No. 95-1478
_________________________________________________

 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995
_________________________________________________

 JAY PRINTZ, Sheriff/Coroner, Ravalli County, Montana,

                                      Petitioner,  

v. 

UNITED STATES OF AMERICA,             Respondent.
 _________________________________________________

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
 ____________

BRIEF OF GUN OWNERS FOUNDATION AS AMICUS CURIAE IN SUPPORT OF
PETITIONER JAY PRINTZ
 ____________
                                James H. Wentzel, General Counsel
James H. Jeffries, III* 
                                Gun Owners Foundation
3019 Lake Forest Drive          8001 Forbes Place, Suite 102 
Greensboro, NC 27408            Springfield, VA 22151
(910) 282-6024
* Counsel of Record

TABLE OF CONTENTS
                                                      Page

Interest of the Amicus Curiae ..................... 1

Statement of the case ............................. 3

Issues presented .................................. 3

Summary of argument ............................... 6

Argument .......................................... 7

      I.  The Brady Act offends the Faithful
          Execution clause of Article II,
          section 3 of the Constitution and the
          Appointments Clause of Article II,
          section 2 by appointing de facto federal
          officers who are not commissioned by
          or answerable to the President and
          who execute federal law enforcement
          authority regardless of the
          powers of the President or his
          lawful delegates ......................... 7

         II.  The Brady Act impermissibly waives
          the sovereign immunity of the
          States to suit by individuals
          illegally or incorrectly denied
          purchase of handguns ..................... 8

        III.  The Brady Act contravenes the
          Takings Clause of the Fifth
          Amendment to the Constitution by
          impermissibly seizing State and
          local property without just
          compensation; otherwise, Congress
          has inadvertently created an
          enormous (and unfunded) liability
          for commandeered labor and resources ..... 15

Conclusion ........................................ 19

TABLE OF AUTHORITIES
Cases:

      Bivens v. Six Unknown Named
        Agents of the Federal Bureau
        of Narcotics, 403 U.S. 388 (1971) .......... 11
      Blatchford v. Noatak,
        501 U.S. 775 (1991) ........................ 14
      Buckley v. Valeo, 424 U.S. 1 (1976) .......... 9
      Chappell v. United States,
        160 U.S. 499 (1896) ........................ 15
      City of Whittier v. United States
        Department of Justice,
        598 F.2d 561 (9th Cir. 1979) ............... 17
      Frank v. Maryland, 359 U.S. 360 (1959) ....... 12
      Frank v. United States,
        78 F.3d 815 (2d Cir. 1996).................. 8
      Frank v. United States,
        860 F.Supp. 1030 (Vt. 1994) ................ 8
      General Motors Corp. v. Romein,
        503 U.S. 181 (1992) ........................ 19
      Gonzales v. City of Peoria,
        722 F.2d 468 (9th Cir. 1983) ............... 8
      Ex parte Hennen, 13 Peters 230 (1839) ........ 10
      Henry v. United States,
        361 U.S. 98 (1950) ......................... 12
      Koog v. United States,
        79 F.3d 452 (5th Cir. 1996) ................ 8
      Koog v. United States,
        852 F.Supp. 1376 (W.D. Tex. 1994) .......... 8
      Livingston v. Dorgenois,
        11 U.S. 577 (1813) ......................... 7
      Louisiana v. United States,
        380 U.S. 145 (1965) ........................ 14
      Lujan v. Defenders of Wildlife,
        504 U.S. 555 (1992) ........................ 9
      Mack v. United States,
        66 F.3d 1025 (9th Cir. 1995) ...... 1, 4, 8, 18
      Mack v. United States,
        856 F.Supp. 1372 (Ariz. 1994) .............. 8
      McGee v. United States,
        863 F.Supp. 321 (S.D. Miss. 1994) .......... 8
      Miller v. United States,
        357 U.S. 301 (1958) ........................ 8
      Missouri Health & Medical
        Organization, Inc. v. United States,
        226 Ct.Cl. 274, 641 F.2d 870 (1981) ........ 19
      Myers v. United States, 272 U.S. 52 (1926) ... 9
      New York v. United States,
        505 U.S. 144 (1992) ....... 4, 5, 9, 11, 15, 16
      Nollan v. California Coastal Comm'n,
        483 U.S. 825 (1987) ........................ 15
      Oklahoma ex rel. Phillips v. Guy F.
        Atkinson Co., 313 U.S. 230 (1946) .......... 15
      Parden v. Terminal Railway,
        377 U.S. 184 (1964) ........................ 14
      Principality of Monaco v. Mississippi,
        292 U.S. 313 (1934) ........................ 14
      Printz v. United States,
        854 F.Supp. 1503 (Mont. 1994) .............. 8
      In re Quarles, 158 U.S. 532 (1895) ........... 7
      Romero v. United States,
        883 F.Supp. 1076 (W.D. La. 1994) ........... 8
      Ruckelshaus v. Monsanto Co.,
        467 U.S. 986 (1984) ........................ 19
      South v. Maryland, 59 U.S. 396 (1856) ........ 7
      Stanford v. Texas, 379 U.S. 476 (1965)........ 12
      Texas v. White, 7 Wallace 700 (1869) ......... 17
      United States v. Bowdach,
        561 F.2d 1160 (5th Cir. 1977) .............. 8
      United States v. Butler, 297 U.S. 1 (1936) ... 15
      United States v. Carmack,
        329 U.S. 230 (1946) ........................ 15
      United States v. Di Re,
        332 U.S. 581 (1946) ........................ 8
      United States v. Gettysburg Elec. Ry. Co.,
        160 U.S. 688 (1896) ........................ 15
      United States v. Lopez, 
        115 S.Ct. 1624 (1995) ...................... 2
      United States v. Mississippi,
        380 U.S. 128 (1965) ........................ 14
      United States v. New York Tel. Co.,
        434 U.S. 159 (1977) ........................ 7
      United States v. Salinas-Calderon,
        728 F.2d 1298 (10th Cir. 1984) ............. 8
      United States v. Texas,
        143 U.S. 621 (1892) ........................ 14
      Walton v. United States,
        213 Ct.Cl. 755 (1977) ...................... 17

