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Background checks ruled Unconstitutional years ago

nvlawman67nvlawman67 Member Posts: 4 ✭✭
According to the U.S. Supreme Court and the U.S. Constitution Annotated, firearm background checks were deemed Unconstitutional years ago. So why are the sellers of this site still requiring one? What has more weight, a statute enforced by the ATF, an executive branch administrative agency? Or the U.S. Suprme Court who has the last say on the Constitutitonality of any statute and can overrule one? Yes, background checks were deemed Unconstitutional however, that still doesn't require that the statute be taken off the books. If you don't know your rights, you don't have any. It's not the job of the U.S. Supreme court to notify the public of a change in law from a ruling by mailing it to your door. You have to be aware of it on your own. The sellers can require it of the ignorant but, if the buyer points out that he/she knows their rights and the Supreme Law of the Land, they are lawfully able to make the purchase without the intrusion of their privacy as the highest court has allready ruled on the issue. The statute has been invalidated, wake up sellers!!! I had an exchange of e-mails with one seller on the issue and all he could say in the end was, "if you're going to buy a gun from me, you're going to get an FFL transfer". This type of response is asking for a lawsuit, and a no brainer at that since the courts have allready ruled on the issue. Another example of the ignorant believing everything that some administrative agency tells him. The ATF are pencil pushers, not lawyers, how would they know. It's up to you to educate them on changes in the law. All of the information referred to in this post is below:

[DOCID: f:sd027.106]
From the Senate Documents Online via GPO Access
[wais.access.gpo.gov]



This publication supplements Senate Document 103-6, The Constitution of
the United
States of America: Analysis and Interpretation--it should be inserted
in the pocket on the inside back cover of that volume

106th Congress Document
SENATE

2d Session No. 106-27

________________________________________________________________________


THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION

__________

2000 SUPPLEMENT

ANALYSIS OF CASES DECIDED BY THE SUPREME

COURT OF THE UNITED STATES TO JUNE 28, 2000


<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

George A. Costello

Kenneth R. Thomas

Editors

David M. Ackerman

Henry Cohen

Robert Meltz

Contributors

U.S. GOVERNMENT PRINTING OFFICE

69-557 CC WASHINGTON : 2000
________________________________________________________________________

For sale by the Superintendent of Documents, U.S. Government Printing
Office

Washington, DC 20402



ARTICLE VI

NATIONAL SUPREMACY
Obligation of State Courts Under the Supremacy Clause
[P. 921, add to n.20:]
The Court's re-emphasis upon ``dual federalism'' has not
altered this principle. See, e.g., Printz v. United States,
521 U.S. 898, 905-10 (1997).
Supremacy Clause Versus the Tenth Amendment
[P. 930, add to text at end of carryover paragraph:]

Expanding upon its anti-commandeering rule, the
Court in Printz v. United States \1\ established
``categorically'' the rule that ``[t]he Federal Government
may not compel the States to enact or administer a federal
regulatory program.'' \2\ At issue in Printz was a provision
of the Brady Handgun Violence Prevention Act, which
required, pending the development by the Attorney General of
a national system by which criminal background checks on
prospective firearms purchasers could be conducted, the
chief law enforcement officers of state and local
governments to conduct background checks to ascertain
whether applicants were ineligible to purchase handguns.
Confronting the absence of any textual basis for a
``categorical'' rule, the Court looked to history, which in
its view demonstrated a paucity of congressional efforts to
impose affirmative duties upon the States.\3\ More
important, the Court relied on the ``structural
Constitution'' to demonstrate that the Constitution of 1787
had not taken from the States ``a residuary and inviolable
sovereignty,'' \4\ that it had, in fact and theory, retained
a system of ``dual sovereignty'' \5\ reflected in many
things but most notably in the constitutional conferral
``upon Congress of not all governmental powers, but only
discrete, enumerated ones,'' which was expressed in the
Tenth Amendment. Thus, while it had earlier rejected the
commandeering of legislative assistance, the Court now made
clear that administrative officers and resources were also
fenced off from federal power.

--Federal Regulations Affecting State Activities and
Instrumentalities
[P. 1518, add new paragraphs at end of section:]

Extending the principle applied in New York, the
Court in Printz v. United States \5\ held that Congress may
not ``circumvent'' the prohibition on commandeering a
state's regulatory processes ``by conscripting the State's
officers directly.'' \6\ Struck down in Printz were interim
provisions of the Brady Handgun Violence Protection Act that
required state and local law enforcement officers to conduct
background checks on prospective handgun purchasers. ``The
Federal Government may neither issue directives requiring
the States to address particular problems, nor command the
States' officers . . . to administer or enforce a federal
regulatory program. It matters not whether policymaking is
involved, and no case-by-case weighing of the burdens or
benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual
sovereignty.'' \7

\5\ 521 U.S. 898 (1997).
\6\ 521 U.S. at 935.
\7\ Id.


139. Act of Nov. 30, 1993 (Pub. L. No. 103-159), 107 Stat. 1536.
Interim provisions of the Brady Handgun Violence
Prevention Act that require state and local law enforcement
officers to conduct background checks on prospective handgun
purchasers are inconsistent with the Constitution's
allocation of power between Federal and State governments.
In New York v. United States, 505 U.S. 144 (1992), the Court
held that Congress may not compel states to enact or enforce
a federal regulatory program, and ``Congress cannot
circumvent that prohibition by conscripting the State's
officers directly.''

Printz v. United States, 521 U.S. 898
(1997).

Justices concurring: Scalia, O'Connor,
Kennedy, Thomas, and Chief Justice
Rehnquist.

Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.








Case in its' entirety:

SUPREME COURT OF THE UNITED STATES
Nos. 95-1478 AND 95-1503

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478
v.
UNITED STATES
&
RICHARD MACK, PETITIONER 95-1503
v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 27, 1997]
JUSTICE SCALIA delivered the opinion of the Court.

