Universal background checking - New York's SAFE Act.

• Author: Jacobs, James B.
• Position: Secure Ammunition and Firearms Enforcement Act of 2013

When we passed the SAFE Act, just days after the tragedies in Newtown and Webster, New York proved to the nation that it is possible to enact sensible gun control that coexists with the Second Amendment. We showed that it can be done with bi-partisan support from both urban and rural communities. And we took a fundamental step forward to help end the stream of senseless killings by keeping guns out of the hands of criminals and the dangerously mentally ill.... New York has set the example--and it's far past time for Washington to follow suit and pass a sensible national gun control policy.

--Governor Andrew M. Cuomo (1)

Numerous studies conducted by academic researchers and by the federal government have shown that criminals do not use legal markets to obtain guns.... They do not buy guns in gun stores. They do not get guns at gun shows. They do not buy them from Internet sources. The study even found that criminals only rarely steal guns.

--National Rifle Association, Institute for Legislative Action (2)

The December 14, 2012, Sandy Hook Elementary School massacre in Newton, Connecticut ignited a new round of controversy over gun control. (3) At the federal level, a presidential inter-agency task force, headed by Vice President Joe Biden, recommended a number of familiar gun control strategies, including universal background checking for all firearms purchasers. (4) At the state level, New York State's Governor Andrew Cuomo, promised to pass the "toughest gun [control] laws in the nation." (5) To this end, on the evening of January 14, 2013, just one month after the Sandy Hook massacre, and well before federal legislation would be introduced into Congress, he submitted the Secure Ammunition & Firearms Enforcement Act (SAFE Act) into both houses of the state legislature. The bill was introduced under a message of necessity, thereby exempting it from the constitutionally mandated three-day period for considering a bill before voting on it. (6) The New York State Senate, despite being Republican-controlled, passed the SAFE Act that night; the Democrat-controlled Assembly followed suit the next day. (7) Governor Cuomo immediately signed the bill into law. (8)

The SAFE Act is a comprehensive gun control law that includes universal background checking provisions; prohibition of new assault weapons and new assault weapon owners; prohibition of large capacity magazines; registration for grandfathered assault weapon owners; mandatory reporting obligation for health care professionals who determine, in the exercise of their reasonable professional judgment, that a patient is likely to engage in conduct that would result in serious harm to self or others; and new substantive firearm-related crimes. (9)

This article focuses on the SAFE Act's requirement that all sellers, indeed all transferors, of firearms and ammunition initiate purchaser (transferee) background checks. These universal background checking provisions are important, not just for New York State, but for the whole country, because they provide an opportunity to examine gun control proponents' number one policy priority which, even after Sandy Hook, Congress did not pass. (10) This article demonstrates that while universal background checking for all firearms purchasers makes overwhelming sense in principle, numerous implementation and enforcement obstacles, even in a gun-control-friendly state such as New York, significantly limit its potential efficacy in keeping guns out of the hands of dangerous persons.

Part I describes New York State's background checking laws prior to the SAFE Act's enactment. Part II explains the SAFE Act's universal background checking requirements. Part III examines problems in implementing universal firearms purchaser background checking. Part IV illuminates enforcement challenges. Part V assesses the SAFE Act's impact on firearms homicides, suicides and crimes. Part VI analyzes New York's pioneering effort to subject ammunition sales to universal background checking.

1. PRE-SAFE ACT BACKGROUND CHECKING IN NEW YORK

   New York State has a strong gun control tradition. (11) The 1911 Sullivan Law, a landmark in twentieth century gun control legislation, obliged New Yorkers to obtain a county-issued license to purchase or possess a handgun. (12) This licensing requirement applies only to handguns, except in New York City (NYC) where it also applies to rifles and shotguns. (13) Possession of a handgun (and, in NYC, a long gun) without a license is a class A misdemeanor, punishable by up to one year's imprisonment. (14)

   In order to obtain a handgun license, the county licensing officer (15) must find the applicant to be of "good moral character." (16) Historically, in evaluating character for purposes of this restrictive licensing regime, a licensing officer checked the applicant's criminal record, history of mental illness and other information provided by government sources and personal references. (17) Unlicensed individuals could, however, obtain firearms on the black market or the secondary sales market. (18)

