The Toughest Gun Control Law in the Nation

The Unfulfilled Promise of New York's SAFE Act

James B. Jacobs, Zoe Fuhr

• Publisher: NYU Press
• Year: 2019
• Print ISBN:
  9781479835614
• eBook ISBN:
  9781479886548
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A comprehensive assessment of real gun reform legislation with recommendations for better design, implementation and enforcement

A month after the Sandy Hook Elementary School shooting, New York State passed, with record speed, the first and most comprehensive state post-Sandy Hook gun control law. In The Toughest Gun Control Law in the Nation, James B. Jacobs and Zoe Fuhr ask whether the 2013 SAFE Act —hailed by Governor Andrew Cuomo as "the nation's toughest gun control law" – has lived up to its promise.

Jacobs and Fuhr illuminate the gap between gun control on the books and gun control in action. They argue that, to be effective, gun controls must be capable of implementation and enforcement. This requires realistic design, administrative and enforcement capacity and commitment and ongoing political and fiscal support. They show that while the SAFE Act was good symbolic politics, most of its provisions were not effectively implemented or, if implemented, not enforced.

Gun control in a society awash with guns poses an immense regulatory challenge. The Toughest Gun Control Law in the Nation takes a tough-minded look at the technological, administrative, fiscal and local political impediments to effectively keeping guns out of the hands of dangerous persons and eliminating some types of guns altogether.

1

The Politics of the SAFE Act

When people understand what the law is really about, and it’s not about taking their gun or a government intrusion on the Second Amendment, they’ll feel better about it.… There’s no novelty to the controversy about gun control.

—Governor Andrew Cuomo, March 1, 20131

Albany’s customary top-down and largely undemocratic legislative methods were inappropriate for such a complex bill.

—New York Times editorial, January 16, 20132

After the December 14, 2012, Sandy Hook massacre, the media, politicians, pundits of all stripes, and, of course, gun control advocates clamored for “something to be done” to prevent future mass shootings. Governor Andrew Cuomo said, “We as a society must unify and once and for all crack down on the guns that have cost the lives of far too many innocent Americans. Let this terrible tragedy finally be the wake-up call for aggressive action and I pledge my full support in that effort.”3 The governor’s team drafted a bill during the Christmas and New Year’s period. While the governor was surely assuming that public opinion was with him, this bill was entirely his project. No gun control advocacy groups were needed to push the governor or the legislators. Cuomo signed the bill on January 14, 2013, just eighteen hours after it was introduced into the legislature.

Governor Andrew Cuomo

The son of three-time New York State Governor Mario Cuomo and a seasoned politician in his own right, Andrew Cuomo was no stranger to gun control politics. As President Bill Clinton’s Secretary of the US Department of Housing and Urban Development (HUD), in March 2000 he settled the federal government’s lawsuit against Smith & Wesson (America’s oldest and largest handgun manufacturer). Fifteen cities had brought suit against Smith & Wesson seeking monetary damages and injunctive relief, charging the manufacturer with failing to properly monitor its distribution chain. The Clinton administration joined the plaintiffs, and Cuomo negotiated a settlement that was praised by gun control groups and excoriated by other gun manufacturers and the National Rifle Association (NRA). Smith & Wesson agreed to install on new firearms internal locking mechanisms, hidden serial numbers, and child-safety devices and to allocate 2 percent of annual revenue to developing smart gun technology (also known as “personalized guns,” referring to a firearm with safety features that allow it to fire only when activated by an authorized user). Cuomo called the settlement “a framework for a new enlightened gun policy for this nation.”4

When Clinton left office, Cuomo returned to New York to run for governor. He failed but was elected New York State Attorney General in 2006. Then, in 2010, he won the gubernatorial election with more than 60 percent of the vote. Despite the April 2009 massacre at Binghamton, New York’s American Civic Association Immigration Center, gun control was not a key campaign issue in that election; nor did Governor Cuomo identify gun control as a legislative priority in his 2011 or 2012 State of the State addresses.

