Amicus Curiae Brief — Printz v. United States

No. 95-1478

& _ ‘

No. 95-1503

(Consolidated) ©

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

SHERIFF JAY PRINTZ

&

SHERIFF RICHARD MACK

Petitioners,

V.

UNITED STATES OF AMERICA

Respondent

ON WRIT OF CERTIORARI TO THE

U. S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

NATIONAL RIFLE ASSOCIATION OF AMERICA

IN SUPPORT OF PETITIONERS

*Robert Dowlut

Stefan B. Tahmassebi

11250 Waples Mill Rd., 6th Floor North

Fairfax, Va. 22030-7400

(703) 267-1250

Attorneys for Amicus Curiae

*Counsel of Record

QUESTIONS PRESENTED

Whether Congress exceeds its enumerated powers

when it prescribes federal duties for state officials and

orders state officials to enforce federal regulations.

Whether the Statute, by attempting to abrogate the

sovereign immunity of the states, violates the

Eleventh Amendment.

Whether the unconstitutional portions of 18 U.S.C.

§922(s) are severable.

li

TABLE OF CONTENTS

Gusstions PeaeemheG . wk icccaeeevestss sede beaeen i

rf PI rr ili

Identity and Interest of the Amicus Curiae............. ]

Sessmment OF Me Cees «cc ccccc veces be uweeneee 2

Pe oe 4

Summary of he AGENT... 6s oc vc ceed tasnaneeee 6

POPPE ee err 8

I. The statute exceeds C ess’ enumerated

powers and violates the Tenth Amendment .. 8

Il. The statute is destructive of Federalism .... 19

Ill. The statute violates the Eleventh

Amendment

1 bvaniebake Conan 22

IV. __ The unconstitutional portions of 18 U.S.C.

§922(s) cannot be severed from the valid

SOONER... cvcnccoestvvuwnsaenaees 24

A National Firearms Act ..... 24

B Property Requisition Act ... 24

C 1968 Gun Control Act... .. 25

D The Firearms Owners’

Protection Ah. ........ 2. 26

E Public Law 103-159, 107

3 eee 27

Comebetigm ......ccccesssuecde beeen ane 28

le a etn es

TABLE OF AUTHORITIES

Cases

Alaska Airlines, Inc. v. Brock, 480 U.S. 678,

691 (1987) -

Blatchford v. Native Village of Noatak, 50\ U.S. 775,

779,111 S.Ct. 2578, 115 L. Ed. 2d 686 (1991) 22

Brown v. EPA, $21 F.2d 827, 837-39 (9th Cir. 1975) 16,17

District of Columbia v. Train, 521 F.2d 971, 992

(D.C. Cir. 1975) so | 16

EEOC v. Wyoming, 460 U.S. 226 (1983) 10

EPA v. Brown, 431 U.S. 99(1977) ._... 17

FERC v. Mississippi, 456 U.S. 742, 762-766,

102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) _. 12, 13, 19

Frank v. United States, 78 F 3d 815

a | i OB

Frank v. United States, 860 F. Supp. 1030

| Ta 5

Fry v. United States, 421 U.S. 542, 548 (1975) ..... 10,15

Garcia v. San Antonio Metropolitan Transit Authority,

46° U.S. 528 (1985)

(Fair Labor Standards Act)......_.. ... 18, 16, 23

iv

Gibbons v. Ogden, 22 U.S. 1, 196 (1824) ............. 9

Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395,

2399, 115 L.Ed.2d410(1991) ............. 8,9

Hans v. Louisiana, 134 U.S. 1, 10 §.Ct. 504. 33

* § — Fare eye 22, 23

Hodel v. Virginia Surface Mining & Reclamation Assn.,

Inc., 452 U.S. 264, 288-289, 101 S.Ct. 2352,

GEOG ‘cneccunabunsbuctoses 12, 13

Koog v. United States, 79 F.3d 452 (Sth Cir. 1996) .... 5,6

Lane County v. Oregon, 7 Wall, at 76, 19 L.Ed.

