The Brady bill and its passage

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.