The New American -- August 22, 1994
Copyright 1994 -- American Opinion Publishing, Incorporated.
P.O. Box 8040, Appleton, WI  54913  Phone(414) 749-3784

by Robert W. Lee

Sheriffs Versus the Brady Law

If the Tenth Amendment ("The 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") had been
enforced from the start as our Founding Fathers intended, our federal
government would be per- haps one-fifth its present size. Which
explains why advocates of big government are apprehensive about the
blossoming efforts to breathe new life into this much-neglected
constitutional stipulation.

Amy Isaacs, national director of the ultra-liberal Americans for
Democratic Action, grumbles that a successful Tenth Amendment
movement would "bottle up Congress and tie up needed legislation for
years." Understandably, the left, in the words of Ludwig von Mises
Institute President Llewellyn Rockwell, will tolerate "no attempt to
turn back its progress toward unified, omnipotent government."

An especially encouraging facet of the drive to resuscitate the Tenth
Amendment, while revitalizing the Second Amendment as well, is the
series of lawsuits filed by sheriffs throughout the country to
overturn the Brady "waiting period" firearms law. To date, such
litigation has been instigated in Arizona, Louisiana, Mississippi,
Montana, Texas, Vermont, and Wyoming. Of the four decisions rendered
by U.S. District Courts to date, three have struck down--on grounds
that it violates the Tenth Amendment--the provision of the Brady law
that requires sheriffs and other chief law enforcement officers to
conduct background checks on persons who wish to buy handguns.

Arizona's Richard Mack

First to take on the Brady law was Graham County, Arizona Sheriff
Richard Mack. He filed suit on February 28th, the day the law went
into effect. In a statement explaining his action, Mack (who is in
his second term) cited three basic reasons for opposing the Brady
law. For one thing, he said it is "completely contrary to the U.S.
Constitution" and "violates the Constitution of Arizona" as well. For
another, "the federal government has no jurisdictional authority to
order or command me or any other sheriff in this country to enforce
federal law. I am not a federal agent.... I work for Graham County
and was hired by the people to do their bidding."

Mack notes also that "the Brady bill imposes a greater burden on a
very limited sheriff's office manpower, budget, and resources" and
"would have us spend our time, money, and resources doing criminal
background checks on honest law-abiding citizens. This is not only a
ridiculous waste of time, but treats citizens as criminals for merely
exercising their Second Amendment rights. Furthermore, no gun control
law, of which there are 20,000 already, is going to convince
criminals to give up their guns. This Brady bill, or fifty more just
like it, will do nothing at all to stop crime or impede the flow of
violence in America."

In a newspaper interview, Mack cited an instance in which "a citizen
of Graham County bought a gun In Tucson [Pima County], and, under the
law, I'm required to do background checks wherever citizens of my
county go" to purchase handguns. "The gun shop owner and I spent an
hour and a half faxing things back and forth.... In effect, I spent
an hour and a half working for the gun shop."

Sheriff Mack told THE New AMERICAN that the right to keep and bear
arms is "a personal responsibility given to us by our Founding
Fathers, and I don't believe that the government should meddle in it
one iota. If you carry a gun, you're responsible for it, and you're
responsible for your training, you're responsible for how you use
that weapon and what you do with it." He is opposed to
concealed-carry permits, since "we already have that permit via the
Second Amendment." Like any other right, it it yours until you do
something wrong."

Asked how he feels about so-called "assault rifles," he declares
"They're wonderful!" Congress, he claims, "is trying to perpetuate
this notion that assault rifles are these big, dangerous things--that
the only purpose for them is to kill people. Every tool can kill.
Assault rifles are only used in about one percent of all the murders
committed in this country, and so no one can feel any better because
there's an assault rifle ban. Only a fool would think that criminals
aren't going to get them. If they're ignoring the murder laws and
assault laws and rape laws and plundering laws and everything else,
why on earth would we think that an assault weapons law is going to
protect anybody?"