Constitution and statutes:

      U.S. Const.:

           Art. I, section 3 ............................. 9
           Art. I, section 8 ....................... 3, 4, 7
           Art. II, section 2 .................... 5-7, 9, 12
           Art. II, section 3 .................... 5-7, 9, 12
           Art. III, section 2 ........................... 13
           Art. VI ................................. 10
           Amend. II ............................... 1
           Amend. V ....................... 5, 6, 15-18
           Amend. IX ............................... 2
           Amend. X .......................... 2, 4, 7
           Amend. XI ............................... 14

      Title 5, U.S.C.:

           section 8101 .................................. 17

      Title 8, U.S.C.:

           section 1324(c) ............................... 8

      Title 18, U.S.C.:

           section 331(g) ................................ 8
           Gun Control Act of 1968,
             sections 921-930 ............................ 3
           section 922(a)(6) ............................. 3
           section 922(q) ................................ 2
           section 922(s) ................................ passim
           section 922(s)(2) ............................. 4
           section 922(s)(6)(B) .......................... 4
           section 922(s)(6)(C) .......................... 4
           section 922(s)(7) ............................. 11
           section 922(s)(8) ............................. 10
           section 924(a)(1)(D) .......................... 12
           section 924(a)(5) ............................. 12
           section 925A .................................. 13
           section 1001 .................................. 3
           section 1623 .................................. 3
           section 3041 .................................. 8

      Title 21, U.S.C.:

           section 878 ................................... 8

      Title 26, U.S.C.:

           section 501(c)(3) ............................. 1

      Title 28, U.S.C.:

           section 1346(a)(2) ............................ 14
           section 1491(a)(1) ............................ 14

      Title 42, U.S.C.:

           section 1983 .................................. 11

Miscellaneous:

      Rules of the Supreme Court:

           Rule 14.1(a) ............................ 4
           Rule 37(1) .............................. 5

      Code of Federal Regulations:

           27 C.F.R. section 178.11 ...................... 13

      Federal Rules of Criminal Procedure:

           Rule 4(a)(1) ............................ 8

      Attorney General  Order No. 1853-94,
        59 Fed. Reg. 9498 (Feb. 28, 1994) .......... 13

      GAO Report No. GAO/GGD-96-22,
        Gun Control: Implementation
        of the Brady Handgun Violence
        Prevention Act, (GAO;
        Washington, D.C.; Jan. 1996) ............ 2, 18

      N. Lasson, The History and
        Development of the Fourth
        Amendment to the United States
        Constitution (1937) ........................ 12

      Fraenkel, "Concerning Searches and
        Seizures," 34 Harv.L.Rev. 361 (1921) ....... 13

IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995
 ____________

 No. 95-1478*

 JAY PRINTZ, Sheriff/Coroner, Ravalli County, Montana, Petitioner

 v.

 UNITED STATES OF AMERICA
____________

 BRIEF OF GUN OWNERS FOUNDATION AS AMICUS CURIAE IN SUPPORT OF
PETITIONER JAY PRINTZ
____________

 INTEREST OF THE AMICUS CURIAE

      Gun Owners Foundation is an Internal Revenue Code Section
501(c)(3) organization incorporated under the laws of the
Commonwealth of Virginia.  Its purposes are to educate the public
about the importance of the Second Amendment to the United States
Constitution and to provide legal and other assistance for
law-abiding individuals involved in firearms-related cases.  GOF's
more than 100,000 contributors are, by self-definition, strongly
interested in the right to keep and bear arms and in opposing
legislation which burdens or impedes that right.