The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat. 1536, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

I

The Gun Control Act of 1968 (GCA), 18 U. S. C. ?921 et seq., establishes a detailed federal scheme governing the distribution of firearms. It prohibits firearms dealers from transferring handguns to any person under 21, not resident in the dealer's State, or prohibited by state or local law from purchasing or possessing firearms, ?922(b). It also forbids possession of a firearm by, and transfer of a firearm to, convicted felons, fugitives from justice, unlawful users of controlled substances, persons adjudicated as mentally defective or committed to mental institutions, aliens unlawfully present in the United States, persons dishonorably discharged from the Armed Forces, persons who have renounced their citizenship, and persons who have been subjected to certain restraining orders or been convicted of a misdemeanor offense involving domestic violence. ??922(d) and (g).

In 1993, Congress amended the GCA by enacting the Brady Act. The Act requires the Attorney General to establish a national instant background check system by November 30, 1998, Pub. L. 103-159, as amended, Pub. L. 103-322, 103 Stat. 2074, note following 18 U. S. C. ?922, and immediately puts in place certain interim provisions until that system becomes operative. Under the interim provisions, a firearms dealer who proposes to transfer a handgun must first: (1) receive from the transferee a statement (the Brady Form), ?922(s)(1)(A) (i)(I), containing the name, address and date of birth of the proposed transferee along with a sworn statement that the transferee is not among any of the classes of prohibited purchasers, ?922(s)(3); (2) verify the identity of the transferee by examining an identification document, ?922(s)(1)(A)(i)(II); and (3) provide the "chief law enforcement officer" (CLEO) of the transferee's residence with notice of the contents (and a copy) of the Brady Form, ??922(s)(1)(A)(i)(III) and (IV). With some exceptions, the dealer must then wait five business days before consummating the sale, unless the CLEO earlier notifies the dealer that he has no reason to believe the transfer would be illegal. ?922(s)(1)(A)(ii).
The Brady Act creates two significant alternatives to the foregoing scheme. A dealer may sell a handgun immediately if the purchaser possesses a state handgun permit issued after a background check, ?922(s)(1)(C), or if state law provides for an instant background check, ?922(s)(1)(D). In States that have not rendered one of these alternatives applicable to all gun purchasers, CLEOs are required to perform certain duties. When a CLEO receives the required notice of a proposed transfer from the firearms dealer, the CLEO must "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). The Act does not require the CLEO to take any particular action if he determines that a pending transaction would be unlawful; he may notify the firearms dealer to that effect, but is not required to do so. If, however, the CLEO notifies a gun dealer that a prospective purchaser is ineligible to receive a handgun, he must, upon request, provide the would-be purchaser with a written statement of the reasons for that determination. ?922(s)(6)(C). Moreover, if the CLEO does not discover any basis for objecting to the sale, he must destroy any records in his possession relating to the transfer, including his copy of the Brady Form. ?922(s)(6)(B)(i). Under a separate provision of the GCA, any person who "knowingly violates [the section of the GCA amended by the Brady Act] shall be fined under this title, imprisoned for no more than 1 year, or both." ?924(a)(5).
Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, filed separate actions challenging the constitutionality of the Brady Act's interim provisions. In each case, the District Court held that the provision requiring CLEOs to perform background checks was unconstitutional, but concluded that that provision was severable from the remainder of the Act, effectively leaving a voluntary background-check system in place. 856 F. Supp. 1372 (Ariz. 1994); 854 F. Supp. 1503 (Mont. 1994). A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of the Brady Act's interim provisions to be unconstitutional. 66 F. 3d 1025 (1995). We granted certiorari. 518 U. S. ___ (1996).
II
From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. Regulated firearms dealers are required to forward Brady Forms not to a federal officer or employee, but to the CLEOs, whose obligation to accept those forms is implicit in the duty imposed upon them to make "reasonable efforts" within five days to determine whether the sales reflected in the forms are lawful. While the CLEOs are subjected to no federal requirement that they prevent the sales determined to be unlawful (it is perhaps assumed that their state-law duties will require prevention or apprehension), they are empowered to grant, in effect, waivers of the federally prescribed 5-day waiting period for handgun purchases by notifying the gun dealers that they have no reason to believe the transactions would be illegal.
The petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. Because there is no constitutional text speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court. We treat those three sources, in that order, in this and the next two sections of this opinion.
Petitioners contend that compelled enlistment of state executive officers for the administration of federal programs is, until very recent years at least, unprecedented. The Government contends, to the contrary, that "the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws," Brief for United States 28. The Government's contention demands our careful consideration, since early congressional enactments "provid[e] `contemporaneous and weighty evidence' of the Constitution's meaning," Bowsher v. Synar, 478 U. S. 714, 723-724 (1986) (quoting Marsh v. Chambers, 463 U. S. 783, 790 (1983)). Indeed, such "contemporaneous legislative exposition of the Constitution ... , acquiesced in for a long term of years, fixes the construction to be given its provisions." Myers v. United States, 272 U. S. 52, 175 (1926) (citing numerous cases). Conversely if, as petitioners contend, earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.
The Government observes that statutes enacted by the first Congresses required state courts to record applications for citizenship, Act of Mar. 26, 1790, ch. 3, ?1, 1 Stat. 103, to transmit abstracts of citizenship applications and other naturalization records to the Secretary of State, Act of June 18, 1798, ch. 54, ?2, 1 Stat. 567, and to register aliens seeking naturalization and issue certificates of registry, Act of Apr. 14, 1802, ch. 28, ?2, 2 Stat. 154-155. It may well be, however, that these requirements applied only in States that authorized their courts to conduct naturalization proceedings. See Act of Mar. 26, 1790, ch. 3, ?1, 1 Stat. 103; Holmgren v. United States, 217 U. S. 509, 516-517 (1910) (explaining that the Act of March 26, 1790 "conferred authority upon state courts to admit aliens to citizenship" and refraining from addressing the question "whether the States can be required to enforce such naturalization laws against their consent"); United States v. Jones, 109 U. S. 513, 519-520 (1883) (stating that these obligations were imposed "with the consent of the States" and "could not be enforced against the consent of the States"). Other statutes of that era apparently or at least arguably required state courts to perform functions unrelated to naturalization, such as resolving controversies between a captain and the crew of his ship concerning the seaworthiness of the vessel, Act of July 20, 1790, ch. 29, ?3, 1 Stat. 132, hearing the claims of slave owners who had apprehended fugitive slaves and issuing certificates authorizing the slave's forced removal to the State from which he had fled, Act of Feb. 12, 1793, ch. 7, ?3, 1 Stat. 302-305, taking proof of the claims of Canadian refugees who had assisted the United States during the Revolutionary War, Act of Apr. 7, 1798, ch. 26, ?3, 1 Stat. 548, and ordering the deportation of alien enemies in times of war, Act of July 6, 1798, ch. 66, ?2, 1 Stat. 577-578.
