IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Nos. 94-50562 and 94-60518 (Consolidated)

SHERIFF J.R. KOOG, Val Verde County, Texas,

          Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

          Defendant-Appellee.


SHERIFF BILL MCGEE AND FORREST COUNTY, Mississippi,

          Plaintiffs-Appellants/Cross-Appellees,

v.

UNITED STATES OF AMERICA,

          Defendant-Appellee/Cross-Appellant

Appeals from the United States District Courts
for the Western District of Texas Del Rio Division,
Civil Action No. DR-94-CA-8, and
for the Southern District of Mississippi (Hattiesburg),
Civil Action No. 2:94-CV-67PS

BRIEF OF HANDGUN CONTROL, INC., CENTER TO PREVENT
HANDGUN VIOLENCE, FEDERAL LAW ENFORCEMENT
OFFICERS' ASSOCIATION, FRATERNAL ORDER OF POLICE,
INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE,
MAJOR CITIES CHIEFS, NATIONAL ASSOCIATION OF POLICE
ORGANIZATIONS, NATIONAL ORGANIZATION OF BLACK LAW
ENFORCEMENT EXECUTIVES, NATIONAL TROOPERS'
COALITION, AND POLICE EXECUTIVE RESEARCH FORUM
AS AMICI CURIAE IN SUPPORT OF THE:
UNITED STATES OF AMERICA

DENNIS A. HENIGAN
GAIL A. ROBINSON
CENTER TO PREVENT
HANDGUN VIOLENCE
LEGAL ACTION PROJECT
1225 Eye Street, N.W.
Washington, D.C.  20005
(202) 289-7319

JAMES S. CAMPBELL
RANDOLPH D. MOSS
CRAIG M. BLACKWELL
 WILMER, CUTLER & PICKERING
 2445 M Street, N.W.
 Washington, D.C. 20037

ALEX A. ALSTON, JR.
ALSTON, RUTHERFORD, TARDY
& VAN SLYKE
121 North State Street
Jackson, MS  39201
(601) 948-6882


CERTIFICATE OF INTERESTED PERSONS

In accordance with Local Rules 28.2.1 and 29.2, amici state
that each is a non--profit entity and that none has a financial
interest in the outcome of this litigation. A list and
description of amici is contained in the accompanying Motion
for Leave to File a Brief as Amici Curiae in Support of the
United States of America.