2

      Additionally, the Foundation also strongly supports effective
constitutional law enforcement, especially at the State and local
levels, and opposes the frequent forays by Congress into
essentially local areas -- those reserved to the States and the
people by the Ninth and Tenth Amendments to the United States
Constitution.

      To federalize a crime is frequently to trivialize it.  In many
congressional attempts to be seen as fighting crime by passing
"feel good" legislation, the national legislature forgets that the
entire Federal Bureau of Investigation is less than a third the
size of the New York City Police Department and that the entire
federal judiciary could not fill the muster rolls of the Los
Angeles County courts.  These congressional digressions not only
detract from legitimate federal interests, but affirmatively burden
and impede local law enforcement, as in this case.

      The not infrequent result is invalid legislation such as that
recently condemned in United States v. Lopez, 115 S.Ct. 1624, 131
L.Ed.2d (1995).[FN1]

      In this case, where hundreds of thousands of make-work
background checks have been imposed on unwilling local draftees,
the result is even more pernicious.  These background checks had,
as of July 1995, produced exactly seven prosecutions[FN2] --
prosecutions which would have been

3

possible under existing federal law regardless of the Brady
Act.[FN3]  More importantly, the checks have detracted from the
official duties and responsibilities (and resources) of local law
enforcement -- the real front line of the real war on real crime.

      By letter dated July 10, 1996, the Acting Solicitor General of
the United States consented to the filing of this brief.  By letter
dated July 7, 1996, counsel for the petitioner consented to the
filing of this brief.  By letter dated July 9, 1996, counsel for
the petitioner in No. 95-1503 consented to the filing of this
brief.

 STATEMENT OF THE CASE

      The Foundation adopts petitioner's Statement of the Case and
incorporates that portion of petitioner's brief herein.

 ISSUES PRESENTED

      The petitioner in this case has formulated the issue as
follows:

      Whether Congress has power under Article I, section 8 of the
Constitution, consistent

4

with the Tenth Amendment as interpreted in New York v. United
States, 505 U.S. 144 (1992), to command State-created chief law
enforcement officers: to search records and to ascertain whether
persons may lawfully purchase handguns; to destroy records
concerning handgun purchasers; and to provide the reasons for
adverse determinations, as mandated by the Brady Act, 18 U.S.C.
section 922(s)(2), (6)(B) and (C).

      Petitioner in the consolidated Mack case has formulated the
issues presented as follows:

      1.  Whether Congress exceeds its Commerce Clause powers when
it orders State officials, themselves neither engaged in nor
interfering with interstate commerce, to exercise their police
powers with regard to commerce.

      2.  Whether a Federal statute requiring State officials to
investigate and pass upon the background of each handgun purchaser
can be reconciled with the Tenth Amendment as construed in New York
v. United States, 505 U.S. 144 (1992), on the claimed distinction
that it commandeers a State's labor rather than its policymaking.

      The Amicus is mindful of the stricture of Rule 14.1(a) of the
Court that "[o]nly the questions set out in the petition, or fairly
included therein, will be considered by the Court."  If petitioners
in these two cases are correct about the Commerce Clause/Tenth
Amendment defects in the Brady Act -- and we contend they are --
then additional

5

evidence of those flaws is to be found in other and corollary
conflicts and tensions between the Act and the Constitution.  As
the Court has stated, "Congress exercises its conferred powers
subject to the limitations contained in the Constitution." [FN4] 
A necessary corollary to that statement is, if one or more
limitations contained in the Constitution are inconsistent with an
exercise of purported congressional power, it must be questioned
whether Congress has been conferred such a power at all.

      Accordingly, and in the spirit of the first sentence of Rule
37(1) of the Court, we respectfully suggest that the following
issues are fairly subsumed within the issues as to which certiorari
was granted:

      1.  Whether the Brady Act offends the Faithful Execution
clause of Article II, section 3 of the Constitution and the
Appointments Clause of Article II, section 2 by appointing de facto
federal officers who are not commissioned by or answerable to the
President and who execute federal law enforcement authority
regardless of the powers of the President or his lawful delegates.

      2.  Whether the Brady Act impermissibly waives the sovereign
immunity of the States to suit by individuals illegally or
incorrectly denied purchase of handguns.

6

      3.  Whether the Brady Act contravenes the Takings Clause of
the Fifth Amendment to the Constitution by impermissibly seizing
State and local property without just compensation; and, if not,
whether Congress has inadvertently created an enormous (and
unfunded) liability for commandeered labor and resources.

