for decision, the issue of

whether the State court had jurisdiction to consider anal-

ogous State claims. Cf. Martinez v. California, 444 U.S. 277,

283-84 n.7 (1980) (Court has never read Testa to require

that State courts accept claims under 42 U.S.C. §1983.).

The power of the State court, under State law, to consider

an analogous claim is thus a predicate to applying Testa’s

rationale.

The FERC dictum suggested that Testa’s rationale

might be applicable to State utility commissions, noting

that their role was “ ‘functionally comparable’ to that of a

judge,” 456 U.S. at 760 n.24, and indeed one holding

general jurisdiction, for the utility boards were bound to

hear claims by “any interested person.” Id. at 768. In this

view, the “seemingly precise parallel” between PURPA’s

procedural mandates and existing State process might be

sufficient to avert a Tenth Amendment challenge to the

statute on its face. 456 U.S. at 769 n.31.

The facts now before the Court stand in striking

contrast to those of FERC. Under Arizona law, a county is

but “a subordinate agency” of the State, Peters v. Fry, 71

Ariz. 30, 34, 223 P.2d 176, 178 (1950); its officials possess

only those “quite limited” powers affirmatively granted

“expressly or by necessary implication” by the state legis-

lature, Maricopa County v. Black, 19 Ariz. App. 239, 241,

506 P.2d 279, 281 (1973). The State has long forbidden

counties to engage in the only relevant adjudication, that

of determining who should purchase or possess firearms.

A.R.S. §13-3108. The sheriff’s powers are defined by stat-

ute and do not include adjudication of any type, but are

limited to straightforward enforcement functions — arrest

and confinement, service of process, search and rescue.

A.R.S. §11-441. The Sheriff has never engaged in regula-

tion of the type commanded, and his office has no exis-

ting mechanism or budget for handling it. J.A. 9.

Sheriff Mack holds no adjudicatory powers, and nei-

ther he nor the county he serves may engage in adjudica-

tion of the type at issue here. 18 U.S.C. §922(s) seeks to

compel him to engage in a function utterly outside his

established purpose — to adjudicate disputes between his

constituents and the commands of the Federal sovereign,

to document his rationale, and to submit his findings to

judicial review. Under Testa the Federal sovereign must

take State adjudicators as it finds them, respecting the

limits of the State’s decisionmaking structure. FERC, 456

U.S. at 773-74 n.4 (Powell, J. concurring in part and

dissenting in part). This Congress did not do.

If Sheriff Mack’s established State duty is not “func-

tionally comparable to that of a judge,” it bears no rela-

tion at all to the duty of a court of general jurisdiction.

Such a court is jurisdictionally distinguished by a require-

ment to take in all litigants and to apply in its entirety the

-@@&° —- -— —_—

“law of the land.” Such a court is functionally distin-

guished by its inability to set agenda and priorities: those

are, so to speak, already subject to commandeering by

litigants. FERC, 456 U.S. at 784-85 (O’Connor, J., concur-

ring in part and dissenting in part). In contrast, Sheriff

Mack is held accountable by his constituents for the set-

ting of priorities - and in a degree beyond that even of a

legislature. For him, the question is not which bill is first

reported from committee, but why there was a twenty-

minute delay in responding to a burglary in progress.’

The rationale of Testa, even if extended per the dictum

of FERC, is inapplicable here. The official commanded to

adjudicate is not an adjudicator, he has no established

State power over matters analogous to those at issue, and

he lacks both the legal and the functional attributes of a

court of general jurisdiction.

B. 18 U.S.C. §922(s) Violates The Parameters Of

Federalism As Recognized By This Court In

New York v. United States.

Congressional attempts to commandeer the resources

of other sovereigns did not end with PURPA, and at

length the Tenth Amendment issue was inescapably pre-

sented by enactment of the “take title” proviso of the

Low-Level Radioactive Waste Policy Amendments Act, 42

* Since the filing of this action, a Graham County resident

was reported missing and soon thereafter found dead in the

desert. Sheriff Mack was promptly subjected to a recall petition

based on claims his office had not responded with sufficient

speed. In the sheriff's context, accountability for setting of

priorities is no abstraction.

U.S.C. §§2021b-20211. Under that proviso, unless a State

made specified provision for disposal of its wastes by

compact or construction of facilities, the State would take

title to them upon tender.

A 6-3 majority of this Court held the proviso uncon-

stitutional. New York v. United States, 505 U.S. 144 (1992).

Garcia was held inapplicable, “as this is not a case in

which Congress has subjected a State to the same legisla-

tion applicable to private parties.” 505 U.S. at 160. Rather,

the issue was one of the “affirmative” limits fore-

shadowed by Garcia's reference to Coyle. The Court con-

cluded:

States are not mere political subdivisions of

the United States. State governments are neither

regional offices nor administrative agencies of

the United States. The positions occupied by

state officials appear nowhere on the Federal

Government's most detailed organizational

chart. The Constitution instead ‘leaves to the

several States a residuary and inviolable sover-

eignty’. ...

