Printz v. United States
In Printz v. United States, 521 U.S. 898 (1997), the 5-4 U.S. Supreme Court invalidated as unconstitutional part of a gun control law (the Brady Act) that required state and local law enforcement officials to conduct federal background checks on the buyers of handguns. Justice Antonin Scalia based his opinion for the Court on a strict view of separation of powers and federalism:
- The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Justice Scalia vigorously affirmed basic principles of federalism:
- It is incontestable that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991); Tafflin v. Levitt, 493 U.S. 455, 458, 107 L. Ed. 2d 887, 110 S. Ct. 792 (1990). Although the States surrendered many of their powers to [*919] the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text, Lane County v. Oregon, 74 U.S. 71, 7 Wall. 71, 76, 19 L. Ed. 101 (1869); Texas v. White, 74 U.S. 700, 7 Wall. 700, 725, 19 L. Ed. 227 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, § 3; the Judicial Power Clause, Art. III, § 2, and the Privileges and Immunities Clause, Art. IV, § 2, which speak of the "Citizens" of the States; the amendment provision, Article V, which requires the votes of three-fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, § 4, which "presupposes the continued existence of the states and ... those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U.S. 405, 414-415, 82 L. Ed. 1427, 58 S. Ct. 969 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment's assertion that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The four liberal Justices dissented.
Justice Clarence Thomas wrote a concurrence that implicitly endorsed a view that the Second Amendment protects an individual right to bear arms. No other Justice joined his concurrence:
- JUSTICE THOMAS, concurring.
- The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." ... This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. 2 As the parties not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries § 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.