On June 28th, U.S. District Judge John Roll, while upholding the
Brady laws' five-business-day waiting period, ruled that the
background-check requirement violates the Tenth Amendment. He also
held that the imposition of penalties against law enforcement
officers who do not perform the checks would violate the due process
provisions of the Fifth Amendment. Roll issued a permanent,
nationwide injunction against enforcement of the controversial
proviso. On July 14th, the Justice De- partment filed a motion
imploring him to reword the decision so that it applies only to
Graham County. Roll's ruling on that aspect of the issue is pending.

Sheriff Mack told THE NEW AMERICAN that he views the decision as
"about a 45 percent victory," but still considers it monumental,
since "a federal judge told the federal government, 'You're out of
line.' And that still astounds me." The issue "isn't even close to
being over," he asserts, since he intends to bring further legal
action that will hopefully scuttle the waiting period as well.

Montana's Jay Printz

Judge Roll's decision was the second to void the background check.
The first legal blow against the Brady law was struck on May 16th by
District Court Judge Charles C. Lovell in a suit filed by Ravalli
County, Montana Sheriff Jay Printz. Judge Lovell held that the
background check section not only violates the Tenth Amendment, but
also exceeds the authority of Congress as specified in Article I,
Section 8 of the Constitution. He, too, enjoined the entire "United
States of America" from enforcing the background check requirement,
and the Justice Department has also asked him to amend the decision
so that it applies to Ravalli County only.

Sheriff Printz, who is running unopposed this year for a third term,
told THE NEW AMERICAN that he has refused to conduct background
checks "from day one." A strong advocate of the right of individual
citizens to have firearms for self-defense, Printz has on his wall a
quotation from Jeff Cooper, the father of modern combat hand gunning,
which asserts: "If violent crime is to be curbed it is only the
intended victim who can do it. The felon does not fear the police,
and he fears neither judge nor jury. Therefore, what he must be
taught to fear is the victim."

There have been no carjackings within Printz's jurisdiction, a
statistic which he partially attributes to the inclination of
Montanans to carry guns "in their vehicles just like you see in the
movies. I think that has some degree of deterrence for somebody who
wants to commit a violent crime, knowing that in Montana he's going
to quite likely run up against somebody that's armed as well or
better than he is." After all, violent "criminals are like any other
predatory animals. They're going to go after the weak and the sick
and the defenseless and they're not going to take on someone who's
going to hurt them. If we disarm our law-abiding citizens, what's
that going to tell the criminal?"

Sheriff Printz believes that blaming guns for crime "is like blaming
spoons for obesity." And he contends that the designation "assault
weapon" is a misnomer, since such firearms are simply semi-automatics
"that cosmetically look like military weapons. But they are not.
Functionally they are not any different than any other hunting
weapons.  Again, it's not the gun that causes the problem, it's the
nut behind it. If they'd deal with the nuts, we wouldn't have to
infringe on law-abiding, honest gun owners."

Printz also considers the phrase "gun control" to be somewhat
misleading, since the actual goal is "government control." He
deplores the trend "toward more government control over every aspect
of our lives," and wonders why government bureaucrats "think they
ought to control everything and tell you when to get up, when to go
to bed, you name it." He describes the pending federal crime bill as
"a lousy one," which "won't do anything about crime," and detests the
drive to "federalize law enforcement by making federal crimes of
things that have historically been state crimes, like carjacking."

It all boils down, he declares, "to what the Founding Fathers feared
the most, and that was the government. That is why they wrote the
Constitution the way they did. That is why they wrote the Tenth
Amendment--not to give government power, but to limit the power of
the federal government.... They had the experience from England,
France, and other countries, and they said, 'We don't want this
problem.' And we've lost sight of that over the years."


Mississippi's Billy McGee

A third successful challenge to the background check portion of the
Brady law was initiated by Forrest County, Mississippi Sheriff Billy
McGee. On June 3rd, District Court Judge Charles W. Pickering Sr.
voided that provision, but made his ruling applicable only to Forrest
County.

McGee, who has been in law enforcement for 19 years, is serving his
first term as Sheriff. He is pleased with his state's owner-friendly
gun statutes. He told THE NEW AMERICAN that Mississippi law, for
instance, considers your automobile to be "an extension of your home.
So if you have a weapon that's legal for you to own or possess in
your home, even up to and including a machine gun, as long as you've
got the stamp for it, if it's legal for you to possess in your home
you can possess it in your vehicle." McGee acknowledges that many
within the law enforcement community disagree with that policy, but
he thinks that "good people should be able to arm themselves for self
protection. I don't think that good people kill police officers. I
don't think that's who we should be afraid of."

