The Brady Law....

[fifthofnine]

...now that I have posted 10 times and am able to start a new thread, here is issue #2 of 3 that has often tempted me to join DU and participate:

It amazes me how many seemingly qualified people (experts?), in government, on TV, and yes, on DU, etc. do not seem to know, realize or understand "The Brady Law", in its entirely, is null and void and has been for more than 18 years.



PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA v. UNITED STATES
Argued: December 3, 1996 Decided: June 27, 1997

Held:
1. The Brady Act's interim provision commanding Chief Law Enforcement Officers (CLEOs) to conduct background checks, §922(s)(2), is unconstitutional.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. O'Connor, J., and Thomas, J., filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.

http://caselaw.findlaw.com/us-supreme-court/521/898.html

Ed Note: it was not argued under the Second Amendment, but under the "unfunded mandate" clause of the constitution. e.g. The federal government cannot force the states to do "something" and also not pay the states to do it.

Discuss

[PoliticAverse]

1. As your own post reveals, only that one part was found unconstitional. The rest of the law

is still in effect.

From: https://en.wikipedia.org/wiki/Brady_Handgun_Violence_Prevention_Act

In its 1997 decision in the case, the Supreme Court ruled that the provision of the Brady Act that compelled state and local law enforcement officials to perform the background checks was unconstitutional on 10th amendment grounds. The Court determined that this provision violated both the concept of federalism and that of the unitary executive. However, the overall Brady statute was upheld and state and local law enforcement officials remained free to conduct background checks if they so chose. The vast majority continued to do so.

[fifthofnine]

2. What "rest of the law" is that?

The mandatory five day waiting period under the Brady Law? No, it is not still in effect. And yes, "the vast majority continued to do so". Yes, many states passed their own laws, mandating a waiting period. However, the federal law is now null and void.

[PoliticAverse]

5. No, you apparently are unaware of the text of the entire law...

It can be found here: https://www.congress.gov/bill/103rd-congress/house-bill/1025/text

As your own post indicated the only part of the law that was found unconstitutional was that affecting
section: 922(s)(2), the rest of the law was found to be constitutional, including the part that authorized
the creation of the national background check system and established the 3-day waiting period for purchases.
That system is in operation today.

[fifthofnine]

7. Apparently you are unaware.....

..."Though 91% of background checks conducted through NICS provide an answer within minutes about whether an individual is legally allowed to buy a gun, about 9% of cases require further investigation and review by FBI and ATF agents.4 However, due to federal law’s “default proceed” rule, those agents only have 3 business days to conduct and finish their investigation. Under federal law, if a firearms dealer who has initiated a background check has not been notified within three business days that the sale would violate federal or state laws, the sale may proceed by default."

excerpt: "Though 91% of background checks conducted through NICS provide an answer within minutes about whether an individual is legally allowed to buy a gun,...

http://smartgunlaws.org/background-check-procedures-policy-summary/


"There is no federal waiting period. As described below, federal law allows a dealer to deliver a firearm to a purchaser as soon as a background check is completed, or after three business days even if a background check has not been completed."

http://smartgunlaws.org/background-check-procedures-policy-summary/

The 3 day waiting period is also null and void.

[PoliticAverse]

8. All you wrote above was part of the Brady Law that is still in effect. n/t

[fifthofnine]

9. No, that is not all...

I wrote. In part, you stated, "...established the 3-day waiting period for purchases."

My post showed there is no federal waiting period.

The Brady Law mandated the creation of NICS. A system that was proposed long before the technology was available. That system is in operation today. However, the fact the system was proposed long before the technology was available, it is safe to assume such a system would have been created and the law would have been put into effect in a different law without the Brady Law.

The most desired aspect of the Brady Law was declared unconstitutional (mandated CLEO checks). Other aspects have been rendered null and void, (the mandatory waiting period) but the creation of a system under said law is operational. The NICS system was a compromise in the Brady Law. Gun control proponents did not want an "instant system". They wanted "waiting periods". I can accept the argument the law is not, in its entirety, null and void as I stated it was. However, few, if any, "experts" cite only the NICS aspect of the Brady Law as still being in effect, but instead refer to the law by name, as if it is still in effect, in its entirely.

Have you ever heard any "expert" (on TV etc.) refer to the now unconstitutional and/or null and void aspects of the Brady Law? When the USSC handed down its decision regarding CLEO's and the Brady Law, I dont remember it being mentioned in the news (at least not in the "mainstream media&quot and I was paying attention. I suspect had the decision gone the other way, it would have been the lead story on the evening news, etc..

[fifthofnine]

3. 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. See 18 U.S.C. section 922(s)(1). The waiting period and background check prescribed by the Act are not required in States that have permit systems meeting standards prescribed by the Act. 18 U.S.C. section 922(s)(1)(C), (D). 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. section 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. section 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. section 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. section 922(s)(6)(B). 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. section 922(s)(6)(C).

http://www.lectlaw.com/def/b071.htm

excerpt "...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. section 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 . . . ."