SUMMARY OF ARGUMENT

      With minor exceptions not relevant to this case, the sole
power of appointing lesser officers of the federal government is
reserved by the Constitution to the President and his subordinates
in the Executive Branch.  The President and his subordinates
self-evidently have no power or authority over local sheriffs and
other State and local law officers.  The assignment of federal law
enforcement duties to these local officers offends both the
Appointments Clause and the Faithful Execution Clause of Article II
requiring the President to see that the laws are faithfully
executed.  This lack of accountability raises numerous subsidiary
questions also suggesting that the Act exceeds the Commerce Clause
power of Congress.

      The Act also purports to create a private cause of action
against the States by disappointed applicants, including a
provision for the award of attorney fees and costs.  This arbitrary
attempt to waive the States' sovereign immunity to suit offends the
dual sovereignty framework of the Constitution, and raises serious
collateral issues with respect to the Eleventh Amendment and this
Court's original jurisdiction under Article III.

      The practical effect of the Act is an arbitrary taking of
State and local resources (private property) without just

7

compensation and it is therefore violative of the Takings Clause of
the Fifth Amendment.

ARGUMENT

      The Amicus urges reversal of the decisions below based on the
Commerce Clause and Tenth Amendment considerations set forth by the
petitioners.  Given the seemingly extraordinary intrusion of the
Brady Act into State and local authority, we believe that
additional evidence of the Act's infirmity under the Commerce
Clause is to be found in the conflicts and tensions it creates with
other provisions of the Constitution, which suggest the following
additional grounds compelling reversal:

I.  The Brady Act offends the Faithful Execution clause of Article
II, section 3 of the Constitution and the Appointments Clause of
Article II, section 2 by appointing de facto federal officers who
are not commissioned by or answerable to the President and who
execute federal law enforcement authority regardless of the powers
of the President or his lawful delegates.

      In a strange perversion of the doctrine of posse comitatus,
[FN5] Congress, by the Brady Act, has rounded up the sheriffs
themselves as a posse to pursue fugitive handgun rustlers.

8

      It is clear that federal authorities can request local
assistance in executing federal laws.[FN6]  It is equally clear
that federal authorities can accept assistance from willing local
authorities who, under some circumstances, voluntarily enforce
federal law.[FN7]  What is not clear -- indeed, what is utterly
counterintuitive -- is that the national legislature can compel a
State or local law officer to execute a national criminal law.[FN8]

9

      It is axiomatic that the limited powers and duties of the
federal government under our Constitution were carefully and
intentionally apportioned by the Founders among the three organs of
the national sovereign.[FN9]  Two of the most important powers and
duties allocated to the President by the Constitution are the power
to appoint and commission lesser officers (Art. II, sections 2, 3)
and the duty -- and authority -- to take care that the laws are
faithfully executed (Art. II, section 3).[FN10]

      With the exception of the advice and consent duties of the
Senate,[FN11] the power of the courts to appoint their own officers
and employees,[FN12] and the impeachment duties of the Congress and
the Chief Justice,[FN13] it would appear that the appointment power
belongs solely to the Executive Branch.  The Court has previously
had to curtail an attempt by Congress to poach on that power. 
Buckley v. Valeo, 424 U.S. 1 (1976).  In doing so, the Court noted
that congressionally-appointed members of the Federal Election
Commission were no less "inferior officers" for purposes of the
Appointments Clause than were postmasters[FN14] and

10

clerks of court.[FN15]  We submit that the federal law enforcement
duties imposed by the Brady Act on Chief Law Enforcement
Officers[FN16] (hereafter "CLEOs") is of at least as great a
dignity as, and no different in kind from, the essentially
ministerial activities of postmasters and clerks of court.

      There can be no argument that the Brady Act is other than
purely federal legislation enacted by the federal legislature to
further perceived federal law enforcement ends.  Yet the Act's
entire execution is assigned to individuals who are not federal
officers, who are not appointed by the President or his
subordinates in the Executive Branch, who are accountable to no
federal official,[FN17] and who possess no federal authority other
than that purported to be created by the Act.