McGee views an armed citizenry as positive support for law
enforcement. "I think, number one, they have a right to defend
themselves. And then I think, number two, it's a definite deterrent
to the knucklehead who wants to steal your purse, take your car away,
or rape your wife, that if he in fact has knowledge that you're
armed, or believes that you're armed, that he is certainly going to
have second thoughts about trying to steal from you. Also, those
people who tend to arm themselves are normally supportive of law
enforcement. If they saw a law enforcement officer in distress, I
would dare to say that over 70 percent would probably come to the aid
of the law enforcement officer.  And knowing that they had a weapon
in their hand that they could use in that situation would give them a
better feeling about coming to an officer's aid."

Sheriff McGee told THE NEW AMERlCAN: "We don't have a problem with
assault rifles down here, and we don't have a problem with assault
rifles in the United States of America. If these people who love to
print this stuff condemning assault weapons] would use the FBI
statistics ...  and their own definition of assault weapons ... they
would realize that there were more people killed last year in the
United States in fist fights than there were with assault weapons."

To him, an assault weapon is --anything that you come to kill me
with. I don't think it has to have a bayonet on it.... If you come to
try to harm me with a rock or any other weapon, you're bringing an
assault weapon as far as I'm concerned."

McGee is contemplating further legal steps to challenge the waiting
period since, ironically, the recent ruling "actually makes it worse
for me now, because if I don't do the background checks, then I cause
the buyer undue trouble." He strives to complete the checks on the
same day that he receives notification of a proposed gun purchase
from the dealer.  "I've never had one that had to wait five days," he
says, but should he forego the background checks,  purchasers would
be required to wait the full five business day period, which could
(depending on holidays) stretch to ten days or more (since "business
days" are defined in the Brady law as those "on which state offices
are open"). "So what happens," he laments, "is if I don't do
anything, then I actually hinder somebody from getting a gun...."

Asked if there were any gun control laws he could think of that would
reduce violent crime, he thought for a moment, then replied: "I don't
know of any ."


Texas' J.R. Koog

Val Verde County, Texas Sheriff J.R. Koog's claim that the Brady law
violates both the Fifth and Tenth Amendments was rejected on June 1st
by District Judge Ed Prado, who upheld the entire Brady law--
background checks, waiting period, and all. According to the judge,
the law "only places minimal duties upon chief law enforcement
officers" who, he asserted, are given "great discretion ... to
determine what is a reasonable background search under the
circumstances." In some instances, the judge held, the (vague,
undefined) term "reasonable" in the bill could mean that no
background check at all was necessary.

Judge Prado also rejected Sheriff Koog's claim that Koog's Fifth
Amendment rights were violated because he could face legal action
over the background checks, holding instead that the Brady law does
not target local law officers for prosecution. That issue is far from
clear, however, since one provision of the Brady law specifies that a
"reasonable" search must include "research in whatever state and
local record keeping systems are available and in a national system
designated by the Attorney General," while another asserts that
"whoever [no exceptions] knowingly violates subsection(s)," which
includes the research requirement, "shall be fined not more than
$1,000, imprisoned for not more than I year, or both."

Sheriff Koog is appealing Judge Prado's decision. "We thought we
could get it modified," Koog told THE NEW AMERICAN, "but when he
refused we decided to just go ahead and appeal it." Koog is
conducting background checks, and intends to do so until the Brady
law is wiped off the books. But he remains troubled about the
liability issue. "All we're doing is running the NCIC [National Crime
Information Center] and TCIC [Texas Crime Information Center] data,
and I'm worried that we're going to have one of these closet mental
cases come in here that no one knows about--we can't find out from
calling a doctor or hospital- -and to write him off, then be sued for
doing an inadequate background check if he goes out and buys a gun
and murders a bunch of people." Koog's attorney tells him that it is
nearly impossible to preclude some- one from suing, and even if the
suit is eventually dismissed on grounds of immunity, the cost of
mounting a defense in the meantime would be substantial.

