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Justices criticize Brady gun law Several raise doubts on constitutionality of its enforcement


An article in yesterday's editions of The Sun incorrectly reported that Maryland is one of several states that have backed a challenge to the Brady gun control law. Maryland has lent support to the Brady Act, which requires that local law enforcement officials conduct background checks of would-be gun buyers.

The Sun regrets the error.

WASHINGTON -- The federal government's 3-year-old effort to curb sales of handguns to criminals appeared in trouble yesterday as Supreme Court justices raised doubts about the constitutionality of the Brady Act's main enforcement technique.

That technique requires local police chiefs and sheriffs to conduct background checks on would-be handgun buyers, to ferret out criminals and others not entitled to buy guns, during a ++ five-day waiting period before dealers may sell the weapons.

Two county sheriffs, in an appeal backed by Maryland and other states as well as gun enthusiasts, contend that this federal command interferes with regular law enforcement duties. They also say it forces local law officers to absorb the political heat from gun control. The Brady Act provides for no federal money to pay for the local police background checks.

A majority of the justices reacted negatively to the federal mandate. Justice Antonin Scalia, emerging as one of the sharpest critics of the Brady Act, likened it to having state and local government "simply dancing like marionettes on the fingers of the federal government."

Scalia suggested that Congress could follow the example of the Brady Act to pass off major social problems to the states without paying the costs and thus find an easy way to balance the federal budget.

Justices Anthony M. Kennedy and Sandra Day O'Connor, who appear to hold decisive votes on the fate of the 1993 law, reacted with condemnations nearly as strong as those voiced by Scalia.

Kennedy told Acting U.S. Solicitor General Walter Dellinger, the federal government's advocate in the case, that if Congress wanted to adopt a major program like gun control, it should stand ready to "pay the political costs" as well as put up the money. He said the Brady Act raised basic questions about "political accountability."

O'Connor criticized the law as simply a smaller version of a hypothetical directive by Congress to states to take on social problems like welfare with no money and no choice to opt out. Such a move, she said, would threaten "the constitutional structure we have."

She also said that because police have only five days to complete background checks, officers might be diverted from dealing with a local crisis like a prison escape or a jail riot. Dellinger insisted the law is flexible enough to take care of such emergencies.

Justice David H. Souter said that police checks of gun buyers' personal backgrounds might be "very explosive in some communities," raising the political risks for local law enforcement.

Congress' command to local police to look into gun buyers' possible criminal records is to continue through November 1998, when a national computer-based crime records center would take over the task. In the interim, dealers must inform the police when someone wants to buy a gun, setting off a background check by local police.

Dellinger defended this interim approach, calling it a xTC "rough-and-ready way to get the most available information" about people who cannot legally obtain handguns. Local police, he said, are "uniquely well-situated" to do the checking because the records are in their hands or are "a few blocks away" from police stations.

He said: "Why not wait for the national system [to be operating]? Because there are 13,000 handgun murders a year."

Stephen P. Halbrook, the lawyer for the two sheriffs challenging the requirement, said Congress would be constitutionally able to obtain background checks made by local police only if Congress put up federal money and made the checks a condition for receiving the funds.

One of the Brady Act's chief sponsors, Rep. Charles E. Schumer, New York Democrat, said yesterday that he would offer legislation early next year to do that: cutting off federal crime funding for communities that refuse to conduct background investigations on gun buyers.

The law, the sheriffs' attorney told the court, is written in such strong terms that local police chiefs or sheriffs might risk criminal prosecution if they do not cooperate. He conceded that the Justice Department had promised not to bring such cases against those who do not cooperate, but he said the law said otherwise.

Among the few justices appearing to defend the Brady Act requirement was Stephen G. Breyer, who suggested that other nations, such as Germany and Switzerland, think it is "more respectful" of local government for social problems to be dealt with at that level.

The Brady law was enacted in 1993 over fierce opposition from gun-control opponents. It is named after James S. Brady, the former White House press secretary who was wounded in the 1981 assassination attempt on President Ronald Reagan. Brady and his wife, Sarah, who chairs Handgun Control Inc., sat in the spectator section at yesterday's hearing.

A ruling is expected by summer.

Pub Date: 12/04/96

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