Whatever the outer limits of that sover-

eignty may be, one thing is clear: The Federal

Government may not compel the States to enact

or administer a federal regulatory program.

505 U.S. at 168.

1. 18 U.S.C. §922(s) Imposes Substantial

Duties Upon State Officials, In Violation

Of The Tenth Amendment.

18 U.S.C. §922(s) invents the post of “Chief Law

Enforcement Official,” (“CLEO”), specifically defining it

to include only those holding State office. Indeed, Con-

gress rejected committee amendments which proposed to

have the CLEO’s tasks undertaken by Federal employees.

See H.R. Rep. No. 103-344, at 38-39, reprinted 1993 U.S.

Code, Cong. & Admin News at 2008.

The duties of the post are onerous. Merely insuring

that a person is not barred from gun ownership under

Federal law — 18 U.S.C. §922(g) ~— requires a determination

that he:

(1) has not been convicted of a crime punish-

able by more than a year’s imprisonment (a

term of art defined in 18 U.S.C. §921(a) to

exclude, inter alia, convictions followed by resto-

ration of civil liberties or Federal “relief from

disabilities”)

(2) is not a fugitive from justice;

(3) is not an unlawful user of controlled sub-

stances;

(4) has never been adjudicated a mental defec- _

tive or committed;

(5) is not an illegal alien;

(6) has not been given a dishonorable military

discharge;

(7) has never renounced his citizenship; and

(8) is not subject to a domestic restraining

order.

The Chief Law Enforcement Officer must make all

“reasonable” attempts at these determinations each time

a handgun is sold. 18 U.S.C. §922(s)(2). Where incomplete

records suggest the purchaser “might” be precluded, the

CLEO must shift the burden of proof to the purchaser, ask

for documentary evidence and assess its weight.’

Sheriff Mack documented the difficulties of compli-

ance. National computer records largely reflect only out-

standing warrants, J.A. at 5, while State records do not

reflect the civil rights restorations given, often automat-

ically, under State law. Id. at 5. If the check is extended

beyond criminal records, it becomes all but impossible.

Verifying State mental records would require a four-hour

drive; ruling out illicit drug use might require checking

any number of investigative files; Sheriff Mack can only

speculate how he might “reasonably” determine if a per-

son had been dishonorably discharged, was an alien, or

had renounced American citizenship. J.A. at 6-7.

The CLEO’s duties do not end here. If the results are

negative, the CLEO must destroy the request and also

“any record containing information derived from the

statement... . ” 18 U.S.C. §922(s)(6)(B). If the results are

positive, the CLEO must block the sale and, if requested,

serve a written explanation of his action. 18 U.S.C.

§922(s)(6)(C). A rejected buyer has a Federal cause of

action against the CLEO’s employer, with recovery of

attorney's fees. 18 U.S.C. §925A."!

10 See note 3, supra.

1! The statute purports to immunize the Sheriff against

other civil liability arising from his preventing, or failing to

prevent, a person from obtaining a firearm. 18 U.S.C. §922(s)(7).

It does not expressly immunize his employing government.

Compare 18 U.S.C. §922(t)(6) (granting immunity under

t system both to official and to local government). The

Federal grant of immunity, if applicable, may itself exceed

The statute clearly runs afoul of New York's invalida-

tion of the “take title” requirement. Congress can no more

command Sheriff Mack to take responsibility for Feder-

ally-licensed dealers’ transactions than it could command

New York authorities to take responsibility for third par-

ties’ nuclear scrap. Either schema conflicts with this

Court’s conclusion that “The Federal Government may

not compel the States to enact or administer a federal

regulatory program.” 505 U.S. at 188 (emphasis supplied).

See Deborah Merritt, Three Faces of Federalism, 47 Vand. L.

Rev. 1563, 1580 n.65 (1994).

New York predicted that such Federal “commandeer-

ing” would undermine the very core of federalism, per-

mitting one sovereign to shift accountability to another:

“[I]t may be State officials who bear the brunt of public

disapproval, while the federal officials who devised the

regulatory program may remain insulated from the elec-

toral ramifications of their decision.” 505 U.S. at 169. The

statute at issue here fulfills that prediction. Sheriff Mack

is forced to reallocate scarce resources entrusted to him

by his electorate. He is blamed by them for the resulting

diversion. App. 65-66. Moreover, when the purchaser dis-

putes the completeness of the records Sheriff Mack is

constitutional boundaries. Arizona has abandoned sovereign

immunity. See Priichard v. State, 163 Ariz. 427, 788 P.2d 1178

(1990). Issuance of a permit, other than those relating to

professions, is actionable if grossly negligent. A.R.S.

