Mack v. U.S.

Decision Date08 September 1995
Docket Number94-36193 and 95-35037,Nos. 94-16940,94-17002,s. 94-16940
Citation66 F.3d 1025
Parties, 95 Cal. Daily Op. Serv. 7123, 95 Daily Journal D.A.R. 12,151 Richard MACK, Sheriff of Graham County, Arizona, Plaintiff-Appellee-Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant-Cross-Appellee. Jay PRINTZ, Sheriff/Coroner, Ravalli County, Montana, Plaintiff-Appellant-Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee-Cross-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David T. Hardy, Tucson, AZ, for plaintiff-appellee-cross-appellant Mack.

Mark I. Levy, United States Department of Justice, Washington, DC, for defendant-appellant-cross-appellee United States of America.

Stephen P. Halbrook, Fairfax, VA, for plaintiff-appellant-cross-appellee Printz.

Jonathan K. Baum, Katten, Muchin & Zavis, Chicago, IL, for amicus United States Senator Paul Simon.

Richard A. Cordray, Assistant Attorney General, Columbus, OH, for amicus State of Ohio.

James H. Warner, Fairfax, VA, for amicus Law Enforcement Alliance of America.

Randolph D. Moss, Wilmer, Cutler & Pickering, Washington, DC, for amicus Handgun Control, Inc., et al.

Appeals from the United States District Court for the District of Arizona.

Appeals from the United States District Court for the District of Montana.

Before: CHOY, CANBY, and FERNANDEZ, Circuit Judges.

Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

CANBY, Circuit Judge:

Sheriffs Richard Mack and Jay Printz, in separate actions, challenged the constitutionality of the Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993), codified at 18 U.S.C. Sec. 922(s). The main issue on appeal concerns the district courts' respective holdings that section 922(s)(2) of the Brady Act, requiring local law enforcement officials to perform background checks of handgun purchasers, violates the Tenth Amendment. We conclude that the Act is constitutional, and we accordingly reverse the judgments of the district courts.


The Brady Act, passed in 1993 as an amendment to the Gun Control Act of 1968, imposes a waiting period of up to five days for the purchase of a handgun, and subjects purchasers to a background check during that period. 1 See 18 U.S.C. Sec. 922(s)(1). Within five years from the effective date of the Act, such checks will be performed instantaneously through a national criminal background check system maintained by the Department of Justice, 18 U.S.C. Sec. 922(t), but in the meantime the background checks must be performed by the Chief Law Enforcement Officer (CLEO) of the prospective purchaser's place of residence. 18 U.S.C. Sec. 922(s)(2). The Act requires CLEOs to "make a reasonable effort to ascertain ... whether receipt or possession [of a handgun by the prospective buyer] would be in violation of the law...." Id. The CLEO performs the check on the basis of a sworn statement signed by the buyer and provided to the CLEO by a federally-licensed gun dealer. 18 U.S.C. Sec. 922(s)(1)(A). If the CLEO approves the transfer, he or she must destroy the buyer's statement within twenty business days after the statement was made. 18 U.S.C. Sec. 922(s)(6)(B)(i). If the CLEO disapproves the transfer, the CLEO must provide the reasons for the determination within twenty business days if so requested by the disappointed purchaser. 18 U.S.C. Sec. 922(s)(6)(C).

Richard Mack and Jay Printz, as sheriffs, are the CLEOs in their respective jurisdictions of Graham County, Arizona, and Ravalli County, Montana. They brought these actions in their local federal district courts to challenge the Brady Act's provisions imposing duties upon them. Mack and Printz both invoked the Tenth and Fifth Amendments. Mack also challenged the Act as violating the Thirteenth Amendment.

Both district courts held that section 922(s)(2) of the Act, by imposing on the sheriffs a mandatory duty to conduct background checks, violated the Tenth Amendment as interpreted by the Supreme Court in New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). See Mack v. United States, 856 F.Supp. 1372 (D.Ariz.1994); Printz v. United States, 854 F.Supp. 1503 (D.Mont.1994). 2 Neither court enjoined the provisions of the Act requiring CLEOs to explain the reasons for rejecting a purchase application, Sec. 922(s)(6)(C), and requiring destruction of records, Sec. 922(s)(6)(B). The Printz decision noted that the requirement of a statement of reasons became optional once the mandatory background check was invalidated, and that the provision for destruction of records was "de minimis."