These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power. That assumption was perhaps implicit in one of the provisions of the Constitution, and was explicit in another. In accord with the so-called Madisonian Compromise, Article III, ?1, established only a Supreme Court, and made the creation of lower federal courts optional with the Congress-even though it was obvious that the Supreme Court alone could not hear all federal cases throughout the United States. See C. Warren, The Making of the Constitution 325-327 (1928). And the Supremacy Clause, Art. VI, cl. 2, announced that "the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." It is understandable why courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time. The principle underlying so-called "transitory" causes of action was that laws which operated elsewhere created obligations in justice that courts of the forum state would enforce. See, e.g., McKenna v. Fisk, 1 How. 241, 247-249 (1843). The Constitution itself, in the Full Faith and Credit Clause, Art. IV, ?1, generally required such enforcement with respect to obligations arising in other States. See Hughes v. Fetter, 341 U.S. 609 (1951).
For these reasons, we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. Indeed, it can be argued that the numerousness of these statutes, contrasted with the utter lack of statutes imposing obligations on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power. The only early federal law the Government has brought to our attention that imposed duties on state executive officers is the Extradition Act of 1793, which required the "executive authority" of a State to cause the arrest and delivery of a fugitive from justice upon the request of the executive authority of the State from which the fugitive had fled. See Act of Feb. 12, 1793, ch. 7, ?1, 1 Stat. 302. That was in direct implementation, however, of the Extradition Clause of the Constitution itself, see Art. IV, ?2.
Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption. On September 23, 1789-the day before its proposal of the Bill of Rights, see 1 Annals of Congress 912-913-the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government's laws: the holding of federal prisoners in state jails at federal expense. Significantly, the law issued not a command to the States' executive, but a recommendation to their legislatures. Congress "recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States," and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96. Moreover, when Georgia refused to comply with the request, see L. White, The Federalists 402 (1948), Congress's only reaction was a law authorizing the marshal in any State that failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail until provision for a permanent one could be made, see Resolution of Mar. 3, 1791, 1 Stat. 225.
In addition to early legislation, the Government also appeals to other sources we have usually regarded as indicative of the original understanding of the Constitution. It points to portions of The Federalist which reply to criticisms that Congress's power to tax will produce two sets of revenue officers-for example, "Brutus's" assertion in his letter to the New York Journal of December 13, 1787, that the Constitution "opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country," reprinted in 1 Debate on the Constitution 502 (B. Bailyn ed. 1993). "Publius" responded that Congress will probably "make use of the State officers and State regulations, for collecting" federal taxes, The Federalist No. 36, p. 221 (C. Rossiter ed. 1961) (A. Hamilton) (hereinafter The Federalist), and predicted that "the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States," id., No. 45, at 292 (J. Madison). The Government also invokes the Federalist's more general observations that the Constitution would "enable the [national] government to employ the ordinary magistracy of each [State] in the execution of its laws," id., No. 27, at 176 (A. Hamilton), and that it was "extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed in the correspondent authority of the Union," id., No. 45, at 292 (J. Madison). But none of these statements necessarily implies-what is the critical point here-that Congress could impose these responsibilities without the consent of the States. They appear to rest on the natural assumption that the States would consent to allowing their officials to assist the Federal Government, see FERC v. Mississippi, 456 U. S. 742, 796, n. 35 (1982) (O'CONNOR, J., concurring in judgment in part and dissenting in part), an assumption proved correct by the extensive mutual assistance the States and Federal Government voluntarily provided one another in the early days of the Republic, see generally White, supra, at 401-404, including voluntary federal implementation of state law, see, e.g., Act of Apr. 2, 1790, ch. 5, ?1, 1 Stat. 106 (directing federal tax collectors and customs officers to assist in enforcing state inspection laws).
Another passage of The Federalist reads as follows:
"It merits particular attention ... , that the laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial in each State will be bound by the sanctity of an oath. Thus, the legislatures, courts, and magistrates, of the respective members will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." The Federalist No. 27, at 177 (A. Hamilton) (emphasis in original).
The Government does not rely upon this passage, but JUSTICE SOUTER (with whose conclusions on this point the dissent is in agreement, see post, at 11) makes it the very foundation of his position; so we pause to examine it in some detail. JUSTICE SOUTER finds "[t]he natural reading" of the phrases "will be incorporated into the operations of the national government" and "will be rendered auxiliary to the enforcement of its laws" to be that the National Government will have "authority ... , when exercising an otherwise legitimate power (the commerce power, say), to require state `auxiliaries' to take appropriate action." Post, at 2. There are several obstacles to such an interpretation. First, the consequences in question ("incorporated into the operations of the national government" and "rendered auxiliary to the enforcement of its laws") are said in the quoted passage to flow automatically from the officers' oath to observe the "the laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction." Thus, if the passage means that state officers must take an active role in the implementation of federal law, it means that they must do so without the necessity for a congressional directive that they implement it. But no one has ever thought, and no one asserts in the present litigation, that that is the law. The second problem with JUSTICE SOUTER's reading is that it makes state legislatures subject to federal direction. (The passage in question, after all, does not include legislatures merely incidentally, as by referring to "all state officers"; it refers to legislatures specifically and first of all.) We have held, however, that state leglislatures are not subject to federal direction. New York v. United States, 505 U. S. 144 (1992).