§12-820.02(5). The State constitution prohibits enactment of

laws restricting recovery for wrongful death. Ariz. Const. Art. II

§31. An attempt to immunize a State official against a tort claim

brought by a State resident, under State law in a State court,

poses its own Tenth Amendment concerns.

forced to serve as an adjudicator and to accept the blame

for the decision Congress forced him to make. App. 65.

2. The Ninth Circuit’s Attempt To Distinguish

New York Fails.

In creating a federal system, the Framers took com-

fort in the reflection that “Power [is] almost always the

rival of power,” Federalist No. 28 (A. Hamilton), anticipat-

ing that “The different governments will control each

other, at the same time that each will be controlled by

itself.” Federalist No. 51 (J. Madison). To separate each

government's line of command, the Framers rejected alike

Hamilton’s proposals for Federal appointment of gover-

nors, Pintkney’s call for State enforcement of Federal

decisions, and Randolph’s proposal for a congressional

“negative” upon State law. See James Madison, Notes on

Debates in the Federal Convention 31, 139 (A. Koch, ed.

1966).

These practical judgments have withstood the hard

test of two centuries. They are set at nought by the

Circuit decision below. To sustain the statute, the Circuit

rewrites the results of 1787, creating Federal powers

which far exceed those rejected in the Convention. Rather

than a “negative” upon State law, Congress acquires

nearly unlimited power to compel action to its specifica-

tion.

The Ninth Circuit attempted to distinguish New York

on the ground that the statute there at issue sought to

mandate policy making in the form of regulation or stat-

ute, whereas 18 U.S.C. §922(s) mandates enforcement of

externally-dictated policy. App. 10-12. The distinction

drawn is both incorrect and artificial.

An examination of the facts of New York demonstrates

the untenable nature of the enact/enforce distinction. In

briefing New York, the United States contended that the

Statute at issue gave States three alternative modes of

compliance, two of which required no regulation of pri-

vate conduct:

(1) “the simple act” of executing an appropri-

ate compact, which required “no significant reg-

ulatory activity whatsoever;”

(2) taking title to the waste and building its

own facilities, which would not involve “imple-

mentation of federal policies regulating private

activity” or

(3) regulating privately-owned storage facili-

ties.

Brief of the United States, New York v. United States, No.

91-543, at 34-37. This Court concluded that none of the

posed alternatives passed Tenth Amendment muster, and

in so doing explained quite clearly the breadth of its use

of “administer:”

Respondents emphasize the latitude given to the

States to implement Congress’ plan. The Act

enables the States to regulate pursuant to Con-

gress’ instructions in any number of different

ways. States may avoid taking title to contract-

ing with sited regional compacts, by building a

disposal site alone or as a part of a compact, or

by permitting private parties to build a disposal

site... . This line of reasoning, however, only

underscores the critical alternative a State lacks:

A State may not decline to administer the fed-

eral program.

505 U.S. at 176-77. “Administer” was thus clearly used to

encompass, not only promulgation of regulations directed

at private conduct, but State decisions regarding the use

of its own resources.

Unwilling to accept this Court’s clear statement of

the standard, the Circuit tortures “or administer,” argu-

ing that this Court must have meant only “ ‘administer’

in the sense of being in charge of a program and making

policy decisions. ...” App. 11, n.7. The Circuit’s gloss is

inconsistent with New York and, for that matter, with

common sense: if the CLEO, who processes the forms,

sets the standards, makes the rulings, and is subject to

judicial review, is not “in charge” of the program, one can

only wonder who is.

The artificial nature of the Circuit's distinction is

illustrated by the facts of the present case. Adjudication is

as much an aspect of policymaking as is the promulgation

of regulations. It involves the ultimate form of accoun-

tability: the adjudicator makes not general rules, but con-

crete decisions announced to parties in conflict. 18 U.S.C.

§922(s) requires Sheriff Mack to make rulings regarding

his own constituents’ rights. When records are ambig-

uous, as they were in the only computer “hit” he

obtained, he is ordered to “shift the burden” to the con-

stituent — to reject the constituent’s word on the matter -

and to demand evidence and assess what is provided.

Allocation of public resources is likewise a policy

function, and here the statute compels the Sheriff and

him alone to make the relevant decisions. Beyond the

expressly-mandated research into two Federal record sys-

tems, he must decide how much of an inquiry constitutes

a “reasonable effort.” He and he alone must account to

his constituents for consequences of the diversion.