The Sandy Hook massacre presented a significant political opportunity. According to Cuomo’s biographer Michael Schnaverson, “[Cuomo’s] true Next Big Thing came in the form of a horrible tragedy.… He wanted the toughest gun control bill in the land, and he wanted it now.… A bill to be proud of. And, perhaps, to run [for president] in 2016.”5 Rapid passage of a high-profile gun control package would attract nationwide attention, furthering Cuomo’s presidential ambitions. Moreover, if President Obama was unable to obtain congressional approval for a federal gun control bill, Cuomo’s decisiveness would be all the more salient. For Cuomo, it was essential that New York produce a law before January 16, the deadline for President Obama’s interagency taskforce, headed by Vice President Joe Biden, to report its recommendations.

Cuomo’s drafting team incorporated a number of bills on diverse gun control issues that Democratic state lawmakers had introduced over the previous decade. On December 21, just seven days after Sandy Hook, a coalition of New York State Legislators Against Illegal Guns (SLAG), composed of twenty senators and forty-three assemblymen, issued “Stronger Gun Laws: A Plan to Protect New Yorkers.” The plan proposed universal background checking for all firearms purchasers, strengthening the bans on assault weapons and large-capacity magazines, requiring that gun licenses be renewed every five years, and regulating ammunition sales.

The governor’s team worked “secretly” in order to prevent mobilization of opposition that might slow things down. The governor called the confidential drafting process necessary to prevent a surge in assault weapon sales if gun owners anticipated an imminent ban.6 (Assault weapon sales skyrocketed, in any event, because of gun enthusiasts’ concern about the passage of a post–Sandy Hook federal assault weapons ban.) Thus, the SAFE Act was drafted without input from gun owners and Second Amendment advocates, although the Senate’s Republican leadership was regularly briefed and some of its objections were taken into account. (Republicans, though a minority in the Senate, exercised control of that chamber because a few independent Democrats and one unaffiliated senator caucused with them.)

The New York Daily News reported that Governor Cuomo threatened an “all out-assault” on the GOP if Republicans tried to block passage of the soon-to-be-introduced gun control bill.7 No doubt Senate Majority Leader Dean Skelos was wary of being excoriated for blocking legislation aimed at preventing future school shootings. Moreover, he represented a suburban Long Island constituency for whom gun owners’ rights are not a high priority, unlike in upstate Republican-dominated counties. The Senate’s other Long Island Republican senators followed Skelos’s lead.

Skelos publicly proposed several tough law-and-order measures: “increased mandatory prison time for possession and sale of illegal weapons; stiffer penalties for criminals who use guns to commit felonies; life in prison without parole for individuals who kill emergency responders; enhanced sentences for gun possession on school grounds and school buses; … stronger criminal penalties for selling or possessing guns in children’s homes and the use of guns in gang violence.”8 The governor accepted most of these proposals in exchange for Skelos’s support for the rest of the package.

On January 9, 2013, five days before submitting the SAFE Act bill to the legislature, Governor Cuomo set out his gun control agenda in his State of the State address:

In the area of public safety—gun violence—has been on a rampage as we know firsthand and we know painfully. We must stop the madness, my friends. And in one word it is just enough. It has been enough. We need a gun policy in this state that is reasonable, that is balanced, that is measured. We respect hunters and sportsmen. This is not taking away people’s guns. I own a gun. I own a Remington shotgun. I’ve hunted, I’ve shot. That’s not what this is about. It is about ending the unnecessary risk of high-capacity assault rifles. That’s what this is about. We have a seven point agenda.

Number 1: Enact the toughest assault weapon ban in the nation period.

Number 2: Close the private sale loophole by requiring federal background checks.

Number 3: Ban high-capacity magazines.

Number 4: Enact tougher penalties for illegal gun use, guns on school grounds and violent gangs.

Number 5: Keep guns from people who are mentally ill.

Number 6: Ban direct internet sales of ammunition in New York.