Koog believes that "any law-abiding citizen should have the right to
Self- Defense." Last year, Texas Governor Ann Richards vetoed
legislation that would have let voters decide whether they should be
allowed to carry concealed handguns. Sheriff Koog favored the
referendum. "I have checked with sheriffs in other states that have
the right-to-carry license, and they have absolutely no problem with
licensed carriers. Our state government doesn't think we have sense
enough to take care of ourselves."

Asked if he was having any problems with "assault" weapons, he
chuckled and said, "No. The last three murders in this county--and we
have a big county --one victim was beat to death with a rock and a
tire tool and the other two were stabbed.... That was two years ago
with the rock, about five and six years ago for the two stabbings."
Texans, he points out, "know what a gun is, and they know it's a
working tool when used right. And it can be used violently --don't
get me wrong, we've had murders with guns here--but we have a very
low crime rate with firearms." And in any event, "the gun can't
think, only the criminal can, so you can't scare the gun into not
doing something wrong."

The focus, Koog believes, should be on the perpetrator, not the
weapon.  And he sees nothing wrong with a person owning numerous
firearms:  "Guns are like golf clubs. A rifle used to shoot a deer at
100 yards is obviously not the firearm a person would use to protect
himself at close range. You wouldn't want to get along with just
one."


Louisiana's Errol Romero

Lawsuits challenging the Brady law are pending in three other states.
Iberia Parrish, Louisiana Sheriff Errol Romero expects a ruling from
District Judge Rebecca F. Doherty at any time. He told THE NEW
AMERICAN that when the feds found out he intended to file suit, "they
had everybody call me. A local U.S. attorney general. They even sent
some people from FEMA [Federal Emergency Management Agency], from ATF
[Bureau of Alcohol, Tobacco, and Firearms].... I guess they were
trying anything to get me to reconsider." But not only did he stand
firm, he intends to file an appeal should he lose in the District
Court.

Romero has been sheriff since 1980. "I'm not doing the background
checks," he asserts. "I refused from day one. I predicted that the
Brady Bill would create a black market in the drug culture for
firearms.... And I have a picture of a gun that, before the Brady
bill, was stolen from a doctor.... It was sold on the street for
$500."

Following Implementation of the Brady law, he arrested another person
with the same gun who had paid $2,500 for it. "And I knew that was
go- ing to happen."

Needless to say, Romero does not want criminals to have guns, "but
the Brady Bill's not going to stop it." Before, a thug might have
purchased a cheap gun in a pawnshop, but now "he's going to
burglarize somebody's house. He's going to get a gun one way or the
other," whether by stealing "or trading dope for it." In short, the
Brady law is not only not reducing gun crime, but is pumping up the
statistics for burglary and related crimes.  Romero agrees that
automobiles should be viewed as an extension of the home when it
comes to gun laws. "Let's say you take your family out, and you're
traveling, and your car breaks down on the highway. Four guys stop.
What are you going to do to protect yourself against four guys?"

The torrent of actual and proposed gun controls does not sit well
with the average resident of Louisiana. Sheriff Romero notes that "we
probably have the most liberal gun laws in the United States. The
only thing Louisiana prohibits you from doing--and then you can get a
permit for that--is to carry a gun on your body concealed....
Louisiana is known as the sportsman's paradise. We're just hunting
people. I don't know anybody in our parish who doesn't hunt. They
take their guns very seriously. I'll just share this with you.
Sometime in a campaign house-to-house I watch out for dogs and
whatever. And every once in awhile I'll walk up and knock on a door
that says, 'Don't be afraid of the dog, beware of my .357--and it
gets your attention."

Sheriff Romero readily admits that he "never owned a gun before I was
sheriff. I don't even carry a gun now, so I'm not a gun freak. I want
to make that perfectly clear. I'm just, I feel, a good American
citizen standing up to be counted."

