New York State and the New York SAFE Act: a case study in strict gun laws.

• Author: Spitzer, Robert J.
• Position: Secure Ammunition and Firearms Enforcement Act - The Right to Keep and Bear Arms in the 21st Century

1. INTRODUCTION

   The perennial political struggle over gun policy in America typically focuses, for understandable reasons, at the national level. Yet the American political system continues to be a system of federalism, where the states, and state policymaking, shape much of the American landscape. Thus, much attention was focused on President Barack Obama's ultimately unsuccessful effort in early 2013 to press Congress to enact a series of new national gun laws in the wake of the uniquely senseless and brutal slaying of twenty children and six adults at Sandy Hook Elementary School in December 2012. (1)

   Less recognized, however, was the fact that prolific action at the state level on gun policy exploded in 2013. The purpose of this article is to examine the case of New York--a state that has long been in the forefront of tougher gun laws, (1) and that has, in the minds of some, become a gun owner's nightmare since its enactment of new gun regulations in 2013. But has it? With so much hand-wringing among gun rights activists nationwide about the reputedly adverse effects of stricter gun laws, it is not only useful, but instructive, to examine a place that already has such laws. New York offers a both concrete and contemporary case study of how the relationship between the armed citizen and the government actually functions. As I will argue here, that relationship, while different than that of the majority of states, functions effectively to preserve gun rights in the context of a feasible regulatory scheme.

2. THE NEW NEW YORK GUN LAW

   In January of 2013, the New York State Legislature moved rapidly--too rapidly, said many--to enact a sweeping and tough new set of gun regulations, the New York Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013, at the behest of Democratic Governor Andrew Cuomo. (2) Two events were clear catalysts for this action: the elementary school shooting of twenty children and six adults in Connecticut the previous month, and, less than two weeks later, the murder of two fire fighters in Webster, New York by a man who deliberately set a house fire to draw first responders to the scene to then murder them (two others were injured). (3)

   Relying on a power provided in the state constitution called a "message of necessity," the Democratic governor was able to rush the bill through the legislature. (4) Since 1938, the state constitution has stipulated that legislation must be presented to the members of the legislature at least "three calendar legislative days" before it can be acted upon--unless the governor certifies that, in his or her opinion, circumstances "necessitate an immediate vote," whereupon the three day rule is waived. (5) While the obvious purpose of the "message of necessity" provision is to address bona fide emergencies, the constitution's language is broad enough to allow governors to define those circumstances as they see fit, and that is how governors have treated this power for decades. (6)

   After huddling with legislative leaders, the bill was formally presented to both the state assembly and state senate on January 14.7 Both houses rapidly enacted the bill, by a vote of 104 to forty-three in the Democratic-controlled assembly, and forty-three to eighteen in the Republican-controlled senate. (8) Cuomo signed the bill into law the next day, on January 15. (9)

   Critics from the state's gun community lambasted the bill for its strict new provisions, but also for the rapidity of its passage, charging that the governor was abusing his powers by avoiding hearings and the opportunity for opponents outside of the legislature to make their case. (10) Here, however, Cuomo was doing what New York governors often do, especially with controversial legislation. According to a good government group, Cuomo used messages of necessity twenty-nine times in 2011 (his first year in office), only five times in 2012, and three times in 2013. (11) Cuomo's previous two predecessors, both Democrats, averaged forty-one per year, and their predecessor, Republican George Pataki, averaged over fifty-three such messages per year in his last term of office. (12) Such messages have been used for legislation of every sort, from the legalization of gay marriage, to the establishment of public school teacher evaluations, to enactment of the entire state budget. (13) Still, the chief complaints revolved around the contents of the SAFE Act. (It takes no leap of faith to note that criticism of the process by which the bill was enacted would have been far more muted had groups like the gun community agreed with the content of the legislation.)

