THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, August 14, 1995 TAG: 9508140146
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY DAVID M. POOLE, STAFF WRITER
DATELINE: RICHMOND LENGTH: Long : 116 lines
When Attorney General Jim Gilmore went to court earlier this month to battle the federal government over voter registration laws, his argument contained a curious reference to guns.
Buried deep in the inch-think pleadings filed in federal court was an argument that the so-called ``Brady law,'' requiring background checks for handgun purchases, is unconstitutional because it ``commandeers'' local police to carry out federal law.
The reason for this reference is simple: Gilmore has hired the lead litigator in National Rifle Association-backed challenges to the Brady law to provide legal firepower in Virginia's attempt to overturn so-called ``motor voter'' regulations.
Stephen Halbrook, a Fairfax lawyer, is part of a growing conservative legal movement that is using the once-ignored 10th Amendment to promote an anti-government agenda and to challenge long-held assumptions about the federal government's primacy over the states.
``There has been a tendency for Congress to give out demands to states,'' Halbrook said. ``It breaks down the constitutional division of power.''
His purist legal theories have been embraced by Gilmore and Gov. George F. Allen in their battles against the federal government on many fronts: vehicle emissions testing, educational policy and, most recently, voter registration laws.
The decision to hire Halbrook is what critics contend is another example of Allen and Gilmore leading Virginia out of the political mainstream.
``It seems perfectly natural that the NRA's top hired legal gun is also the top hired gun of the Allen-Gilmore administration,'' said Lt. Gov. Donald P. Beyer Jr., a Democrat.
A Gilmore spokesman defended the decision to hire Halbrook and his partner, Richard E. Gardiner, at the rate of $140 an hour.
``They are constitutional experts,'' Mark Miner said. ``It would have cost even more to start from scratch.''
Halbrook's strict reading of the 10th Amendment, which would have seemed radical almost five years ago, is close to becoming the law of the land.
In April, the U.S. Supreme Court struck down a federal law banning guns near schools, a decision that shattered assumptions held for three generations about the central government's power to regulate interstate commerce. A month later, the court came within one vote of adopting a firm states'-rights position.
``It is hard to overstate the importance of how close they came to something radically different from the modern understanding of the Constitution,'' Harvard Law professor Laurence H. Tribe told The New York Times.
Allen sees himself on the cutting edge of the states'-rights movement. He seized the national spotlight last November as host of the Republican Governors' Conference, issuing a proclamation, ``The Williamsburg Resolve,'' to help foment a Second American Revolution.
``We gather at an historic moment at an historic place,'' Allen began. ``Here and in other Colonial capitals, the nation's founders first debated the idea of independence and the fundamental principles of freedom.
``Then, the challenge to the liberties of the people came from an arrogant, overbearing monarchy across the sea.
``Today, that challenge comes from our own federal government - a government that has defied, and that now ignores, virtually every constitutional limit fashioned by the framers to confine its reach and thus to guard the freedoms of the people.''
Allen is fond of quoting the 10th Amendment, which states, ``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''
``The 10th Amendment,'' Allen once said, ``was not repealed at Appomattox.''
Halbrook placed the 10th Amendment at the center of his memorandum in support of Virginia's attempt to have the federal ``motor voter'' law ruled unconstitutional.
One of his arguments is the same that he has used to prevail in several appeals of the Brady gun law: The 10th Amendment bars the federal government from requiring the states to administer a federal program.
This argument, carried to its logical conclusion, would emasculate any number of federal regulations ranging from the Clean Air Act to worker safety regulations. In fact, Halbrook has gone as far as asserting that there is no constitutional basis for the federal government to require states to report crime statistics to the FBI.
Mark Christie, deputy counselor to Allen, said the administration has no interest in challenging minor federal mandates.
``We don't take some extreme view that all the federal government should do is deliver the mail and defend the shores,'' Christie said. ``We're picking our battles.''
Democrats have focused on Halbrook's ties with the NRA in hopes of portraying Allen and Gilmore as extremists.
A recent profile in Legal Times, a publication for lawyers, said that Halbrook is handling the appeal of a Branch Davidian who was convicted on weapons charges related to the 1993 standoff at Waco, Texas, and has written a manual for lawyers on topics such as how to sue the Bureau of Alcohol, Tobacco and Firearms for entrapment.
Christie said it would be a mistake for critics to suggest that Allen is an extremist because he and Halbrook share some views on the 10th Amendment.
``It's a mainstream belief,'' Christie said. ``It's not the old '50s-type states' rights, with George Wallace standing in the door (of the schoolhouse), as the ACLU has tried to portray it.''
Christie said that times are changing, that the long-held assumption that people would look to an ever-larger federal government to solve problems is no longer valid.
``That consensus is gone now,'' he said. ``We are at a moment in history where states throughout the country are re-evaluating the balance of federal and state power. George Allen is right in the middle of that intellectual ferment.'' ILLUSTRATION: Fairfax lawyer Stephen Halbrook - who is leading the NRA's fight
against the ``Brady law'' - is helping Virginia articulate its
position against the federal ``motor voter'' requirement. At the
root of the argument: A strict interpretation of the 10th
Amendment's support of states' rights.
KEYWORDS: PROFILE by CNB