In Mack, the district court also held that the criminal provisions of the Act applied to CLEOs, and were void for vagueness under the Fifth Amendment because they made it a crime for CLEOs to fail to make a "reasonable effort" to ascertain the lawfulness of a prospective handgun purchase. The Printz court held that the criminal provisions did not apply to CLEOs. Finally, the Mack court rejected Mack's Thirteenth Amendment challenge. Both district courts held that the invalid portions of the Act were severable, and accordingly refused to hold the entire Act unconstitutional.

In both actions, both sides appealed. 3 The sheriffs primarily dispute the holdings of severability, while the United States contends that the entire Act is constitutional. 4


No one in this case questions the fact that regulation of the sales of handguns lies within the broad commerce power of Congress. 5 The issue for decision is whether the manner in which Congress has chosen to regulate in the Brady Act violates the Tenth Amendment.

The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people." U.S. Const. amend. X. As a textual matter, therefore, the Tenth Amendment "states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609 (1941). By its terms, the Amendment does not purport to limit the commerce power or any other enumerated power of Congress.

In recent years, however, the Tenth Amendment has been interpreted "to encompass any implied constitutional limitation on Congress' authority to regulate state activities, whether grounded in the Tenth Amendment itself or in principles of federalism derived generally from the Constitution." South Carolina v. Baker, 485 U.S. 505, 511 n. 5, 108 S.Ct. 1355, 1360 n. 5, 99 L.Ed.2d 592 (1988). Thus, "the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States, 505 U.S. 144, 157, 112 S.Ct. 2408, 2418, 120 L.Ed.2d 120 (1992). The question before us is whether the Brady Act, by requiring CLEOs to perform background checks on handgun purchasers, transgressed such an implied limitation on federal power. We conclude that it did not.

There are numbers of ways in which the federal government is permitted to secure the assistance of state authorities in achieving federal legislative goals. First and most directly, the federal government may coerce the states and their employees into complying with federal laws of general applicability. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). 6 Second, Congress may condition the grant of federal funds on the States' taking governmental action desired by Congress. South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987).

These broad categories do not exhaust, however, the means by which the federal government can enlist state employees in implementing federal programs. State judicial and administrative bodies may be required to apply federal law. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947); FERC v. Mississippi, 456 U.S. 742, 760-61, 102 S.Ct. 2126, 2137-38, 72 L.Ed.2d 532 (1982). The federal government may offer to preempt regulation in a given area, and permit the states to avoid preemption if they regulate in a manner acceptable to Congress. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 290-91, 101 S.Ct. 2352, 2367-68, 69 L.Ed.2d 1 (1981).

The federal government has been permitted effectively to compel the states to issue registered rather than bearer bonds. South Carolina v. Baker, 485 U.S. 505, 514, 108 S.Ct. 1355, 1361-62, 99 L.Ed.2d 592 (1988). Finally, the federal government has been permitted to require state utility regulators to consider prescribed federal standards in determining regulatory policies. FERC v. Mississippi, 456 U.S. at 765, 102 S.Ct. at 2140-41. In the course of the latter ruling, the Supreme Court referred to and rejected the "19th century view" that "Congress has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it." Id. at 761, 102 S.Ct. at 2138 (quoting Kentucky v. Dennison, 24 How. 66, 107, 16 L.Ed. 717 (1861)). That view, said the Court, "is not representative of the law today." Id. "The federal government has some power to enlist a branch of state government ... to further federal ends." Id. 456 U.S. at 762, 102 S.Ct. at 2139.

Against this background, there would appear to be nothing unusually jarring to our system of federalism in the Brady Act's requirement that CLEOs, during a five-year interim period, "make a reasonable effort to ascertain" the lawfulness of handgun purchases. The obligation imposed on state officers by the Brady Act is no more remarkable than, say, the federally-imposed duties of state officers to report missing children, 42 U.S.C. Sec. 5779(a), or traffic fatalities, 23 U.S.C. Sec. 402(a).

Mack and Printz, however, contend that the precedential background set forth...

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