                      TABLE OF CONTENTS

                                                        PAGE

TABLE OF AUTHORITIES .....................................ii

STATEMENT OF INTEREST OF AMICI ............................1

INTRODUCTION ..............................................2

SUMMARY OF ARGUMENT .......................................3

I. THE BRADY ACT IS FULLY CONSISTENT WITH THE TENTH
AMENDMENT AND CORRESPONDING PRINCIPLES OF FEDERALISM.......5

A. In Enacting the Brady Act, Congress Acted Well Within its

Constitutionally Defined Authority and Did Not Infringe Upon Any

Power Reserved to the States..........................6

     1.Congress Has Ample Authority Under the Commerce Clause to

     Enact Legislation, Like the Brady Act, Regulating the

     Acquisition of Firearms. ..............    6
    
     2.The Method of Regulation Adopted in the Brady Act Does Not

     Improperly Intrude on Any Core, Sovereign Function of the

     States......................   7

B. The Framers Envisioned that Congress Could and Would Look

to State and Local Officials to Assist in Enforcing and

Applying the Law of the Land........................... 12

C. The Supreme Court's Decision in New York v. United States

is Not Controlling Here..............................16

II. THE CHALLENGED PROVISIONS OF THE BRADY ACT ARE

SEVERABLE FROM THE REMAINDER OF THE ACT. ..........   18

CONCLUSION .......................   20


TABLE OF AUTHORITIES

CASE

Board of Natural Resources v. Brown,

 992 F.2d 937 (9th Cir. 1993) .............................17

C.I.S.P.E.S. v. FBI,

 770 F.2d 468 (5th Cir. 1985) ..............................5

EEOC v. Wyoming,

 460 U.S. 226 (1983) .......................................8

Familias Unidas v. Briscoe,

 619 F.2d 391 (5th Cir. 1980) .............................11

FERC v. Mississippi,

 456 U.S. 742 (1982) ..................................passim

Fry v. United States,

 421 U.S. 542 (1975) .......................................8

Garcia v. San Antonio Metropolitan Transit Authority,

 469 U.S. 528 (1985) ................................5, 8, 11

Gordon v. Hobart,

 10 F. Cas. 795 (C.C.D. Me. 1836) .........................13

Gregory v. Ashcroft,

 501 U.S. 452 (1991) .......................................7

Hammer v. Dagenhart,

 247 U.S. 251 (1918), overruled by United States v. Darby,

 312 U.S. 100 (1941) .......................................5

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

 452 U.S. 264 (1981) ...................................8, 10

Huddleston v. United States,

 415 U.S. 814 (1974) .......................................7

Mistretta v. United States,

 488 U.S. 361 (1989) .......................................5

Mondou v. New York. New Haven & Hartford R.R.,

 223 U.S. 1 (1912) .........................................8

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

 429 U.S. 274 (1977).......................................11

Murdock v. Memphis,

 87 U.S. (20 Wall.) 590 (1874)........................... 18

National League of Cities v. Usery,

 426 U.S. 833 (1976), overruled by Garcia v. San Antonio

 Metropolitan Transit Authority, 469 U.S. 528 (1985) .....5, 10

New York v. United States,

 112 S. Ct. 2408 (1992) ................................passim

Ponca Tribe v. Oklahoma,

 37 F.3d 1422 (10th Cir. 1994) ........................10, 12

Puerto Rico v. Branstad,

 483 U.S. 219 (1987)....................................15

Robertson v. Baldwin,

 165 U.S. 275 (1897)....................................16

South Carolina v. Baker,

 485 U.S. 505 (1988)................................. 5, 8

South Dakota v. Dole,

 483 U.S. 203 (1987)......................................8

Spallone v. United States,

 493 U.S. 265 (1990) ...................................18

Supreme Court of Virginia v. Consumers Union of the United

States. Inc.,

 446 U.S. 719 (1980) ...................................17

Testa v. Katt,

 330 U.S. 386 (1947) ...................................8, 10

Texas v. United States,

 730 F.2d 339 (5th Cir.), cert. denied, 469 U.S. 892

 (1984)..............................................6, 7, 17

United States v. Darby,

 312 U.S. 100 (1941) ........................................6

United States v. Dozier,

 672 F.2d 531 (5th Cir.), cert. denied, 459 U.S. 943 (1982)...5

United States v. Gainey,

 380 U.S. 63 (1965) .........................................5

United States v. Lopez,

 2 F.3d 1342 (5th Cir. 1993), cert. granted, 114 S. Ct. 1536

 (1994) .....................................................7

United States v. National Dairy Prod. Corp.,

 372 U.S. 29 (1963) ..........................................5

United States v. Nelson,

 458 F.2d 556 (5th Cir. 1972) ................................6

Walker v. United States Dept. of Hous. & Urban Dev.,

 912 F.2d 819 (5th Cir. 1990) ................................5

Washington v. Washington State Commercial Passenger Fishing

 Vessel Ass'n,

 443 U.S. 658 (1979)    .......................................9

Weems v. United States,

 217 U.S. 349 (1910)    .....................................5

STATUTES

20 U.S.C.  4013 ............................................12

42 U.S.C.  5779 ............................................11

Act of Feb. 12, 1793, ch. 7, 1 Stat. 302 ...................15

Act of July 20, 1790, ch. 29, 1 Stat. 131 ..................16

Alien and Sedition Act ch. 66. 2. 1 Stat. 577............ 15

Brady Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat.

 1536 (codified, in part, at 18 U.S.C.  922) .........passim

Emergency Planning and Community Right to Know Act, 42 U.S.C.

  11001 ......................  12

Fire Prevention Control Guidelines for Places of Public

 Accommodation, 15 U.S.C.  2224 ....................  12

Indian Gaming Regulatory Act of 1988, 25 U.S.C.  2701 ......12

National Voter Registration Act of 1993, 42 U.S.C.  1973gg-5..12

Naturalization Act, ch. 3,  1, 1 Stat. 103 .........  15

Regulation of Underground Storage Tanks, 42 U.S.C.  6991a ..12

Violent Crime Control And Law Enforcement Act of 1994, Pub. L.

 No. 103-322, 1994 U.S.C.C.A.N. (108 Stat.) 1796 ...........11


LEGISLATIVE MATERIALS

137 Cong. Rec. S8945-46 (daily ed. June 27, 1991) ...........9

Brady Handgun Violence Prevention Act: Hearings on H.R. 1025

 Before the Subcomm. on Crime and Criminal Justice of the House

 Comm. on the Judiciary, 103d Cong., 1st Sess. 196 (1993) ....2

Brady Handgun Violence Prevention Act: Hearings on H.R. 7 Before

 the Subcomm. on Crime and Criminal Justice of the House Comm.

 on the Judiciary, 102d Cong., 1st Sess. 78 (1991) ..........19

The Brady Handgun Violence Prevention Act: Hearings on S. 1236

 Before the Subcomm. on the Constitution of the Senate Comm. on

 the Judiciary, 101st Cong., 1st Sess. 65 (1989) ...........19

H.R. Rep. No. 103-344, 103d Cong., 1st Sess. 8 (1993), reprinted

 in 1993 U.S.C.C.A.N. 1984 ................... 2, 7

H.R. Rep. No. 1577, 90th Cong., 2d Sess. (1968), reprinted in

 1968 U.S.C.C.A.N. 4410..............................7

Letter from Attorney General Reno to Rep. Charles Schumer (Nov.

 9, 1993) ......................................9


       BOOKS, LAW REVIEW ARTICLES & OTHER PUBLICATIONS

Samuel H. Beer, To Make a Nation: The Rediscovery of American

 Federalism (1993) ............................12, 15

The Complete Anti-Federalist (Herbert J. Storing ed.

 1981) ..................13, 14, 17

The Debates in the Several State Conventions on the Adoption of

 the Federal Constitution (Jonathan Elliot ed. 1827) .........14

The Federalist (Benjamin Fletcher Wright ed. 1961) ...4, 13,14

Lawrence Lessig & Cass R. Sunstein, The President and the

 Administration, 94 Colum. L. Rev. 1 (1994) .............13

H. Jefferson Powell, The Oldest Question of Constitutional Law,

 79 Va. L. Rev. 633(1993) .......................12, 13

Saikrishna Bangalore Prakash, Field Office Federalism,

 79 Va. L. Rev. 1957(1993) ...............4, 12,13, 18

Joseph Story, Commentaries on the Constitution (1833) .......6

U.S. Dept. of the Treasury, Bureau of Alcohol, Tobacco and

 Firearms, The Brady Law: The First 100 Days (1994) ...1, 19

Herbert Wechsler, The Political Safeguards of Federalism: The

 Role of the States in the Composition and Selection of the

 National Government, 54 Colum. L. Rev. 543 (1954)............5


               STATEMENT OF INTEREST OF AMICI

 The amici submitting this brief, who are described in greater
detail in the accompanying motion for leave to file, consist of
eight national law enforcement organizations together with
Handgun Control Inc. and the Center to Prevent Handgun Violence,
sister organizations chaired by Sarah Brady. The law
enforcement amici, taken together, represent hundreds of
thousands of law enforcement officers who face the daily threat
of handgun violence and who rely upon the Brady Act in the
ongoing war against violent crime. The membership of several of
the law enforcement amici, moreover, include police executives
who are subject to the Brady Act requirement that they conduct
"reasonable" background checks on handgun buyers. All of the
amici are committed to preventing handgun violence and to
keeping violent criminals, drug abusers, and other prohibited
persons from purchasing handguns. The Brady Act provides law
enforcement with a valuable tool in this effort. Indeed,
background checks conducted during just the first one hundred
days that the Act was in effect prevented an estimated 50,000
felons and other prohibited persons from purchasing handguns
from federally licensed dealers, including, for example, 1,220
denials in Houston, Texas, 624 denials in Louisville, Kentucky,
and 533 denials in Pittsburgh, Pennsylvania. [FN1]