CBI ook os Sucdcnviannneee 12

Mack v. United States, 856 F. Supp. 1372

SS a eae ih aaa

Mack v. United States, 66 F 3d 1025 (9th Cir. 1995)... .. 4

McGee v. United States, 79 F 34 452 (Sth Cir. 1996) _. 5,6

New York v. United States, 505 U.S. 144, 112

DP Gh Be vd a nak> conan eee _.... passim

Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974) ._.... 17

Pennsylvania v. Union Gas Co, 491 U.S. 1 (1989) ..... 23

Printz v. United States, 66 F 3d 1025 (9th Cir. 1995) _... 5

Printz v. United States, 854 F_ Supp. 1503

SA HD, GEE a osx wewecuncenadch wauo 3,4

Seminole Tribe of Florida v. Florida, 116 §.Ct. 1114,

134 L.Ed. 2d 252, 1996

U.S. LEXIS 2165(1996)................22.23

South Carolina v. Baker, 485 U.S. 505 (1988) cae ae

State of Maryland v. EPA, 530 F.2d 215, 227-28

(4th Cir 1975)... _.. , ae er

United States v. Darby, 312 U.S. 100, 124, 61 S.Ct

451, 85 L.Ed. 609, 132 ALR 1430(1941)....... 9

United States v. Lopez, 514U.S.___, 115 S.Ct. 1624,

1626,131 L.Ed. 2d 626 (1995) . . fe oe a

; —_

U.S. Constitution, Amend. XI __. : , | 22

U.S. Constitution, Article I, Section 8, cl. 3 . 5,69

Statutes

A FE ee ee ee ee a

18 U.S.C. §922(g) ..... i ae ere,

RE eS Pe Ma 2

Ee do eek eee ek Oe _. . passim

18 U.S.C. §923(g) ....... safe i ea 6 coal ola 27

tl ea 4, 23

ee nn 8, 26

eed OO Oa 586 a a, 24

0 er ee eee 25

PL. 99-308, 100 Stat. 449(1986)...........0....., 26

Property Requisition Act, 55 Stat. 742(1941)......... 24

Public Law Pub. L. 103-159, 107 Stat. 1536 (1993) .. 2,27

Other Authoriti

114 Cong. Rec. 27457-27458 .................... 26

EOS SE oo eve ccauu sedcctuekeeaen 25

ol Gl eee ee 25

mere ....... cece 26

OR SUD so ncvadeskcdvanvatetanssas 26

114 Cong. Rec. 22248 (1968) ..................... 25

EE 2 iw tcchonednnsndekedeus fies 25

ROOGI GE SD 6 ane vovedstddpeacsacdend ens 25

SP, OE CED cece ccccestubanpecsaueeuus 25

SOO GE: CL Es dene cvekccntiewseecnesste 26

ODO Se MED 6 wise vec reuns eeeueebectoas 25

foe eB ee eee 26

4 ae res es ee 26

CROCE, TORE. SPEED «oc cons ins vcvekiedecssias 26

DOCG GHEE GEE vc voce vecedtcusontetesetees 26

oo BB ee, tree ee 26

114 Cong. Rec. 27456... wade)

114 Cong Rec.30580... a a np ie

139 Cong Rec. S16311 .._.. tab ober Si live

SS OE ED nv vce ccccccoceen coke

er sc 5 evs awe eee ewesweuls 25

Akhil Reed Ahmar, The Bill of Rights and the Fourteenth

Amendment, 101 Yale L. J. 1193 (1992) ....... 25

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

| RO MTEE: PHS A SE VEG Por 19

David T. Hardy, 7he Firearms Owners’ Protection Act: A

Historical and Legal Perspective, 17 Cumberland

i SEE b bo cvecbecu ce see oes 24

Deborah Jones Merritt, 7he Guarantee Clause and State

Autonomy. Federalism for a Third Century,

88 Colum L. Rev. 1, 15(1988) ___. ... 20-22

H.R. Rep. No. 103-344, 103rd Cong., Ist Sess.,

RETR Bet Sas hi npg oe 20

H.R. Rep. No. 1120, 77th Cong., Ist Sess. 2(1941) _... 25

H.R. Rep. No. 1780, 73d Cong., 2d Sess. 1-2 (1934) _.. 24

Joyce Lee Malcolm, 7o Keep and Bear Arms:

The Origins of an Anglo-American Right,

162 (Harvard Univ. Press 1994).............. 25

LaPierre, Political Accountability in the National Political

Process-The Alternative to Judicial Review of

Federalism Issues, 830 N'W.U.L. Rev 577,

ET i. boo coc thas ne ow cae cus 22

Lipner, /mposing Federal Business on Officers of the States:

What the Tenth Amendment Might Mean,

57 Geo. Wash. L. Rev. 907, 928(1989)........ 20

Order No. 1853-94, at 59 Federal Register 9498 (Feb. 28,

RS Sei te iit BR hing SII 3

Ronald Rotunda, 7he Doctrine of Conditional

Preemption and Other Limitations on Tenth

Amendment Restrictions, 132 U. Pa. L. Rev. 289,

EE 6. «144. ak dala at ees teaneess 20

The Federalist No. 42, p. 268 (C. Rossiter,ed. 1961) ... 17

The Federalist No. 87, p. 487 (C. Rossiter ed. 1961) _... 22

William Van Alstyne, 7he Second Amendment and

the Personal Right to Arms, 43 Duke

ie SEE ci é Scab eaedc cane ih bake 25

OO _ _ _ OOO

l

IDENTITY AND INTEREST OF AMICUS CURIAE

Both petitioners and respondem have graciously

consented to the filing of this brief, which supports the position

of the petitioners.

The National Rifle Association of America, chartered in

1871, is a nonprofit, nonpartisan, nationwide organization of

over 3 million members and over 10,000 affiliated clubs.

The NRA is not only the oldest sportsmen's organization

in America, but also is an educational, recreational, and public

service organization dedicated to the nght of the individual

citizen to own and use firearms for lawful recreation and

defense.

The NRA is a New York not-for-profit corporation with

its principle place of business in Fairfax County, Virginia, and

it is supported by membership dues and contributions from

public-spirited members and clubs. It is not affiliated with any

arms or ammunition manufacturer nor with any business which

deals in firearms or ammunition. It receives no appropriations

from Congress.

The National Rifle Association has previously filed

numerous amicus curiae briefs in both state and federal courts.

Because this case involves the sale or transfer of firearms, the

resolution of this case will effect NRA members, who include

sheriffs. Issues in this case include the 10th Amendment and

severability. The Court will be assisted by the expertise that

the National Rifle Association has developed in this field, and

thus, by the filing of amicus’ brief.

2

STATEMENT OF THE CASE

Federal law prohibits the transfer of firearms to, or

possession by, certain classes of persons, including, inter alia,

persons convicted of or indicted for certain offenses, illegal

aliens, users of illicit drugs, fugitives from justice, persons who

have been the subject of certain mental adjudications, persons

dishonorably discharged from the armed forces, persons who

have renounced their American citizenship, and persons subject

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

& (n).

In 1993 Congress enacted Public Law Pub. L. 103-159,

107 Stat. 1536 (1993) ( “Statute”). The Statute envisions an

eventual permanent system whereby each handgun purchaser

would be checked against an automated federal database of

prohibited persons. Since no such federal database existed, the

statute created an “interim system” under which all duties would

be placed upon state officials for five years, or until the federal

system is funded and functional.

18 U.S.C. §922(s) requires that each federally licensed

firearms dealer (“Federal Firearms Dealer”) is required to send

a federal form (“Federal Form”), giving notice of each handgun

sale, delivery or transfer to a designated state official, the “Chief

Law Enforcement Official” (“CLEO”), a statutory term which

includes state, and excludes federal, law enforcement officials.

18 U.S.C. §922(s)1)A)(i)(IID and (s)(8).

The CLEO is required to: review all such Federal Forms

received from Federal Firearms Dealers; determine, after

consulting federal databases, if any such purchase violates any

federal, state or local law; and to report the results to the

Federal Firearms Dealers. The CLEO shall “ascertain within 5

business days whether receipt or possession would be in

ee ee ee eae a

3

violation of the law, including research in whatever State and

local record keeping systems are available and in a national

system designated by the Attorney General.” 18 USC.

