| , Research Paper
Introduction
The legislative process in the United States Congress shows us an interesting drama in
which a bill becomes a law through compromises made by diverse and sometimes conflicting
interests in this country. There have been many controversial bills passed by Congress, but
among all, I have taken a particular interest in the passage of the Brady bill. When the Brady
debate was in full swing in Congress about three years ago, I was still back in my country,
Japan, where the possession of guns is strictly restricted by laws. While watching television
news reports on the Brady debate, I wondered what was making it so hard for this gun control
bill to pass in this gun violence ridden country. In this paper, I will trace the bill’s seven year
history in Congress, which I hope will reveal how partisan politics played a crucial role in the
Brady bill’s passage in this policy making branch.
The Brady bill took its name from Jim Brady, the former press secretary of President
Reagan, who was shot in the head and partially paralyzed in the assassination attempt on the
president in 1981. This bill was about a waiting period on handgun purchases allowing police to
check the backgrounds of the prospective buyers to make sure that guns are not sold to
convicted felons or to those who are mentally unstable. Even the proponents of the bill agreed
that the effect of the bill on curbing the gun violence might be minimal considering the fact that the
majority of guns used for criminal purposes were purchased through illegal dealers. However,
the Brady Bill represented the first major gun control legislation passed by Congress for more
than 20 years, and it meant a significant victory for gun control advocates in their way toward
even stricter gun control legislation in the future.
Gun Rights vs. Gun Control
The Brady bill, the Brady Handgun Violence Prevention Act, was first introduced by
Edward F. Feighan (D-OH) in the House of the100th Congress as HR975 on February 4,
1987. The bill was referred to the Judiciary Committee, and the debate began. Throughout the
debate on the Brady bill, there was always a clear partisan split; most of the Democrats, except
for those from the Southern states, supported the bill while most of the Republicans were in the
opposition. For example, when the first introduced Brady bill lost to an amendment by Bill
McCollum (R-FL) for a study of an instant check system (228-182), most Republicans voted
for the McCollum amendment (127 for and 45 against) while the majority of the Democrats
voted against it (127 for and 137 against). The exception was the Southern Democrats most of
whom joined the Republicans to vote for the amendment. This party division was not so
surprising, however, considering the huge campaign contributions made by the chief gun lobby,
the National Rifle Association (NRA), directed mostly to the Republicans, and the exception of
the Southern Democrats could be explained by the gun right supportive nature of their
constituents. In the 1992 election for example, this organization made $1.7 million contribution
to its sympathetic congressional candidates and spent another $870,000 in independent
expenditures for congressional races.1 The influence the NRA exercised on the legislation was
enormous since the final bill passed in 1993 was a compromise version reflecting some of the
NRA-sought provisions. I could say that it was because of this persistent lobby that the Brady
bill took as long as 7 years to become a law.
On the other side, the advocates of the bill enjoyed a wide support from the public as
well as from the Handgun Control Inc., the chief gun control lobby led by Sarah Brady, the wife
of James Brady. The consistent public support for the bill from the introduction through the
passage of the bill was manifested by many polls. One of the polls conducted by NBC News
and Wall Street Journal on the enactment of the bill said that 74 percent of the 1,002
respondents agreed that “the law is good but more is needed.”2 It is without question that this
public support played a significant role in the eventual passage of the bill.
The Brady bill passed the House in the 102nd Congress
After almost four years from its first introduction to the Congress, the Brady bill was
reintroduced to the House in the 102nd Congress as HR 7 on January 3, 1991, sponsored by
76 representatives including Feighan, William J Hughes (D-NJ), and Charles Schumer (D-NY).
The bill was referred to the Judiciary Committee, and the hearings began in the Judiciary
Subcommittee on Crime on March 21, 1991. As written, this bill required a seven-day waiting
period on the handgun purchases. Schumer, the chairman as well as the chief sponsor of the bill,
explained before the Subcommittee that the Brady bill “has a very simple purpose: to keep lethal
handguns out of the hands of people who shouldn’t have them.3″ Aside from the firm support
from the public, the bill also gained the backing from the former president Reagan who, in a
tribute to James Brady, said that it is “just plain common sense that there be a waiting period to
allow local law enforcement officials to conduct background checks on those who wish to buy a
handgun.”4 This Reagan’s remark was significant since he had long been a member of the
NRA.
