Notes on the Brady Bill: A Viewpoint

Notes on the Brady Bill: A Viewpoint

Lawrence C. Trostle

"Notes on the Brady Bill: A Viewpoint" by Lawrence C. Trostle. Alaska Justice Forum 16(1): 2 (Spring 1999). The Brady Handgun Violence Prevention Act has been the most publicized legislative attempt to control the sales of handguns in the U.S. Based on results of a two-and-a-half-year study of data sources in Alaska related to the provisions of the Brady Act, this article presents the author's views on problems with the Brady Act's implementation.

An argument in vogue is that one of the best ways of reducing interpersonal violence, homicides, suicides and accidental deaths is to control the instruments of violence, which all too often are handguns. The "Brady Act" has been the most publicized legislative attempt to control the sales of handguns.

The act is altruistic, complex and controversial. Many Americans see the legislation as an infringement on their constitutional right to bear arms, while others see the act as a necessary societal step in controlling instruments of violence. What I have discovered to be problematic, in a two-and-a-half year study of the Brady Act in Alaska, is twofold: first, there were problems with the conceptualization of the policy which led to the legislation, and second, there have been problems with the administration of the policy as embodied in the act.

Problems with Conceptualization of the Act

The major flaw with the act is that the law cannot do what it was intended to do. This is not to say that the act does not have merit, but rather that it was not conceptualized from an application perspective before it was drafted. Significant implications of the legislation do not seem to have been considered.

As written, the Brady Act restricts nine classifications of individuals from purchasing handguns: those who are under indictment for or are convicted of a felony; fugitives from justice; unlawful users of or those addicted to a controlled substance; and those adjudicated as mental defectives or committed to a mental institution; illegal aliens; those who have dishonorable discharges from the military; those who have renounced their United States citizenship; those who are subject to a restraining order or have been convicted of a misdemeanor crime of domestic violence. Most people would argue that substance abusers, persons that are the subject to domestic violence restraining orders, the mentally infirm and felons should not have ready access to over-the-counter handguns. The policy has face validity; however, its provisions are problematic. How does a free society identify the individuals who fall into the restricted classifications? To implement the law, law enforcement personnel must be able to identify these people when they do a background check. But how do they do this?

As an example of the problems involved in identifying individuals for the purposes of the law's enforcement, I shall discuss in particular the category of those who have been involuntarily committed to a mental institution. In Alaska, the Superior Court determines whether a person shall be involuntarily committed. One might think that all that would be needed is for the court system to create a data base on involuntarily-committed individuals which law enforcement agencies could then access. However, even if it were possible for the court system to create a new data base and enter and delete information on a regular basis, identifying individuals would still be problematic. First, state and federal statutes limit access to such information. For example,. 42 USC 9501(H) states that the mentally ill have "the right to confidentiality of such ... records." This barrier to access also applies to law enforcement agencies. In addition, the Alaska Constitution (Art I, sec 22) guarantees a right to privacy, and the guarantee is supplemented more specific Alaska statutes pertaining to confidentiality of certain personal records.

A second issue which arises is that this classification only pertains to people who have been involuntarily committed to a mental institution. In Alaska, if a person is involuntarily committed to a mental institution and, at any time thereafter, elects to change his institutional classification from involuntary to voluntary, he is legally eligible to do so. As soon as a person changes the commitment status from involuntary to voluntary, the involuntary commitment records are expunged. Such a person would not be subject to the Brady restrictions upon release because the status of commitment would be voluntary and not involuntary.

As complicated as the issue of tracking involuntary mental commitments is, it pales when compared to the problems presented by other restricted classifications.

To identify individuals in the nine restricted classifications on anything more than an occasional basis would require intrusive measures. Federal and state laws would have to be modified to allow for the capture and retention of information on individuals in the restricted groups. This could only be done at tremendous cost – both monetary and social – with the potential loss of freedoms and privacy.

Problems with Administration of the Policy

The writers of the Brady Act and others at the federal level do not appear to have supported participatory management in drafting the act. There was little, if any, input from those at the state level who would implement it. The who, how, why, what and when seem to have been decided upon by those who would not have any hands-on responsibility. This shortcoming is where the Brady Act really appears to have broken down.

One major problem with the implementation of the Brady Act in Alaska has been a dearth of training. Exactly what each of the nine categories means and the exact criteria for disqualification were generally either not understood or misunderstood by individuals at the state level responsible for doing actual background checks. Some Alaska agencies have stated that the federal government left them to their own devices in interpreting the legislation. The failure to assure that everyone was properly trained at the outset of the program, as discussed in the accompanying article "The Brady Act in Alaska," meant that everyone involved in the implementation of the policy began on a different footing.

Planning, as a future-oriented management function, is perhaps the most cerebral aspect of management. If legislation such as Brady is to be effective and efficient in assisting us in dealing with issues such as interpersonal violence and homicides, it needs to be more thoroughly thought out prior to its codification, and everyone involved needs to be adequately trained in every aspect of its implementation.

Lawrence C. Trostle is an Associate Professor with the Justice Center. He directed a recently-completed examination of data sources related to the provisions of the Brady Act.