These problems are avoided, of course, if the calculatedly vague consequences the passage recites - "incorporated into the operations of the national government" and "rendered auxiliary to the enforcement of its laws"- are taken to refer to nothing more (or less) than the duty owed to the National Government, on the part of all state officials, to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legislative acts, are ipso facto invalid. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984) (federal preemption of conflicting state law). This meaning accords well with the context of the passage, which seeks to explain why the new system of federal law directed to individual citizens, unlike the old one of federal law directed to the States, will "bid much fairer to avoid the necessity of using force" against the States, The Federalist No. 27, at 176. It also reconciles the passage with Hamilton's statement in Federalist No. 36, at 222, that the Federal Government would in some circumstances do well "to employ the state officers as much as possible, and to attach them to the Union by an accumulation of their emoluments"- which surely suggests inducing state officers to come aboard by paying them, rather than merely commandeering their official services.

JUSTICE SOUTER contends that his interpretation of Federalist No. 27 is "supported by No. 44," written by Madison, wherefore he claims that "Madison and Hamilton" together stand opposed to our view. Post, at 4. In fact, Federalist No. 44 quite clearly contradicts JUSTICE SOUTER's reading. In that Number, Madison justifies the requirement that state officials take an oath to support the Federal Constitution on the ground that they "will have an essential agency in giving effect to the federal Constitution." If the dissent's reading of Federalist No. 27 were correct (and if Madison agreed with it), one would surely have expected that "essential agency" of state executive officers (if described further) to be described as their responsibility to execute the laws enacted under the Constitution. Instead, however, Federalist No. 44 continues with the following description:

"The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers and according to the laws of the States." Id., at 287 (emphasis added).

It is most implausible that the person who labored for that example of state executive officers' assisting the Federal Government believed, but neglected to mention, that they had a responsibility to execute federal laws. If it was indeed Hamilton's view that the Federal Government could direct the officers of the States, that view has no clear support in Madison's writings, or as far as we are aware, in text, history, or early commentary elsewhere.

To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, ??2, 4, 22 Stat. 214, which enlisted state officials "to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of public aid"; to inspect arriving immigrants and exclude any person found to be a "convict, lunatic, idiot," or indigent; and to send convicts back to their country of origin "without compensation." The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury "to enter into contracts with such State ... officers as may be designated for that purpose by the governor of any State." (Emphasis added.)

The Government cites the World War I selective draft law that authorized the President "to utilize the service of any or all departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act," and made any person who refused to comply with the President's directions guilty of a misdemeanor. Act of May 18, 1917, ch. 15, ?6, 40 Stat. 80-81 (emphasis added). However, it is far from clear that the authorization "to utilize the service" of state officers was an authorization to compel the service of state officers; and the misdemeanor provision surely applied only to refusal to comply with the President's authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States' governors, see Proclamation of May 18, 1917, 40 Stat. 1665 ("call[ing] upon the Governor of each of the several States ... and all officers and agents of the several States ... to perform certain duties"); Registration Regulations Prescribed by the President Under the Act of Congress Approved May 18, 1917, Part I, ?7 ("the governor [of each State] is requested to act under the regulations and rules prescribed by the President or under his direction") (emphasis added), obtained the consent of each of the governors, see Note, The President, the Senate, the Constitution, and the Executive Order of May 8, 1926, 21 Ill. L. Rev. 142, 144 (1926), and left it to the governors to issue orders to their subordinate state officers, see Selective Service Regulations Prescribed by the President Under the Act of May 18, 1917, ?27 (1918); J. Clark, The Rise of a New Federalism 91 (1965). See generally Note, 21 Ill. L. Rev., at 144. It is impressive that even with respect to a wartime measure the President should have been so solicitous of state independence.

The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States' executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case. For deciding the issue before us here, they are of little relevance. Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice. Compare INS v. Chadha, 462 U. S. 919 (1983), in which the legislative veto, though enshrined in perhaps hundreds of federal statutes, most of which were enacted in the 1970's and the earliest of which was enacted in 1932, see id., at 967-975 (White, J., dissenting), was nonetheless held unconstitutional.

III
The constitutional practice we have examined above tends to negate the existence of the congressional power asserted here, but is not conclusive. We turn next to consideration of the structure of the Constitution, to see if we can discern among its "essential postulate," Principality of Monaco v. Mississippi, 292 U. S. 313, 322 (1934), a principle that controls the present cases.
A
It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); Tafflin v. Levitt, 493 U. S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, ?3; the Judicial Power Clause, Art. III, ?2, and the Privileges and Immunities Clause, Art. IV, ?2, which speak of the "Citizens" of the States; the amendment provision, Article V, which requires the votes of three-fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, ?4, which "presupposes the continued existence of the states and ... those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U. S. 405, 414-415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, ?8, which implication was rendered express by the Tenth Amendment's assertion that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Framers' experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union, and "[t]he practicality of making laws, with coercive sanctions, for the States as political bodies" having been, in Madison's words, "exploded on all hands," 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people-who were, in Hamilton's words, "the only proper objects of government," The Federalist No. 15, at 109. We have set forth the historical record in more detail elsewhere, see New York v. United States, 505 U. S., at 161-166, and need not repeat it here. It suffices to repeat the conclusion: "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Id., at 166. The great innovation of this design was that "our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"-"a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U. S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U. S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident"). As Madison expressed it: "[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245.
This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve 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." Gregory, supra, at 458. To quote Madison once again:
"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, at 323.
See also The Federalist No. 28, at 180-181 (A. Hamilton). The power of the Federal Government would be augmented immeasurably if it were able to impress into its service-and at no cost to itself-the police officers of the 50 States.