On April 10, the Subcommittee approved to send the bill to the Judiciary Committee by
the vote of 9-4. The votes were clearly divided along the party line with the sole exception of
F. James Sensenbrenner Jr. (R-WI), one of the few GOP supporters of the bill, who joined the
Democrats to vote for it. In the meantime, the lobbying by both sides had intensified. The NRA
claimed that the bill went against the principle of the Constitution, pointing out the Second
Amendment which says: “A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.” They argued that it was
not the guns but the people who committed crimes, saying that tougher sentences for the
criminals would work better than the waiting period in reducing crimes. On the other hand,
James Brady was lobbying intensely in his wheelchair supported by his-wife-led Handgun
Control Inc., which had an emotional appeal to other members of Congress.
In the Judiciary Committee, Harley O. Staggers Jr. (D-WV), pushed by the NRA,
proposed a substitute bill (HR 1412) which would require states to set up an instant check
system so that gun dealers could find out immediately on a telephone call whether the purchaser
had a criminal record without any wait. The Staggers’ alternative, however, reminded many of
the McCollum amendment that wrecked the Brady bill in 1988. With the acknowledgment of
the Attorney General, Dick Thornburgh, that the practical use of such instant check system
would be years away,5 the Staggers’ substitute was rejected by the Committee by the vote of
11-23. The committee then proceeded to vote on the Brady bill (HR 7), approving it by the 23-
11 vote. On May 8, the Staggers’ amendment was rejected again (193-234) on the floor. The
House went on to approve the seven-day waiting period Brady bill by the vote of 239-186,
placing it on the Senate calendar on June 3.
Debate in the Senate
In the Senate, the proponents of the Brady bill, including the Majority Leader George J.
Mitchell (D-ME), were working hard to keep the Brady language part of the omnibus crime
legislation (S-1241) which had already been passed by the House-Senate conference
committee. Ted Stevens (R-AK) proposed an amendment to replace the waiting period with an
instant-check system. This amendment was very much similar to the Staggers’ proposal made in
the House, ensuring that the potential buyers who were eligible for the purchase would not have
to wait to buy a gun. Stevens and other GOP opponents argued that the waiting period would
not reduce the crime rate since it would not affect the majority of criminals who could purchase
guns illegally while affecting the law-abiding citizens’ Second Amendment right to purchase a gun
for sports and hunting purposes. In response to this argument, Mitchell and his other pro-Brady
Democrats maintained that developing a software for a national instant background check
system would take years, and even if it was available, instant checks would not work as a
deterrent to hot-blooded crimes by those without criminal records. Mitchell called the Stevens’
plan “a transparent effort to eliminate the waiting period,”6 saying that it was just a pretense to
the public to endorse gun control while actually blocking it.
On June 28, the Senate rejected the Stevens’ amendment by the vote of 44-54 with all
but nine Democrats, all from Southern or rural states, voting against it. The 54 votes, however,
were not enough for the Brady advocates since they would need 6 more votes to stop a possible
GOP filibuster. On the other hand, filibustering was not the best solution for the GOP
opponents neither, since in doing so, they would have to sacrifice the crime bill they wanted.
Resulting from this situation was a compromise by Mitchell, Metzenbaum, and the GOP
leader Bob Dole (R-KS). In this compromise, the length of the waiting period was changed
from seven days to five business days, and a new provision was added which would end the
waiting period in two and a half years upon the Attorney General’s confirmation that the instant
check system met certain standards. Nevertheless, it was the six votes that determined the fate
of the Brady bill in the 102nd Congress. The Senate failed to take final action before the end of
the 1991 congressional session, and even with the passage in the House, the Brady bill still had
to wait two more years for its final passage.
