Is that so?!
We've received some prompt and wonderful feedback to the advance release
of the text of this letter. Some of it focuses on this one concept. This
note now includes some of that feedback, and should more of the same come
in, it also will be included. We do appreciate the two-way communications.
There is still plenty to cover.
When thoughts as easy to verify as this are stated, and the statement
raises an idea rather different from what one might first think, there
are basically two perspectives available. Either the author/spokesperson
is just lost in a fog somewhere, or there's a point to be made. All that
will be mentioned here is that if this perspective doesn't yet make sense,
consider again the case in point in this very discussion. Why would a trial
judge of the experience of the U.S. District Court in Oklahoma be so bold
as to transfer every single criminal case involving the two primary suspects
across the State line? Lost in a fog, or making a point? In a different
scenario, picture the trial judge getting up out of his chair, practically
leaping over the bench into the front of the courtroom, and all but screaming
in the face of the litigants, who were heard to complain about this or
that "constitutional" issue (see "constitutional" in the Dissertations
on Definitions page, accessible from the Home Page) as it was argued to
apply in an "income tax" matter, "The Constitution does not apply
in this courtroom!!" Is that jurist lost in a fog, or making a point? [Quick
jump to the point of focus.]
The Office of Sheriff: Judicial Officer or Executive Officer?
On this point, see the following:
See also: (This is the order in which these first 10 sites came up as
search results on the search word "sheriff." You are encouraged to do this
search and see the number of web pages posted by our Sheriffs. Have you
said, "Thank you" to your Sheriff and his/her staff recently?)
http://www.vcsd.org/ (The prior link,
http://www.ventura.org/sheriff/, has been updated to this one.)
http://www.hcso.org/ (You may recognize
this one as the home page for the first link above. That "History" page
is found by clicking the "History" button on this home page. Apparently,
the page "floats." Sometimes it shows up in the search, and sometimes,
it just doesn't.)
The Current Perspective on the Functions and Duties.
An good example of the current perpsective
Some additional understanding:
Sheriff Limits Federal Agents Entering County
Wyoming Sheriff Kicks Feds Out Of His County
The Difference in the Office of Sheriff and other Law Enforcement
An excpert from
Gun Control: Implementation of the Brady Handgun Violence Prevention
(Chapter Report, 01/25/96, GAO/GGD-96-22).
Generally, the law enforcement community has strongly supported
Brady, as evidenced by public endorsements from the International Association
of Chiefs of Police and other organizations. Nonetheless, some sheriffs
have filed federal lawsuits essentially contending, among ther things,
that the phase I background check provision of Brady is beyond the scope
of Congress' Commerce Clause powers and is nconsistent with the Tenth Amendment.
Eight of the nine court cases that had been initiated against the Brady
Act through December 31, 995, resulted from separate filings by individual
sheriffs--each having jurisdictional responsibility for one county or parish
in his respective state--whereas the ninth and most recent case was filed
by the Wyoming Sheriff's Association. By December 1994, federal district
courts had ruled in favor of the respective sheriff in five of the six
cases decided. All six cases were appealed to U.S. circuit
courts. In September 1995, the U.S. Court of Appeals for the Ninth
Circuit reversed two of the federal district courts' decisions, saying
the federal government can require state and local law enforcement agencies
to check records of prospective handgun buyers. As of October 1995,
the four remaining federal district court cases were still under appeal.
Chapter 3 addresses the litigation. (Scroll down, or search for
Here are a few of the footnotes from Chapter 3.
\44 Generally, the sheriffs alleged, among other things, that
the phase I background check provision of Brady is beyond the scope of
Congress' Commerce Clause powers (U.S. Const. Art. I
Section 8. cl. 3) and is inconsistent with the Tenth Amendment to
the U.S. Constitution. The Commerce Clause gives Congress the exclusive
authority to regulate interstate commerce. The Tenth Amendment provides
that powers not delegated to the federal government are reserved to the
states and to the people.
\45 Although not a party to any of the litigation, the International
Association of Chiefs of Police filed briefs in many of the cases supporting
the Brady Act's provision. Joining the Association in this support
were various other law enforcement groups--the Major Cities Chiefs of Police,
the National Association of Police Organizations, the Fraternal Order of
Police, the Police Foundation, the Federal Law Enforcement Officers Association,
the Police Executive Research Forum, the National Troopers Coalition, the
National Organization of Black Law Enforcement Executives, and the
International Brotherhood of Police Organizations.
\46 The Wyoming Sheriff's Association has 23 member sheriffs,
1 for each of the state's 23 counties.
\47 Printz v. United States, 854 F. Supp.
1503 (D. Mont. 1994). [Favored the Sheriff.]