B
We have thus far discussed the effect that federal control of state officers would have upon the first element of the "double security" alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, ?3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who are themselves presidential appointees), Art. II, ?2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive-to insure both vigor and accountability-is well known. See The Federalist No. 70 (A. Hamilton); 2 Documentary History of the Ratification of the Constitution 495 (M. Jensen ed. 1976) (statement of James Wilson); see also Calabresi & Prakash, The President's Power to Execute the Laws, 104 Yale L. J. 541 (1994). That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
C
The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. It reasons, post, at 3-5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," Art. I, ?8, conclusively establishes the Brady Act's constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers "not delegated to the United States." What destroys the dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself. When a "La[w] ... for carrying into Execution" the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a "La[w] ... proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve to be treated as such." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven 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.... [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U. S., at 166.
The dissent perceives a simple answer in that portion of Article VI which requires that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution," arguing that by virtue of the Supremacy Clause this makes "not only the Constitution, but every law enacted by Congress as well," binding on state officers, including laws requiring state-officer enforcement. Post, at 6. The Supremacy Clause, however, makes "Law of the Land" only "Laws of the United States which shall be made in Pursuance [of the Constitution]"; so the Supremacy Clause merely brings us back to the question discussed earlier, whether laws conscripting state officers violate state sovereignty and are thus not in accord with the Constitution.
IV
Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, see Maryland v. EPA, 530 F. 2d 215, 226 (CA4 1975); Brown v. EPA, 521 F. 2d 827, 838-842 (CA9 1975); and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train, 521 F. 2d 971, 994 (CADC 1975). After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U. S. 99 (1977).
Although we had no occasion to pass upon the subject in Brown, later opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), and FERC v. Mississippi, 456 U. S. 742 (1982), we sustained statutes against constitutional challenge only after assuring ourselves that they did not require the States to enforce federal law. In Hodel we cited the lower court cases in EPA v. Brown, supra, but concluded that the Surface Mining Control and Reclamation Act did not present the problem they raised because it merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field, Hodel, supra, at 288. In FERC, we construed the most troubling provisions of the Public Utility Regulatory Policies Act of 1978, to contain only the "command" that state agencies "consider" federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field. 456 U. S., at 764-765. We warned that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations," id., at 761-762.
When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue in New York v. United States, 505 U. S. 144 (1992), were the so-called "take title" provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of the waste-effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution. Id., at 175-176. We concluded that Congress could constitutionally require the States to do neither. Id., at 176. "The Federal Government," we held, "may not compel the States to enact or administer a federal regulatory program." Id., at 188.
The Government contends that New York is distinguishable on the following ground: unlike the "take title" provisions invalidated there, the background-check provision of the Brady Act does not require state legislative or executive officials to make policy, but instead issues a final directive to state CLEOs. It is permissible, the Government asserts, for Congress to command state or local officials to assist in the implementation of federal law so long as "Congress itself devises a clear legislative solution that regulates private conduct" and requires state or local officers to provide only "limited, non-policymaking help in enforcing that law." "[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities." Brief for United States 16.
The Government's distinction between "making" law and merely "enforcing" it, between "policymaking" and mere "implementation," is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes. See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388, 428-429 (1935). This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. See FPC v. New England Power Co., 415 U. S. 345, 352-353 (1974) (Marshall, J., concurring in result); Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance? 83 Mich. L. Rev. 1223, 1233 (1985). We are doubtful that the new line the Government proposes would be any more distinct. Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction's chief law-enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what "reasonable efforts" shall be expended to conduct a background check? It may well satisfy the Act for a CLEO to direct that (a) no background checks will be conducted that divert personnel time from pending felony investigations, and (b) no background check will be permitted to consume more than one-half hour of an officer's time. But nothing in the Act requires a CLEO to be so parsimonious; diverting at least some felony-investigation time, and permitting at least some background checks beyond one-half hour would certainly not be unreasonable. Is this decision whether to devote maximum "reasonable efforts" or minimum "reasonable efforts" not preeminently a matter of policy? It is quite impossible, in short, to draw the Government's proposed line at "no policymaking," and we would have to fall back upon a line of "not too much policymaking." How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.
Even assuming, moreover, that the Brady Act leaves no "policymaking" discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than (as Judge Sneed aptly described it over two decades ago) by "reduc[ing] [them] to puppets of a ventriloquist Congress," Brown v. EPA, 521 F. 2d, at 839. It is an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority. See Texas v. White, 7 Wall, at 725. It is no more compatible with this independence and autonomy that their officers be "dragooned" (as Judge Fernandez put it in his dissent below, 66 F. 3d, at 1035) into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws.
The Government purports to find support for its proffered distinction of New York in our decisions in Testa v. Katt, 330 U. S. 386 (1947), and FERC v. Mississippi, 456 U. S. 742 (1982). We find neither case relevant. Testa stands for the proposition that state courts cannot refuse to apply federal law - a conclusion mandated by the terms of the Supremacy Clause ("the Judges in every State shall be bound [by federal law]"). As we have suggested earlier, supra, at 6-7, that says nothing about whether state executive officers must administer federal law. Accord New York, 505 U. S., at 178-179. As for FERC, it stated (as we have described earlier) that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations," 456 U. S., at 761-762, and upheld the statutory provisions at issue precisely because they did not commandeer state government, but merely imposed preconditions to continued state regulation of an otherwise pre-empted field, in accord with Hodel, 452 U. S., at 288, and required state administrative agencies to apply federal law while acting in a judicial capacity, in accord with Testa, See FERC, supra, at 759-771, and n. 24.
The Government also maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for "solving" problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. See Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 Vand. L. Rev. 1563, 1580, n. 65 (1994). Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.
The dissent makes no attempt to defend the Government's basis for distinguishing New York, but instead advances what seems to us an even more implausible theory. The Brady Act, the dissent asserts, is different from the "take title" provisions invalidated in New York because the former is addressed to individuals-namely CLEOs-while the latter were directed to the State itself. That is certainly a difference, but it cannot be a constitutionally significant one. While the Brady Act is directed to "individuals," it is directed to them in their official capacities as state officers; it controls their actions, not as private citizens, but as the agents of the State. The distinction between judicial writs and other government action directed against individuals in their personal capacity, on the one hand, and in their official capacity, on the other hand, is an ancient one, principally because it is dictated by common sense. We have observed that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.... As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989). And the same must be said of a directive to an official in his or her official capacity. To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. Indeed, it merits the description "empty formalistic reasoning of the highest order," post, at 15. By resorting to this, the dissent not so much distinguishes New York as disembowels it.
Finally, the Government puts forward a cluster of arguments that can be grouped under the heading: "The Brady Act serves very important purposes, is most efficiently administered by CLEOs during the interim period, and places a minimal and only temporary burden upon state officers." There is considerable disagreement over the extent of the burden, but we need not pause over that detail. Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments. See, e.g., Fry v. United States, 421 U. S. 542, 548 (1975); National League of Cities v. Usery, 426 U. S. 833, 853 (1976) (overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985)); South Carolina v. Baker, 485 U. S. 505, 529 (1988) (REHNQUIST, C. J., concurring in judgment). But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a "balancing" analysis is inappropriate. It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. Cf. Bowsher, 478 U. S., at 736 (declining to subject principle of separation of powers to a balancing test); Chadha, 462 U. S., at 944-946 (same); Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 239-240 (1995) (holding legislated invalidation of final judgments to be categorically unconstitutional). We expressly rejected such an approach in New York, and what we said bears repeating:
"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear `formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." Id., at 187.
We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: "The Federal Government may not compel the States to enact or administer a federal regulatory program." Id., at 188. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.