In the 103rd Congress (House)
In 1993, the year in which the Brady bill got enacted, there was a growing national tide
favoring stricter gun control. The Brady proponents were upbeat with an expectation that the
long-debated bill would finally pass that year. The surge in the public support was promising; a
CNN/USA Today/Gallup Poll conducted during March 12 through 14 showed that 88 percent
of their 1,007 respondents favored the bill.7 The gun control advocates also had two significant
victories in two States; in Virginia, a legislation was passed restricting handgun purchases to one
gun purchase per month, and in New Jersey, the NRA and other gun rights advocates lost in
their effort to repeal the state’s ban on selling assault rifles. Furthermore, the 103rd Congress
had a pro-Brady president. In contrast to Bush, a longtime NRA member, President Clinton
openly expressed his support for the bill; in his speech to Congress on February 17, he said: “If
you pass the Brady bill, I’ll sure sign it.” Facing this nationwide pro-Brady tide, Even the NRA
showed a slight change in its language; James Jay Baker, the top NRA lobbyist, said that his
organization might be able to approve certain version of the bill.8
In this favorable atmosphere, the Brady bill was introduced in the103rd Congress in the
House as HR 1025 on February 22, 1993 by Schumer and 98 other cosponsors, referred to the
Judiciary Committee. The chairman of the Committee, Jack Brooks (D-TX) agreed to keep the
bill separate from his other overall crime legislation (HR 3131), encouraging the Brady
supporters with a hope to pass the bill before the scheduled Thanksgiving adjournment. By the
direction of the Rules Committee, the House voted on the House Resolution 302, a rule
providing for the floor consideration of the Brady bill, approving it by the vote of 238-182. As
written, the bill provided for a five-day waiting period upon handgun purchases as well as the
establishment of a national instant criminal background check system. The bill also had a
provision requiring that the waiting period phase out upon the Attorney General’s approval of the
viability of the nationwide instant check. The bill by then already represented a compromise
between the Brady waiting period and the NRA instant check.
On the floor, the GOP opponents proposed a series of amendments. George W. Gekas
(R-PA) offered an amendment ending the waiting period after five years from its enforcement
regardless of the viability of the replacing instant check system. Schumer argued that the Gekas’
so-called sunset provision was an unrealistic deadline, pointing out the varying criminal record
keeping of each States. However, Gekas and other proponents of the amendment insisted that
the sunset provision was necessary in order to pressure the Justice Department to establish the
computer check system promptly. The Gekas’ amendment prevailed on a 236-98 vote.
McCollum proposed an amendment which would revoke the existing State waiting
periods on the installment of the national instant check system. Some States had already
adopted waiting periods, and the Brady bill would not affect those states having a waiting period
of more than five days. McCollum claimed that his proposal would make the bill much fairer
and more balanced, and assured that it would not affect other State gun laws such as Virginia’s
one gun purchase per month legislation. However, meeting with strong opposition from
Schumer and others, this amendment preempting State laws was rejected 175-257. There was
another amendment proposed by Jim Ramstad (R-MN) requiring the police to provide within 20
days a reason for any denial of a handgun purchase. This amendment was accepted by
Schumer, and was adopted easily by the vote of 431-2.
The House proceeded to voted on the Brady bill on Nov. 10. Just before the vote, the
chief sponsor Schumer encouraged other Representatives on the floor to vote for the bill, saying:
“today’s votes gives the House of Representatives a real chance to stem the violence on our
streets and calm the fear of our citizens.” The bill was passed by the House. It was the second
time for the House to pass the Brady bill, and this time, the vote was 238-189.
Passage in the Senate
In the Senate, the Brady bill was introduced as S 414 by Metzenbaum on February 24,
1993, referred to the Judiciary Committee and placed on the calendar on March 3. The bill was
almost identical to the Dole-Metzenbaum-Mitchell compromise approved by the Senate in June
1991, requiring a five-day waiting period on handgun purchases which was to be removed once
an instant check system became operational. After a long negotiation, the Senate agreed to take
up the bill separately from the overall crime bill,9 which paved the way for the floor consideration
of the bill on November 19.
However, the threat of the unsatisfied GOP opponents to block the bill led to an
agreement between the Majority Leader Mitchell and the Minority Leader Dole. Under this
agreement, the two leaders was to offer a substitute, and the Senate would then vote on the
House-passed version of the Brady bill (HR 1025) with the text of the substitute inserted in lieu
thereof. The Mitchell-Dole substitute included two new provisions: the sunset provision and the
preemption provision, both of which had been sought by the NRA. The sunset provision was
identical to the Gekas amendment passed by the House which would end the waiting period five
years, and the preemption provision was the same as the McCollum amendment rejected by the
House.