 INTRODUCTION

 Congress enacted the Brady Handgun Violence Prevention Act, Pub.
L. 103- 159, 107 Stat. 1536 (1993) [hereinafter "Brady Act" or
"the Act"], in the wake of "an epidemic of gun violence." See
H.R. Rep. No. 103-344, 103d Cong., 1st Sess. 8 (1993), reprinted
in 1993 U.S.C.C.A.N. 1984, 1985. The statistics behind this
epidemic are chilling: the Act's legislative history reports
that 15,377 Americans were murdered with firearms in 1992; that
12,489 of these murders were committed with handguns; and that
gun murders in the United States increased by 41 percent between
1988 and 1992. Id.

 The Brady Act "give[s] the law enforcement community a very
valuable and effective tool" to prevent convicted felons and
other persons barred by law from purchasing handguns. [FN2] To
serve this important goal, the Act contains two provisions.
First, the Act's "interim provision" requires that dealers,
importers and manufacturers of handguns obtain a statement from
prospective purchasers, which includes, among other things, the
name, address, and date of birth of the purchaser and a
representation that the purchaser is not under indictment, has
not been convicted of a felony, and is not a fugitive from
justice. 18 U.S.C. 922(s)(3). They must then verify the
identity of the purchaser and must provide the Chief Law
Enforcement Officer ("CLEO") of the purchaser's place of
residence with a copy of the purchaser's statement. Id.
922(s)(1)(A)(i)(I). Upon receiving notice of a proposed sale,
the CLEO is required to:

 make a reasonable effort to ascertain within 5 business days
whether [the proposed] receipt or possession [of the 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.

 Id. 922(s)(2). If the CLEO determines that the proposed
transfer would not violate federal, state, or local law, the
CLEO must within twenty days destroy any documents or records
received or generated as a result of the CLEO's search. Id.
922(s)(6)(B)(i). If the CLEO determines that the proposed
transfer would violate federal, state, or local law, the CLEO
must, upon request of the transferee, provide a written
statement explaining the reasons for the determination. Id.
922(s)(6)(C).

 Second, the Act's "permanent provision" directs the Attorney
General to establish within five years "a national instant
criminal background check system" that any licensee can contact
to determine whether receipt of a firearm by a particular
purchaser would violate federal, state, or local law. See Brady
Act, 103(b). The Attorney General is required to have this
computerized federal database in place no later than February
28, 1999, at which time the "interim provision" automatically
expires. See 18 U.S.C. 922(s)(1).

 SUMMARY OF ARGUMENT

 Appellants' principal argument in this case is that the
straightforward, ministerial duties required of local law
enforcement officers under the Act's "interim provision" violate
the Tenth Amendment. [FN3] Appellants' understanding of the
Tenth Amendment is wrong. The Tenth Amendment does not protect
local officials from federal responsibilities, but rather
protects the constitutionally defined allocation of power
between the Federal Government and the States. Under that
allocation of power, Congress is afforded broad authority to
regulate interstate commerce and is afforded latitude to
"'employ the arm of the ordinary magistrate to execute its own
resolutions." [FN4] As we demonstrate below, courts have
repeatedly recognized that the Federal Government may require
that state or local officials apply (but not make) federal law,
and Congress has done so on numerous occasions. We further
demonstrate that the Framers of the Constitution clearly
envisioned that Congress would look to state and local officials
to apply (but not make) the law of the land, and early
Congresses enacted legislation implementing this understanding.
Finally, we demonstrate that Appellants' reliance on New York v.
United States, 112 S. Ct. 2408 (1992) (which involved a
congressional command to make law), is misplaced. Because the
Brady Act is fully consistent with the congressional power to
regulate interstate commerce and does not interfere with any
core, sovereign function of the States, this Court should
sustain the constitutionality of the Act.

 I. THE BRADY ACT IS FULLY CONSISTENT WITH THE TENTH AMENDMENT
AND CORRESPONDING PRINCIPLES OF FEDERALISM.

 "[T]he grave power of annulling an Act of Congress," United
States v. Gainey, 380 U.S. 63, 65 (1965), should be taken in
only the clearest and most extraordinary of circumstances. [FN5]
Where the elected representatives of the people act pursuant to
some constitutionally delegated power, the courts may not
second-guess the wisdom or propriety of their decision. [FN6]
Moreover, because the political process acts as a check on any
encroachment by the Federal Government on the sovereignty of the
States, federal statutes are entitled to great deference in the
face of Tenth Amendment challenge. [FN7] Presumably for these
reasons, the Supreme Court has sustained a Tenth Amendment
challenge to a congressional exercise of the power to regulate
interstate commerce only twice since the demise of the Lochner
era -- and the Court subsequently overruled one of those two
cases. [FN8]

 A. In Enacting the Brady Act, Congress Acted Well Within its
Constitutionally Defined Authority and Did Not Infringe Upon Any
Power Reserved to the States

 Appellants' contention that the Tenth Amendment prohibits the
Federal Government from requiring that state or local officials
perform even minimal, ministerial duties fundamentally
misconstrues the meaning and purpose of the Tenth Amendment.
"The Constitution does not protect the sovereignty of States for
the benefit of [state and local] public officials," but rather
preserves a separate role for the States to "'secure[ ] to
citizens the liberties that derive from the diffusion of
sovereign power."' New York, 112 S. Ct. at 2431 (citation
omitted). A federal statute, accordingly, is subject to valid
Tenth Amendment attack only if Congress has legislated in an
area beyond its delegated power, [FN9] or has employed some
method of regulating that threatens the status of the States "as
separate and meaningful decisionmaking, functioning governmental
entities." [FN10] The Brady Act does not implicate either
concern.

