78 F.3d 815 (2nd Cir. 1996), 138, Frank v. United States

Docket Nº:138, 506, Dockets 95-6019, 95-6023.
Citation:78 F.3d 815
Party Name:Samuel FRANK, Plaintiff-Appellee-Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant-Cross-Appellee.
Case Date:March 14, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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78 F.3d 815 (2nd Cir. 1996)

Samuel FRANK, Plaintiff-Appellee-Cross-Appellant,


UNITED STATES of America, Defendant-Appellant-Cross-Appellee.

Nos. 138, 506, Dockets 95-6019, 95-6023.

United States Court of Appeals, Second Circuit

March 14, 1996

Argued Aug. 28, 1995.

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Judge Miner concurs in a separate opinion.

Mark B. Stern, Washington, D.C. (Sean A. Lev, Stephanie R. Marcus, Appellate Staff, Civil Division, Department of Justice, Washington, D.C.; Frank W. Hunger, Assistant Attorney General, Walter Dellinger, Assistant Attorney General, Richard L. Shiffrin, Deputy Assistant Attorney General, H. Jefferson Powell, Stuart M. Benjamin, Office of Legal Counsel, Washington, D.C.; Charles R. Tetzlaff, United States Attorney, Civil Division, Burlington, Vermont, of counsel and on the brief), for Appellant United States of America.

Andrea L. Gallitano, Barre, Vermont (David A. Otterman, Otterman and Allen, Barre, Vermont, of counsel), for Appellee Samuel Frank.

Randolph D. Moss, Washington, D.C. (Anthony G. Brown, James S. Campbell, Wilmer, Cutler & Pickering, Washington, D.C.; Dennis A. Henigan, Gail A. Robinson, Center to Prevent Handgun Violence, Legal Action Project, Washington, D.C., of counsel), filed a brief on behalf of Handgun Control, Inc., Center to Prevent Handgun Violence, International Association of Chiefs of Police, Major Cities Chiefs, National Organization of Black Law Enforcement Executives, Fraternal Order of Police, National Association of Police Organizations, National Troopers' Coalition, Police Executive Research Forum, and Federal Law Enforcement Officers' Association as Amici Curiae.

Before: CARDAMONE, MINER, and CALABRESI, Circuit Judges.

CARDAMONE, Circuit Judge:

The United States appeals from a judgment entered August 2, 1994 in the United States District Court for the District of Vermont (Parker, C.J.) declaring unconstitutional that section of the Brady Handgun Violence Prevention Act of 1993 (Brady Act or Act) which requires background checks of potential handgun buyers, Pub.L. No. 103-159, § 102(a)(1), 107 Stat. 1536, 1537-38 (1993) (codified at 18 U.S.C. § 922(s)(2) (1994)). Plaintiff Samuel Frank, the Sheriff of Orange County, Vermont, cross-appeals from the district court's rulings that he lacked standing to challenge the Brady Act on Fifth Amendment grounds and that the background check provision is severable from the remainder of the Act.

Sheriff Frank does not argue that Congress lacks the power to regulate transactions involving handguns. Apart from federalism concerns, the commerce power of the United States is almost certainly broad enough to support such regulation. See United States v. Lopez, --- U.S. ----, ----, 115 S.Ct. 1624, 1630, 131 L.Ed.2d 626 (1995) ("[T]he proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce."); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252, 258, 85 S.Ct. 348, 354-55, 358, 13 L.Ed.2d 258 (1964) (although final version of Civil Rights Act carried no congressional findings, burden on interstate commerce permitted prohibition of racial discrimination by motels); H.R.Rep. No. 90-1577, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411 ("The principal purpose of [the Gun Control Act] is to strengthen Federal controls over interstate and foreign commerce in firearms...."); H.R.Rep. No. 103-344, 103d Cong., 1st Sess. 9-10 (1993), reprinted in 1993 U.S.C.C.A.N.1984, 1986-87 (background checks intended to effectuate prohibitions contained in Gun Control Act).

The issue on this appeal, then, does not involve Congress' ordinary power to regulate

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under the Commerce Clause; the issue is whether the regulatory means chosen under the Brady Act are valid or intrude impermissibly upon state sovereignty. At the front where the enumerated powers granted to Congress under the Constitution clash with those powers reserved to the States by the Tenth Amendment, there is no certain line of demarcation. But whatever line there is, it is one to which we should hold strongly. The powers reserved to the States must not be, like the Maginot line, easily outflanked by the powers of the national government. In our view, the background check provisions of the Brady Act do not cross that line and trespass on those rights reserved by the Tenth Amendment.