The Circuit's newfound theory of federalism narrows

the Tenth Amendment to a geometrical point, an abstrac-

tion with location but no dimensions or mass. It opens

the way for Congress to pass statutes which allow it to

take the credit and delegate the blame. No longer bound

by restraints of budget and manpower, Congress is free to

expand the powers of the Interstate Commerce Commis-

sion, the Federal Trade Commission, or any other chosen

agency, by allowing them to conscript State agencies and

manpower. It can order Federal lands patrolled by State

land agencies, and divert county officials to secure the

borders. “As ideas for federal projects grow, but

resources lessen, the incentives will grow stronger for

Congress to command the state governments to perform

federal programs for free.” Lipner, Imposing Federal Busi-

ness on Officers of the State: What the Tenth Amendment

Might Mean, 57 Geo. Wash. L. Rev. 907, 929 (1989). The

Federal sovereign need no longer offer conditional

grants-in-aid as inducements to changes in criminal jus-

tice programs, highways, or welfare programs; it need no

longer contract with States for housing of Federal pris-

oners or securing of Federal facilities. It has but to com-

mand.

The conflict between the Ninth Circuit's ruling and

New York is absolute. If the Ninth Circuit is correct, then

New York is wrong: the Federal government could have

30 “

ordered State officials to take title to the waste and build

appropriate disposal sites; that option involved no regu-

latory decisionmaking save that relating, as here, to the

allocation of the State’s own resources.

C. 18 U.S.C. §922(s) Presents A Far More Egregious

Violation Of Federalism Than Was Present In

New York.

To the extent 18 U.S.C. §922(s) could be distinguished

from the statute invalidated in New York, it presents a

more serious violation of the Tenth Amendment norms in

terms of accountability, justification, and impact upon

federalism.

1. Aggravation Of Misplaced Accountability.

New York's “take title” proviso at least allowed a

division of misplaced accountability: any decisio..s which

would be made, e.g., to enter a compact or to site a waste

disposal facility, would be shared by the entire legisla-

ture. 18 U.S.C. §922(s) hands the sheriff complete and sole

responsibility for enforcement; indeed, it thrusts him into

face-to-face confrontations with his constituents. The con-

stituent angered at the sheriff's decision to withhold

authorization, App. 65, did not blame Congress, nor the

State legislature en masse: he blamed Richard Mack.

Further, 18 U.S.C. §922(s) presents Sheriff Mack with

a far more difficult task of correcting the misplaced

accountability. Under the “take title” proviso, it was at

least possible for the legislature to explain that the Con-

gress had forced it to take title to the waste: here, Sheriff

Mack must try to explain why a delayed response to a

burglary call was somehow due to a Congressional enact-

ment. In New York, the misplaced accountability was at

least divisible and demonstrable: here it is focused and

insidious.

2. Lack Of Process Justification.

In New York the United States could at least contend

that the statute was a Federal attempt to redress an

interstate conflict, undertaken after calls from the States

themselves. See New York, 505 U.S. at 191-94 (White, J.,

dissenting). The National Governors’ Association had

been prominent in the negotiations, and 42 States had

already entered into compacts. Id. at 190-91. Thus the

dissent submitted that the statute was “very much the

product of cooperative federalism, in which the States

bargained among themselves,” Id. at 194.

Here, there can be no such claims. 18 U.S.C. §922(s)

was the outcome of no compacts, no compromise, no

negotiation. §922(s) is a straightforward attempt by the

Federal government to force duties upon unwilling offi- -

cials.

Nor can it be argued that 18 U.S.C. §922(s) represents

“a delicate compromise between . . . overburdened States

... and the rest of the States.” 505 U.S. at 200 (White, &

dissenting). The statute affects only sales by licensed

dealers, and such dealers are generally forbidden to sell

to residents of other States. 18 U.S.C. §922(a)(2), (b)(3); 27

C.F.R. §178.124(c)(1), 178.11 “Identification Documents”

(requiring buyer to present identification showing resi-

dence). !?

3. Mandated Violation Of State Law.

The mandate at issue in New York went to the State

itself, which ultimately commands its agents’ legal

authorities. Once the State had decided on its mode of

compliance, it had all legal authority necessary to do so.

In 18 U.S.C. §922(s), Congress did not address its

commands to a sovereign, but to one of the sovereign’s

servants. Sheriff Mack possesses only the legal authority

delegated to him by the people of the State. These have

granted him limited authority bearing no relation to the

adjudicatory tasks assigned by the Federal statute, and

they have specifically forbidden him to undertake the

sort of duties that the statute commands.

The ability of the people of a State to constrain the

officials they choose and empower is critical to the “full

realization of our liberties.” Justice William Brennan, Jr.,

State Constitutions and the Protection of Individual Rights, 90

Harv. L. Rev. 489, 491 (1977). See also Feldman & Abney,

The Double Security of Federalism: Protecting Individual Lib-

erty Under the Arizona Constitution, 20 Ariz. St. L.J. 115

12 This is not to deny that firearms may flow, illicitly,

between States. But §922(s) is not directed at stopping such

transfers, which either involve sellers other than licensed

dealers, or falsified identification. §922(s) does not cover the

former, and is not intended to address the latter: it simply

provides for determining whether the person to whom the

buyer’s identification pertains has a record.