 1. Congress Has Ample Authority Under the Commerce Clause to
Enact Legislation, Like the Brady Act, Regulating the
Acquisition of Firearms.

 Legislation designed to prevent felons and other unauthorized
persons from acquiring handguns falls well within the broad
confines of the commerce power. As this Court held in United
States v. Nelson, 458 F.2d 556, 559 (5th Cir. 1972) -- and
recently reaffirmed in United States v. Lopez, 2 F.3d 1342, 1354
(5th Cir. 1993), cert. granted, 114 S. Ct. 1536 (1994) -- "the
acquisition of firearms by convicted felons and persons under
indictment for felonies . . . imposes a sufficient burden upon
interstate commerce to be a proper subject of federal
regulation." See also Huddleston v. United States, 415 U.S. 814,
833 (1974). The Brady Act is indisputably such a statute, and
thus falls easily within the scope of the commerce power. [FN11]

 2. The Method of Regulation Adopted in the Brady Act Does Not
Improperly Intrude on Any Core, Sovereign Function of the
States.

 Similarly, the method of regulation adopted in the Brady Act
does not threaten the status of the States "as separate and
meaningful decisionmaking, functioning governmental entities."
Texas v. United States, 730 F.2d at 355. While ordering that a
state legislature enact particular legislation strikes at the
core of state sovereignty, and thus crosses this line, see New
York, 112 S. Ct. 2408 (discussed infra at 16-18), imposing
limited, clerical duties for an "interim" period of time on
certain local officials does not.

 The power of the national government to "impose its will on the
States" is well established. Gregory v. Ashcroft, 501 U.S. 452,
460 (1991) (O'Connor, J.). As the Supreme Court observed in FERC
v. Mississippi, 456 U.S. 742, 762 (1982), courts have repeatedly
"upheld statutory structures that in effect directed state
decisionmakers to take or refrain from taking certain actions."
In the FERC case, the Supreme Court upheld a provision of the
Public Utilities Regulatory Policies Act of 1978 ("PURPA") that
required state regulatory authorities, among other things, to
"consider" adopting specific "rate design" and regulatory
standards; to follow defined procedures when doing so; and to
make publicly available a written statement of reasons if the
proposed standards were rejected. [FN12]

 The Supreme Court has sustained a broad array of other federal
directives requiring that state or local officials "take or
refrain from taking certain actions." Thus, the federal
government may require that state or local officials: issue
bonds in registered, as opposed to bearer, form, see Baker, 485
U.S. at 514; adjudicate disputes arising under federal law, see,
e.g., Testa v. Katt, 330 U.S. 386 (1947); Mondou v. New York.
New Haven & Hartford R.R., 223 U.S. 1 (1912); regulate according
to federal instruction as a condition of receipt of federal
funds, see, e.g., South Dakota v. Dole, 483 U.S. 203 (1987);
regulate according to federal instruction or face total
preemption of state law in the field, see, e.g., Hodel v.
Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264
(1981); comply with federal employment standards or guidelines,
see, e.g., Garcia, 469 U.S. 528; EEOC v. Wyoming, 460 U.S. 226
(1983); Fry v. United States, 421 U.S. 542 (1975); and prepare
rules to enforce a treaty, and thereby implement a federal
court's interpretation of the rights of the parties, even though
"state law withholds from [the state officials] the power to do
so," see Washington v. Washington State Commercial Passenger
Fishing Vessel Ass'n, 443 U.S. 658, 695 (1979).

 For a number of important reasons, the duties imposed on local
law enforcement officials under the Brady Act are less intrusive
on state sovereignty than those upheld in these and other cases:

 First, unlike in New York, 112 S. Ct. at 2427-29, the Brady Act
does not set a political or legislative agenda for the States.
Rather, the Act merely requires that local officials perform
certain ministerial duties. It is the setting of policy that
"gives the State[s] [their] sovereign nature," FERC, 456 U.S. at
761, and not the performance or nonperformance of clerical
tasks.

 Second, also unlike in New York, 112 S. Ct. at 2424, this is not
a case in which the Federal Government is avoiding political
accountability by shifting to the States some function that the
Federal Government might equally well perform. To the contrary,
the Brady Act enlists the assistance of local officials because-
- at least in the near term -- background checks are most
effectively performed by local officials. [FN13] Moreover, there
is no ambiguity that the regulatory requirements of the Brady
Act are imposed as a matter of federal policy. Indeed, the form
used to conduct the background check, which is completed by the
prospective purchaser and forwarded by the gun dealer to local
law enforcement, is unmistakably a federal form. See Koog Record
Excerpts, Ex. 5, tab 8 at 2-3.

 Third, the duties imposed on local law enforcement officials are
not onerous. [FN14] The Act makes clear that local law
enforcement personnel must make only "a reasonable effort" to
determine whether the proposed transfer is lawful. 18 U.S.C.
922(s)(2). This obligation -- which will lapse as soon as the
federal instant check system is in place -- simply requires that
law enforcement engage in "the very type of activity" in which
law enforcement officials "customarily engage." [FN15] Cf. FERC,
456 U.S. at 760. The obligation that law enforcement officials
perform "reasonable" background checks before individuals are
allowed to purchase handguns pales in comparison with the
obligations upheld in cases such as Testa and FERC.

