The Toughest Gun Control Law In The Nation: The Unfulfilled Promise Of New York’s Safe Act

Authors: James B. Jacobs and Zoe Fuhr
Publisher: New York, NY: New York University Press, 2019. 258p.
Reviewer: Robert J. Spitzer | March 2020

To a great degree, Americans have become inured to shocking incidents of mass gun violence. Yet that creeping complacency was shaken when a man shot and killed 20 elementary school students and six staff members at Sandy Hook Elementary School in Connecticut in December 2012. The nation’s shock and outrage in the aftermath of that event was palpable. Responding to a nationwide call for action, many governing officials, including President Obama, proposed new laws. So did New York’s Democratic governor, Andrew Cuomo. Moving rapidly, he pressed the state legislature to enact a tough new gun law, the Secure Ammunition and Firearms Enforcement (SAFE) Act, passed in early 2013.

In this new book, the authors examine the formulation, components, passage, and implementation of the SAFE Act. They find the law wanting, especially in regards to its implementation and enforcement, considering it little more than “political theater” (p. 6) pressed by a grandstanding governor with an eye on higher office. Yet in many respects their analysis fails to support their sweeping indictment.

Jacobs and Fuhr’s book unfolds in ten chapters, beginning with the politics surrounding the SAFE Act’s formulation and hasty passage and whether the law was “necessary.” It then turns to the elements of the law, including the assault weapons ban provision, the new ban on large capacity magazines (LCMs), universal background checks for gun purchases, disarmament of some mentally ill and those under orders of domestic violence, handgun license renewals, ammunition regulation, and enhanced punishments for certain offenders.

At the outset, the authors set themselves up as objective observers in the gun debate. Yet it is impossible to come away from this book without concluding that they’ve never encountered an actual gun law (as distinct from some hypothetical gun laws they seem to approve of) that they liked. And their reasoning is ultimately non-falsifiable. Gun laws are either too weak (e.g. the 1994 federal assault weapons ban, pp. 4-5) or too aggressive (the SAFE Act); they either need to rely more on state-wide or national standards (p. 77), or give more power to local governments (pp. 152-53); criminal gun law penalties are either too lax (p. 51) or too strict; they are either under-enforced or “overimplemented” (p. 124). Jacobs and Fuhr note repeatedly that existing gun laws are under-enforced or poorly implemented, which is indeed a problem. They say, for example, that “FFLs [licensed firearms dealers] are lightly vetted, not trained, and infrequently monitored [by the government]” (p. 83). But they never ask why. The answer is clear, and well documented: gun rights groups have fought tooth and nail to undercut funding, jurisdiction, and enforcement of gun laws and of the agencies that implement gun laws—at the federal level, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)—and also to delegitimize not only gun law enforcement, but the very idea of gun regulation. For two authors attached to a prominent law school, they spend a fair amount of their book cheerleading for New Yorkers bent on undercutting New York gun law legitimacy.

Consider, for example, their convoluted treatment of legal challenges to the SAFE Act. In 2013, the state’s leading gun rights group filed suit against the law, including its strengthened assault weapons ban. These authors’ account includes careful attention to the arguments made by the opposing sides, but a digressive and meandering account of the district court and court of appeals rulings. Both courts upheld the law, with the exception that the seven round magazine limit set in the law was stricken, leaving the pre-existing ten round limit in place. Yet the reader finds puzzling asides like this: after quoting the Second Circuit’s finding that the military-style features of assault weapons are “manifest and incontrovertible,” the authors add, “‘[m]anifest and incontrovertible’ is rebutted by the fact that the large majority of states” (p. 58) do not bar military-style features. How is this rebuttal? Why are the authors offering unsupported “rebuttals” to the court’s decision? Elsewhere they express their dissatisfaction with the ruling when it fails to offer, in their view, “neither evidence nor explanation” for various conclusions. The authors later reference “federal courts [striking] down the seven-round loading limit as irrational.” No. The ruling called it “a largely arbitrary number.” The court never used the invidious term “irrational” (although the plaintiffs did).

The authors are perfectly entitled to critique the ruling, but that is difficult to square with their touted objectivity. In fact, the reader searches in vain for a straightforward statement that the law was, in fact, upheld in two federal courts. They also say, inexplicably, that the Second Circuit ruling was not appealed to the Supreme Court (p. 59), when in fact it was; the high court declined to hear the appeal on June 20, 2016.

Jacobs and Fuhr offer, without citation, an “estimate” of “750,000 to one million assault weapons” (p. 50) in New York, in order to compare this large number to the relatively small number of about 45,000 assault weapons registered in the state under the SAFE Act as of 2015, suggesting massive non-compliance with the law. The authors fail to give a source for the one million number, but it has been repeated by state gun rights groups. The problem is that it is not only unsupported by actual data, but makes no sense. There is no precise count of the number of assault weapons in the country, but several estimates pegged the nationwide number as of 2012 at about 4 million. A 2016 estimate put it at about 5 million. If we divide one million by 5 million, it means that 20 percent of all assault weapons in the country are owned by New Yorkers. Yet New York has one of the lowest gun ownership rates in the country. When one considers high gun owning states like Texas and Florida, it becomes clear that New Yorkers own far, far fewer assault weapons than the authors say. They simply accept the inflated and unsupported numbers offered by state gun groups as being correct.