§922(s)(2). The Attorney General of the United States has

designated two federal databases as the “national system” which

the CLEO must check. Order No.1853-94, at 59 Federal

Register 9498 (Feb. 28, 1994).

The CLEO must make all “reasonable” attempts at these

determinations. The federal government’s advice to CLEOs

provides that the CLEOs’ duties go beyond a simple scan for

criminal convictions:

[A] reasonable effort should be made to determine

whether the buyer has a criminal record that would

make the sale unlawful. Criminal record systems can

reveal that the buyer is a fugitive, is under indictment, or

has been convicted of a felony. The criminal record

systems may also indicate that the buyer is possibly an

unlawful user of controlled substances or has had mental

health problems. In some States, centralized mental

health records may also be available.

Brief for the United States on Petition for Certiorari, Printz v.

United States, at 14a.

If the CLEO finds that the proposed sale, delivery or

transfer, would not violate federal, state or local law, the

Statute commands him to destroy the Federal Form and any

references to it within twenty (20) business dzys. 18 U.S.C.

§922(s)(6)(B). If the CLEO finds that the proposed purchaser

is ineligible to receive a handgun, he n.ust so inform the Federal

Firearms Dealer and, if the purchaser requests, provide a written

justification of his findings. 18 U.S.C. §922(s)(6)(C). The

Statute creates a federal cause of action against the CLEOs’

4

“State or political subdivision” by the denied purchaser for

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

The Statute shifts the primary burden of enforcing the

federal Statute onto the state official, requiring the state official

to review the Federal Form and to consult federal records

designated by a federal official to determine whether each

proposed sale by a federally-licensed Federal Firearms Dealer

would meet federal statutory standards.

OPINION BELOW

The opinion of the United States Court of Appeals is

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

1995). The opinions of the United States District Court are

reported as Printz v. United States, 854 F. Supp. 1503 (D.

Mont. 1994), and Mack v. United States, 856 F. Supp. 1372

(D. Ariz. 1994). This Court granted the petition for certiorari

on June 17, 1996.

Petitioners commenced actions in the United States

District Court, District of Arizona and the United States District

Court, District of Montana seeking declaratory and injunctive

relief, challenging the Statute on the grounds that it exceeded

Congress’ Article I powers and violated the Tenth Amendment.

The District Courts held that the Statute’s mandate exceeded

Commerce Clause powers and violated the Tenth Amendment.

Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994);

Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994).

The district courts relied upon this Court’s decision in New York

v. United States, 505 U.S. 144 (1992), in declaring

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

to impose duties upon state officials.

A 2-1 majority of the Ninth Circuit, in Mack v. United

5

States, and Printz v. United States, 66 F.3d 1025 (9th Cir.

1995), held that the duties which the Statute compels CLEO’s

to perform did not violate the Tenth Amendment nor exceed the

enumerated powers of Congress.

The subject matter of this case has created a split in the

Circuits on a question which involves the delegated powers of

Congress, under Article I, section 8, cl. 3 of the Constitution,

and the reserved powers of the States, under the Tenth

Amendment to the Constitution.

In May 1993, Sheriff Samuel Frank, Sheriff of Orange

County, Vermont, commenced an action in the United States

District Court, District of Vermont seeking declaratory and

injunctive relief, challenging the Statute on the grounds that it

exceeded Congress’ Article I powers and violated the Tenth

Amendment. The District Court, relying upon this Court’s

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

held that those sections of the Statute which impose ministerial

duties upon the CLEO are unconstitutional. Frank v. United

States, 860 F. Supp. 1030 (D. Vermont 1994). The Second

Circuit Court of Appeals reversed in part and affirmed in part,

holding that the duties imposed by the Statute do not exceed the

delegated powers of Congress, or violate the Tenth

Ameudment. Frank v. United States, 78 F.3d 815 (2nd Cir.

1996).

In a decision issued six (6) days after the decision in the

Frank case, the Fifth Circuit, in Koog v. United States, and

McGee v. United States, 79 F.3d 452 (Sth Cir. 1996), held that

the ministerial duties imposed upon the CLEOs, including the

duty to perform a background check, the destruction of records,

and the duty to furnish written justification for denials, violated

the Constitution.

6

The decision of the Ninth Circuit in the instant case, and

the decision of the Second Circuit in Frank, are not congruent

with the decision of this Court in New York v. United States,

505 U.S. 144 (1992), and said decisions are in direct conflict

with the decision of the Fifth Circuit in Koog and McGee.

The Fifth Circuit correctly applied the most recent and

directly applicable case law enunciated by this Court in New

York v. United States, while the Second and Ninth Circuits

evaded the holding of this Court in New York.

SUMMARY OF ARGUMENT

In enacting the Statute, Congress shifts the primary

_ burden of enforcing this federal Statute onto state officials,

commandeering them to review Federal Forms submitted by a

federally licensed Federal Firearms Dealer regarding a federally

regulated transaction, and to consult and cross check federal

records and federal databases designated by a federal official to

determine whether each proposed sale, delivery or transfer by

a Feceral Firearms Dealer would meet federal statutory

standards; all of this in regard to a transaction in which the

CLEO would otherwise not be involved.

This federal mandate exceeds the authority granted to

Congress to “regulate commerce . . . among the several States.”

U.S. Const., Art. I, §8, cl. 3. Sheriffs Mack and Printz are not

Federal Firearms Dealers, nor do they otherwise engage in or

affect interstate commerce in firearms. It is the federal

Congress which seeks to force such state officials to affect and

become a party to interstate commerce in firearms. The ruling

of the Ninth Circuit Court of Appeals treats as dispositive the

“mere fact that others in the CLEO’s county engage in such

commerce. Under this extraordinary reading, the Commerce

Clause extends to inaction, and, therefore, effectively extends

— See ee aaa

7

the Commerce Clause to any and all things.

The Statute’s mandate to state officials to undertake

ministerial duties violates the Tenth Amendment as defined by

this Court in New York v. United States, 505 U.S. 144, 112

S.Ct. 2408 (1992). The Ninth Circuit Court of Appeals suggests

that New York be read only to bar Congressional coercion of

state policy making, as opposed to the conscription of state

officials to administer and enforce federal regulations. The

Ninth Circuit Court of Appeals’ holding violates the very

holding of New York, in which this Court held that “[t}he

Federal Government may not compel the States to enact or

administer a federal regulatory program.” New York v. United

States, 505 U.S. at 188, 112 S.Ct. at 2435 (emphasis added).

