Gun Control, State Courts, and Federalism

By Alan B. Sternstein

Maryland Attorney General Brian E. Frosh and Congressional Representative Christopher Van Hollen recently jointly announced separate but complementary campaigns to encourage other states to enact laws similar to certain Maryland firearms laws.[1] Those laws, among other things, prohibit the sale of particular semiautomatic weapons and require fingerprinting and background checks at the time of a handgun purchase, dealers to forward a regulated firearm’s sample shell casing to the Maryland State Police for inclusion in a ballistics database, private sales of firearms to occur at a State Police barracks, and a license to purchase handguns.[2] According to Attorney General Frosh, despite Maryland’s laws, the state’s efforts to curb gun violence continue, not surprisingly, to be compromised by laxer laws in other jurisdictions.

Indeed, it has been recognized for years that the best success for background checks and other controls in keeping guns out of problematic hands could only be achieved with a nationwide, coordinated program of such checks and limitations on disqualified purchasers. In Maryland, for example, the flow of weapons into the state is only a Potomac River bridge crossing away. Such a national program was attempted years ago with the Handgun Violence Protection Act amendments to the Gun Control Act of 1968, codified 18 U.S.C. § 921 et seq.

The latter, popularly known as the “Brady Act” and specifically codified at 18 U.S.C. § 922, required federally licensed gun dealers to obtain pre-purchase background checks from the chief law enforcement officer for a handgun purchaser’s residence, typically an attorney general or local sheriff. The Act did not require an enforcement officer to prevent a handgun transfer, even if the transfer would be illegal. The Act did immunize enforcement officers for mistakenly concluding a transfer would be legal and excused them from performing checks if local conditions rendered them “impracticable.”

In Printz v. United States, 521 U.S. 898 (1997), two local Arizona law enforcement officers challenged the Act’s imposition on them of a duty to conduct background checks as beyond the power of Congress under the Commerce Clause, arguing that the Brady Act unconstitutionally compelled state enforcement officers to administer and enforce federal law. A closely divided U.S. Supreme Court held that the duty was unconstitutionally imposed. The resulting enhanced likelihood of handguns falling into dangerous hands, however, was only temporary, as a national system for obtaining background checks, the National Instant Criminal Background Check System, was put in place in 1998 by the FBI.

Still, the Supreme Court’s decision in Printz not only rekindled an intense debate on the reach of the Commerce Clause and the scope of state sovereignty but also handicapped Congress’s ability to control firearms distribution and use within the country, even through legislation within the limits of the Second Amendment’s protection of the citizenry’s privilege of keeping and bearing arms. As a practical matter, controls such as Maryland’s can only be effectively implemented and administered at the state level but optimally achieving their objectives requires nationwide application. One need only read Justice Scalia’s opinion for the Court and Justice Stevens’ lead dissent to appreciate that, argument-wise, there was much to be said on each side of the question.

Fundamentally, the Printz Court faced a choice between a view of federalism as a regime of “dual sovereignty”[3] and one of “cooperative federalism”[4] and, by one vote, opted for the former. “Sovereignty” is hardly a self-defining concept, however, particularly in a context where, as in the Constitution, the subjects of government have two sovereigns. Indeed, the word “sovereignty,” let alone sovereignty as an express principle, appears nowhere in the Constitution, providing no specific guidance as to just what powers and immunities are quintessentially sovereign, such that the diminishment or loss of any one of them may be said to erode sovereignty. In this ill-defined territory, Justice Scalia’s opinion for the Court in Printz looked to three sources for guidance in determining whether the Brady Act’s use of the resources of local law enforcement impermissibly intruded on state sovereignty: expressions about the intended meaning and operation of the Constitution contemporaneous with its adoption (primarily as expressed in The Federalist), the Court’s own precedents, and implications drawn from but hardly necessitated by the relationship between the states and the federal government set forth in the Constitution, particularly given the powers granted the federal government under the Commerce and Necessary and Proper Clauses.

All of these sources arguably commend themselves to the determination of the scope of state sovereignty and the reach of federal power, but each also has its own failing. Contemporaneous statements are parol evidence drawn from material rife with competing views about the nature and powers of the federal government being created. The Supreme Court’s relevant precedents are vulnerable to the slanting of legal reasoning, as demonstrated by Justice Scalia’s majority opinion and Justice Steven’s lead dissenting opinion. And, again, when it comes to the details of the impingements of federal and state power, such as in Printz, the structure of the relationship between state and federal government set forth in the Constitution hardly determines how conflicts are to be resolved.