The USSC ruled CLEOs were not legally bound by federal law to conduct the background check. That makes the law null and void. They could CHOOSE to continue doing so and the states could (and did) pass their own background check laws. Neither of those realities change the legal fact, the Brady Law is null and void

[Nuclear Unicorn]

4. Hmmmm...

If the CLEO approves the transfer, he or she must destroy the buyer's statement within twenty business days after the statement was made.

Call me a suspicious Missy but I can't help but think the "must destroy...within 20 business days" clause will be challenged next in the hope of creating a de facto registry.

[fifthofnine]

6. that aspect of the Brady Law also seems to be null and void....

"must destroy...within 20 business days"

Just some examples......

State/ Sales Where Records Retained/ Firearm Type/ Duration/


AL/ Dealer sales only/ Handguns only/ Permanent/

CA/ All sales/ All firearms/ 3 years/

PA (2 laws)/ Dealer sales only/ All firearms/ 20 years/
Private sales/ Handguns only/

RI/ All sales/ All firearms/ 6 years/


http://smartgunlaws.org/maintaining-gun-sales-background-check-records-policy-summary/

According to the cited list, many states have an "unspecified" time for "duration of required retention"

[russ1943]

10. Neither null nor void.

OP; It amazes me how many seemingly qualified people (experts?), in government, on TV, and yes, on DU, etc. do not seem to know, realize or understand "The Brady Law", in its entirely, is null and void and has been for more than 18 years.
#2; However, the federal law is now null and void.
#3; the legal fact, the Brady Law is null and void.
#9; …….the creation of a system under said law is operational……….I can accept the argument the law is not, in its entirety, null and void as I stated it was.???????

The reason that many seemingly qualified people (experts?), in government, on TV, and yes, on DU, etc. do not seem to know, realize or understand "The Brady Law", in its entirely, is null and void and has been for more than 18 years, is that what is commonly referred to as “The Brady Law” is NOT null nor void. As you posted in ur #9 and others have tried to let you know the “system under said law is operational” and the law is NOT null and void as you've repeatedly posted.
The interim (meaning temporary) “waiting period” expired as it was meant to. The Bureau of Alcohol, Tobacco and Firearms on October 30, 1998 sent an Open Letter to All Federal Firearms Licensees advising them; The purpose of this letter is to advise you of your responsibilities under the permanent provisions of the Brady law, 18 U.S.C. § 922(t). On November 30, 1998, the interim provisions of the Brady law will cease to apply, and the permanent provisions of the Brady law will take effect.
https://www.atf.gov/file/84466/download

The permanent provisions of the Brady law will take effect.
The link is to the letter sent to Arizona Federal Firearms Licensees, but with few variations as to State laws all States received the same letter.
Hope this clarifies.
Welcome to DU.

[fifthofnine]

11. The Brady's and their supporters....

Last edited Sun Jul 26, 2015, 01:03 AM - Edit history (1)

...wanted, and got, mandatory background checks. They also wanted, and got, a mandatory federal waiting period. They did not want NICS and they compromised on the creation of that system. They also compromised on the interm mandatory waiting period. I understand the NICS created under the Brady Law is operational. Referring to NICS as "the Brady Law", which is very commonly done by "experts" is inaccurate at best, since the two aspects of the Brady Law Sarah really wanted, are now null and void. To refer to "the Brady Law" denotes referring to it in its entirety. When the reality is, the reference is to the NICS created by that law. How many times have you heard and/or read, in effect, "The Brady Law prevented xxxxx felons from purchasing a firearm"?

One would expect (and hope) the ATF to notify FFL holders of the legal changes. That was not my point. My point was how few people seem to know ANY aspect of the Brady Law was declared unconstitutional (did you or anyone else on DU?) and that the national waiting period is no longer in effect. To the latter, after the Charlestown shooting, "talking heads" on TV, and other places, were saying, in effect, "obviously, the national 3 day waiting period under the Brady Law is not long enough."

Thank you for the welcome

[russ1943]

12. Printz v US was an interim minor and now irrelevant aspect of the Brady law.

I’d thought your point was your repeated claim that the Brady Law is null and void, which it clearly isn’t.
Yours is a unique perspective, not based on the known facts. Referring to NICS as the Brady law is exactly appropriate. NICS was created by the Brady law. To say, "The Brady Law prevented xxxxx felons from purchasing a firearm" is an accurate description of what has occurred thousands of times within the context of FFL denials since its creation .
The ATF in their letter to FFL’s uses the term Brady law three times in one sentence to describe what you think is inaccurate at best?
“The purpose of this letter is to advise you of your responsibilities under the permanent provisions of the Brady law, 18 U.S.C. § 922(t). On November 30, 1998, the interim provisions of the Brady law will cease to apply, and the permanent provisions of the Brady law will take effect.”
What you seem to think doesn’t square with reality.