If the Ninth Circuit’s holding is upheld, then the federal

government will be given a green light to commandeer the

states to perform federal tasks for free, and the states will

eventually be robbed of their funds, their resources and their

independence; a pattern that will ultimately result in the

destruction of federalism.

The Statute, by creating a civil cause of action against

the CLEO’s “State or political subdivision," constitutes an

attempt by Congress to abrogate the states’ sovereign immunity

in violation of the Eleventh Amendment.

Congress has consistently refused to enact legislation

providing for registration of firearms and their owners. Under

the interim system, Federal Firearms Dealers are required to

send a form giving notice and statement of each proposed

handgun sale, delivery or transfer to their CLEO. 18 U.S.C. §

922(s)(1(A)(iit) & (iv). This is a duty imposed on the Federal

Firearms Dealer, who is not a party to this case. The receipt

and retention of such records by a CLEO would be inconsistent

8

with the mandate of 18 U.S.C. § 926(a), which forbids “any

system of registration of firearms, firearms owners, or firearms

transactions or dispositions...” Hence, merely severing the

constitutionally flawed provisions of 18 U.S.C. § 922(s) that

impose a duty on the CLEO, including the task of destroying

records to prevent registration, would defeat Congressional

intent because it would create a registration system. Federal

Firearms Dealers would continue to send records to local law

enforcement and local law enforcement would no longer be

required to conduct background investigations and then destroy

the records. They would just retain the records. To avoid

defeating Congress’s intent of nonregistration, all of §922(s)

should be declared nonseverable and voided.

ARGUMENT

I THE STATUTE EXCEEDS CONGRESS’

ENUMERATED POWERS AND VIOLATES THE

TENTH AMENDMENT.

“The Constitution created a Federal Government of

limited powers.” Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct.

2395, 2399, 115 L.Ed.2d 410 (1991). The Constitution

“[b]Jeing an instrument of limited and enumerated powers, it

follows irresistibly, that what is not conferred, is withheld, and

belongs to the state authorities." 3 J. Story, Commentaries on

the Constitution of the United States 752 (1833). “It is in this

sense that the Tenth Amendment ‘states but a truism that all is

retained which has not been surrendered.” New York v. United

States, 112 S.Ct. at 2418, quoting United States v. Darby, 312

U.S. 100, 124, 61 S.Ct. 451, 85 L.Ed. 609, 132 ALR 1430

(1941).

“The powers delegated by the proposed Constitution to

the federal government are few and defined. Those which are

9

to remain in the State governments are numerous and

indefinite.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed.

1961). “This constitutionally mandated division of authority

‘was adopted by the Framers to ensure protection of our

fundamental liberties.” United States v. Lopez,514US.__,

115 S.Ct. 1624, 1626 ,131 L.Ed.2d 626 (1995), quoting

Gregory v Ashcroft, 501 U.S. at 458, 111 S.Ct. at 2400

(internal quotation marks omitted). “Just as the separation and

independence of the coordinate branches of the Federal

Government serves to prevent the accumulation of excessive

power in any one branch, a healthy balance of power between

the States and the Federal Government will reduce the risk of

tyranny and abuse from either front.” /bid.

Among the express powers granted by the Constitution

to Congress is the authority “to regulate commerce... among

the several States.” U.S. Const., Art. 1, §8, cl. 3. While this

power is near-plenary in regard to matters that substantially

prescribed in the constitution,” Gibbons v. Ogden, 22 US. 1,

196 (1824), its scope is restricted to regulation of “commercial

intercourse,” and that “among the several states.” /d at 189-

90.

In Lopez, this Court identified the “three broad

categories of activity that Congress may regulate under its

commerce power.” the channels of interstate commerce,

protection of instrumentalities of interstate commerce, and acts

which substantially affect interstate commerce. United States v.

Lopez, 115 S.Ct. at 1629-30. If a state engages in or affects

interstate commerce, it is subject to regulation, to the extent

that a state restricts commerce, its act is subject to pre-emption.

See Fry v. United States, 421 U.S. 542, 548 (1975) (engaging

in commerce through employment); EEOC v. Wyoming, 460

U.S. 226 (1983) (same).

10

However, in the instant case Congress has not chosen to

preempt state regulation, nor has Congress chosen to regulate

the channels or instrumentalities of interstate commerce or the

has instead chosen to regulate the states themselves. Congress

has in effect issued commands to state officials, not on the basis

that the CLEOs have engaged in or impeded interstate

commerce, but on the basis that they have failed to become so

engaged

While firearms may flow in interstate commerce, the

CLEOs, who are impressed into federal service by the federal

Statute, are not Federal Firearms Dealers, but are state officials

exercising state police powers assigned to them by the state.

The state CLEOs are not a part of nor even remotely involved

in the firearms transaction that Congress wishes to regulate.

Except to the extent that the Statute forces them to be involved,

the CLEOs would have no role in the regulated activity at all.

This inaction is “in no sense an economic activity.” United

States v. Lopez, 115 §.Ct. at 1634. The CLEOs do not engage

in nor interfere with interstate commerce when they refuse to

review the Federal Forms and supervise Federal Firearms

Dealers. This refusal to affect commerce is not even an

“activity.” Jd. at 1663 (Breyer, J. dissenting).

This Court has held that when weighing whether an act

of Congress is passed pursuant to the Commerce Power, the

regulated activity must not merely “affect” interstate commerce,

but must “substantially affect” interstate commerce. “We

conclude, consistent with the great weight of our case law, that

the proper test requires an analysis of whether the regulated

activity ‘substantially affects’ interstate commerce.” United

States v. Lopez, 115 $.Ct. at 1630.

The CLEO’s “inaction” in regard to the regulated

a de &-

11

transaction certainly can not be held to “substantially affect”

interstate commerce; in fact, it does not affect the regulated

interstate activity at all, and said inaction is, therefore, beyond

the scope of federal regulation pursuant to the Commerce

Power.