      The President cannot fire or discipline or supervise a sheriff
who refuses to perform his Brady Act duties or who performs them
badly.  The federal Chief Magistrate has no power to supervise or
oversee this execution of a purely federal law in any sense. 
Indeed, his Justice Department subordinates have abandoned even the
prospect of negative supervision by repudiating the right to
prosecute criminal violations of the Act by CLEOs.[FN18]

11

       Moreover, the CLEO is not even answerable in tort for some
aspects of his execution of the Act.[FN19]  Do these immunity
provisions override the officer's potential liability under the
federal civil rights statutes?[FN20]  Or is she now accountable as
a "federal" officer under the rationale of Bivens[FN21] and its
progeny?  And if so, does this immunity provision also provide
immunity from a Bivens action, an immunity even a duly commissioned
federal officer does not enjoy?  And more oddly yet, does section
922(s)(7) create local tort suit immunity in some instances where
a particular State has waived its sovereign immunity for comparable
actions by its law enforcement officials?  In other words, the Act
not only affirmatively invades the States' sovereign immunity to
suit, as argued below, but it may have created a defense to
individual liability which a particular State has, in its sovereign
judgment, decided to make unavailable to an erring law officer.

      What happens when a CLEO is injured in the process of
enforcing the Act?  Is he a federal employee for purposes of the
Federal Employees Compensation Act?  If not, is she entitled to
State workers compensation for an injury incurred outside the scope
of her State-defined duties?[FN22]

12

      The full extent of the offense against the Appointments and
Faithful Execution Clauses can be capsulized by observing that the
Brady Act would not even authorize an FBI agent or other duly
appointed federal law officer to perform -- that is, to faithfully
execute -- the requirements of the Act.

II.  The Brady Act impermissibly waives the sovereign immunity of
the States to suit by individuals illegally or incorrectly denied
purchase of handguns.

      Although the government lamely seeks to minimize the practical
effect of the Brady Act's intrusion into State and local
sovereignty,[FN23] the conceptual scope of the Act's intrusion is
breathtaking.  The Act can fairly be viewed as a legislative
analogue to the British Crown's 18th Century writs of assistance
commanding "all officers and subjects of the Crown to assist in
their execution."  That kind of governmental abuse of power was a
direct cause of our Revolution and has been consistently condemned
by this Court.[FN24]

13

      Perhaps the most glaring example of this intrusion is section
925A of Title 18, added to the Gun Control Act by the Brady
Amendments, which provides in pertinent part that

      ... any person denied a firearm ... due to the provision of
      erroneous information ... by any State ... or who was not
      prohibited from receipt of a firearm ... may bring an action
      against the State ... responsible for providing the erroneous
      information ... or ... for denying the transfer.

The section then provides for an award to the successful plaintiff
of a reasonable attorney's fee "as part of costs."

      We are not told in what court such an action will lie,[FN25]
but it is clear that the proposed suits are targeted directly at
States and their political subdivisions.  The plain language of the
provision also seems to suggest that an action would be available
against a State by a citizen of another State[FN26] or of a foreign
state[FN27] where the defendant

14

State provides erroneous background information to an inquiring
CLEO ("due to the provision of erroneous information by any
state").  These would be obvious and impermissible violations of
the Eleventh Amendment.

      Nor is there any clue as to the source of funding for an award
of attorney fees.  It seems clear that no federal judgment fund
would be available to satisfy a judgment against a State or one of
its political subdivisions.[FN28]  The only apparent answer is that
the States and their subdivisions have involuntarily acquired a new
liability for attorney fees and costs -- imposed by Congress and
payable to private citizens.  This would seem to add an entirely
new dimension to the concept of revenue sharing.

      Most offensive to the traditional concept of dual sovereignty,
however, is the seemingly offhand manner in which the Act simply
mandates that disappointed applicants may sue the State concerned. 
Period.  And regardless of any State principles of sovereign
immunity to suit.

      We make no argument here that the United States (and its
institutions and agencies) cannot sue a State.  Those suits are
clearly a function of the Supremacy Clause or of implied consent or
waiver by the State in adopting the Constitution or in accepting
Statehood.[FN29]  But, we can find

15

no case where Congress has ever purported to create, or this Court
has ever sanctioned, a suit by a private citizen against a State on
a private cause of action.  "Perhaps because the point is so
obvious, we have never been confronted with a controversy that
required us to rule upon it...."  Nollan v. California Coastal
Comm'n, 483 U.S. 825, 831 (1987).[FN30]

      We respectfully submit that it is not the scope of the federal
intrusion which invalidates this legislation, but the fact of it. 
"The question is not what power the Federal Government ought to
have, but what powers have been given by the people."[FN31]

III.  The Brady Act contravenes the Takings Clause of the Fifth
Amendment to the Constitution by impermissibly seizing State and
local property without just compensation; otherwise, Congress has
inadvertently created an enormous (and unfunded) liability for
commandeered labor and resources.

