The Evolution Of Brady Law: Still Applicable?

The Brady Law, or the Brady Handgun Violence Prevention Act, was enacted on November 30, 1993, as an amendment to the Gun Control Act of 1968. The law imposed a five-day waiting period for handgun purchases and mandated federal background checks on firearm purchasers in the United States. The question of whether the Brady Law still applies is a complex one, as while the interim provisions of the law ceased to apply on November 30, 1998, with the implementation of the National Instant Criminal Background Check System (NICS), the permanent provisions of the law apply to all firearms.

The Brady Handgun Violence Prevention Act

The Act was named for James Brady, the White House press secretary who was seriously injured in an attempted assassination of President Ronald Reagan in 1981. Brady was left confined to a wheelchair and unable to resume his duties. He and his wife, Sarah, campaigned vigorously for the bill, knowing that common-sense solutions were urgently needed to prevent guns from falling into the wrong hands.

The path to passing the Brady Bill was challenging and took seven years, six votes, and three presidents. The Bradys worked with a committed team of advocates who lobbied members of Congress, systematically and comprehensively, in a bipartisan effort. Their coalition united law enforcement, medical professionals, civic leaders, civil rights organizations, educators, and more.

The Brady Act was a landmark legislative enactment during the Clinton administration. It was introduced by U.S. Representative Chuck Schumer of New York and signed into law by President Bill Clinton on November 30, 1993. The law went into effect on February 28, 1994, and the waiting period ceased to apply on November 30, 1998, when the NICS was implemented.

The Act requires background checks to be conducted on individuals before they can purchase a firearm from a federally licensed dealer, manufacturer, or importer, unless an exception applies. The NICS is maintained by the FBI and, in most cases, provides approval within minutes. If a determination is not made within three business days, the transfer may legally be completed. The Act also outlines procedures for checking with the chief law enforcement officer of the purchaser's place of residence.

The five-day waiting period

The Brady Handgun Violence Prevention Act, often referred to as the Brady Act, was enacted on November 30, 1993, and imposed a five-day waiting period on handgun purchases. This waiting period was an interim measure that applied only to handguns and only in states without an acceptable alternative system for conducting background checks on purchasers. The five-day waiting period was in effect from February 28, 1994, until November 30, 1998, when it was replaced by an instant computerized background check system that typically takes a few seconds.

The intention of the waiting period was to provide time to complete background checks on purchasers and to allow individuals with impulsive violent intentions to "cool off". While the interim provisions of the Brady Law applied only to handguns, the permanent provisions apply to all firearms.

The Brady Act was introduced by U.S. Representative Chuck Schumer of New York and was a landmark legislative enactment during the Clinton administration. The act was named for James Brady, the White House press secretary who was seriously injured in an attempted assassination of President Ronald Reagan in 1981. Brady, who was confined to a wheelchair and unable to resume his duties, campaigned vigorously for the bill despite fierce opposition from the National Rifle Association (NRA).

Federal background checks

The Brady Handgun Violence Prevention Act, often referred to as the Brady Act, was enacted on November 30, 1993, and mandated federal background checks on firearm purchasers in the United States. The Act amended the Gun Control Act of 1968, imposing a five-day waiting period on purchases until the National Instant Criminal Background Check System (NICS) was implemented in 1998.

The Brady Act requires background checks to be conducted on individuals before they can purchase a firearm from a federally licensed dealer, manufacturer, or importer. These checks are run through the NICS, which is operated by the Federal Bureau of Investigation (FBI). The NICS checks available records to determine if a prospective firearm transferee is legally permitted to possess and receive a firearm. If there are no additional state restrictions, a firearm may be transferred to an individual upon approval by the NICS.

The background check system works to prevent certain categories of prohibited purchasers from obtaining a gun. These include individuals who have been convicted of a crime punishable by a prison sentence of longer than one year, those who are unlawful users of controlled substances, those with disqualifying mental illnesses or who have been committed involuntarily to a mental institution, and those who are not legal residents of the US.

Since its enactment in 1994, Brady Background Checks have prevented nearly 4.9 million prohibited gun transactions. Between 1993 and 2018, the firearm homicide rate among those 12 years of age and older decreased by 41%, and the rate of firearm injury decreased by 76% over the same period.

While the interim provisions of the Brady Law, including the five-day waiting period, ceased to apply on November 30, 1998, the permanent provisions of the law continue to apply to all firearms.

National Instant Criminal Background Check System (NICS)

The National Instant Criminal Background Check System (NICS) was established as a result of the Brady Handgun Violence Prevention Act of 1993 (also known as the Brady Act). The NICS became operational on November 30, 1998, and is administered by the Federal Bureau of Investigation (FBI). The system was developed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and state and local law enforcement agencies.

The NICS is used to conduct background checks on individuals who want to own or purchase a firearm. These checks are carried out by Federal Firearms Licensees (FFLs), such as gun shop owners, pawn shop dealers, and retailers, to determine whether a person is legally permitted to buy or own a firearm. The NICS checks three databases maintained by the FBI: the Interstate Identification Index (III), the National Crime Information Center (NCIC), and the NICS Indices.

The Interstate Identification Index (III) is a database of criminal history record information. The National Crime Information Center (NCIC) includes information on persons subject to civil protection orders and arrest warrants. The NICS Indices contain information contributed by federal and state agencies, identifying individuals prohibited from possessing firearms who are not included in the III or NCIC. This includes people with prohibiting mental health histories or who are illegal aliens.

If a NICS check identifies an individual as falling within a prohibited category, the FBI advises the FFL that the transfer is "denied". Individuals can appeal denials and seek the correction of any inaccurate or incomplete information in the FBI databases. The privacy and security of the information in the NICS are governed by regulations, and the FBI takes extensive measures to ensure the security and integrity of the system.

The Supreme Court's ruling in Printz v. United States

• Historical Understanding and Practice: The Court found that the early Congresses' statutes did not provide evidence of congressional power to command state officers to execute federal laws. It noted that the Constitution's structure, which establishes a system of "dual sovereignty," reserves certain powers to the states, and that the Brady Act's provisions would augment federal power and reduce the President's power.
• Necessary and Proper Clause: The Court determined that the Brady Act's provisions were not "proper" for carrying into execution the Commerce Clause power as they violated state sovereignty.
• Prior Jurisprudence: The Court referenced New York v. United States (1992), which held that Congress cannot compel states to enact or administer a federal regulatory program. It concluded that the Brady Act's interim provisions fell under this category and were therefore unconstitutional.

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