Comprehensive Handgun Licensing & Registration: An Analysis & Critique of Brady II, Gun Control's Next and Last Step

Journal of Criminal Law and Criminology Volume 89 Issue 1 Fall Article 2 Fall 1998 Comprehensive Handgun Licensing & Registration: An Analysis & Critique of Brady II, Gun Control's Next and Last Step James B. Jacobs Kimberly A. Potter Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation James B. Jacobs, Kimberly A. Potter, Comprehensive Handgun Licensing & Registration: An Analysis & Critique of Brady II, Gun Control's Next and Last Step, 89 J. Crim. L. & Criminology 81 (1998-1999) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/98/8901-0081 THE JOURNAL OF CRIUNAl. LAW & CRIMINOLOGY Copyright 0 1999 by Northwestem University, School of Law Vol. 89, No. 1 Ptwn in USA. COMPREHENSIVE HANDGUN LICENSING & REGISTRATION: AN ANALYSIS & CRITIQUE OF BRADY II, GUN CONTROL'S NEXT (AND LAST?) STEP JAMES B. JACOBS AND IMBERLY A. POTTY'" I. INTRODUCTION The Brady Handgun Violence Prevention Act,' which became effective in 1994, imposed a background check on prospective handgun purchasers who seek to buy handguns from federal firearm licensees (FFLs). While the handgun control groups that lobbied for the Brady law have labeled it a success, they are also pushing a supplementary omnibus bill that would create a comprehensive handgun licensing and registration system, in effect, extending Brady to the secondary market of handgun transfers between non-dealers.2 This Article analyzes the constitutionality and feasibility of this bill's comprehensive handgun licensing and registration provisions. 3 Part III arPart II describes the main features of Brady Wl. gues that Brady II would be unconstitutional under the Supreme Court's decision in Printz v. United States, which struck down Brady I's requirement that state or local officials carry out background checks of prospective handgun purchasers.4 Parts . Professor of Law and Director, Center for Research in Crime and Justice, New York University School of Law. .. Senior Research Fellow, Center for Crime and Justice, New York University School of Law. ' 18 U.S.C. § 922 (q)-(t) (1994). 'Handgun Control and Violence Prevention Act of 1995, H.R. 1321, 104th Cong.; S. 631, 104th Cong. 'While Brady II covers everything from licensing and registration to monthly limits on handgun purchases to FFL tort liability for victims of gun violence, the scope of this article is limited to Brady H's licensing and registration provisions. 4 Printz v. United States, 117 S. Ct. 2365 (1997). JACOBS & POTTER [Vol. 89 IV and V demonstrate the practical difficulties that would bedevil comprehensive handgun licensing and registration. II. BRADY II'S REGUiATORYVISION In 1995, Congressman Charles Schumer (D-NY), and Senators Bill Bradley (D-NJ) and Charles Lautenburg (D-NJ) introduced the Handgun Control and Violence Prevention Act of 19955 (Brady II). It would require all handgun purchasers to obtain a state handgun permit; states with no handgun permit laws would have to enact them. Brady II also requires that handguns be registered before being transferred. Brady II significantly expands Brady I by making it illegal "for any person to sell, deliver, or otherwise transfer a handgun to an individual who is not [an FFL] unless the transferor... verifie [s] that the 'H.R. 1321, 104th Cong.; S. 631, 104th Cong. 6 Many of the provisions in Brady II were based on previous proposals introduced into Congress in recent years. Multiple Handgun Transfer Prohibition Act of 1995, H.R. 964, 104th Cong. (proposing limit on purchase of handguns to no more than two per month); Handgun Registration Act of 1995, H.R. 169, 104th Cong. (proposing state and federal handgun registration system); H.R. 711, 103d Cong. (proposing handgun licensing system); Multiple Handgun Transfer Prohibition Act of 1993, H.R. 544, 103d Cong. (proposing limit on purchase of handguns to no more than two per month). Brady II was first introduced before Congress on March 1994 as the Gun Violence Prevention Act of 1994. H.R. 3932, 103d Cong.; S. 1882, 103 Cong. Its provisions are nearly identical to the 1995 version. In addition to a licensing and registration system, the Gun Violence Prevention Act contained provisions for: (1) a seven-day waiting period; (2) making it a crime to store or leave a firearm any place where an "unsupervised juvenile" is likely to gain access to firearms, and requiring FFLs to post warning signs to that effect; (3) prohibiting an individual (other than FFLs or those who hold arsenal licenses) from possessing more than 20 firearms or more than 1,000 rounds of ammunition; (4) repealing provisions for restoration of firearm possession/purchase privileges under certain circumstances; and (5) limiting handgun purchases to one per month. The Act also provided for more stringent regulation of FFITs by increasing the license fee, making compliance with state and local law a condition precedent to obtaining a license, authorizing the Bureau of Alcohol, Tobacco & Firearms (ATF) to inspect records three time per year, requiring FFL employees to be at least eighteen-years-old, obtain a handgun license and undergo a background check. Further, FFLs are prohibited from transferring a firearm at any location other than the one specified on the license, and must report lost/stolen firearms within 24 hours after discovery. Additionally, the Act expands the class of "prohibited weapons," increases the tax on handguns and handgun ammunition, and prohibits the import or manufacture of any firearm that is not child-proofed. 1998] BRADYII transferee possesses a valid State handgun license. '7 It also makes it unlawful for anyone, other than an FFL, to receive a handgun or handgun ammunition "unless the individual possesses a valid State handgun license."" The proposed law would prohibit, not only sales by an FFL to an unlicensed purchaser, but handgun sales in the secondary market between private citizens, as well as non-commercial handgun transfers between friends or family members. 9 Brady II does not leave it entirely up to states to determine the requirements for obtaining a state handgun license. The state handgun license must "at a minimum, meet the following requirements:" (1) licenses shall be issued by the state's chief law enforcement officer (CLEO); (2) they shall contain the licensee's name, address, date of birth, physical description, and a photograph; and (3) licenses shall be valid for a period not to exceed two years.10 Before granting a state license, the CLEO must verify that: (1) the applicant is at least twenty-one years old; (2) the applicant is a resident of the s (...truncated)