 Fourth, there is no reason to believe that any increased costs
that the States may bear as an indirect result of the Brady Act
even approach those imposed by the requirement, for example,
that state courts adjudicate certain federal causes of action.
[FN16]

 The Brady Act, moreover, authorized the appropriation of $200
million to the States, among other things, to improve their
computerized criminal history records, see Brady Act 106, and
Congress more recently authorized the appropriation of billions
of dollars to the States for law enforcement, see Violent Crime
Control And Law Enforcement Act of 1994, Pub. L. No. 103-322,
31001, 1994 U.S.C.C.A.N. (108 Stat.) 1796, 1861 (to be codified
at 31 U.S.C. 6702). These appropriations plainly outweigh any
cost that the Brady Act may impose on the States. They also
demonstrate that "the national political process systematically
protects the States from the risk of having their functions in
th[is] area handicapped by Commerce Clause regulation." Garcia,
469 U.S. at 555.

 Fifth, the Brady Act imposes no direct obligation on the States,
see 18 U.S.C. 922(s), but rather imposes the obligation to
conduct background checks on local officials. In the past,
courts have declined to extend the protective cloak of
sovereignty to local entities or officials. See, e.g., Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
279-81 (1977); Familias Unidas v. Briscoe, 619 F.2d 391, 404
n.13 (5th Cir. 1980). Any concern for state sovereignty is
minimized by the fact that the Act does not operate directly on
the States.

 In short, the obligations imposed on local officials under the
Brady Act are not the sort of obligations that are likely to
undermine the ability of the States to govern as distinct,
sovereign entities. Appellants' contention that the Brady Act's
imposition of limited, ministerial, and interim duties on local
officials violates the Tenth Amendment would require the
invalidation of a host of other federal laws, from a statute
that requires state law enforcement agencies to report cases of
missing children to the Department of Justice, 42 U.S.C.
5779(a), to a statute that requires states to keep records on
asbestos in schools, 20 U.S.C. 4013. [FN17] Such a result is
not supported by Tenth Amendment Jurisprudence, would serve no
useful purpose, and would undermine the effective application of
local knowledge and skill to the resolution of national
problems.

 B. The Framers Envisioned that Congress Could and Would Look
to State and Local Officials to Assist in Enforcing and Applying
the Law of the Land.

 Any possible doubt regarding the power of Congress to enlist
state and local officials in the application of federal law is
put soundly to rest by the historical record. That record
unequivocally demonstrates that the Framers intended that
Congress have the power to "commandeer state executives and
state courts, but not state legislatures, to help implement its
constitutional powers." [FN18] The Framers indicated on numerous
occasions that the State magistracy" -- that is, those state
officials who put the law into effect, as opposed to those who
create it -- might be called upon to apply federal law. [FN19]
Indeed, although the Framers recognized that "the power of
making rules or laws to govern or protect the society is the
essence of sovereignty," 3 The Complete Anti-Federalist 14.4
(Herbert J. Storing ed., 1981) (emphasis added), they showed no
reluctance to look to state and local officials to assist in
applying federal law. See infra nn. 21-24 and accompanying text.

 The federal power to require the aid of state and local
officials in applying federal law was widely recognized by both
those who favored a strong national government and those who did
not: Thus, Alexander Hamilton explained in Federalist No. 27
that the Constitution "will enable the government to employ the
ordinary magistracy of each [of the states] in the execution of
its laws," The Federalist, at 221; in Federalist No. 16 that the
federal government "must stand in need of no intermediate
legislations; but must itself be empowered to employ the arm of
the ordinary magistrate to execute its own resolutions," id. at
165; and in Federalist No. 36 that "the probability is, that the
United States . . . will make use of State officers and State
regulations, for collecting" federal taxes, id. at 263, and that
"[t]he national Legislature can make use of the system of each
State within that State," id. at 261 (emphasis in original).

 James Madison similarly observed in Federalist No. 45 that "it
is extremely probable that [state officials] will be clothed
with the correspondent authority of the Union," id. at 328; and
that "the eventual collection [of internal taxes] 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. And perhaps putting the issue most clearly, William
McClaine stated: "The laws can, in general, be executed by the
officers of the states. State courts and state officers will,
for the most part, probably answer the purpose of Congress as
any other. [FN20]

 Although opposing ratification of the Constitution, Patrick
Henry similarly observed that "[t]he sheriff comes to-day as a
state collector" and the next day as a "federal" collector. 3
Debates at 167-68. Likewise, in a rejoinder to the Federalists,
Agrippa conceded that "[a]ll the state officers are . . . bound
by oath to support this constitution," and, by operation of the
Supremacy Clause, are bound "to execute the continental laws in
their own proper departments within the state." 4 The Complete
Anti-Federalist 6.19.

 This expectation that the national government would look to
state officials to perform ministerial tasks was not a novel
proposition, but rather emerged from -- and mirrored -- the
state practice of looking to local officials. As historian
Samuel Beer has observed:

 In America, state government has often relied upon local
governments to carry out its laws. At the time the Constitution
was being framed, for instance, Massachusetts had virtually no
administrative apparatus of its own but used the towns for such
purposes as tax gathering. In the 1830s Tocqueville observed
this feature of government in New England and praised it for its
ideal combination of centralized legislation and decentralized
administration. In Massachusetts, which he chose for the purpose
of illustrating the system, the towns were charged with
appointing assessors who would levy the tax specified by the
state legislature.

 Madison himself expected the new federal government to govern
through the state governments, rather in the manner of the New
England states in relation to their local governments.