  1. The Brady Act

    Congress enacted the Brady Act in 1993 to address the national epidemic of handgun violence and death. See H.R.Rep. No. 103-344, 103d Cong., 1st Sess. 8 (1993), reprinted in 1993 U.S.C.C.A.N.1984, 1985. The Act amends title I of the Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213 (codified as amended at 18 U.S.C. §§ 921-930 (1994)), which regulates firearms dealers and prohibits the transfer of firearms to specific categories of persons ranging from felons and "fugitive[s] from justice" to certain non-citizens. See 18 U.S.C. § 922(g). To put teeth into these prohibitions by identifying unlawful gun transactions before they occur, the Act imposes a background check system.

    The Act operates in two phases. First, it requires the U.S. Department of Justice to develop a national instant background check system for firearms transfers, which is to be operational by the year 1999. See § 103(b), 107 Stat. at 1541; 18 U.S.C. § 922(t) (permanent provision). This instant check system requires no waiting period. See § 922(t)(1). Second, for gun purchases occurring before the national system is active, the Act contains an interim provision that imposes a five-day waiting period during which a background check is to take place. § 922(s)(2). This provision does not apply in States that require pre-purchase background checks, see § 922(s)(1)(D), or permits and pre-permit background checks for handgun purchases, see § 922(s)(1)(C).

    It is this interim background check provision that is the subject of the instant litigation. Such checks are to be conducted by the "chief law enforcement officer" (CLEO) of the proposed purchaser's place of residence, see § 922(s)(2), which the Act defines as "the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." § 922(s)(8). Before transferring a handgun, a licensed firearms dealer must obtain a statement from the purchaser (transferee). § 922(s)(1)(A)(i)(I). In practice, this means that a person seeking to buy a handgun must fill out a form prepared by the Bureau of Alcohol, Tobacco and Firearms (Bureau). See 27 C.F.R. § 178.102(a)(1) (1995) (conditioning handgun transfers on receipt by the licensee of a "statement of intent to obtain a handgun on Form 5300.35"). The dealer then transmits the form to the CLEO of the transferee's place of residence. § 922(s)(1)(A)(i)(III); 27 C.F.R. § 178.102(a)(3).

    After a CLEO receives a copy of such a statement from a dealer, that official "shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General." § 922(s)(2). Two additional requirements are imposed on CLEOs in connection with these interim background checks. If the CLEO determines, on the basis of the background check, that a proposed transfer would be lawful, he or she must destroy the transferee's statement and related records. § 922(s)(6)(B)(i). If, however, the CLEO determines that a proposed transfer would be illegal, the CLEO must give written reasons if the would-be gun buyer so requests. See § 922(s)(6)(C).

    Criminal penalties are provided: "Whoever knowingly violates [the Brady Act interim or permanent provisions] shall be fined ..., imprisoned for not more than 1 year, or both." 18 U.S.C. § 924(a)(5). The applicability of these penalties to CLEOs is in dispute

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    in this litigation. However, the record does not suggest that Sheriff Frank or any other potential CLEO has been prosecuted or threatened with prosecution under this subsection. In a March 16, 1994 memorandum to the Attorney General, the Office of Legal Counsel took the position that for a variety of reasons prosecuting and applying the penalty provision to CLEOs would be impractical and inconsistent with the statute's language and aim.

  2. Brady's Implementation in Orange County

    The Bureau, which by delegation of the Secretary of the Treasury is responsible for the implementation of the Gun Control Act and the 1993 amendments, see 18 U.S.C. § 926 (1994), interprets the term "CLEO" as broad enough to encompass more than one law enforcement officer within any given geographical area. On January 21, 1994, before the effective date of the Brady Act, it sent an "Open Letter to State and Local Law Enforcement Officials" (Open Letter) explaining the requirements of the Act and suggesting that state and local officials in each locality work together to decide which agency would perform the CLEO functions. The Bureau now maintains a list of the responsible CLEOs in the jurisdictions within States covered by the five-day interim requirement of the Act and publishes changes in CLEO status in the Federal Register. See, e.g., 59 Fed.Reg. 37,532 (1994).

    On January 1, 1994 Sheriff Frank, Commissioner A. James Walton, Jr. of the Vermont Department of Public Safety, and numerous other interested law enforcement officials attended a meeting at Norwich University in Northfield, Vermont organized by the Bureau and the Vermont Department of Public Safety to discuss the Act's implementation. At the meeting, Commissioner Walton told local officials that...

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