V

What we have said makes it clear enough that the central obligation imposed upon CLEOs by the interim provisions of the Brady Act-the obligation to "make a reasonable effort to ascertain within 5 business days whether receipt or possession [of a handgun] 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," 18 U. S. C. ?922(s)(2)-is unconstitutional. Extinguished with it, of course, is the duty implicit in the background-check requirement that the CLEO accept notice of the contents of, and a copy of, the completed Brady Form, which the firearms dealer is required to provide to him, ??922(s)(1)(A)(i)(III) and (IV).
Petitioners also challenge, however, two other provisions of the Act: (1) the requirement that any CLEO "to whom a [Brady Form] is transmitted" destroy the form and any record containing information derived from it, ?922(s)(6)(B)(i), and (2) the requirement that any CLEO who "determines that an individual is ineligible to receive a handgun" provide the would-be purchaser, upon request, a written statement of the reasons for that determination, ?922(s)(6)(C). With the background-check and implicit receipt-of-forms requirements invalidated, however, these provisions require no action whatsoever on the part of the CLEO. Quite obviously, the obligation to destroy all Brady Forms that he has received when he has received none, and the obligation to give reasons for a determination of ineligibility when he never makes a determination of ineligibility, are no obligations at all. These two provisions have conceivable application to a CLEO, in other words, only if he has chosen, voluntarily, to participate in administration of the federal scheme. The present petitioners are not in that position. As to them, these last two challenged provisions are not unconstitutional, but simply inoperative.
There is involved in this Brady Act conundrum a severability question, which the parties have briefed and argued: whether firearms dealers in the jurisdictions at issue here, and in other jurisdictions, remain obliged to forward to the CLEO (even if he will not accept it) the requisite notice of the contents (and a copy) of the Brady Form, ??922(s)(1)(A)(i)(III) and (IV); and to wait five business days before consummating the sale, ?922(s)(1)(A)(ii). These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court. Cf., e.g., New York, supra, at 186-187 (addressing severability where remaining provisions at issue affected the plaintiffs).
* * *
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
[June 27, 1997]

Justice O'Connor, concurring opinion:

The provisions invalidated here, however, which directly compel state officials to administer a federal regulatory program, utterly fail to adhere to the design and structure of our constitutional scheme.

Comments

  • EOD GuyEOD Guy Member Posts: 931 ✭✭✭✭
    edited November -1
    I think you better read that again. The Supreme Court did not say that background checks were unconstitutional. They said that the Federal government could not require the states to conduct them. Some states choose to do so because of their own laws, others do not and the NICS system is used by dealers in those states. The NICS system is operated by the Federal government, not the states.
  • nvlawman67nvlawman67 Member Posts: 4 ✭✭
    edited November -1
    Why your absolutely correct, but something still seems fishy. Let's find out what it is. In the Nevada Revised Statutes (a codified version of the actual session laws and not the law itself, (see exhibit A below), you will find NRS 202.254 (see exhibit B). After tracing it back to the actual Bill (AB 412, 1997, exhibit C), we find that the enacting clause (exhibit D, Sec. 23 of Nevada Constitution Annotated), is written in all capital letter when new material added and spoken by the Senate and Assembly appears in all italics. If you track Nevada Bills back to 1982 and before you will find that all enacting clauses were in italics (see exhibit E) and then changed to all capital letters post 1982. Does this mean that the Legislative counsel Bureau (printers of the Bills) have merely added the Enacting Clauses themselves? If so, the "so-called" law would be void.

    Exhibit A:

    NRS 220.170 Certification; NRS as official codified version of Statutes of Nevada and prima facie evidence of law; citation.
    1. The master copy of Nevada Revised Statutes, as printed and bound in accordance with NRS 220.130, must contain a certificate of the director of the statute revision commission that he has compared each section thereof with the original section of the enrolled bill by which Nevada Revised Statutes was adopted and enacted, and that the sections in the published edition are correctly copied. All other printed and bound copies of Nevada Revised Statutes must contain a copy of the certificate.
    2. Each set of replacement or supplementary pages, prepared in accordance with NRS 220.160 and published before January 1, 1963, for inclusion in the master copy of Nevada Revised Statutes, must be accompanied by a certificate of the director of the statute revision commission, and each set published after January 1, 1963, by a certificate of the legislative counsel, that he has compared each section thereof with the original section of the enrolled bill, and that, with the exception of the changes authorized by law, the sections set forth in the replacement or supplementary pages are correctly copied. All other sets of replacement or supplementary pages must be accompanied by a copy of the certificate. All such certificates must be inserted in the bound copies of Nevada Revised Statutes in chronological order immediately following the initial certificate of the director.
    3. Copies of Nevada Revised Statutes, as printed, published, revised, supplemented and certified in accordance with this chapter, constitute the official codified version of Statutes of Nevada and may be cited as prima facie evidence of the law in all of the courts of this state. That evidence may be rebutted by proof that the statutes cited differ from the official statutes of Nevada.
    4. Nevada Revised Statutes and its component parts may be cited as follows:
    (a) Nevada Revised Statutes: NRS
    (b) A Title: Title 00 of NRS
    (c) A chapter: chapter 000 of NRS
    (d) A section: NRS 000.000
    [13:304:1951; A 1953, 388]-(NRS A 1957, 5; 1963, 1024; 1967, 35; 1989, 1167)


    Exhibit B:

    NRS 202.254 Private person authorized to obtain background check on person who wishes to obtain firearm from him; fee.