(1988). If Congress can command State officials to act as

Federal agents, subject only to the restrictions placed on

the national government in 1791, then the protections of

the people of the States have since imposed on their own

agents can be negated by the Supremacy Clause. Under

§922(s), the officials of the State - holding offices estab-

lished, empowered, and funded by its people - are no

longer under the command of the State and its people.

4. Dilution Of Essential Checks And Balances.

To the Framers, federalism held value as a means of

checking the ambitions of either level of government.

Power being almost always the rival of power,

the general government will at all times stand

ready to check the usurpations of the state gov-

ernments, and these will have the same disposi-

tion toward the general government. The

people, by throwing themselves into either

scale, will infallibly make it predominate. If

their rights are invaded by either, they can make

use of the other for redress.

Federalist No. 28 (Hamilton).

18 U.S.C. §922(s) negates this critical balance. The

actions of State officials toward their constituents are

subject to complete and direct Congressional control. The

people are left with neither the advantage of dual sover-

eignty ~ two authorities who may compete for their sup-

port —- nor that of single sovereignty - absolute

accountability. Instead they are subject to a single ruler,

whose functions are screened behind agents it does not

appoint but whose actions it commands.

5. Impairment Of The People’s Right To

Choose Their Officials.

The “authority of the people of the States to deter-

mine the qualifications of their most important govern-

mental offices” is at the core of republican theory. Gregory

v. Ashcroft, 401 U.S. 452, 463 (1991). “Through the struc-

ture of its government, and the character of those who

exercise governmental authority, a state defines itself as a

sovereign.” Id. at 460.

In the ruling below, the Ninth Circuit lightly dis-

missed Sheriff Mack’s Thirteenth Amendment claim with

the note that a State official may escape compelled ser-

vices under 18 U.S.C. §922(s) by resigning his office. App.

45. Under this view, Congress may dictate whom the

people of the State choose to represent them; those

unwilling to labor as Congress may prescribe need not

apply. The people of a State may, under Coyle, choose

their capital, but not they may not choose who fills it.

To the extent that any distinction can be drawn, 18

U.S.C. §922(s) presents an aggravation, not a mitigation,

of the Federalism problems presented in New York. It is an

exceptionally egregious violation of the principles of fed-

eralism protected by the Tenth Amendment.

In sum, 18 U.S.C. §922(s) marks a blatant violation of

the principles of federalism. The legislatures of the States

are not merely commanded; they are supplanted, and

orders issued directly to their officials. Those officials in

turn are commanded to act in excess of the powers given

by the people of the State, and even in defiance of the

legislature’s commands. The officials are commanded to

act without compensation, but with civil liability in the

event of error.

The exceptional nature of the constitutional violation

is apparent: to defend 18 U.S.C. §922(s) the United States

must abandon - indeed, reverse - the Tenth Amendment

position it has uniformly advocated before this Court. 18

U.S.C. §922(s) is an egregious violation of the principles

of federalism recognized and guaranteed by the Tenth

Amendment.

The Commerce Power Does Not Justify A Federal Man-

date That A State Official, Precluded By Statute From

Interfering With Commerce, Regulate Commerce To

Federal Specification

18 U.S.C. §922(s) attempts to regulate, not commerce,

nor State interference with commerce, but a State official

who exercises limited local police powers - indeed, an

official whose people have forbidden him to affect the

relevant commerce. The command far exceeds Congres-

sional Article | powers.

At the core of the Constitution's apportionment of

power was the decision to give the national government

powers that were “few and defined,” Federalist No. 45

(Madison), consisting of the “great and aggregate inter-

ests” of the new nation. Federalist No. 10 (Madison).

Among those defined powers was the authority “to

regulate commerce . . . among the several States.” Art. I,

§8. While this power is near-plenary, with “no limitations

other than those prescribed in the constitution,” Gibbons

v. Ogden, 22 U.S. 1, 196 (1824), its scope was still restricted

to regulation of “commercial intercourse,” and only that

“among the several states.” Id. at 189-90.

Exertion of congressional powers over commerce have

taken three historic forms: regulation of the channels of

commerce, protection of instrumentalities of commerce, and

regulation of_acts which substantially affect commerce.

United States v. Lopez, 115 S.Ct. 1624, 1629-30 (1995) (“Lopez”).