      The Fifth Amendment forbids the taking of private property for
public use without just compensation.  It is clear from the federal
condemnation cases against States that State (and local government)
property is "private property" for purposes of the Takings
Clause.[FN32]

16

      In New York v. United States, 505 U.S. 144 (1992), the Court
held unconstitutional a statute requiring that States "take title
to" radioactive waste -- a commandeering of the States' resources. 
To require taking title to radioactive waste coupled with a legal
obligation to move it, store it, or dispose of it, is to seize the
States' time, money, effort, and other economic resources -- to
seize private property.  The Court phrased the issue there in
property terms, "commandeering of resources," but did not address
the Takings Clause ramifications.

      The Brady Act mandates a similar seizure of State time, money,
effort and other economic resources, and contains no compensation
provision.  If this is not a literal violation of the Takings
Clause, it is the inter-sovereign analogue.  And it is more
perverse.  Not only does the Act violate the sanctity of private
property at the root of the Takings Clause, but it offends the
basic concept of our federal constitutional system, dual
sovereignty.

      Outside the framework of reference of our federal system, when
one sovereign entity simply by fiat or superior power appropriates
the property of another, it is known as pillage, plunder,
aggression or war.  And it offends the deepest principles of
international comity, just as this Act offends the principles of
comity between the national government and the States:

17

       [T]he preservation of the States, and the maintenance of
      their governments, are as much within the design and care of
      the Constitution as the preservation of the Union and the
      maintenance of the National government.  The Constitution, in
      all its provisions, looks to an indestructible Union, composed
      of indestructible States.[FN33]

      We know the sheriff and his employees are not regarded as
federal employees for compensation purposes.[FN34]  Neither, then,
can his supplies, equipment, and other resources be so regarded.

      If federal agents marched into Sheriff Printz' office tomorrow
and confiscated for their own official use a portion of his office
supplies, part of his employee payroll, and a third of the gasoline
in the tanks of his patrol cars, there could be no doubt that their
actions were illegal.  The fact that they did it pursuant to the
Attorney General's instruction or a judge's warrant would not
lessen the offense; indeed, it would raise the act from simple
theft to an unconstitutional taking by the United States.  One
cannot

18

hypothesize a situation short of federal martial law where such
conduct would be defensible.

      What the Executive Branch and the Courts cannot do under color
of official authority we submit the Congress likewise cannot do. 
And the reason is plain: such arbitrary takings without
compensation offend the Fifth Amendment.

      The Court of Appeals in its decision below[FN35] attempted to
sidestep this aspect of the Act by characterizing it as de
minimus.[FN36]  This is akin to holding that the Act is not grand
larceny but merely pickpocketing.  The plain language of the
Takings Clause would not appear to countenance "minor" takings
without compensation.  And when the cumulative national effect of
the Act upon the property of the States is taken into account, it
can hardly be argued that the taking is insignificant.[FN37]

      If the Court were inclined to rule against the Takings Clause
objection, then the government will eventually be confronted with
the rather interesting question of whether Congress has
unintentionally created a large, unfunded liability in implied
contract.38

19

CONCLUSION

      Those provisions of the Brady Act purporting to require
federal law enforcement duties to be performed by State and local
officials and purporting to create a cause of action by
disappointed citizens against their State or local governments
should be declared unconstitutional.  The decision below should be
reversed.
                Respectfully submitted,
                GUN OWNERS FOUNDATION,
                Amicus Curiae in support of
                Petitioners Printz and Mack
                JAMES H. JEFFRIES, III
                Counsel of Record
                JAMES H. WENTZEL
                General Counsel

      *  Together with the consolidated case of Sheriff Richard Mack
v. United States, No. 95-1503.

                               FOOTNOTES

      [FN1].  Lopez declared unconstitutional the Gun-Free School
Zones Act, 18 U.S.C. section 922(q), as exceeding the Commerce
Clause power of the Congress.  Although perhaps not determinative
of this Court's disposition, it is noteworthy that section 922(q)
was duplicative of 43 different State statutes, including that of
the State involved there, Texas.

      [FN2].  Government Accounting Office Report No. GAO/GGD-96-22,
Gun Control: Implementation of the Brady Handgun Violence
Prevention Act, pp. 8, 43 (GAO; Washington, D.C.; Jan. 1996).

      [FN3].  Pre-Brady provisions of the Gun Control Act of 1968,
18 U.S.C. sections 921-930, require a written denial, subject to
penalty for perjury, of all the federal disabilities to purchase of
a handgun.  A false statement on a BATF Form 4473, "Firearms
Transaction Record," is punishable as a felony under either section
922(a)(6) or section 1001 of Title 18, United States Code, just as
a Brady Act false statement is.  Indeed, one who falsifies a Brady
Act form (BATF Form 5300.35, "Statement of Intent to Obtain a
Handgun(s)") must also and consistently falsify the Form 4473 if
the background check fails to catch his Brady Act false statement. 
Otherwise, the purchaser is trapped in a dilemma comparable to that
posed by 18 U.S.C. section 1623 (inconsistent sworn statements;
government not required to show which is false).