    1. A private person who wishes to transfer a firearm to another person may, before he transfers the firearm, request that the Central Repository for Nevada Records of Criminal History perform a background check on the person who wishes to acquire the firearm.

    2. The person who requests the information pursuant to subsection 1 shall provide the Central Repository with identifying information about the person who wishes to acquire the firearm.

    3. Upon receiving a request from a private person pursuant to subsection 1 and the identifying information required pursuant to subsection 2, the Central Repository shall within 5 business days after receiving the request:

    (a) Perform a background check on the person who wishes to acquire the firearm; and

    (b) Notify the person who requests the information whether the information available to the Central Repository indicates that the receipt of a firearm by the person who wishes to acquire the firearm would violate a state or federal law.

    4. If the person who requests the information does not receive notification from the Central Repository regarding his request within 5 business days after making the request, he may presume that the receipt of a firearm by the person who wishes to acquire the firearm would not violate a state or federal law.

    5. The Central Repository may charge a reasonable fee for performing a background check and notifying a person of the results of the background check pursuant to this section.

    6. The failure of a person to request the Central Repository to perform a background check pursuant to this section before transferring a firearm to another person does not give rise to any civil cause of action.

    (Added to NRS by 1997, 825)


    Exhibit C:

    Assembly Bill No. 412-Assemblymen Anderson, Perkins, Freeman, Von Tobel, Berman, Marvel, Ohrenschall, Amodei, Humke, Koivisto, Parks, Bache, Arberry, Giunchigliani, Goldwater, Herrera, Neighbors, de Braga, Williams, Buckley, Chowning, Mortenson, Sandoval, Cegavske, Price, Nolan, Manendo, Evans and Tiffany

    April 25, 1997
    ____________
    Referred to Committee on Judiciary


    SUMMARY--Revises provisions that govern owning, possessing, transferring and receiving firearms. (BDR 15-283)

    FISCAL NOTE: Effect on Local Government: No.

    Effect on the State or on Industrial Insurance: Yes.

    EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.

    AN ACT relating to weapons; authorizing a private person who wishes to transfer a firearm to another person to obtain certain information from the central repository for Nevada records of criminal history about the person wishing to acquire the firearm; making various other changes concerning the ability of a person to own or possess a firearm; and providing other matters properly relating thereto.

    THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

    Section 1 Chapter 202 of NRS is hereby amended by adding thereto a new section to read as follows:
    1. A private person who wishes to transfer a firearm to another person may, before he transfers the firearm, request that the central repository for Nevada records of criminal history perform a background check on the person who wishes to acquire the firearm.
    2. The person who requests the information pursuant to subsection 1 shall provide the central repository with identifying information about the person who wishes to acquire the firearm.
    3. Upon receiving a request from a private person pursuant to subsection 1 and the identifying information required pursuant to subsection 2, the central repository shall within 5 business days after receiving the request:
    (a) Perform a background check on the person who wishes to acquire the firearm; and
    (b) Notify the person who requests the information whether the information available to the central repository indicates that the receipt of a firearm by the person who wishes to acquire the firearm would violate a state or federal law.
    4. If the person who requests the information does not receive notification from the central repository regarding his request within 5 business days after making the request, he may presume that the receipt of a firearm by the person who wishes to acquire the firearm would not violate a state or federal law.
    5. The central repository may charge a reasonable fee for performing a background check and notifying a person of the results of the background check pursuant to this section.
    6. The failure of a person to request the central repository to perform a background check pursuant to this section before transferring a firearm to another person does not give rise to any civil cause of action.
    Sec. 2. NRS 202.253 is hereby amended to read as follows:
    202.253As used in NRS 202.255 to 202.369, inclusive [:] , and section 1 of this act:
    1. "Firearm" means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
    2. "Firearm capable of being concealed upon the person" applies to and includes all firearms having a barrel less than 12 inches in length.
    3. "Motor vehicle" means every vehicle that is self-propelled.
    Sec. 3. NRS 202.350 is hereby amended to read as follows:
    202.3501. It is unlawful for a person within this state to:
    (a) Manufacture or cause to be manufactured, or import into the state, or keep, offer or expose for sale, or give, lend or possess any knife which is made an integral part of a belt buckle or any instrument or weapon of the kind commonly known as a switchblade knife, blackjack, slung shot, billy, sand-club, sandbag or metal knuckles; or
    (b) Except as otherwise provided in subsection 4 , [and NRS 202.3653 to 202.369, inclusive,] carry concealed upon his person any:
    (1) Explosive substance, other than ammunition or any components thereof;
    (2) Dirk, dagger or machete;
    (3) Pistol, revolver or other firearm, or other dangerous or deadly weapon; or
    (4) Knife which is made an integral part of a belt buckle.
    2. It is unlawful for a person to possess or use a:
    (a) Nunchaku or trefoil with the intent to inflict harm upon the person of another; or
    (b) Machine gun or a silencer.
    3. Except as otherwise provided in NRS 202.275 and 212.185, a person who violates any of the provisions of subsection 1 or 2 is guilty:
    (a) For the first offense, of a gross misdemeanor.
    (b) For any subsequent offense, of a category D felony, and shall be punished as provided in NRS 193.130.
    4. Except as otherwise provided in this subsection and NRS 202.3653 to 202.369, inclusive, the sheriff of any county may, upon written application by a resident of that county showing the reason or the purpose for which a concealed weapon is to be carried, issue a permit authorizing the applicant to carry in this state the concealed weapon described in the permit. The sheriff shall not issue a permit to a person to carry a switchblade knife.
    5. This section does not apply to:
    (a) Sheriffs, constables, marshals, peace officers, special police officers, police officers of this state, whether active or honorably retired, or other appointed officers.
    (b) Any person summoned by any peace officer to assist in making arrests or preserving the peace while the person so summoned is actually engaged in assisting such an officer.
    (c) Any full-time paid peace officer of an agency of the United States or another state or political subdivision thereof when carrying out official duties in the State of Nevada.
    (d) Members of the Armed Forces of the United States when on duty.
    6. The exemptions provided in subsection 5 do not include a former peace officer who is retired for disability unless his former employer has approved his fitness to carry a concealed weapon.
    7. The provisions of paragraph (b) of subsection 2 do not apply to any person who is licensed, authorized or permitted to possess or use a machine gun or silencer pursuant to federal law. The burden of establishing federal licensure, authorization or permission is upon the person possessing the license, authorization or permission.
    8. As used in this section:
    (a) "Concealed weapon" has the meaning ascribed to it in NRS 202.3653.
    (b) "Honorably retired" means retired in Nevada after completion of 10 years of creditable service as a member of the public employees' retirement system. A former peace officer is not "honorably retired" if he was discharged for cause or resigned before the final disposition of allegations of serious misconduct.
    (c) "Machine gun" means any weapon which shoots, is designed to shoot or can be readily restored to shoot more than one shot, without manual reloading, by a single function of the trigger.
    [(b)] (d) "Nunchaku" means an instrument consisting of two or more sticks, clubs, bars or rods connected by a rope, cord, wire or chain used as a weapon in forms of Oriental combat.
    [(c)] (e) "Silencer" means any device for silencing, muffling or diminishing the report of a firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a silencer or muffler, and any part intended only for use in such assembly or fabrication.
    [(d)] (f) "Switchblade knife" means a spring-blade knife, snap-blade knife or any other knife having the appearance of a pocket knife, any blade of which is 2 or more inches long and which can be released automatically by a flick of a button, pressure on the handle or other mechanical device, or is released by any type of mechanism.
    [(e)] (g) "Trefoil" means an instrument consisting of a metal plate having three or more radiating points with sharp edges, designed in the shape of a star, cross or other geometric figure and used as a weapon for throwing.
    Sec. 4. NRS 202.360 is hereby amended to read as follows:
    202.360 1. A person who has been convicted of a felony in this or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless he has received a pardon and the pardon does not restrict his right to bear arms , [has been specifically restored,] shall not own or have in his possession or under his custody or control any firearm.
    2. As used in this section, "firearm" includes any firearm that is loaded or unloaded and operable or inoperable.
    3. A person who violates the provisions of this section is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
    Sec. 5. NRS 202.365 is hereby repealed.
    Sec. 6. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.

