Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, May 17, 1994                   TAG: 9405170063
SECTION: NATIONAL/INTERNATIONAL                    PAGE: B-5   EDITION: METRO 
SOURCE: Associated Press
DATELINE: HELENA, MONT.                                LENGTH: Medium

FEDERAL JUDGE OVERRULES PART OF BRADY GUN LAW

But U.S. District Judge Charles C. Lovell left in place another provision of the law that mandates a five-day waiting period to purchase a gun.

During the waiting period, local law enforcement agencies are supposed to check to be sure a gun buyer is an adult and doesn't have a felony record or a drug, alcohol or mental problem that would bar a purchase.

Lovell said the law's order for local law officers to perform the check commandeers state officials to administer a federal program. That violates the constitutional limits on the federal government's power over the states, he said.

He said the idea of forcing the chief law enforcement officer of a city or county to do background checks appears to shift responsibility to local officials for a law that may be unpopular.

"They could become associated with the act and bear the brunt of its unpopularity," he wrote.

The ruling is believed to be the first court decision handed down in several lawsuits filed nationally over the law Congress passed last Nov. 30. It took effect Feb. 28.

Lovell was out of town and couldn't be reached for comment late Monday, his office said.

Larry Elison, professor of constitutional law at the University of Montana, said the ruling does not necessarily apply outside Montana. Federal courts in other states could reach different conclusions that ultimately would have to be resolved in appeals to the U.S. Supreme Court, he said.

The Montana lawsuit was filed by Ravalli County Sheriff Jay Printz, part of a multistate effort by the National Rifle Association to overturn the law. The NRA provided lawyers to argue the case on Printz's behalf.

Lovell rejected the U.S. Justice Department's argument that the background checks are optional and no law officers would face punishment if the work wasn't performed. Congress turned down attempts to make the checks discretionary, he noted.

Lovell said the law requires local authorities to divert time, money and employees to perform the background checks. State and local officials could be forced to increase budgets or reduce services to comply with the mandates, he said.

"Indirectly commandeering the legislative processes of the states in this way may lead to the perception among voters that state and local governments have become less efficient and less responsive to their needs," he said.