Number 7: Create a State NICS check on all ammunition purchases.9

Perhaps because these gun control proposals were mentioned in a wide-ranging speech that touched on dozens of important issues, they did not attract much attention. Perhaps Second Amendment advocates assumed that there would be plenty of time to mount opposition after an actual bill was introduced. Maybe there simply was not enough time between January 9 and January 14 for Second Amendment advocacy groups to rally opposition. Whatever the reasons, there was no public debate over the SAFE Act bill.

Enacting the SAFE Act

At an early-evening press conference on January 14, 2013, Governor Cuomo announced that he was about to introduce, under “a message of necessity,” major gun control legislation. The message of necessity procedure allows the legislature to pass a bill without adhering to the otherwise constitutionally required three-day period between a bill’s introduction and a final vote. When invoking this procedure, the governor must certify facts that necessitate an immediate vote.10 Interestingly, Governor Cuomo’s message accompanying the SAFE Act bill specifically mentioned only the need to ban assault weapons and large-capacity magazines:

If there is an issue that fits the definition of “necessity” in the State of New York today, I believe it’s reducing gun violence.… Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the state in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State. For this reason, in addition to enacting a comprehensive package of measures that further protects the public, immediate action by the Legislature is imperative. Because the bill has not been on your desks in final form for three calendar legislative days, the Leaders of your Honorable bodies have requested this message to permit immediate consideration of this bill.11

Governor Cuomo was probably hoping to attract the attention of a nationwide audience as well as energize his liberal base in New York. Contrary to his rhetoric, there was no “rampage of gun violence” in New York; instead, gun crime and violent crime generally had been steadily declining for two decades. Moreover, since 2000, New York State had an assault weapons ban in force, which prohibited semiautomatics with two or more military-like features, as well as a ban on large-capacity magazines (with more than ten-round capacity).

Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos scheduled an extraordinary six p.m. legislative session for the very evening the bill was announced (January 14). However, the thirty-nine-single-spaced-page SAFE Act bill was not distributed to the legislators until ten p.m.12 In the Assembly, the bill’s nominal sponsors were Assembly Speaker Silver, along with Brooklyn Assemblyman Joseph Lentol, who was responsible for explaining and defending the bill on the floor. Instead of Skelos, who presumably did not want to be closely associated with the bill, the Senate’s formal sponsors were the independent Democrats Jeffrey D. Klein (Bronx/Westchester) and Malcolm A. Smith (Queens), who caucused with the Republicans. The bill was distributed to the lawmakers without a staff summary. Legislators would themselves have to read and absorb a lengthy and complex bill that amended ten New York codes: Penal Law, Criminal Procedure Law, Correction Law, Family Court Act, Domestic Relations Law, Executive Law, General Business Law, Judiciary Law, Mental Hygiene Law, and Surrogate’s Court Procedure Act. (Digesting “raw” legislation such as this is a monumental effort even for lawyers who specialize in this area.)

The Senate Rules Committee, of which Skelos and six other Long Island Republicans were members, immediately recommended the bill’s passage. That same night, the full Senate, without discussion, moved directly to a final roll-call vote. Party discipline being extremely strong in Albany, upstate Republican senators, who represented anti-gun-control constituencies, did not stage an anti-Skelos revolt. Skelos, for his part, having no wish for ei...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Foreword: Mass Shootings and the Paradoxical Politics of State-Level Gun Control
• Introduction
• 1. The Politics of the SAFE Act
• 2. Was the SAFE Act Necessary?
• 3. Assault Weapons Ban and Registration
• 4. The Ban on Large-Capacity Magazines
• 5. Universal Background Checking
• 6. Disarming the Mentally Ill
• 7. Disarming Persons Subject to Domestic Violence Protection Orders
• 8. Recertifying Handgun Licensees
• 9. Regulating Ammunition Sales and Purchasers
• 10. New and Enhanced Punishments
• Conclusion
• Acknowledgments
• Notes
• Index
• About the Authors