To the extent a State engages in or affects commerce, it is

subject to regulation. Fry v. United States, 421 U.S. 542, 547-48

(1975) (engaging in commerce through employment); EEOC

v. Wyoming, 460 U.S. 226, 235 (1983) (same). To the extent it

restricts commerce, its acts are subject to Congressional pre-

clusion or pre-emption. Jones v. Rath Packing Co., 430 U.S. 519,

525-26 (1977); City of Burbank v. Lockheed Air Terminal, 411

U.S. 624, 633-34 (1973).

As interstate commerce itself has grown, so have

powers over it. But in enacting 18 U.S.C. §922(s) Congress

chose to regulate, not commerce, but the States them-

selves. It issued commands to Sheriff Mack, not on the

basis that he or his State were burdening commerce, but

on the basis that he was not burdening it and that his

State had forbidden him to do so.

For nearly two centuries, it remained undisputed that

the Commerce Clause does not authorize Federal com-

mands that the States regulate commerce. See District of

Columbia v. Train, 521 F.2d 971, 992 (D.C. Cir. 1975),

remanded for consideration of mootness 431 U.S. 99 (1977)

(“We are aware of no decisions of the Supreme Court

which hold that the federal government may validly exer-

cise its commerce power by directing nonconsenting

states to regulate activities affecting interstate commerce,

and we doubt that any exist.”). Commerce Clause issues

instead revolved around determining the scope within

Congress which might regulate private individuals, and

that within which the State might not. See, ¢.g., Gibbons v.

Ogden; Houston, East and West Ry. Co. v. United States, 234

U.S. 342 (1914); NLRB v. Jones and Laughlin Steel Corp., 301

U.S. 1 (1937).

Only in 1975 did an arm of the national government

assert authority to command State officials to regulate

interstate commerce; the attempt ended when the United

States declined to defend it before this Court.

The asserted power arose against the background of

an Environmental Protection Agency “veto” and pre-

emption of certain State attempts at Clean Air Act com-

pliance, with consequent imposition of Federal standards.

But rather than use Federal resources to enforce the Fed-

eral standards, EPA asserted the statutory power to force

State agencies to apply them.

The Fourth, Ninth, and District of Columbia Circuits

held that such a construction would exceed Commerce

Clause powers, and rejected the asserted power. See State

of Maryland v. EPA, 530 F.2d 215, 227-28 (4th Cir. 1975);

Brown v. EPA, 521 F.2d 827, 837-39 (9th Cir. 1975); District

of Columbia v. Train, 521 F.2d 971, 992 (D.C. Cir. 1975).

After this Court granted certiorari, the United States

declined to defend the challenged regulations. It instead

informed the Court that the EPA would amend portions

of the regulations, and that the Administrator “has never

asserted any power to compel the State to carry out its

governmental! responsibilities under an implementation

plan,” Brief for the Federal Parties, EPA v. Brown, No.

75-909, at 20 n.14. The remaining regulations were to be

justified, not as a command to the State to regulate pri-

vate conduct, but as a command to the State to restrict

pollution created by its own actions:

The State is, in either case, subject to federal

regulation only to the extent it is responsible for

the pollution, and only when its responsibility

stems not from mere failure to regulate private

activities, but from its ownership and control of

the facilities used in the process of contamina-

tion of the air. The power asserted by the

Administrator is only over the State as polluter,

not over the State as State.

Id. at 20. In light of the government's broad retreat, this

Court remanded for consideration of mootness. EPA v.

Brown, 431 U.S. 99 (1977).

The issue, indefensible in 1977, now reappears. It is

presented, paradoxically, in the wake of this Court's reit-

eration that:

While the Framers no doubt endowed Congress

with the power to regulate interstate commerce

in order to avoid further instances of the inter-

state trade disputes that were common under

the Articles of Confederation, the Framers did

not intend that Congress should exercise that

power through the mechanism of mandating

State regulation. The Constitution established

Congress as a ‘superintending authority over

the reciprocal trade’ among the States, The Fed-

eralist No. 42, p. 268 (C. Rossiter, ed. 1961) by

empowering Congress to regulate that trade

directly, not by authorizing Congress to issue

trade-related orders to State governments.

New York, 505 U.S. at 180.

Sheriff Mack’s position was, and remains, straightfor-

ward: although firearms may flow in interstate com-

merce, he is not a firearms dealer, but a State official

exercising police powers, limited by statute, in Graham

County. He neither engages in nor interferes with inter-

state commerce when he refuses to supervise Federal

firearms licensees. He is not ordered by the State to affect

commerce in firearms - in fact, as noted above, the stat-

utes of the State have expressly forbidden him to do so.