Printz also fails to take account of another source of guidance: the views of the states themselves as expressed by governors, state attorneys general, state legislatures, and state courts.[5] States will, of course, differ on what federal actions constitute an encroachment on state sovereignty, and it is still the Supreme Court, not any given state, that has the final say as to how far federal power extends under the Constitution and what state sovereignty remains. Surely, however, a state consensus, ascertained by reasonably reliable means,[6] should bear on just how state and federal powers and interests are to be reconciled. Where states acknowledge the powerlessness of their porous borders to protect them from problems such as air pollution, disease epidemics, or the proliferation of firearms into dangerous hands, and the need for federal solutions, any state consensus on such matters deserves to be heard in the process of resolving any controversy concerning federalism.

Indeed, the decisions of state courts, when faced with cases raising constitutional issues about the relationship between state and federal government, are perhaps the best source for ascertaining state views about federalism. Those decisions are more likely the result of rational deliberation at the state level, taking account of conflicting points of view within a given state, and, most importantly, stable in their nature, being the furthest removed from the vicissitudes of politics and elections. Three decisions of the Maryland Court of Appeals are cases in point.

In Department of Pub. Safety and Corr. Servs. v. Berg, 342 Md. 146 (1996), the Court of Appeals decided whether the State Police erred in disapproving an application to purchase a handgun on the ground that the transaction would violate federal law. The federal law at issue, in fact, was the Brady Act. Citing several federal and state court decisions, the Court concluded that “[b]oth state and federal courts take the position that it is appropriate for state and local law enforcement officials to enforce federal law.” Id. at 136. Given that Printz came out of Arizona, it was ironic that the Court of Appeals cited the Supreme Court of Arizona’s, decision in Whitlock v. Boyer, 271 P.2d 484, 487 (1954), which held that municipal police officers were authorized to arrest persons attempting to pass counterfeit currency in violation of a federal statute.

The Court of Appeals concluded that Maryland law enforcement officers “may” enforce federal law, 342 Md. at 139, but left no doubt that the choice was discretionary. According to the Court:

The reasoning of Judge Learned Hand in Marsh v. United States, [29 F.2d 172 (2d. Cir.), appeal dismissed, 277 U.S. 611 (1928), cert. denied, 279 U.S. 849 (1929)], which has been followed by numerous other courts, is fully applicable in Maryland. As Judge Hand pointed out, in light of the Supremacy Clause, an Act of Congress “is as valid a command within the borders of [a state] as one of its own statutes.” 29 F.2d at 174.

342 Md. at 138. Notably, if state law enforcement officers were required to enforce federal law, the Supremacy Clause would operate without regard to the necessary allocation of state resources employed in satisfying this duty.

Another relevant Maryland decision is Bunch v. Robinson, 122 Md. App. 437 (1998), in which the Court of Special Appeals addressed the question of whether the Supremacy Clause required Maryland circuit courts to enforce the Fair Labor Standards Act, as mandated by Congress pursuant to the Commerce Clause. Noting the Supreme Court’s then-recent decision in Printz, the court observed that “the conflict between state sovereign immunity and Congress’s desire to regulate wages and work hours pursuant to its powers under the Commerce Clause … created the quagmire of conflicting interests into which this case falls.” Id. at 445. In holding that state courts could be compelled to hear causes of action created under federal law, the court noted:

Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and law passed pursuant to it are as much laws in the States as laws passed by the state legislature.

Id. at 446. Thus, the court made explicit what was implicit in Berg: The Supremacy Clause operates without regard to the allocation of state resources employed in respecting a duty imposed on the states, and state sovereignty is not violated by a duty Congress imposed on state courts pursuant to the Commerce Clause.

A last decision is Levitt v., Inc., 383 Md. 141 (2004), in which the Court of Appeals, in a case similar to Bunch, decided whether Maryland trial courts, like other state courts, may be required to entertain, exclusive of federal courts, a private cause of action for damages under the federal Telephone Consumer Protection Act. The Court noted the argument that “when Congress confers exclusive jurisdiction on state courts, without authorization to discriminate against the federal cause of action, Congress acts unconstitutionally because it ‘runs the serious risk of commandeering state resources and violating a state’s right to determine how its resources will be utilized.’” Id. at 147. The Court decided, however, that the imposition by Congress on state courts of exclusive jurisdiction to hear claims under the Act was not unconstitutional.

