On March 30, 1981, John Hinckley shot President Reagan and severely wounded his press secretary, James Brady. Richard Mack was watching the news about all this from his office in the Provo, Utah Police Station where he had just started his career in law enforcement. This was the first time he had really heard of James Brady, and 15 years later he would find himself on opposite sides of a lawsuit sitting next to James Brady in the United States Supreme Court.
Richard Mack was raised in Safford, Arizona. He graduated from BYU and stayed in Provo as a policeman for about 11 years. He left a promising career to move back to Arizona and run for Graham County sheriff. He was elected in 1988 and again in 1992. In 1993 Bill Clinton signed the Brady Bill (named for James Brady) into law and the wheels of Sheriff Mack's lawsuit opposing the Brady Bill began to turn.
The Brady Bill was a federal law which required the local Sheriff to conduct background checks on all of Sheriff Mack’s constituents who wished to purchase a handgun. The sheriff was responsible for all costs associated with the checks, keeping files on each purchase and notifying the gun shops and customers of his findings. Sheriff Mack told me that the most offensive portion of this legislation was that the bill contained a provision that threatened to arrest "anyone who knowingly failed to comply." Well, sheriff Mack intended to do just that; he would not comply and instead filed a lawsuit in Federal District Court in Tucson to have the Brady Bill ruled unconstitutional.
At the time, he was the only sheriff in the entire country taking such action. He made the decision alone, except for consulting with his wife. He told her that this would probably be very unpopular and that this type of thing could cost them dearly; including everything they owned. She gave him her full support, but it did as Mack had feared, he lost his home, his job and his career in law enforcement.
Mack's lawsuit was filed the very day the Brady Bill took effect, February 28, 1994. Approximately five weeks later another sheriff from Montana filed the same suit there. Ultimately, six other sheriffs joined the lawsuit that Sheriff Mack started, which made a total of seven; seven out of 3020.
The suit contended that the federal government had no authority or jurisdiction to compel or force any sheriff in the United States to comply with any mandate, funded or not. Sheriff Mack also objected to being forced to participate in a federal gun control scheme, but the suit had no standing on Second Amendment grounds. All the District Court cases were successful, with each sheriff prevailing except the case filed by a Texas sheriff. Losing a court case in Texas about guns and state sovereignty is of interest.
The government of course, appealed and Sheriff Mack and Sheriff Printz (Montana) headed to the Ninth Circuit court in San Francisco. They had just met for the first time a few weeks earlier as guests on the Phil Donahue Show. The case in San Francisco did not go well and this court, the most overturned court in the United States, dealt the sheriffs a crushing defeat. However, the Texas sheriff prevailed in the Fifth Circuit and this is exactly what Mack had hoped for; conflicting rulings from the Circuit courts. This all but guaranteed that the U S Supreme Court would have to take the case to settle the opposite rulings from the Circuit courts.
A few months later the miracle was finally announced; Mack v. USA would be heard by the Supreme Court on December 4, 1996. Mack had just lost his bid for re-election a couple of months prior. He was extremely disappointed, but not surprised. Appearing before the U S Supreme Court was an amazing and awesome experience. He spoke briefly with James Brady. He was very friendly and told Sheriff Mack that he admired him for fighting for what he believed in. After the hearing Sarah Brady called Mack and Printz "rogue sheriffs."
Upon leaving the sheriff's office Mack took a job teaching high school government. He enjoyed it and it kept him busy while he waited for the Supreme Court's decision. On weekends he still made some appearances around the country speaking at freedom rallies. Then after six and a half months of waiting, CBS news called Mack at home on June 25th and informed him that the decision would probably be announced on the 26th or the 27th. They asked him to go to a hotel in Tucson so they could interview him as soon as the decision was published. He did as they requested. Then on Friday morning at about 7:30 a.m., June 27, 1997, CBS News called Sheriff Mack and congratulated him on his victory. The United States Supreme Court ruled in favor of the sheriffs and told the federal government, i.e., the Clinton administration, that it could not compel the states or the states' officers to administer a federal regulatory program. Justice Scalia delivered the decision for the majority, which was a tenuous 5-4 split.
Mack's case has appeared in history and government text books and it was covered by every major news agency in this country. The lamentable issue here is the real impact this victory should have had never happened. The Clinton White House said the decision was meaningless and Janet Reno quickly downplayed it stating that it would change nothing. The truth of the matter is Mack's case changed history. There were actually five Brady bills scheduled for Congress' promulgation, each one to be passed one year after the other. Brady bill two was introduced just two months after Sheriff Mack filed his lawsuit by Senator Moynihan. It failed in committee and Brady bills 3, 4, and 5 were never even mentioned. Sarah Brady said at the signing of the first Brady bill that this "was only the beginning." If the rest of her Brady bills had been passed the Second Amendment would have been completely gutted and gun shows would have been a thing of the past. Mack's case had a great deal to do with stopping this. He fought the Clintons, the Bradys, Handgun Control Inc. and countless others. He received hate mail and threats and ironically had a window shot out of his mini-van. On the other hand, he is the only person in history to have received the top law awards from the National Rifle Association, Gun Owners of America, the Second Amendment Foundation, the Firearms Industry of America, and the Local Sovereignty Coalition. This battle was a real roller coaster ride for this small town sheriff. It cost him a lot and it brought him a great deal of satisfaction.
