Advisory Opinion
The Gloves Are Off: States v. Feds

by Timothy Lynch

One of the most important cases pending before the Supreme Court this term is Printz v. United States. On the surface, Printz appears to be a gun control matter because it involves a constitutional challenge to the hotly debated Brady law, but the underlying issue transcends the debate over gun control. The Printz case is, at bottom, a bare-knuckle fistfight between the federal and state governments over their respective turf. Make no mistake, the ruling in this case will have profound consequences for constitutional federalism in America.

The provisions of the Brady law are straightforward. The law requires the prospective buyer of a handgun to wait five business days before taking physical possession of the firearm. During the five day waiting period, local law enforcement officials are supposed to check the background of the prospective buyer for a criminal record or mental instability. The ostensible purpose of the law is "to keep guns out of the hands of criminals."

The issue before the Supreme Court is whether Congress can saddle state and local officials with federal legal responsibilities. The constitutional challenge was brought by Jay Printz, who is a sheriff in Ravalli County, Montana. Sheriff Printz claims that his understaffed office will be dangerously overextended if it must conduct time-consuming background checks on individuals who wish to purchase handguns. Printz’s county has thirty thousand residents spread over 2,400 square miles; only two deputies are on patrol at any given moment. According to Printz, deputies will have to be taken off patrol and investigative duties in order to do "Brady work." The Justice Department has countered that the Brady law only requires local law enforcement officials to make "reasonable" efforts at background checks.

The outcome in Printz, however, will not turn upon whether the Brady Law is "unduly" burdensome. The issue to be resolved is one of principle: Can the federal government conscript state agencies and resources for its own purposes? The answer to that question is resolvable for anyone who takes seriously the text, history, and structure of the Constitution.

The Constitution creates a federal government of enumerated powers. Most of the federal government’s powers are set forth in article I, section 8, and a few others are dispersed throughout the constitutional text. The Tenth Amendment was appended to the Constitution to make it clear that the powers not delegated to the federal government "are reserved to the States respectively, or to the people."

In the early years of our constitutional republic, many feared that the state governments would cow the national government into a subservient position. In the landmark case McCulloch v. Maryland (1819), Chief Justice John Marshall defended the federal government when the state of Maryland attempted to tax the Bank of the United States. After making his famous observation that the power to tax involves the power to destroy, Marshall noted that if the Court were to sustain the power of a state to tax a federal institution, "We shall find [the states] capable of arresting all of the measures of the [federal] government, and of prostrating it at the foot of the states." The Court concluded, "The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government."

Fair enough. But what about the reciprocal danger? Can the federal government "retard, impede, burden, or in any manner control" the operations of state government? Absolutely not. The Constitution does not subordinate the state governments to the whims of federal lawmakers. As Thomas Jefferson noted, the state and federal governments "are coordinate departments of one simple and integral whole . . . neither having control over the other, but within its own department." Justice Antonin Scalia seemed to echo Jefferson when the Court heard oral arguments in the Printz case last December. Scalia said federal statutes like the Brady law "make the states dance like marionettes on the fingers of the federal government." Precisely—and that is why they are unconstitutional.


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