   New York firearms possessors are, of course, also subject to federal law. Since 1938, it has been a federal crime (subject to a maximum ten year prison sentence) for a person ever convicted of a felony to possess a firearm. (19) Congress added other disqualifications over the years (people: who have been committed to a mental institution or adjudicated "mentally defective;" (20) who are unlawful users of or addicted to controlled substances; (21) "illegally or unlawfully in the United States;" (22) who have renounced their U.S. citizenship; (23) convicted of "misdemeanor crime of domestic violence;" (24) subject to a domestic violence restraining order; (25) dishonorably discharged from the armed forces; (26) or have fugitive from justice status (27) ). A prospective purchaser, seeking to acquire a firearm from a Federal Firearm Licensee (FFL), had to swear on a federal form, administered by the FFL that he or she was not disqualified from possessing a firearm. (28) However, until 1993, there was no independent verification of the purchaser's sworn statement of firearms eligibility. (29)

   The 1993 Brady Law (Handgun Violence Prevention Act) strengthened the federal regulatory regime (30) by requiring FFLs to submit a prospective purchaser's name to the Chief Law Enforcement Officer (CLEO) in the FFL's jurisdiction. (31) The CLEO had five business days to conduct an investigation and, if he found a disqualification, to notify the FFL not to complete the sale. (32) In November 1998, the National Instant Background Checking System (NICS), run by the FBI, replaced this interim scheme. (33) The CLEO's role was eliminated. (34) FFLs were now required to transmit (by fax or phone) the prospective firearms purchaser's name and other identifying information to NICS. (35) NICS personnel check the purchaser against various databases of firearms prohibited persons. (36)

   The Brady Law applies only to firearms sales by FFLs. Private sellers do not need to initiate background checks. This limitation frequently is referred to as "the gun show loophole" because a gun show is a convenient locale for a private seller to find a buyer. In 2000, New York became the first state to extend background checking to purchasers from private (non-FFL) sellers at gun shows. (37) A New Yorker who wants to buy a firearm at a New York gun show from a private seller must take the firearm to an on-site FFL, who must initiate a NICS background check on the purchaser. Gun show operators must "conspicuously post" signs at the show stating that a background check must be completed prior to a firearm sale or transfer, (38) and must ensure that an FFL is available on-site to initiate a NICS background check. (39)

   The Shooter's Committee on Political Education (SCOPE), a gun owners' rights advocacy organization, immediately lodged a constitutional challenge to New York's attempt to close "the gun show loophole." (40) SCOPE argued that the law's definition of "gun show" was so broad that it potentially encompassed a gun transfer at any gun club event, "such as a pig roast or political rally." (41) SCOPE submitted that under the definition, it was arguable that a firearm transfer at a club meeting or informal event would be unlawful unless brokered by an FFL. (42) The federal district court agreed that the statute potentially infringed gun club members' rights to free speech and assembly. (43) The challenge raised a serious interpretative question, common to all statutes that seek to eliminate the gun show loophole: how to define which sales are covered.

   New York's law applies to gun sellers at a gun show who "offer or agree to sell or transfer a firearm," regardless of where the transfer ultimately takes place. (44) Literally, that means that a seller at a gun show, who gives his business cards to customers, must initiate a background check if, weeks later, a customer decides to purchase the firearm she saw at the gun show. (45) At that point, of course, there is no on-site FFL to initiate the background check.

2. THE SAFE ACT'S UNIVERSAL BACKGROUND CHECKING

   The SAFE Act requires that a NICS background check be carried out on transferees of "all sales, exchanges or disposals of firearms, rifles or shotguns," (46) except those that occur between "immediate" family members (provided that the transferring family member does not know that the transferee is prohibited by law from possessing a firearm because of a prior conviction or some other firearm disqualification). (47) It also requires that registered ammunition transferors initiate a background check on ammunition transferees. (48)

   The SAFE Act obliges a prospective firearm transferor and transferee to process the sale via an FFL willing to initiate a NICS check on the prospective transferee. (49) The Act does not, however, mandate that FFLs play this processing role. (50) An FFL, who does elect to provide...