In the instant case, the Ninth Circuit brushed aside the

Commerce Clause issue by simply noting that firearms move in

interstate commerce and that the Statute focuses on the sale

that private citizens in a state engage in commerce gives

Congress the power to commandeer state officials. This is

directly contrary to the holding in New York. Despite the fact

that nuclear waste travels in and affects commerce, this Court

held that Congress could not commandeer states to take it.

The fact that a given subject or transaction may in

general come under the interstate commerce power does not

mean that Congress may order the states to administer or

enforce the federal law regarding the subject. “The allocation of

power contained in the Commerce Clause, for example,

authorizes Congress to regulate interstate commerce directly, it

does not authorize Congress to regulate State governments’

regulation of interstate commerce.” New York v. United States,

112 S.Ct. at 2408.

Thus, while Congress may use the interstate commerce

power to regulate the sale of firearms by Federal Firearms

Dealers, Congress does not have the power to commandeer

state officials to administer such federal regulations. This is

especially true when the attempted “exercise of national power

intrudes upon an area of traditional state concern,” such as

duties to be assigned to local law enforcement. United States

v. Lopez, 115 S.Ct. at 1638 (Kennedy, J., concurring).

12

“We have always understood that even where Congress

has the authority under the Constitution to pass laws requiring

or prohibiting certain acts, it lacks the power directly to compel

the States to require or prohibit those acts.” New York v.

United States, 112 S.Ct. at 2423. See also, FERC v.

Mississippi, 456 U.S. 742, 762-766, 102 S.Ct. 2126, 72

L.Ed.2d 532 (1982), Hodel v. Virginia Surface Mining &

Reclamation Assn., Inc., 452 U.S. 264, 288-289, 101 S.Ct.

2352, 69 L.Ed.2d 1 (1981); Lane County v. Oregon, 7 Wall, at

76, 19 L.Ed. 101 (1869).

Congress may use a variety of means to induce states to

assist in regulatory programs. “This is not to say that Congress

lacks the ability to encourage a State to regulate in a particular

way, or that Congress may not hold out incentives to the States

as a method of influencing a State's policy choices.” New York

v. United States, 112 S.Ct. at 2423. For example, under the

spending power Congress may attach conditions to the receipt

of federal funds, and Congress may offer States the choice of

regulating in accordance with Congressional wishes, or having

state regulation preempted by federal regulation. New York v.

United States, 112 S.Ct. at 24-23-2424.

In Hodel, and in Federal Energy Regulatory

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

incentives were offered to states for undertaking certain

regulatory programs. If the States chose not to do so, the

federal government would preempt. In neither case were the

states compelled to enact legislation, nor to promulgate

regulations. “This Court never has sanctioned explicitly a

federal command to the States to promulgate and enforce laws

and regulations.” FERC v. Mississippi, 456 U.S. at 761-762,

102 S.Ct. at 2139.

Such a command is not permissible because the power

13

of the national government operates directly upon the people,

not on the states.

In providing for a stronger central government,

therefore, the Framers explicitly chose a

Constitution that confers upon Congress the

power to regulate individuals, not States. As we

have seen, the Court has consistently respected

this choice. We have always understood that

even where Congress has the authority .. . to

pass laws requiring or prohibiting certain acts, it

lacks the power directly to compel the States to

require or prohibit those acts. ... The

allocation of power contained in the Commerce

Clause, for example, authorizes Congress to

regulate interstate commerce directly, it does

not authorize Congress to regulate state

governments’ regulation of interstate commerce.

New York v. United States, 112 §.Ct. at 2423.

In the instant case, the Ninth Circuit concluded that New

York does not bar federal mandates to State officials to enforce,

as opposed to enact, federal programs:

The Brady Act is not the kind of a federal mandate

condemned by New York ... [T]he CLEOs are not being

commanded to engage in the central sovereign

processes of enacting legislation or regulations. ...

Instead, they are directed to serve for a temporary

period as law enforcement functionaries in carrying out

a federal program.

Mack v. United States, 66 F.3d at 1031.

14

In dissent, Judge Fernandez argued that the

enforce/enact distinction was inconsistent with the teaching of

New York. In fact, the dissent argued, the latter would be the

greater infringement of federalism:

Rather than ordering state legislatures or agencies to

adopt a scheme for vetting requests for gun transfers,

Congress has avoided that hindrance and dragooned the

state officials directly. Under this new approach, the

states have nothing 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. ... Ifthe Tenth Amendment has anything to

do with the separate sovereign dignity of the states, it is

difficult to see how that dignity is not undermined by

the reality of a command that they commit their

resources to the carrying out of this kind of federal

policy, whether they like it or not.

Id., at 1035 (Fernandez, J., dissenting).

The Ninth Circuit’s reading of New York, that New

York prohibits only federal coercion of state policy making, as

opposed to federal conscription of state officials to enforce

federal regulations, violates the holding of New York that “(t]he

Federal Government may not compel the States to enact or

administer a federal regulatory program.” New York v. United

States, 50S U.S. at 188, 112 S.Ct. at 2435 (emphasis added).

In reaching its decision in New York, this Court

distinguished those Tenth Amendment cases in which the issue

was the authority of Congress to subject state governments to

generally applicable laws. These cases include Garcia v. San

Antonio Metropolitan Transit Authority, 469 US. 528

15

(1985)(Fair Labor Standards Act); Fry v. U.S., 421 U.S. 542

(1975)(wage stabilization), and South Carolina v. Baker, 485

U.S. 505 (1988) (tax exemption on the interest on municipal

bonds). New York v. United States, 112 S.Ct., at 2420. The

Court found these cases inapplicable since the legislation at

issue, in New York, was not applicable to private parties. “This

case presents no occasion to apply or revisit the holdings of any

of these cases, as this is not a case in which Congress has

subjected a State to the same legislation applicable to private

parties. _.. This case instead concerns the circumstances under

which Congress may use the States as implements of regulation,

that is, whether Congress may direct or otherwise motivate the

States to regulate in a particular field or a particular way.” /d.