The Ninth Circuit here disposed of Commerce Clause

concerns with the note that regulation of firearm sales lies

within the commerce power, and the statute in question

focuses on sales rather than simple possession. App. 5

n.5. The fact that private citizens in a State engage in

commerce is thus made dispositive of the Congressional

power to command officials of that State. If this is good

law, then New York cannot be: nuclear waste travels in

and affects commerce, and thus Congress would have

had every right to command States to dea! with it. If this

is correct, then the Court need not have labored so

mightily to sustain the measures at issue in FERC and in

Hodel: the mere fact that residents of Mississippi consume

power, and those of Virginia engage in mining, would

have justified any mandate Congress issued, or could

have issued, to the States. Indeed,

David Salmon, The Federalist Principle: Interaction of the

Commerce Clause and the Tenth Amendment in the Clean Air

Act, 2 Col. J. Environ. L. 290, 326-27 (1976).

The Ninth Circuit majority extends Commerce Clause

powers to the point where they “effectively obliterate the

distinction between what is national and what is local.”

NLRB v. Jones & Laughlin Steel, 301 U.S. at 37. It brings to

fruition the fears dismissed by the FERC majority.’ If a

State affects commerce, it may be stopped ot restricted; if

it withdraws from affecting it, it may be comraanded to

do so. If its official is empowered to undertake the task,

so much the better: if not, Congress may simply bestow

upon him the authority when it hands him the duty.

The Unconstitutional Portions Of 18 U.S.C. §922(s) Can-

not Be Severed From The Valid Portions

18 U.S.C. §922(s)’s imposition of duties violates the

Tenth Amendment and exceeds Commerce Clause

powers. The’ question remains whether §922(s) falls, or

only some severable portion of it.

A. Severance Is Proper Only Where The Constitu-

tional Portion Of A Statute Is Fully Operative

And In The Manner In Which The Legislature

Intended.

Severability hinges upon a two-part test. Alaska Air-

lines v. Brock, 480 U.S. 678, 684-5 (1987). To be severable,

' The FERC dissents suggested that the decision

the way to Federal control of all State functions; the majority

dismissed this as “apocalyptic” and “overstated,” since the

holding “does not suggest that the federal government may

impose conditions on state activities in fields that are not pre-

emptible.... ” 456 U.S. at 769-70, n.32. If the Ninth Circuit

majority is correct, pre-emption is irrelevant: a State’s apparatus

may be commandeered even if it withdraws from the field.

the stricken provisions must be “functionally indepen-

dent” of the surviving ones. United States v. Jackson, 390

U.S. 570, 586 (1968). Moreover, the statute as severed

must function “in a manner consistent with the intent of

Congress.” Alaska Airlines, 480 U.S. at 685 (Emphasis the

Court's); that is, elimination of the statute’s invalid por-

tions must leave “completely unchanged its basic opera-

tion.” United States v. Jackson, 390 U.S. at 586.

B. The Unchallenged Portions Of 18 U.S.C. §922(s)

Are Not Fully Operative In The Manner Con-

gress Intended.

Stripped of compulsory background checks, 18 U.S.C.

§922(s) becomes a waiting period, coupled with the possi-

bility that the CLEO may, if he desires, perform a check.

Every licensed dealer in Graham County will be obli-

gated to transmit notices to Sheriff Mack - who may

promptly discard them - and every purchaser will wait

five days for a determination that will never come. The

“program” would still exist, but - as explained below - it

would bear little relation to Congressional intent.

1. Severance Would Change The Statute Into

A Form Which Congress Refused To Enact.

As discussed ante, the 102d Congress had considered

H.R.7, which provided for a fixed waiting period with

optional checks. The proposal approved by the: 103d Con-

gress differed enormously from this approach, making

the background check mandatory and the waiting period

optional, ending the moment the check was \periormed.

Rep. Zimmer explained the impact:

Two years ago I voted against an earlier version

of the Brady bill, which required a 7-day waiting

period for handgun purchases with only an

optional background check... .

The legislation we are voting on today

addresses my principal objections to the 1991

Brady bill. The background check is no longer

optional and the waiting period will be elimi-

nated as soon as a national instant check system

can be implemented.

Id. at 9107-08. The 103d Congress four times rejected, in

House subcommittee, committee, and on the floor,

amendments proposed by Rep. Schiff to make the check

optional. See H.R. Rep. No. 103-344 at 38-39, reprinted

1993 U.S. Code, Cong. & Admin. News at 2008-09 (sub-

committee and committee action); 139 Cong. Record

H9093, H9143-44 (Daily ed., Nov. 10, 1993) (proposed

floor amendment and motion to recommit).

2. Severance Would Yield A Statute With Dis-

advantages Which Congress Did Not

Weigh.

Severance assumes that the resulting statute would

be a subset of the original; it is inappropriate where

severance would “cause results not contemplated or

desired by the legislature.” Connally v. Union Sewer Pipe

Co., 184 U.S. 540, 565 (1902). Two such results are appar-

ent here.