    Exhibit D:

    Sec: 23. Enacting clause; law to be enacted by bill. The enacting clause of every law shall be as follows: "The people of the State of Nevada represented in Senate and Assembly, do enact as follows," and no law shall be enacted except by bill.
    CONSTITUTIONAL DEBATES.
    Nevada Constitutional Debates and Proceedings, pp. 152, 316, 790, 838.
    WEST PUBLISHING CO.
    Statutes ! 11.
    WESTLAW Topic No. 361.
    C.J.S. Statutes ?? 18 et seq.
    NEVADA CASES.
    Act was void where enacting clause was not in form required by section. Application for writ of mandamus to compel county recorder to transcribe and deliver records pursuant to act of legislature was denied where act was void because enacting clause was not in form required by Nev. Art. 4, ? 23. State ex rel. Chase v. Rogers, 10 Nev. 250 (1875), cited, State ex rel. Stevenson v. Tufly, 20 Nev. 427, at 428, 22 Pac. 1054 (1890), distinguished, Caine v. Robbins, 61 Nev. 416, at 422, 131 P.2d 516 (1942)
    Certification by proper officers does not impart validity to act if it does not have proper enacting clause. Certification by proper officers of senate and assembly that act was properly passed does not impart validity to act if it does not have enacting clause in form required by Nev. Art. 4, ? 23. State ex rel. Chase v. Rogers, 10 Nev. 250 (1875), cited, State ex rel. Stevenson v. Tufly, 20 Nev. 427, at 428, 22 Pac. 1054 (1890)
    Section is mandatory. Provisions of Nev. Art. 4, ? 23, which prescribe form of enacting clause of every law are mandatory. Omission of words "senate and" from enacting clause of legislative act renders act void. State ex rel. Chase v. Rogers, 10 Nev. 250 (1875), cited, State ex rel. Cardwell v. Glenn, 18 Nev. 34, at 39, 1 Pac. 186 (1883), State ex rel. Stevenson v. Tufly, 20 Nev. 427, at 428, 22 Pac. 1054 (1890), Nevada Highway Patrol *'n v. State, Dep't of Motor Vehicles & Public Safety, 107 Nev. 547, at 549, 815 P.2d 608 (1991), distinguished, Caine v. Robbins, 61 Nev. 416, at 422, 131 P.2d 516 (1942)

    Exhibit E:

    Link to example of Bill:

    http://www.leg.state.nv.us/lcb/research/library/1979/AB024,1979.pdf
  • nvlawman67nvlawman67 Member Posts: 4 ✭✭
    edited November -1
    Another interesting point is that when a "private person" as defined by the statute acts on behalf of the state or federal government wouldn't they temporarily become a state officer for that transaction? I do know for a fact that when a private employer honors an IRS Notice of Levy, they become a "collection agent for the government" as defined in state and U.S. law. Wouldn't the same hold true for the background check?
  • HighballHighball Member Posts: 15,755
    edited November -1
    Colour of law.

    All not relevent..we have the choice.Submit...or die.

    At the moment..submitting is the best course.
  • salzosalzo Member Posts: 6,837
    edited November -1
    I think the problem is that the states submit to the Feds with regard to the background checks. If a state decided that they did not want the Federal background check, then they would be within their right to refuse the federal requirement. But most states have no problem getting in bed with the feds.
    The background checks are unconstitutional-but if a state does not challenge it, then the unconstitutional law stays with us.

    "Waiting tables is what you know, making cheese is what I know-lets stick with what we know!"
    -Jimmy the cheese man
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