      [FN4].  New York v. United States, 505 U.S. 144, 156 (1992).

      [FN5].  Literally "the power of the county."  The historic
power of local law officers, probably deriving from the ancient
"hue and cry," to enlist the aid of bystander citizens in meeting
law enforcement emergencies.  See Livingston v. Dorgenois, 11 U.S.
577, 579 (1813); South v. Maryland, 59 U.S. 396, 402 (1856); In re
Quarles, 158 U.S. 532, 535 (1895); United States v. New York Tel.
Co., 434 U.S. 159, 178 (1977).  Some may be tempted to characterize
this odd law as being motivated by a congressional desire to be
seen as fighting the war on crime while avoiding the pain of
actually bearing arms in the conflict.

      [FN6].  For example, 18 U.S.C. section 331(g) provides that
the FBI may request investigative assistance "from any ... local
agency...."; and Section 878 of Title 21, U.S.C., authorizes the
Attorney General to deputize willing state and local law
enforcement officers for drug enforcement duties.

      [FN7].  E.g., Section 1324(c) of Title 8, U.S.C., authorizes
State and local officials to enforce the illegal immigration
provisions.  See United States v. Salinas-Calderon, 728 F.2d 1298
(10th Cir. 1984); Gonzales v. City of Peoria, 722 F.2d 468 (9th
Cir. 1983).  Cf. Miller v. United States, 357 U.S. 301 (1958);
United States v. Di Re, 332 U.S. 581 (1946).  See also 18 U.S.C.
section 3041 authorizing local officials to issue process for
arrest.  The Fifth Circuit has held that the phrase "some other
officer" in Rule 4(d)(1) of the Federal Rules of Criminal Procedure
includes State and local officers among those authorized to execute
a federal arrest warrant.  United States v. Bowdach, 561 F.2d 1160
(1977).

      [FN8].  Nine of the 15 federal judges who have considered the
statute do not think it can.  Koog v. United States, 79 F.3d 452
(5th Cir. 1996) (two cases), aff'g McGee v. United States, 863
F.Supp. 321 (S.D. Miss. 1994), and rev'g and rem'g Koog v. United
States, 852 F.Supp. 1376 (W.D. Tex. 1994), petition for cert.
pending; Frank v. United States, 860 F.Supp. 1030 (Vt. 1994), aff'd
in part and rev'd in part, 78 F.3d 815 (2d Cir. 1996); Mack v.
United States, 66 F.3d 1025 (9th Cir. 1995) (two cases), rev'g,
aff'g in part, and dism'g in part, Mack v. United States 856
F.Supp. 1372 (Ariz. 1994), and aff'g in part, dism'g in part, and
rev'g Printz v. United States, 854 F.Supp. 1503 (Mont. 1994);
Romero v. United States, 883 F.Supp. 1076 (W.D. La. 1994).

      [FN9].  "... the Constitution protects us from our own best
intentions: it divides power among sovereigns and among branches of
government precisely so we may resist the temptation to concentrate
power in one location as an expedient solution to the crisis of the
day."  New York v. United States, 505 U.S. 144, 187 (1992).

      [FN10].  Characterized by this Court in Lujan v. Defenders of
Wildlife, 504 U.S. 555 at 577 (1992), as "the Chief Executive's
most important constitutional duty."

      [FN11].  Const., Art. II, section 2.

      [FN12].  Ibid.

      [FN13].  Const., Art. I, section 3.

      [FN14].  424 U.S. at 126, citing Myers v. United States, 272
U.S. 52 (1926).

      [FN15].  Ibid., citing Ex parte Hennen, 13 Peters 230 (1839).

      [FN16].  Defined by 18 U.S.C. section 922(s)(8) as "the chief
of police, the sheriff, or an equivalent officer or the designee of
any such officer."

      [FN17].  Other than in the limited and indirect sense that all
civil officers of the States are mandated by Article VI of the
Constitution to take an oath to support it.

      [FN18].  Note 23, infra.  The Court has held that "the
constitutional authority of Congress cannot be expanded by the
'consent' of the governmental unit whose domain is thereby
narrowed, whether that unit is the Executive Branch or the States." 
New York v. United States, 505 U.S. 144, 182 (1992).

      [FN19].  18 U.S.C. section 922(s)(7).

      [FN20].  42 U.S.C. section 1983, et seq.

      [FN21].  Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971) (personal tort liability
of individual federal officers for intentional constitutional
torts).

      [FN22].  See Note 34, infra.