As noted above, New York held that Garcia applies only

when Congress has subjected a state to the same legislation

applicable to private parties; i.e., when Congress imposes a rule

of general applicability which also applies to the states. The

Statute is clearly not such a law. The duties imposed upon the

CLEO are not imposed upon the general public; said duties

apply exclusively to state officers. New York v. United States,

112 $.Ct., at 2420.

The Second Circuit relied on Garcia to produce the

opinion that this Court reversed in New York. New York v.

United States, 942 F.2d 114, 119 (2d Cir.1991). Despite this

Court’s holding in New York about Garcia’s import, the Second

Circuit again relied on Garcia to uphold the Statute’s mandate

that CLEOs perform background checks. Frank v. United

States, 78 F.3d 815 (2nd Cir. 1996). The Second Circuit has

wrongly applied Garcia again.

In New York, the Government unsuccessfully argued

that any Tenth Amendment prohibitions can be overcome if the

federal interest is important enough. /d., at 2429. The Court

16

responded:

No matter how powerful the federal interest

involved, the Constitution simply does not give

Congress the authority to require the States to

regulate. The Constitution instead gives

Congress the authority to regulate matters

directly and to preempt contrary state

regulation. | Where a federal interest is

sufficiently strong to cause Congress to

legislate, it must do so directly; it may not

conscript state governments as its agents. /d.

The Government also argued that “. . . the Constitution

does, in some circumstances, permit federal directives to state

governments.” /d. The Court flatly rejected this assertion.

“Various cases are cited for this proposition but none support

it.” Id

When the federal government attempted in 1975 to

force state agencies to enforce federal standards under the

Clean Air Act, the Fourth, Ninth and District of Columbia

Circuits held that such an attempt would exceed the Commerce

Clause and violate the Tenth Amendment. 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) (“We

are aware of no decisions of the Supreme Court which hold that

the federal government may validly exercise its commerce

power by directing nonconsenting states to regulate activities

affecting interstate commerce, and we doubt that any exist.”).

But see Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974).

After this Court granted certiorari in said cases, the U_S.

Solicitor General declined to defend the challenged regulations.

17

see Brief for the Federal Parties, EPA v. Brown (No. 75-909) at

20 n.14. This Court then remanded for consideration of

mootness. EPA v. Brown, 431 U.S. 99 (1977). On remand, the

Ninth Circuit held portions of the Tenth Amendment challenge

still justiciable and struck the regulation The federal

government left the ruling unchallenged. Brown v. EPA, 566

F.2d 665 (9th Cir. 1977).

What the federal government viewed as an indefensible

position in 1977, the federal government now asserts. This is

the more surprising in light of this Court’s recent holding that:

While the Framers no doubt endowed Congress with the

power to regulate interstate commerce in order to avoid

further instances of the interstate 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 Federalist 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 v. United States, 505 U.S. at 166, 112 S.Ct. at 2430-

2431.

The Statute compels state officials to perform

investigations of potential purchasers in a federally regulated

transaction and to review Federal Forms received from a

Federal Firearms Dealer, and then to either to destroy said

Federal Forms, or to furnish, if requested, a written explanation

if the potential purchaser appears to be ineligible to possess a

firearm. Like the “take title” provisions in New York, the

18

Statute is a direct command to state officials to perform federal

services under a federal regulatory program. Like the “take

title” provisions struck down in New York, the Statute’s

commands to state officials violate the Tenth Amendment and

exceed the Commerce Clause powers.

The Ninth Circuit decision is directly contrary to this

Court’s holdings, and attempts to extends the Commerce Clause

to the point where it abrogates federalism altogether. If the

federal government can use its Commerce Clause powers to

force state officials to supervise commerce to Congressional

specification, then states are no more than unpaid regional

offices of the national government. But that may not be,

because, as this Court has held, “States are not mere political

subdivisions of the United States. State governments are

neither regional offices nor administrative agencies of the

Federal Government.” New York v. United States, 505 U.S. at

188, 112 S.Ct. at 2434.

Even the United States has previously admitted this. In

briefing New York before this Court, the United States tried to

defend the subject federal statute from a Tenth Amendment

challenge by stating that such statute did “not constitute the

kind of impermissible commandeering about which the Court

expressed cuncern in Hodel ani FERC” and that such statute

was “qualitatively different from the implementation of federal

policies regulating private activity, which would transform state

administrative bodies into ‘field offices of the national

bureaucracy.”” Brief of the United States, New York v. United

States, at 36-37, quoting FERC v. Mississippi, 456 U.S. at 777.

By the Ninth Circuit’s logic,

... there is no state governmental function which

Congress cannot reach and control... . The states can

19

be forced to act or not to act, as Congress chooses to

define the burden. They have no refuge but obedience,

since if they act--or fail to act--with greater or less vigor

than Congress deems useful, they transgress its power

and offend the Constitution. The traditional remedy of

unwilling states, abandonment of the field to direct

federal control, is barred.

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 and Second Circuit’s holdings violate the

Constitution and are contrary to this Court’s holding in New

York. “Whatever the outer limits of . . . sovereignty may be,

one thing is clear: the federal government may not compel the

states to enact or administer a federal regulatory program.” New

York v. United States, 505 U.S. at 188, 112 S.Ct. at 2435.

IL. THE STATUTE IS DESTRUCTIVE OF

FEDERALISM.

If the Ninth Circuit’s holding is upheld, the result will be

the inevitable destruction of federalism.

When Congress was considering the Statute, it rejected

an amendment which would have forced the Federal Bureau of

Investigation to conduct the background checks. H.R. Rep.

No. 103-344, 103rd Cong., Ist Sess., at 7 (1993). Instead, the

federal Congress chose to burden state officials with conducting

such federally mandated duties. The Statute is an attempt by

Congress to appropriate state funds and resources to pay for

programs which Congress thought wise to enact and for which

Congress will claim credit, but which the states will bear the

burden of enforcing and funding. This diminishes the ability of

20

states to perform other governmental functions. If this Court

allows Congress to so appropriate state resources, then it is

certain that more such appropriations will take place. As the

federal governmeut is allowed to commandeer the states to

perform federal tasks for free, the states will eventually be

robbed of their funds, their resources and their independence.