Vermont's Samuel Frank

Orange County, Vermont Sheriff Samuel Frank filed suit in May and is
awaiting District Court Judge Fred Parker's decision. Frank is
presently running for a second term. Regarding the argument that guns
should be registered like cars, Frank told THE NEW AMERICAN that "if
you check, the biggest thing about car registration is not the police
help. It's because it brings in revenue.... We make cars, and we
always have from day one, that can go more than the speed limit.... I
have cruisers that can go 120, 140 miles per hour. Do I go that? No.
Could I go that?  Yes.... People are saying, why do you need an AK47?
Well, maybe because you would like to shoot one. Why do you need a
Corvette that can go 160 miles an hour? Well, maybe because you like
Corvettes and like to go fast. And if you go fast, you're going to
get picked up for speeding. There's a law for that, just like there's
a law for using an AK-47 unlawfully. The problem is, we're not
focusing on those who break that law, and coming down on them real
hard."

Frank thinks that "any crime committed with a weapon should be a high
punishable crime," and that firearms should not be singled out for
the imposition of extra penalties. Rather than giving, say, an extra
five years to those who use guns in the commission of crimes, the
added years should come into play for the criminal use of any weapon,
from knife to gun to ball-point pen (which can serve to poke out an
eye).

As a law enforcement officer, does Frank feel less safe when so many
private citizens are allowed to carry guns? "No. I feel safer for the
public, because I know my neighbor has a gun, and he' s not a cop,
and if he knew I was in trouble down there, he's going to come down
and help me."

Wyoming's Gary Anders

The most recent lawsuit against the Brady law was filed on July 5th
by Big Horn County, Wyoming Sheriff Gary Anders. District Court Judge
William F. Downes is hearing the case. Pending a decision, Sheriff
Anders, who is running for a fourth term this year, is doing
background checks, both to speed things along for gun purchasers ("We
can do it in a day") and because he believes that "my job is to
enforce the laws....  While it is a law,

I will comply with it," even while working to overturn it.  Under a
new law that goes into effect in October, Wyoming residents who
undergo training and pass a background check will be allowed to carry
concealed weapons. And law-abiding adults may still carry guns openly
in public. "We don't have a problem with that," Anders told THE NEW
AMERICAN. "In Wyoming, Montana, South Dakota, most of the Western
states except in California, my 73-year-old mother could walk on the
streets at night. But should she visit Senator Dianne Feinstein's
California or Sarah Brady's Washington, DC, she wouldn't dare. Even I
wouldn't dare walk down the streets without an armed guard at night.
And they want to pass all these laws to 'protect us.' What this means
to me is that they've screwed up their own home country, and now they
want to destroy our part of the country, which is probably the only
part of the United States that our Founding Fathers would recog-
nize."

Sheriff Anders notes, "We don't have drive-by shootings ... because
if you drive by and shoot at somebody in Wyoming, they're gonna shoot
right back at you. And that just plumb takes all the fun out of it."
And what about carjackings? "Actually, we consider that attempted
suicide here," since so many drivers "are packing guns legally."

According to Sheriff Anders, "we've never had a problem with assault
weapons, as such, and people use them around here for recreational
pur- poses--shooting and such. They are, of course, illegal for
hunting because of the magazine capacity." He believes that "any
firearm can be misused," and that it is essential to focus on "the
people who are misusing them" rather than the guns themselves.

Anders is not aware of any gun controls that suppress violent crime.
"Not in my 20 some-odd years in law enforcement have I seen anything.
It usually works in the reverse. It just makes it harder for honest
people to defend themselves and easier for the criminals to gain the
upper hand.... That's well proven in Washington DC, California, and
New York City.... It's a statistical fact. Our rate of homicides and
so forth are a tenth of what they are in Washington, DC and New York,
where they have all these strict [gun control] laws."

Sheriff Anders is active in the drive to get the federal monkey off
the states' back by strengthening the Tenth Amendment. He and his
wife have been involved in "forming multiple-use groups around here,
because the feds are attacking us in a lot of other ways than guns.
Grazing, water rights, recreational use in the forest--just
everything. So we are very big on the Tenth Amendment in this part of
the country."

Anders tells THE NEW AMERICAN that the "biggest lie I've ever heard
in my entire life and career is probably one you've heard many times:
I'm from the government, and I'm here to help you." --

 ROBERT W. LEE