At the beginning of the debate on November 19, Mitchell made it clear that he had
agreed to cosponsor this bipartisan compromise as a procedural means to move the long-
debated Brady bill through the Senate. The Majority Leader then declared that he would now
move on to eliminate those two provisions with which he totally disagreed. The Mitchell-Dole
agreement provided, however, that if either or both of those provisions were to be stricken, the
Republican opponents would then block the bill, which meant that the Brady proponents would
need at least 60 votes to stop the GOP filibuster to pass the bill and send it to the House.
Mitchell and his other Democratic proponents succeeded to pass an amendment striking the
preemption language of the Mitchell-Dole substitute on a vote of 54-45. The other amendment
proposed by Metzenbaum to strike the sunset provision, however, was defeated 43 -56. The
Senate then moved on to the consideration of the Mitchell-Dole substitute with one provision
thus amended.
Throughout the debate, the proponents spoke fervently in support of the bill. Edward
M. Kennedy (D-MA) argued that it was time to take action against the epidemic of gun violence
in the country, showing shocking statistics which demonstrated the increasing number of gun-
related crimes and deaths. He claimed that the waiting period would not only curb the spread of
guns by keeping the lethal weapons out of the hands of convicted felons, but it would also
reduce the crimes committed in the heat of the moment by providing a cooling off period.
Senators whose States had already adopted waiting periods demonstrated with data that the
waiting period had already been proven to work in stopping a significant number of handgun
purchases by convicted felons. Dianne Feinstein (D-CA) showed that her State’s 15-day
waiting period stopped 8,060 convicted felons, 1859 drug users, 827 people with mental
illnesses as well as 720 minors from purchasing a gun during January 1991 and September
1993. The freshman Senator from California maintained that even though her State’s crime rate
was “unacceptably” high, it could have been much worse without the legislation.
Dole and other GOP opponents, however, insisted that they would continue their efforts
to thwart the passage of the bill unless the preemption language was included. Mitchell promptly
rejected the GOP demand, criticizing the double principles of those who, having once insisted
that they could not support the Brady bill because it was the Federal Government telling the
States what to do, turned around and said that they now liked the preemption. Metzenbaum
joined in the argument against the GOP opponents, saying they were blocking the bill “because
they were scared to death of the National Rifle Association,” and calling their demand for the
preemption provision “an effort to kill the bill.” Both sides did not yield, and with two cloture
motions having failed to quash the Republican-led filibuster, one in the afternoon (57-42) and the
other at 11 o’clock at night (57-41), the Brady bill was thought by many dead again in the
Senate.
It was the dissatisfaction of a handful of Republicans with the outcome and their dread of
being blamed for killing this popular legislation that saved the life of the Brady bill. The following
day, the discontent of those Republicans who decided to cast a straight vote sent Dole to the
negotiating table again, where he was forced to settle down with a new compromise which
carried no preemption language. It was actually identical to the one that he and other GOP
opponents had filibustered the day before except for the change in the sunsetting period; the
compromise bill would end the waiting period four years after its enforcement, instead of five
years, with a possible extension for another year upon the Attorney General’s request.
Consequently, by unanimous consent, the Senate agreed to vote on the House-passed
version of the Brady bill (HR 1025) with the text of the compromise inserted in lieu thereof, and
also to request a conference with the House to reconcile the differing versions of the Brady bill.
The Brady bill (HR 1025) as amended was passed easily on a vote of 64 to 36, and sent back
to the House with a request for a conference.
Toward the passage
On November 22, the House agreed to the request of the Senate for a conference upon
the adoption of House Resolution 322 by the vote of 238-187. The conferees were appointed
by the Chairs of each chambers: Brooks, Hughes, Schumer, Sensenbrenner, and Gekas from
the House and Joseph R. Biden. Jr. (D-DE), Kennedy, Metzenbaum, Orrin G. Hatch (R-UT),
and Larry E. Craig (R-ID) from the Senate. Later, Senate Republicans replaced Hatch and
Craig with Stevens and Dirk Kempthorne (R-ID). The outcome was a conference report which
preserved the House 5-year sunset of the waiting period with no provisions for the Attorney
General to replace it with the instant check system before then. Several Senate-passed
provisions had also been dropped: the provision expanding the definition of antique firearms
exempt from gun restrictions to include thousands of functioning World War era rifles, and the
one allowing gun sales between dealers from different states. A new provision was added in the
report which would require that the police be notified of multiple purchases.