If Congress is aliowed gratuitously to order the states to

perform federal tasks, it will not have to pay for what it

gets. As ideas for federal projects grow but resources

lessen, the incentives will grow stronger for Congress to

command the state government to perform federal

programs for free.

Lipner, /mposing Federal Business on Officers of the States:

What the Tenth Amendment Might Mean, 57 Geo. Wash. L.

Rev. 907, 928 (1989). See also Deborah Jones Merritt, The

Guarantee Clause and State Autonomy: Federalism for a

Third Century, 88 Colum. L. Rev. 1, 15 (1988)(“Congress has

recently forced State and local governments to administer

national programs at State expense. This technique permits

Congress to escape fiscal accountability for its actions.”);

Ronald Rotunda, The Doctrine of Conditional Preemption and

Other Limitations on Tenth Amendment Restrictions, 132 U.

Pa. L. Rev. 289, 312-13 (1984)(“If the federal government is

willing to assume the full burdens of direct regulation it will not

impose regulations without carefully considering the costs

involved.”’)

Such federal appropriations of state resources pose

additional dangers to the very concept of federalism.

[I}f the national government compels the states to

enforce federal regulatory programs, state budgets and

executive resources reflect federal priorities rather than

21

the wishes of local citizens. These results are antithetical

to the popular control exerted in a republican form of

government.

Deborah Merritt, Zhe Guarantee Clause and State Autonomy:

Federalism For A Third Century, 88 Col. L. Rev. 1, 61 (1988).

In New York, this Court predicted that such federal

“commandeering” would undermine the very core of federalism,

permitting the federal government to shift accountability to the

States.

[W]here the Federal Government compels States to

regulate, the accountability of both state and federal

officials is diminished. . . . [Where the Federal

Government directs the States to regulate, it may be

state officials who will bear the brunt of public

disapproval, while the federal officials who devised the

regulatory program may remain insulated from the

electoral ramifications of their decision. Accountability

is thus diminished when, due to federal coercion, elected

state officials cannot regulate in accordance with the

views of the local electorate in matters not pre-empted

by federal regulation.

New York v. United States, 505 U.S. at 169, 112 S.Ct. at 2424.

See also Merritt, 88 Colum L Rev, at 61-62; La Pierre, Political

Accountability in the National Political Process-The

Alternative to Judicial Review of Federalism Issues, 80

N.W.ULL. Rev 577, 639-665 (1985).

Mm. THE STATUTE VIOLATES THE ELEVENTH

AMENDMENT.

The Eleventh Amendment to the United States

22

Constitution provides that “[the Judicial power of the United

States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or subjects of

any Foreign State.” U.S. Const., Amend. XI.

“Although the text of the Amendment would appear to

restrict only the Article III diversity jurisdiction of the federal

courts, ‘we have understood the Eleventh Amendment to stand

not so much for what it says, but for the presupposition . _ .

which it confirms.”” Seminole Tribe of Florida v. Florida, 116

S.Ct. 1114, 134 L.Ed.2d 252, 1996 U.S. LEXIS 2165 (1996),

quoting Blatchford v. Native Village of Noatak, 501 U.S. 775,

779,111 S.Ct. 2578, 115 L. Ed. 2d 686 (1991). This Court

reaffirmed, in the very recent case of Seminole Tribe of Florida,

that the Eleventh Amendment stands for the two part_

presupposition that “each State is a sovereign entity in our

federal system;” and, secondly, that it is inherent in the nature

of a state’s sovereignty not to be amenable to suit without the

state’s consent. Seminole Tribe of Florida v. Florida, 1996

U.S. LEXIS at 2181. See also Hans v. Louisiana, 134 U.S. 1,

10 S.Ct. 504, 33 L. Ed. 842 (1890), and The Federalist No. 87,

p. 487 (C. Rossiter ed. 1961) (A. Hamilton). “For over a

century we have reaffirmed that federal jurisdiction over suits

against unconsenting States ‘was not contemplated by the

Constitution when establishing the judicial power of the United

States.’” Seminole Tribe of Florida v. Florida, 1996 U.S. .

LEXIS at 2181, quoting Hans v. Louisiana, 134 U.S. at 15.

_ i il Nit lt

In Seminole Tribe of Florida, this Court specifically

overruled a contrary precedent which was from approximately

the same time as Garcia. Seminole Tribe of Florida v. Florida,

1996 U.S. LEXIS at 2168, over-ruling Pennsylvania v. Union

Gas Co, 491 U.S. 1 (1989).

“We hold that notwithstanding Congress’ clear intent to

abrogate the States’ sovereign immunity , the Indian Commerce

Clause does not grant Congress that power, and therefore [the

statute at issue] cannot grant jurisdiction over a State that does

not consent to be sued.” Seminole Tribe of Florida v. Florida,

1996 U.S. LEXIS at 2166-2167. This is so despite the fact that

“the Indian Commerce Clause accomplishes a greater transfer

of power from the States to the Federal Government than does

the Interstate Commerce Clause.” /d., 1996 U.S. LEXIS at

2194.

The Statute, by creating a civil cause of action against

the CLEO’s “state or political subdivision” for an erroneous

denial, constitutes an attempt by Congress to abrogate the

states’ sovereign immunity in violation of the Eleventh

Amendment. 18 U.S.C. § 925A.

IV. THE UNCONSTITUTIONAL PORTIONS OF 18

U.S.C. §922(S) CANNOT 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. Alaska Airlines, Inc. v. Brock, 480 U.S. 678,

691 (1987), teaches that legislative history should be reviewed

to determine whether a constitutionally flawed provision in a

statute is severable or nonseverable. Severing only the

constitutionally flawed portions of the statute would leave a

statute that creates a registration system at the level of chief law

enforcement official. Congress’s refusal to enact firearm and

firearm owner registration requires a finding that § 922(s) is

nonseverable.

A. National Firearms Act

24

Congress enacted a firearm registration statute only

once. The 1934 National Firearms Act covered a narrow field

of firearms: e.g., machine guns, short barrelled shotguns, and

short barrelled rifles. 26 U.S.C. § 5841, 5845. Ordinary rifles,

shotguns, pistols, and revolvers were not included in the

registration requirement. H.R. Rep. No. 1780, 73d Cong., 2d

Sess. 1-2 (1934). See also David T. Hardy, The Firearms

Owners’ Protection Act: A Historical and Legal Perspective,

17 Cumberland L. Rev. 585, 593 (1987). All efforts at

registration have subsequently been defeated.