\48 Koog v. United States, 852 F. Supp. 1376
(W.D. Tex. 1994). [Favored the legislation.]
In this context, it would be remiss to pass up making this observation.
We need carefully to note the issue raised. The question is one of "constitutionality."
Please see the discussion of the term "constitutional." (In the Dissertations
on Definitions page, accessible from the Home Page.) It is rather difficult
to find an opinion of Congress that is "unconstitutional." So, are
we really talking about a "Bill," or a "Resolution" marketed to look like
From the Report:
In September 1995, the U.S. Court of Appeals for the Ninth
Circuit upheld the constitutionality of Brady, saying the federal government
can require state and local law enforcement agencies to check the records
of prospective handgun buyers.\49 The court reasoned that Brady's provision
that law enforcement agencies "make a reasonable effort to ascertain" the
legality of a handgun purchase is a minimal burden that the federal government
can impose on state and local law enforcement agencies. The court
accordingly reversed the judgments of the Arizona and Montana district
courts, which had held Brady unconstitutional as a violation of the Tenth
Amendment (see table 3.1).\50
Here's the Table included that identifies the suits discussed in this report.
Overview of Court Cases Filed by
Sheriffs Challenging the
Constitutionality of Brady, as of
||Jurisdiction of Sheriff
||Case Citation or File Number
||Decision for \a
||Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994)
||District Court decision reversed by U.S. Court of Appeals for the Ninth
||Romero v. United States, 883 F. Supp. 1076 (W.E. La. 1994)
||On appeal to the U.S. Court of Appeals for the Fifth Circuit; stayed
pending the Koog and McGee decisions.
||McGee v. United States, 863 F. Supp. 321 (S.D. Miss.1994)
||Consolidated with Koog and is on appeal to the U.S. Court of Appeals
for the Fifth Circuit.
||Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994)
||District court decision reversed by the U.S. Court of Appeals for the
Ninth circuit (9-8-95)
||Lee v. United States, (CIV. 94-1132 LH) (D. N.M. 1994)
||Frye v. United States, (2:95CV00034) (M.D. N.C. 1995)
||Val Verde County
||Koog v. United States 852 F. Supp. 1376 (W.D. Tex. 1994)
||Consolidated with McGee and is on appeal to the U.S. Court of Appeals
for the Fifth Circuit.
||Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994)
||On appeal to the U.S. Court of Appeals for the Second Circuit.
||Wyoming Sheriff's Association v. United States, Case No. 95 CV 066
(D. Wy. 1995)
case notes] [comments on the case (last
\a This refers specifically to court rulings on the Tenth Amendment
constitutional challenge issue regarding Brady's phase I background check
Source: Data obtained from ATF's Office of Chief Counsel and from
documentation of the court decisions.
\49 Mack v. United States, 1995 U.S. App. LEXIS 25263
(Ninth Cir. Sept. 8, 1995).
\50 This ruling applies to the Brady states in the Ninth Circuit.
These states are Alaska, Arizona, Montana, Nevada, and Washington.
Again, note the differences of the parties.
State-level agencies assumed responsibility for conducting
background checks in Graham County, Arizona,
and Orange County,
Vermont. Effective October 1, 1994,
the Arizona Department of
Public Safety assumed a centralized role in
background checks for all residents of that
state. In Vermont,
when the Orange County sheriff refused to
checks, the Vermont Department of Public Safety
assumed this responsibility in July 1994.
The Forgotten "Judicial" Role.
In light of all the foregoing information and discussion, it is here
noted that the reassertion of the "Respect for the County," as discussed
in the links in the additional understanding section, takes us, as a country,
back in the direction intended always to have been the perspective. But,
there's at least one critical function still not really mentioned
very often, for it is not taught much any more, and it has everything to
do with the Sheriff's relationship with the trial courts, in particular,
and the judicial process, in general. The following links are also found
in the OJ Simpson article (accessible through the Home Page). For example,
search (use "Find," under the Edit menu) the OJ Simpson article page for
the word "Blackstone." There's more to this discussion of the Sheriff's
vital role in the judicial process for each and very trial, and the rest
of what may help put this picture together is perhaps several articles
away, but it's OK to begin to explore the topic now, given that the County
of Denver has no Sheriff.
For a "quick view" of the point, search (use "Find" in the Edit menu)
for the word "sheriff" in each of the four specific reference pages (the
first one is a general reference), and read those sections first. See if
there is a "judicial" role, a unique relationship with the courts, that
develops. When all Sheriff's Departments have this component back
in their Functions and Duties, and it's active, this country will be a
different place, and you'll likely appreciate the improvement.
Fifth and Sixth Amendment materials, generally
William Blackstone Commentaries
Debate in Massachusetts
United States v. Marchant
Epilog. For the Detectives among us (solve the riddle):