 Beer at 252. Given this history, and the absence of a
substantial federal administrative apparatus, it would have been
surprising if the Framers had not expected state officials to
assist in the application of federal law. Early Congresses,
moreover, did in fact look to state and local officials to
assist in the application of federal law. Thus, in enacting the
Naturalization Act of 1790, the very same Congress that passed
the Tenth Amendment imposed certain ministerial duties on state
court clerks. [FN21] Shortly thereafter, Congress enacted
statutes requiring: that "the executive authority of any . . .
state or territory to which a [fugitive from justice] shall have
fled" return the fugitive from the state from which he fled upon
demand from the executive of that state or territory; [FN22]that
state courts "cause" the apprehension of certain persons --
presumably through the local sheriffs; [FN23] and that the local
justices of the peace, upon application by a ship's captain,
gather local citizens skilled in maritime affairs and decide,
with the citizens' assistance, whether and how a ship of
uncertain seaworthiness might be repaired before continuing its
voyage. [FN24] Appellants' broad argument that the Federal
Government may never look to state or local officials to apply
federal law cannot be reconciled with these early enactments.

 C. The Supreme Court's Decision in New York v. United States is
Not Controlling Here.

 In the face of substantial authority supporting the power of
Congress to enlist the aid of local officials in applying
federal law, and the overwhelming historical support for this
power, appellants rely solely on the Supreme Court's decision in
New York v. United States, 112 S. Ct. 2408 (1992). The New York
decision, however, dealt with a statute that, unlike the Brady
Act, "'commandeer[ed] the legislative processes of the States by
directly compelling them to enact and enforce a federal
regulatory program."' Id. at 2428 (quoting Hodel, 452 U.S. at
288) (emphasis added). It was on this basis that the Supreme
Court declared the statute unconstitutional. Appellants' attempt
to read New York so broadly as to render unconstitutional any
federal law requiring that local officials perform limited,
ministerial duties -- as opposed to requiring that the States
make law -- cannot withstand scrutiny.

 Appellants do not, and cannot, contend that the "take title"
provision at issue in New York even remotely resembles the
"interim provision" of the Brady Act. As the Court repeatedly
stated in New York, the question there was whether any
"constitutional provision authorizes Congress to command state
legislatures to legislate," id. at 2430, or put slightly
differently, to compel the States "to regulate in a particular
field" in Congress' stead, see id. at 2420. In concluding that
Congress lacks this power, the New York Court stressed that the
Framers expressly rejected a system -- embodied in the Articles
of Confederation -- that required "'intermediate legislation,"'
id. at 2422 (citation omitted), and noted that the statute at
issue in the FERC case was upheld because it did not "'directly
compe[l]' the States to enact a legislative program," id. at
2421.

 Unlike the statute at issue in New York, the Brady Act does not
require that the States make law, through either an
administrative or legislative process. [FN25] The Act,
accordingly, does not infringe on the "power of making rules or
laws to govern," which is "the essence of sovereignty." [FN26]
It does not "infringe any sovereign authority to set an agenda."
FERC, 456 U.S. at 785 (O'Connor, J. dissenting in part). It does
not implicate the host of difficult problems relating to the
enforceability of commands directed at legislative bodies, see
Prakash at 1977-80, and it does not diminish political
accountability, see New York, 112 S. Ct. at 2424. In short, the
Brady Act is an example of precisely the sort of federalist
legislation that the Framers envisioned, see supra at 12-16, and
does not interfere with the core sovereign function of making
law that was at issue in New York.

 II. THE CHALLENGED PROVISIONS OF THE BRADY ACT ARE SEVERABLE
FROM THE REMAINDER OF THE ACT.

 Although appellants' constitutional challenge is limited to
three of the requirements of the Brady Act, appellants insist
that the Act's entire "interim provision" must fall. As shown in
the brief of the United States, appellants' position on
severability cannot withstand serious scrutiny. It bears
emphasis, however, that even without the mandatory background
check provision, the Act will serve the end that Congress
intended -- and that amici firmly support -- of preventing
prohibited persons from obtaining handguns from federally-
licensed dealers. Before the Brady Act was enacted, police
departments in many states, as a practical matter, did not have
the opportunity to perform background checks on prospective gun
purchasers. The Brady Act's five-day waiting period, coupled
with the requirement that local law enforcement be given the
sworn statements of proposed purchasers, affords police that
opportunity. Even if not required to perform background checks,
many police departments will take advantage of the opportunity
the Act gives them to do so. [FN27] There is overwhelming
evidence that the Brady Act has provided law enforcement with an
effective and valuable tool. See generally BATF Report. There is
no reason to believe that police departments across the country
would not continue to use this important tool, even if not
statutorily required to do so.

 CONCLUSION

 For all of the foregoing reasons, the judgment of the district
court in Koog v. United States, No. 94-60518, should be
affirmed, and the judgment of the district court in McGee v.
United States, No. 94-50562, should be reversed.

 Respectfully submitted,

James S. Campbell
Randolph D. Moss
Craig M. Blackwell

Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000

Dennis A. Henigan
Gail A. Robinson

Center to Prevent
Handgun Violence
Legal Action Project
1225 Eye Street, N.W.
Washington, D.C. 20005
(202) 289-7319

Alex A. Alston, Jr.

Alston, Rutherford, Tardy
& Van Slyke
121 North State Street
Jackson, MS 39201
(601) 948-6882

December 5, 1994

Counsel for Amici Curiae

 END NOTES

 1 U.S. Dept. of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, The Brady Law: The First 100 Days 6-7 (1994)
[hereinafter "BATF Report"].

 2 Brady Handgun Violence Prevention Act: Hearings on H.R.1025
Before the Subcomm. on Crime and Criminal Justice of the House
Comm. on the Judiciary, 103d Cong., 1st Sess. 196 (1993)
(statement of Tim Mullaney, Commander, Criminal Investigations
Unit, Dover, DE, and Member, Fraternal Order of Police). See
also H.R. Rep. No. 103-344.