First, a shift from mandatory to voluntary back-

ground checks radically alters the cost/benefit balance.

On the benefit side, a Federally-imposed voluntary check

achieves little. Background checks were always an option

for States which desired to have them; States which do

not desire them are unlikely to perform them if they are

proclaimed optional.'4 An optional check thus incurs the

full burden of a mandatory check (a five-day wait for

millions of constituents) while not increasing the benefit

sought vis a vis that of the status quo. In rejecting H.R.7,

Congress showed awareness of this different balance.

“This not only penalizes law-abiding citizens, it does not

even ensure that a check is done.” 137 Cong. Record

H2831 (Daily ed. May 8, 1991) (Rep. Ballenger).

Second, the debate over H.R.7 shows that Congress

foresaw special disadvantages to non-mandatory back-

ground checks. Rep. Staggers complained that the option

permitted discrimination: “If in fact you live in a neigh-

borhood that is an Afro-American neighborhood, chances

are the police are going to check your records. If you

come from an affluent white neighborhood, they proba-

bly are not going to find the time .. . ” 137 Cong. Record

at H2668 (Rep. Staggers) (Daily ed., May 8, 1991). Rep.

Ballenger voiced similar concerns. Id. at H2831. The

potential for discriminatory application was not weighed

by the 163d Congress, simply because it had no applica-

tion to the bill it passed. To sever the statute here leads,

not merely to a law with somewhat reduced benefit, but

'* It might be suggested that a severed 18 U.S.C. §922(s)

would give an opportunity to State officials who privately

desire to perform checks but are frustrated by the refusal of

their constituents to give them the power. Yet this approach

yields an anomalous result. It seeks to save a portion of the

statute from 10th Amendment invalidation by suggesting that

its value lies in protecting State officials from the control and

oversight of the people of the State.

to a new statute with problems that Congress has not

weighed.

3. Severance Would Create A Statute Contain-

ing Inconsistencies And Incongruities.

The severed form of the statute would not even be

internally consistent. As enacted, the statute’s timetables

mesh and its exceptions track its commands precisely. If

severed, its provisions make little sense indeed:

As Enacted:

(1) Dealer sends form to CLEO and must wait 5 business

days before transferring firearm. 18 U.S.C.

§922(s)(1)(A)(ii). :

(2) CLEO must investigate purchaser within 5 business

days. 18 U.S.C. §922(s)(2).

(a) Unless CLEO obtains a “hit,” CLEO

destroys forms in 20 days. 18 U.S.C.

§922(s)(6)(C).

(b) If “hit” results, and is challenged, CLEO

must provide rationale in 20 days. 18 U.S.C.

§922(s)(6)(B)(i).

Exception: dealer need not send form or wait if State law

requires an “authorized government official” to “verify”

legality before transfer. 18 U.S.C. §922(s)(1)(D).

As Severed:

Dealer sends form to CLEO and must wait 5 business days

before transferring firearm. 18 U.S.C. §922(s)(1)(A)(ii).

Unless CLEO checks and obtains a “hit,” CLEO

destroys forms in 20 days. 18 U.S.C.

§922(s)(6)(C).

Exception: dealer need not send form or wait if State law

requires an “authorized government official” to “verify”

legality before transfer. 18 U.S.C. §922(s)(1)(D).

As severed, the times for the background check and

the waiting period no longer tally; the only time limit on

the check is the document destruction deadline of 20

days, yet the dealer may transfer the gun within five.

As severed, the exception does not track the rule.

Under the statute as enacted, a State gains exemption

from a mandatory check by creating its own mandatory

check. As severed, the statute would require only an

optional check, yet to gain exception the State must have a

mandatory one; thus a State could have legal requirements

stricter than the Federal plan (i.e., a 15 day wait with

optional checks) yet find it did not qualify: its CLEOs must

still be served with forms despite the fact that another

official has been assigned to perform the voluntary

checks. Whether Congress would have enacted a bill with

these incongruities is for it alone to decide.

Mandatory background checks, the core of §922(s),

are constitutionally void. Severance creates, not a subset

of the legislation, but a complete substitute, and one with

incongruities and disadvantages Congress never had rea-

son to weigh. 18 U.S.C. §922(s) cannot be severed; it falls

as a whole.

CONCLUSION

18 U.S.C. §922(s) exceeds Commerce Clause powers

delegated by the people to Congress, and violates the

principles of federalism given voice in the Tenth Amend-

ment. The offending portions cannot be stricken without

creating a statute Congress declined to pass, and which

contains unique disadvantages and incongruities. We

respectfully submit that the Court should reverse the

decision of the United States Court of Appeals for the

Ninth Circuit and hold 18 U.S.C. §922(s) invalid in its

entirety.

Davip T. Harpy

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.