It is likely not possible to reconcile these cases with Printz, because the import Maryland’s cases draw from Supreme Court decisions on the limits of federal power is quite different from and more expansive of federal power than the import the Supreme Court draws from its own precedents. It suffices, for present purposes, to recognize that official state voices, including particularly the voices of state courts, should play a role in the recurring need to resolve conflicts between state and federal power. In “Slipping the Bonds of Federalism,” 128 Harv. L. Rev. 85 (2014), Yale Law School Professor Heather K. Gerken makes a strong case for the failure of the Supreme Court’s federalism jurisprudence. She identifies two constructs in the precedents by which federal-state conflicts have been resolved. Under the “sovereignty” construct, the states are viewed as retaining under the Constitution a province of authority and autonomy into which the federal government may not intrude.

As Professor Gerken put it, some precedents attempt to “mark where Congress’s power ends by identifying where state power begins, using sovereignty as a touchstone.”  Id. at 86. “Others … start with Congress and attempt to delineate the bounds of its power without reference to the states.” Id. The failing of the former is the indeterminate nature of the constituents of sovereignty, including, as noted, the fact that neither the term “sovereignty” nor sovereignty as a principle appears anywhere in the constitutional text. The failing of the latter is in the precedents’ “attempt to identify limits through sheer force of logic,” so that “the doctrine they generate amounts to little more than logic games, which can be played by both sides of any issue.” Id. at 87; compare Wickard v. Filburn, 317 U.S. 111 (1942) (Congress may regulate the amount of wheat produced by a farmer for personal consumption), with National Fed’n of Indep. Bus. v. Sibelius, 132 S. Ct. 2566 (2012) (Commerce Clause is not a grant of power sufficient to permit federal regulation of the economic availability of healthcare).

The common failing of both constructs is their assumption that state and federal authority operate in two distinct and complementary regions, when, in fact, the reality is otherwise. According to Professor Gerken, the Supreme Court’s federalism precedents have missed how state-federal relationships have actually, and effectively, worked.

The states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space. In doing so, they have forged vibrant, interactive relationships that involve both cooperation and conflict. They are not – [as the precedents] would have us think – engaged in the governance equivalent of parallel play.

Gerken at 87.

The Maryland decisions recounted here reflect this reality, a reality that, according to the lead dissent’s analysis in Printz, 521 U.S. at 948-54, has actually existed from the formation of the Union and evolved in recognition of this dynamic view of federalism, despite supposedly bright-line constitutional concepts of state sovereignty that have, over time, been more elusive than reliable. So that the Attorneys General and Congressional members of Maryland and like-minded states might avoid having to battle, in jurisdictions other than their own, the proliferation of handguns and firearms, and for a host of other reasons that Professor Gerken relates,[7] the principles of state and federal relations in the constitutional arena are due a reassessment. As suggested by the contrast between the views of Maryland appellate courts on federalism and those of the Supreme Court in Printz, that reassessment should actively entertain the views of official state sources on the matter, particularly the views of the more stable and politically insulated regimes of state appellate courts.

[1]  “Md. officials want to export gun laws to other states,” Daily Record, at 3A (Oct. 1, 2015).

[2]  Md. Code Ann., Pub. Safety §§ 5-101 et seq.

[3] Printz, 521 U.S. at 918-19.

[4] Id. at 960 (Stevens, J., dissenting).

[5] Resort to the views of the states has its parallel in the deference to the deliberations and enactments of Congress that, more so than the Court and the president, reflect the consensus product of the views of the individual states on an issue.

[6] In this regard, it bears noting the doubtful legitimacy of crediting, as in Printz, the views of low-level law enforcement officers of the states (quite possibly funded, for that matter, by some special interest not their states) as reflective of the views of their respective states on the scope of state sovereignty, whatever may be the sufficiency of those officers’ standing to prosecute a constitutional issue.

[7] See also Printz, 521 U.S. at 940 (Stevens, J., dissenting).

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