“What frustrates me to this day is the fact that state legislatures ignore the door that this case opened for them to keep the feds in DC. My other concern is that Congress violates his ruling from the Supremes on pretty much a daily basis. Why would we expect anything else from them? They violate the rest of the Constitution as a matter of routine also.” Mack said.
Richard Mack was a sheriff who walked tall. He stood against political correctness and made a difference for all of us. He gave us something to believe in. His case was extremely powerful. It re-established the lines between DC and local autonomy.
His favorite quote from the ruling made this entire battle and ordeal completely worthwhile: "But the Constitution protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location, as an expedient solution to the crisis of the day." Now if our senators and representatives would follow this ruling? Thank you Sheriff Mack and happy anniversary!
It is now 10 years later and Mack has sent a letter to Wisconsin Gunowners that were upset about increased background checks of the federal mandate that required access to mental records (unfunded mandates) first step to submitting to mental evaluation to purchase a firearm. “State legislatures are not subject to federal direction” NRA supported the Mack V. Brady litigation to the tune of almost half a million dollars and now is supporting federal legislation (HR 2640) that rips at the heart of this court victory.
Is the NRA just trying to fit in to political correctness or is there another agenda they are supporting? Sarah Brady put out a statement saying that this bill was a victory for gun control and was shocked that the NRA was supporting this.
The NRA’s cooperation with Congresswoman McCarthy and Senator Shumer isn’t a surprise to those of us that have been witness to the NRA’s authoring hand of gun control legislation, A+ endorsements of legislators that vote for legislation like the Assault Weapons Ban, provide cover for the passage of the Brady Bill in the first place and abuse the gun owner and their vote over and over.
“The Gun Control crowd is very happy that this is a step towards requiring a mental health screening before obtaining a firearm.” (Reporter Comment: …and the government gets to determine what is and is not proper mental health?) “I’m praying for the day that the NRA and Congress respect and follow the United States Constitution.” Richard Mack.
To celebrate the 10th anniversary of his Supreme Court victory Fmr. Sheriff Richard Mack will be honored at the Tucson Breakfast Club June 30th (Sat.) 520-419-4364 Mark Spear for details.
The Mack v Brady suit was directed at the Clinton Administration (The only non-sexually oriented lawsuit that I know of) but with the Bush admin in office now, the NRA has become the Gun Control darling of a Fascist Regime bent on total domination of an increasingly resistant population. And I was paying very close attention during those years in the mid 90’s when I met Sheriff Richard Mack while he was still Sheriff of Graham County. It was Sheriff Mack that confirmed for us the existence of “Project Lead” we had heard about through Maricopa County Sheriff Department Investigators. Sheriff Mack provided us the forms for this Clinton Administration effort to register every unregistered firearm in the nation that they could during any contact an individual had with law enforcement. This is when individuals were beginning to be asked if they had a firearm while being pulled over for traffic stops or any other contact with an officer. The form was adapted from the form used to track firearms involved in a crime and were traced by investigators of a crime. The forms now include providing the information of all of the people traveling with the person detained and even the license plates of other cars that might be associated with the person in contact with the law enforcement officer. This came to our attention because an officer under Maricopa County Sheriff Joe Arpaio was very concerned about what they saw happening.
Many in Arizona may remember when Sheriff Joe Arpaio announced that no Sheriff employee was to ever speak to the media again and that his office would be the sole media contact. This was a direct result of our published investigation into “Project Lead” conducted by the BATF in Washington that was originally to be test marketed in other large cities that did not include any in Arizona. It was Sheriff Arpaio that invited the Federal Government here and Sheriff Richard Mack’s opposition to such gun control caused a rift between the two Sheriffs that was more about who stealing Arpaio’s spotlight than the discussion of abuses of Federal Power and a Sheriff’s duty to use their powers as the _highest_ ranking law enforcement in their jurisdictions to protect the people from such abuses. This is what Sheriff Richard Mack did while Sheriff Arpaio has pursued an entirely different path.
Some of the Supreme Court’s decision is included to inform you of what should have been embraced by our government officials in what is suppose to be a Constitutional Republic. But what I fear Richard Mack’s greatest contribution to freedom has been, is that he has demonstrated just how overdue we are for a full blown revolution between the ears. It’s time we all recognize just how bad thing really are.
This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory, supra, at 458.
To quote Madison once again:
"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, at 323.
"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear `formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." Id., at 187.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
Richard Mack was inducted into the NRA Hall of Fame 1994 and was the NRA’s Law Enforcement officer of the year 1994. His books: “From my Cold Dead Fingers – Why America Needs Guns” 1995 republished and updated after SCOTUS Victory in 2000 – “Vicki, Sam and America – How the Government killed all Three” - 2003.