B. Property Requisition Act

In 1941, shortly before Pearl Harbor, Congress enacted

the Property Requisition Act. 55 Stat. 742 (1941). It

specifically provided that nothing in the act would be construed

“to authorize the requisitioning or require the registration of any

Suen ten ee

. [or]... to impair or infringe in any manner the right

teuabindesamediameen: ”' The prohibition

against registration and protection of the right to bear arms

were inserted because of the unhappy experiences with Hitler

and Stalin. 87 Cong. Rec. 6778 (1941)(Rep. Edwin Arthur

Hall). It was felt that granting extraordinary powers to the

Executive did not warrant an infringement of personal rights

and liberties expressed in the Constitution H.R. Rep. No.

1120, 77th Cong., Ist Sess. 2 (1941).

od 1968 Gun Control Act

’ For recent expositions on the right to bear arms see Joyce Lee

Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN

ANGLO-AMERICAN RIGHT 162 (Harvard Univ. Press 1994), William

Van Alstyne, The Second Amendment and the Personal Right to Arms,

43 Duke L. J. 1236 (1994), Akhil Reed Amar, The Bill of Rights and the

Fourteenth Amendment, 10\ Yale L. J. 1193 (1992).

25

Registration proposals were defeated in what became

Title I of the 1968 Gun Control Act. P. L. 90-618. Rep.

McClory introduced an amendment to register handguns. 114

Cong. Rec. 22248 (1968). Rep. Bingham offered an

amendment to Rep. phar nena ery cg ny

would also apply to rifles and shotguns. 114 Cong Rec.

22255. Rep. McClory’s amendment to register handguns was

defeated 168 to 89. 114 Cong. Rec. 22267. Rep. Bingham’s

amendment was defeated 172 to 68. 114 Cong. Rec. 22266.

Rep. McClory then offered an amendment requiring

licensing. 114 Cong. Rec. 22745. It was defeated by a vote of

179 to 84. 114 Cong. Rec. 22763.

Arguments in the House against registration and

licensing included claims that a federal dossier would be created

on every citizen. 114 Cong Rec. 22268 (Rep. Griffin).

Licensing was opposed as another modified form of

registration. 114 Cong. Rec. 22748 (Rep. Sikes).

Rep. Latta reminded the House that registration and

licensing were rejected. 114 Cong. Rec. 30580.

In the Senate, Sen. Tydings offered an amendment

requiring registration and licensing. 114 Cong Rec. 27149-

27150. Sen. Tydings’ amendment was defeated. 114 Cong.

Rec. 27421. Sen. Tydings then offered an amendment

providing for handgun licenses. 114 Cong. Rec. 27457-27458.

It was defeated. 114 Cong. Rec. 27460.

Sen. Jackson proposed an indirect approach to

registration by denying federal firearm licenses to gun dealers in

states that do not require registration and transmittal to NCIC

114 Cong. Rec. 27422. This was defeated 114 Cong. Rec.

27427.

Sen. Brooke proposed an amendment that would have

provided for direct registration at the local and federal level.

26

Re-registration would be required whenever a gun owner would

change his residence. 114 Cong. Rec. 27428-27429. The

amendment was rejected. 114 Cong. Rec. 27456.

Sen. Hruska reminded the Senate that registration and

licensing issues were met four square and rejected. 114 Cong.

Rec. 30184.

D. The Firearms Owners’ Protection Act

The Firearms Owners’ Protection Act, P.L. 99-308, 100

Stat. 449 (1986), provided that 18 U.S.C. § 926(a) specifically

not require the registration of firearms and their owners: “No

such rule or regulation prescribed after the date of the

enactment of the Firearms Owners’ Protection Act may require

that records required to be maintained under this chapter or any

portion of the contents of such records, be recorded at or

transferred to a facility owned, managed, or controlled by the

United States or any State or any political subdivision thereof,

nor that any system of registration of firearms, firearms owners,

or firearms transactions or dispositions be established. Nothing

in this section expands or restricts the Secretary’s authority to

inquire into the disposition of any firearm in the course of a

criminal investigation.”

E. Public Law 103-159, 107 Stat. 1536

The Statute under consideration also contains a

proscription against registration. The chief law enforcement

officer is required to destroy the Federal Form and any

references to it within 20 business days if the proposed transfer

would not violate federal, state, or local law. 18 U.S.C. §

922(s)(6\(B (i).

Congress never envisioned that it was creating a

registration system at the local law enforcement level. 18

U.S.C. §922(s) cannot be severed; it stands or falls as a whole.

The Statute was enacted with Congressional intent not

to impose registration. For example, Rep. Roukema explained

that "the Brady bill in no way provides for a system of national

gun registration--quite the opposite. In every instance where a

handgun sale is approved under Brady, law enforcement officers

must destroy the information they've been provided within 20

days." 139 Cong. Rec. H9106 (Nov. 10, 1993). Rep. Hushes

agreed: "To help protect the privacy of legal purchasers, it [the

bill] requires that a copy of the statement and other records of

the transaction be destroyed within 20 days." /d at H9117.

The Statute also requires the reporting of multiple

handgun sales to State and local police and the destruction of

those records within 20 days. 18 U.S.C. § 923(g)(3). This

destruction requirement, Senator Dole explained, “eliminates

the concern that this would be back door gun registration." 139

Cong. Rec. $16311 (Nov. 19, 1993).

Congress without a doubt intended not to enact any kind

of registration scheme. The Statute, minus the unconstitutional

parts, is contrary to Congressional intent, and thus the whole

Statute must be voided.

CONCLUSION

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

powers delegated by the people to Congress, and violates

principles of federalism guaranteed in the Tenth Amendment.

Because excising the unconstitutional provisions creates a

statute that Congress never intended, 18 U.S.C. § 922(s) is not

severable. Amicus curiae respectfully submits 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)

Robert Dowlut

Stefan Tahmassebi

Attorneys for Amicus Curiae