 3 Sheriff Koog is the Appellant in Koog v. United States, No.
94-60518, and Sheriff McGee and Forrest County are the
Appellants and Cross-Appellees in McGee v. United States, No.
94-50562. For simplicity, they are collectively referred to
herein as "Appellants. "

 4 See Saikrishna Bangalore Prakash, Field Office Federalism, 79
Va. L. Rev. 1957, 2033 (1993) [hereinafter "Prakash"] (quoting
The Federalist No. 16, at 165 (Alexander Hamilton) (Benjamin
Fletcher Wright ed. 1961)); see also commentators cited infra
n.18.

 5 See, e.g., Mistretta v. United States, 488 U.S. 361, 384
(1989); United States v. Nat'l Dairy Prod. Corp., 372 U.S. 29,
32 (1963); Walker v. United States Dept. of Hous. & Urban Dev.,
912 F.2d 819, 829 (5th Cir. 1990); C.I.S.P.E.S. v. FBI, 770 F.2d
468, 473 (5th Cir. 1985); United States v. Dozier, 672 F.2d 531,
538 (5th Cir.), cert. denied, 459 U.S. 943 (1982).

 6 See Weems v. United States, 217 U.S. 349, 379 (1910). & also
Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528,
548 (1985) ("we have no license to employ freestanding
conceptions of state sovereignty when measuring congressional
authority under the Commerce Clause").

 7 See Garcia, 469 U.S. at 552; South Carolina v. Baker, 485 U.S.
505, 512 (1988); Herbert Wechsler, The Political Safeguards of
Federalism: The Role of the States in the Composition and
Selection of the National Government, 54 Colum. L. Rev. 543
(1954).

 8 See New York, 112 S. Ct. 2408; National League of Cities v.
Usery, 426 U.S. 833 (1976), overruled by Garcia, 469 U.S. 528.
Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918), overruled by
United States v. Darby, 312 U.S. 100 (1941).

  9 See United States v. Darby, 312 U.S. 100, 124 (1941). See
also New York, 112 S. Ct. at 2419; Joseph Story, Commentaries on
the Constitution 1010 (1833).

 10 Texas v. United States, 730 F.2d 339, 355 (5th Cir.), cert.
denied, 469 U.S. 892 (1984). See also New York, 112 S. Ct. 2408.

 11 In enacting the Gun Control Act of 1968, which the Brady Act
amended, Congress sought to "strengthen Federal controls over
interstate and foreign commerce in firearms.'' See H.R. Rep. No.
1577, 90th Cong., 2d Sess. (1968), reprinted in 1968
U.S.C.C.A.N. 4410, 4411 (emphasis added). At the time Congress
enacted the Brady Act, firearm-related injuries drained the
national economy of approximately $20 billion annually through
increased medical costs and diminished productivity. See H.R.
Rep. No. 103-344.

 12 See FERC, 456 U.S. at 758-771. The Court premised its
decision, in part, on the tact that Congress could have pre-
empted the field." Id. at 742. The same can be said here:
Congress could have, but did not, preempt the field. The FERC
Court also observed that, as a theoretical matter, states could
have avoided the federal requirements imposed by PURPA by
ceasing regulation of public utilities altogether, but conceded
that this was not a real "choice," particularly since Congress
had failed to provide any "alternative regulatory mechanism to
police the area in the event of state default." FERC, 456 U.S.
at 766. See also id. at 781 (O'Connor, J., dissenting in part).

 13 Many state criminal history records are either
insufficiently computerized or otherwise unavailable to the
federal government. "[O]nly 21 States now share their [criminal
history] data with the FBI," and "several States do not even
have their records on computer." 137 Cong. Rec. S8945-46 (daily
ed. June 27, 1991) (statement of Sen. Mitchell). As Attorney
General Reno commented during consideration of the Act:
"Background checks performed by local police remain the most
effective means of screening out ineligible gun buyers. It is
local law enforcement who best know the residents and
residencies within their communities. Local law enforcement can
check to see if a prospective purchaser resides at the given
address, and can access local, county, state and national
records ...." Letter from Attorney General Reno to Rep. Charles
Schumer (Nov. 9, 1993).

 14 The requirements that CLEOs destroy documents or records
received or generated as a result of the search, 18 U.S.C.
922(s)(6)(B)(i), and provide those precluded from purchasing a
handgun with a written statement of explanation, id.
922(s)(6)(c), are de minimis. Indeed, the written explanation is
required only when the CLEO determines that a handgun purchase
would violate the law and the would-be purchaser requests an
explanation. Of those whose purchases are blocked, few are
likely to request a letter of explanation, since people who are
attempting to circumvent the law do not generally go to law
enforcement to seek an explanation when they are caught doing
so.

 15 18 U.S.C. 922(s)(1). See National League of Cities, 426 U.S.
at 853 (noting that the Tenth Amendment is "not so inflexible as
to preclude temporary enactments tailored to combat a national
emergency").

 16 See Testa, 330 U.S. 386. Of course the "mere fact that a
federal statute requires a state to expend resources in
compliance therewith, by itself, is not fatal for Tenth
Amendment purposes." Ponca Tribe v. Oklahoma, 37 F.3d 1422 (10th
Cir. 1994). See also Hodel, 452 U.S. at 292 n.33; FERC, 456 U.S.
at 770 n.33.

 17 See also National Voter Registration Act of 1993, 42 U.S.C.
1973gg-5 (requiring states to provide voter registration
materials at state and local government offices); Indian Gaming
Regulatory Act of 1988, 25 U.S.C. 2701-21 (requiring states to
negotiate with Indian tribe to enter compact authorizing gaming)
(upheld against Tenth Amendment challenge in Ponca Tribe, 37
F.3d 1422); Emergency Planning and Community Right to Know Act,
42 U.S.C. 11001 (requiring states to form commissions to
generate plans for addressing hazardous material emergencies);
Regulation of Underground Storage Tanks, 42 U.S.C. 6991a(c)
(requiring states to make "inventories of all underground
storage tanks in such state containing regulated substances [and
to] submit such aggregated data to [a federal official]''); Fire
Prevention Control Guidelines for Places of Public
Accommodation, 15 U.S.C. 2224 (requiring states to submit to
the federal government "a list of those places of public
accommodation affecting commerce located in the State").

