Regulations Firearm Laws and Ordinances - The Interim Brady Handgun Violence Prevention Act

A National Waiting Period Established

In 1981 a mentally disturbed young man named John Hinckley, Jr., used a handgun to shoot and seriously wound presidential press secretary James S. Brady during an attempted assassination of President Ronald Reagan. Since his injury, James Brady and his wife, Sarah Brady, have become high-profile lobbyists for greater control over guns. They became leaders of the gun control lobby, Handgun Control, Inc. In 2001 the organization was renamed the Brady Campaign to Prevent Gun Violence in honor of them. At the same time, the campaign's sister organization, the Center to Prevent Handgun Violence, was renamed the Brady Center to Prevent Gun Violence.

After his assassination attempt, Hinckley was quickly apprehended, placed in custody, tried, and found not guilty by reason of insanity; he remains confined in a mental facility. His violent act was the impetus behind the Brady Handgun Violence Prevention Act (PL 103-159), named for James S. Brady and passed by Congress in November 1993 after years of debate.

The Brady Law, which went into effect February 28, 1994:

• established a national five-day waiting period to allow local law enforcement to conduct background checks on handgun purchasers for mental instability or criminal backgrounds and to serve as a cooling-off period that might reduce gun-related crimes of passion (the waiting period expired after five years);
• replaced the five-day waiting period, after it expired in 1998, with a national computerized instant criminal identification system (NICS) to screen gun purchasers;
• applied only to handgun sales by licensed dealers and not to sales by nondealers;
• required dealers to send, within one day, a copy of the purchaser's sworn statement (see Figure 3.1) to the chief law enforcement officer where the purchaser resided (the dealer could complete the sale within five business days after sending the documents to the local officer unless the police notified the dealer that the sale would violate the law);
• required police to respond within twenty business days to any request for a written explanation if a request was denied; and,
• required the police to destroy the sworn statement and any other record of the transaction within twenty business days, unless the sale was prohibited.

FIGURE 3.1

Both the interim and new Brady Laws prohibit firearms sales to a person who:

• is charged with a crime punishable by imprisonment for more than one year or has been convicted of such a crime;
• is a fugitive from justice;
• is an unlawful user of a controlled substance;
• has been judged mentally ill or has been committed to a mental institution;
• has renounced United States citizenship;
• is subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or a child;
• has been convicted of domestic violence;
• is an illegal alien; or,
• has been dishonorably discharged from the military.

States with alternative waiting periods did not have to comply with the Brady Law. Before the waiting period expired, twenty-three states and Puerto Rico had to comply with the Brady waiting period, while twenty-seven states, Guam, and the Virgin Islands had alternative waiting periods.

Support and Opposition to Interim Brady

Members of the American Bar Association, the American Medical Association, the U.S. Conference of Mayors, and the American Federation of Labor-Congress of Industrial Organizations testified in support of the Brady bill. Other supporters, such as Handgun Control, Inc., the National Coalition to Ban Handguns, and the Law Enforcement Steering Committee, emphasized that the real issues were law enforcement and public safety.

The major opponents of Brady, including the NRA, Gun Owners of America, the Second Amendment Foundation, and the Citizens' Committee for the Right to Keep and Bear Arms, focused their arguments on the Second Amendment to the Constitution ("right of the people to keep and bear arms"), which, they said, forbids such a law. They also stressed that such a law would not stop criminals from getting guns but would instead place burdens on law-abiding buyers and sellers of firearms.

The interim provisions of Brady placed a burden on the shoulders of the local law enforcement personnel who had to perform background checks. Sheriffs reported that they did not have the time, personnel, or funds to verify all the information required by the Brady Law. Five rural sheriffs in the South and West filed suits in federal courts to overturn the Brady Law on grounds that it violated the Tenth Amendment of the Constitution (states' rights). The question was whether the federal government had the right to order state and local law enforcement agencies to carry out federal programs. Supporters of the lawsuits also believed the Brady Law violated the Second Amendment.

The court cases ended with contradictory verdicts that both upheld the constitutionality of the Brady Law and found it unconstitutional. Two of the sheriffs joined forces and took their consolidated case to the U.S. Supreme Court in December 1996. Their joint case was decided in 1997. In Printz v. United States (117 S. Ct. 2365), the Supreme Court declared unconstitutional the Brady provision that required a chief law enforcement officer to conduct background checks on prospective handgun purchasers.

Permit Denials under Interim Brady

Table 3.1 presents permit rejection data from 1994–2002. The table divides the information into the rejection rates during the interim period (an average rate of 2.5%) and the permanent Brady period, 1998–2002 (average rate of 2%). From the inception of the Brady Bill through 2002, nearly forty-six million applications for firearm transfers were subjected to background checks. About 976,000 were rejected for various reasons. Most applications were rejected because the applicant had a felony record. (See Table 3.2.) The data represent only attempted purchases from licensed firearms dealers, and do not indicate whether rejected purchasers later obtained a gun through other legal or illegal means or how many applications were rejected because of inaccurate information in the files of background checkers.