Soon after the conference, the chief Senate negotiator Biden explained how they got to
the conference report. According to his statement, at the beginning of the conference, Stevens,
a member of the NRA board of directors, announced that the only acceptable outcome for the
Senate Republican conferees, Kempthone and himself, would be the Senate-passed version of
the Brady bill unchanged. The Senate bill had a provision ending the waiting period as early as
two years after the enforcement if the instant background check met certain standards. All of
the House conferees including the House Republican conferees rejected that demand, which led
to the adoption of the conference report accepted by all the House conferees, Republicans and
Democrats alike, and the Senate Democratic conferees. Thus, the conference report was made
with Stevens and Kempthorne casting dissenting votes.
The House approved the conference report (H. Rept. 103-412) easily on a vote of
238-187. In the Senate, however, after the explanation on the conference report, Dole and
other Republican opponents fired at Biden with accusations that he and other Democratic
Senate conferees completely ignored the wishes of the Senate in the conference. Dole said, “I
don’t think that under these conditions, cloture will be invoked this year or next year.”10
Throughout the day November 23, the hostile atmosphere occupied the Senate floor as
the debate continued. Majority Leader Mitchell declared that he was determined to force the
issue to another vote during the year even though it would mean the post-Thanksgiving session
which nobody wanted. Later in the day, he presented two cloture motions for November 30
and December 1.
The breakdown of the impasse came the following day, November 24, when Dole
agreed to accept the terms of the conference report under a compromise that he would submit a
separate bill with the Senate-passed provisions, which was to be considered and voted
immediately in January as soon as the Senate returned to business. Obviously, this solution was
prompted by the loathing of most senators to come back from their respective States to
Washington after Thanksgiving break as well as by the pro-Brady public pressure.
Consequently, the Senate approved the conference report by unanimous consent.
After seven years of debate, the Brady bill was finally passed by the 103rd Congress.
President Clinton, as he had promised, signed the bill into law on November 30, and the Brady
bill became Public Law 103-159.
Beyond the passage
Three years have passed since the passage of the Brady bill, but the fight of Jim and
Sarah Brady and other gun control advocates still continues for stricter gun control legislation. In
early 1994, they succeeded in passing the assault weapons ban with the Brady momentum, but
since then the NRA has intensified its lobbying, declaring to repeal the gun control legislation. In
1994 elections, for example, the NRA spent $3.2 million to get its supporters elected.11 The last
1996 election was also a victory for the NRA in that many of its supporters got re-elected even
though their member Dole was defeated by Clinton in the Presidential race. Their most powerful
supporter in the Congress is probably the House Speaker Newt Gingrich (R-GA), who once
wrote in his letter to the NRA chief lobbyist Tanya Metaksa: “As long as I am Speaker of this
House, no gun control legislation is going to move in committee or on the floor of this House.”12
Even with the GOP majority in Congress, however, it is sure that NRA supporters will face a
major obstacle in the newly-reelected President Clinton, who has declared: “For all the things
that will be debated, you can mark my words, the Brady law and the assault weapons bill are
here to stay. They will not be repealed.13″
Currently, the Supreme Court is hearing a lawsuit filed by NRA-backed gun control
opponents. They claim that the Brady Handgun Violence Prevention Act violates the 10th
Amendment of the Constitution which protects state and local government from certain federal
interference. The NRA says it wants to repeal the waiting period as well as the background
checks,14 which reveals the organization’s true intention when it supported the background
checks in its fight against the passage of the Brady bill. The battle between the NRA and the
Handgun Control Inc. will continue with the NRA supporters leading the Congress and
President Clinton challenging them with the veto power. Nevertheless, the Brady bill, with its
unwavering public support, will be the hardest bill to repeal.
The passage of the Brady bill of 1993 is one of the best case studies of the legislative
process in the U.S. Congress. The seven year history of the bill demonstrated how partisan
politics played a crucial role in the outcome of the bill, and how difficult it was to make bipartisan
compromises to move the bill through Congress.
In concluding this research report, I would like to express my deepest respect for those
who worked hard for the passage of the Brady bill, including Jim and Sarah Brady.
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