 18 See Prakash at 1962. See also H. Jefferson Powell, The Oldest
Question of Constitutional Law, 79 Va. L. Rev. 633 (1993)
[hereinafter "Powell"]; Samuel H. Beer, To Make a Nation: The
Rediscovery of American Federalism 252 (1993) [hereinafter
"Beer"]; Lawrence Lessig & Cass R. Sunstein, The President and
the Administration, 94 Colum. L. Rev. 1, 31 (1994).

 19 See Prakash at 1990-2032; Powell at 659-64. The term
"magistracy" included both executive and judicial officers. See
Prakash at 1961 n.26. See also Gordon v. Hobart, 10 F. Cas. 795,
796 (C.C.D. Me. 1836) (No. 5609) (Story, J.) ("I know of no
other definition of the term 'magistrate' than that he is a
person clothed with power as a public civil officer.").

 20 4 The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 140 (Jonathan Elliot ed.
1827) [hereinafter "Debates"].

 21 Naturalization Act, ch. 3, 1, 1 Stat. 103 (1790). The Act
provided that an alien eligible for citizenship may apply to
"any common law court of record" in a state where he has lived
for one year, must take an oath, "and the clerk of such court
shall record such application, and the proceedings thereon." Id.
at 103-04 (emphasis added).

 22 Act of Feb. 12, 1793, ch. 7, 1, 1 Stat. 302. The obligation
imposed on state executives under this legislation exceeded the
similar obligation established in Art. II, 2 of the
Constitution, which does not extend to demands made by
territories. See also Puerto Rico v. Branstad, 483 U.S. 219
(1987).

 23 Alien and Sedition Act, ch. 66, 2, 1 Stat. 577 (1798) ("it
shall be the duty of the several courts of the United States,
and of each state, having criminal jurisdiction . . . to cause
[aliens targeted by the statute] to be duly apprehended")
(emphasis added).

 24 Act of July 20, 1790, ch. 29, 3, 1 Stat. 131, 132. The
duties imposed on the justices of the peace under this statute,
as with the other statutes discussed above, were more executive
than judicial in nature. In fact, Section 7 of this statute was
affirmed, against a challenge that it unconstitutionally
delegated "the judicial power of the United States" to a state
officer, precisely because the duties assumed by the State
justices of the peace were not those traditionally performed by
"courts of record." See Robertson v. Baldwin, 165 U.S. 275, 279
(1897).

 25 Appellants argue at length that the Tenth Amendment, as
interpreted in New York, not only precludes the federal
government from directing states to make law, but also prevents
the federal government from looking to the states to apply the
law. In support of this proposition, appellants point to the
Court's assertion that "[t]he federal government may not compel
the States to enact or administer a federal regulatory program."
Brief at 27 (quoting 112 S. Ct. at 2435) (emphasis added). But
this argument misses the point. The dicta upon which appellants
rely merely recognized that the federal government can no more
direct states to make law through administrative action than it
can direct states to do so through legislative action. As the
Supreme Court stated in FERC: "[T]he ability of a state
legislative (or, as here, administrative) body . . . to consider
and promulgate regulations of its choosing must be central to a
State's role in the federal system." 456 U.S. at 761. See also
Board of Natural Resources v. Brown, 992 F.2d 937, 949 (9th Cir.
1993) (holding unconstitutional a federal statute directing
state governors to "issue regulations"); Texas v. United States,
730 F.2d at 354 ("when state agencies are compelled to regulate
in accordance with federal law, it is inappropriate for courts
simply to rely on the political process, in effect abdicating
their powers to Congress"). Here, there is no contention that
the Brady Act requires that the States make regulations of any
sort.

 26 3 The Complete Anti-Federalist 14.4. Courts have
traditionally shown great deference to state law-making
processes. See, e.g., Supreme Court of Virginia v. Consumers
Union of the United States! Inc., 446 U.S. 719, 731-34 (1980)
(holding members of state legislative bodies absolutely immune
from suits for damages or injunctive relief); Murdock v.
Memphis, 87 U.S. (20 Wall.) 590 (1874) (federal courts cannot
tell state courts how to decide issues of state law). See also
Spallone v. United States, 493 U.S. 265, 279 (1990) (restricting
freedom of legislators "undermines the 'public good' by
interfering with the rights of the people to representation in
the democratic process").

 27 This is reflected not only by the participation of the
national police groups in this brief, but also by the
congressional testimony of police groups in favor of the Brady
legislation, which frequently noted the public safety importance
of screening handgun buyers. See, e.g., Brady Handgun Violence
Prevention Act: Hearings on H.R. 7 Before the Subcomm. on Crime
and Criminal Justice of the House Comm. on the Judiciary, 102d
Cong., 1st Sess. 78-81 (1991) (statement of Lee Brown, Comm'r,
New York City Police Department); id. at 109-11 (statement of
Hubert Williams, President, Police Found. & Chairman, Law
Enforcement Steering Comm.); id. at 112-14 (statement of Kenneth
Collins, Chief of Police, Maplewood, Minn. and President,
Minnesota Ass'n of Chiefs of Police); The Brady Handgun Violence
Prevention Act: Hearings on S. 1236 Before the Subcomm. on the
Constitution of the Senate Comm. on the Judiciary, 101st Cong.,
1st Sess. 65-72 (1989) (testimony of John Dineen, President,
Fraternal Order of Police, representing over 203,000
professional police officers nationwide); id. at 73-80
(testimony of Ralph Porter, Chief of Police, Florence, South
Carolina).