   The law consisted of what the governor boasted was the toughest set of gun laws in the nation. (14) Chief among its provisions was the imposition of new restrictions on assault weapons. (15) State law first imposed limits on such weapons in 2000, (16) but the new law tightened those restrictions by categorizing assault rifles as those that can accept detachable magazines, and that have at least one additional characteristic (the earlier law specified two characteristics), including a folding or telescoping stock, a protruding pistol grip, a thumbhole stock, a second handgrip or protruding grip, a bayonet mount, flash suppressor, muzzle brake (erroneously spelled "break" in the legislation), (17) a muzzle compensator, a threaded barrel designed to accommodate any of the above features, or a grenade launcher. (18) Semiautomatic shotguns and pistols are also similarly restricted, as is the case with past assault weapons bans. (19) In the case of shotguns, they fall within the terms of the new law if they possess at least one characteristic named in the law, (20) even if the only feature it possesses is a detachable magazine. (21) New Yorkers who already lawfully owned assault weapons considered legal before 2013 under state law, but that would now be restricted under the new law, could keep them, but they had to now register them with the state (the registration must be renewed every five years) by April 2014. (22)

   Those who own an assault weapon, as defined by the law, can also eliminate design features to exempt it from registration by, for example, removing the bayonet lug or grinding off threading on the barrel. (23) A background check is also run during the registration process, and the State now maintains this information in a database. (24) While the owners of these weapons may keep them for life, they may not transfer or sell them to anyone else, including family members. (25) They can, however, transfer them to authorized sources, including the police, a firearms dealer, or to someone out of state for whom ownership is legal in that state. (26) A related new provision now requires surrogate's courts around the state (each county has one), which handle all probate and estate matters, to inventory a person's firearms separately from other possessions when people die, to identify the existence of assault weapons. (27)

   The law also imposed new restrictions on high-capacity bullet feeding devices (i.e., magazines). (28) Under previous law, those obtained before 1994, of any capacity, were grandfathered in (that is, were legal to own). (29) New magazines from 1994 on were limited to those that could hold no more than ten bullets. (30) Under the 2013 law, however, all magazines, including pre-1994 versions, are now illegal to own if they hold more than ten bullets--however, a legal magazine may be used if loaded with no more than seven bullets. (31) That is, gun owners may not have more than seven rounds in any weapon's bullet feeding device. Not surprisingly, this provision prompted particular ridicule and dismay. (32) Owners could transfer now-illegal magazines to dealers, transfer them to individuals out of state, or modify the magazine to reduce its capacity to seven rounds. (33) (Owners were given until January 15, 2014 to effect such transfers; police and police-issued firearms are exempted from this and some other regulations.) (34) The law also noted that police have no presumptive right to inspect magazines, unless they first have probable cause. (35) Regarding pre-1994 magazines that were formerly legal to own but now illegal to own, the 2013 law has a kind of forgiveness provision saying that if a person believes mistakenly that possession of such a pre-1994 magazine was still legal, they may avoid being charged under the law if they then lawfully dispose of it within thirty days. (36) (Ignorance of the law is rarely a basis of avoiding prosecution, but it is in this case.) Non-complying assault weapons and feeding devices more than fifty years old are exempted from these new restrictions as antiques, curios, or relics. (37)

   An additional significant change now extends background checks, which were formerly limited to commercial weapon sales, to private gun and ammunition sales. Under the new procedure, an individual wishing to make a private gun sale may still do so but must go to a licensed dealer, pay a fee of up to ten dollars, and have the dealer run a background check (using the National Instant Criminal Background Check System (NICS)) before the sale can be completed. (38) The only individuals exempted from the background check are transfers to immediate family members (spouses, domestic partners, children, and stepchildren). (39) Direct sale of ammunition was barred as of 2014, although such sales can be routed through firearms dealers, as is already true with online gun sales. (40) Ammunition sale records and checks that occur at the state level (not through the NICS system) are required to be purged yearly by the State and are exempted from freedom of information inquiries. (41) This restriction would theoretically bar the sale or giving of even a few rounds between individuals, but the expectation is that there is no interest in tracking down, much less prosecuting, the sharing of ammunition between two hunters in the woods or...