      [FN23].  The government's reasoning that the criminal
provisions of the Brady Act (18 U.S.C. section 924(a)(5)) do not
apply to CLEOs is specious.  (Office of Legal Counsel Memorandum of
March 16, 1994; Printz Def. Ex. 2, Rec. 23.)  There is nothing
ambiguous in the least about the term "whoever violates...."  Even
a cursory reading of the statute reveals that just two classes of
persons are charged with enforceable duties and prohibitions under
the Act: gun dealers and CLEOs.  And every gun dealer activity
mandated or forbidden by Brady was punishable by the Gun Control
Act as it existed prior to the Brady Amendments.  See 18 U.S.C.
section 924(a)(1)(D).  Thus, by the government's analysis the
criminal provisions of Brady apply to no one (or, at best, operate
only to reduce some gun dealer felonies to misdemeanors).

      [FN24].  See Frank v. Maryland, 359 U.S. 360, 363-365 (1959);
Henry v. United States, 361 U.S. 98, 100-101 (1959); Stanford v.
Texas, 379 U.S. 476, 481-484 (1965).  See also, N. Lasson, The
History and Development of the Fourth Amendment to the United
States Constitution (1937); and Fraenkel, "Concerning Searches and
Seizures," 34 Harv.L.Rev. 361 (1921).

      [FN25].  Other than in this Court under its original
jurisdiction.  Const., Art. III, section 2.

      [FN26].  This is more than a merely theoretical possibility
given the two federal databases which the CLEOs are mandated to
check by Attorney General Order No. 1853-94, 59 Fed. Reg. 9498
(Feb. 28, 1994).  Every State participates in furnishing
information to the National Crime Information Center and the
information freely flows across State lines.

      [FN27].  Legally admitted aliens are permitted by federal law
to purchase firearms in the United States under certain
circumstances.  See 27 C.F.R. section 178.11, "State of residence."

      [FN28].  Unless incurring such an involuntary indebtedness
could be deemed an implied contract-in-fact recompensable by suit
against the United States.  See 28 U.S.C. sections 1346(a)(2)
(District Court jurisdiction over implied contracts) and 1491(a)(1)
(Court of Federal Claims jurisdiction over implied contracts).

      [FN29].  E.g., United States v. Texas, 143 U.S. 621 (1892);
Principality of Monaco v. Mississippi, 292 U.S. 313 (1934); Parden
v. Terminal Railway, 377 U.S. 184 (1964); United States v.
Mississippi, 380 U.S. 128 (1965); Louisiana v. United States, 380
U.S. 145 (1965).  The implied consent of the States to suit against
them by the United States and its agencies is not, however, consent
to suit by anyone whom the United States might wish to select as a
plaintiff.  Blatchford v. Noatak, 501 U.S. 775 (1991).

      [FN30].  Nollan held that "one of the principal uses of
eminent domain is to assure that the government be able to require
conveyance of [properties], so long as it pays for them," ibid.,
which takes us to Argument III.

      [FN31].  United States v. Butler, 297 U.S. 1, 63 (1936),
quoted in New York v. United States, 505 U.S. 144 at 157 (1992).

      [FN32].  E.g., United States v. Carmack, 329 U.S. 230 (1946);
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508
(1941); Chappell v. United States, 160 U.S. 499 (1896). The federal
power of eminent domain is limited by the Constitution so that
property may only be taken in the furtherance of an enumerated
power.  United States v. Gettysburg Elec. Ry. Co., 160 U.S. 688
(1896).

      [FN33].  Texas v. White, 7 Wallace 700, 725 (1869).

      [FN34].  Walton v. United States, 213 Ct.Cl. 755 (1977) (even
specially deputized state and local officers are not federal
employees for compensation purposes since they are not appointed to
federal civilian positions).  On the other hand, there may be
workers compensation benefits available to CLEOs under the Federal
Employees Compensation Act, 5 U.S.C. section 8101, et seq., which
extends benefits to State and local officers injured while
apprehending federal criminals and to "an individual rendering
personal service to the United States."  See City of Whittier v.
United States Department of Justice, 598 F.2d 561 (9th Cir. 1979).

      [FN35].  66 F.3d 1025.

      [FN36].  "... nothing unusually jarring...." id. at. 1029;
"... no more remarkable...." ibid.; "... a minimal interference
with state functions...." id. at 1031; "... not different from
other minor obligations...." ibid.

      [FN37].  In less than one year in just 30 States, CLEOs were
required to process more that 440,000 Brady Act applications.   GAO
Report, Note 2, supra, at 29-30 (Table 2.1).

      [FN38].  See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986
(1984); Missouri Health & Medical Organization, Inc. v. United
States, 226 Ct.Cl. 274, 641 F.2d 870 (1981).  Cf. General Motors
Corp. v. Romein, 503 U.S. 181 (1992).