The authors frame their discussion of the SAFE Act by noting its very rapid formulation and passage, made possible by a gubernatorial power called a “message of necessity.” This allows the governor to expedite consideration and vote on bills. They frown on Governor Cuomo’s apparently “political” motives and ambitions for pushing it through so soon after the Sandy Hook shooting, and note what they describe as the groundswell of opposition to the bill from, it would seem, nearly all quarters of the state. But the following are what the authors do not tell the reader.

Messages of necessity are provided for in the state constitution. Cuomo’s three predecessors utilized them routinely for major legislation, between 41 and 51 times per year. Cuomo utilized 5 in 2012 and 3 in 2013. Like many prominent politicians, Cuomo may have harbored presidential ambitions, although he has not acted on them to date. Might that have motivated his push for the SAFE Act? Did he cynically exploit national trauma after the shooting to push the bill through? Certainly possible. But frankly, so what? The idea of politicians being motivated by political ambitions and exploiting politically catalytic moments are as old as Pericles. Politicians that do not take advantage of such political moments are less likely to succeed in their policy objectives. And while Jacobs and Fuhr seem confused on the state’s political party balance, the State Senate was controlled by the Republican party (with the help of some breakaway Democrats) meaning that Cuomo needed to thread a lot of political needles to get anything done in the state. He would have been foolhardy to not exploit this political moment. And whatever one might say of Cuomo, he clearly believes in stronger gun laws.

As for state opinion, the authors plainly suggest that the SAFE Act met massive opposition, including most counties, county sheriffs, and of course gun rights groups. What they fail to mention, until a brief reference at the end of the book, is that the law was consistently supported by majorities of New Yorkers. At least a half-dozen polls conducted after the law’s enactment consistently reported 60 percent of New Yorkers supported the law, including a 50-50 split among more conservative upstaters. In their concluding chapter, they do acknowledge that a “majority” (p. 193) of residents support the law, but they dismiss this by asserting (without evidence) that most respondents “possess scant knowledge” of the law. How, one might ask, would voter knowledge of the gun law compare with voter knowledge of health care laws, immigration laws, or any other policy area? We do not impose knowledge tests on voters as a prerequisite for the right to hold opinions, and there is no reason to believe that New Yorkers did not understand the basics of the SAFE Act.

Beyond this, it is certainly true that some county sheriffs were vocal in their opposition to parts of the law, and that most counties passed symbolic resolutions expressing opposition. But counties in New York represent geography, not people. That is, many counties contain many fewer inhabitants compared to others. And more rural governments are uniquely susceptible to the intense political pressures of gun rights activists, as are county sheriffs because they are among the only elected law enforcement officers in the state. Other law enforcement agencies were more supportive. For example, the state police filed a brief in support of the law (including the assault weapon and LCM restrictions) when it was challenged in court. Jacobs and Fuhr do a good job in reflecting opponents’ views, but a poor job in painting anything resembling a balanced picture of the politics of the SAFE Act, much less the arguments of supporters.

The authors also offer some glaring misstatements. For example, they say that LCMs “are rarely used in ordinary crime” (p. 75). According to a recent study, LCM use in crime has increased steadily since the end of the assault weapons ban in 2004, such that in recent years they have been used in over 40 percent of serious crimes. The authors say that “practically all” (p. 138) states require concealed carry licenses. As of 2019, only two-thirds do; 16 states have eliminated permitting.

Even on a SAFE Act provision as simple as instituting handgun license renewal, the authors find fault, saying it is “not an effective strategy” (p. 152) for identifying licenses needing revocation. As of 2011, 1.28 million permits were listed with the state. Because permits never required renewal, names were never stricken from the list if someone died, moved, or gave up their guns. In fact, the list had never been purged since its establishment in 1936. This was ample reason to institute permit renewal, a routine practice for most any state-granted license.

In many places throughout the book, the authors point out that people could circumvent various provisions of the law by, for example, making their own assault weapons or large capacity magazines or obtaining them elsewhere. The implication is clear: why bother enacting stricter laws since criminals will not abide by them anyway? Here the authors mimic the same empty logic endlessly repeated in the gun debate — that gun laws are useless because the “bad guys” (whoever they are) will ignore the law. Murder is a crime. Yet people commit murders.

Do we therefore conclude that laws against murder are useless and pointless? Laws regulating behavior serve at least three important purposes: to deter the prohibited behavior, to punish those who transgress, and to confirm societal values about behavior that is either allowable or pernicious. No law is perfect, or perfectly effective, and all laws are violated. And some laws seek change incrementally and over time, as is true of important parts of the SAFE Act. When it comes to guns, such laws are of no consequence to these authors.

In the end, the SAFE Act is, according to the authors, nothing more than “symbolically satisfying” (p. 211) law. Even though they exhort the need for gun laws that are “implementable,” “enforceable,” and that are likely to reduce gun harm (p. 211) they don’t really seem to have any idea how these goals are advanced in the real world of politics and policymaking. Nor is it clear from this book that they have much interest in seeing that happen.

Robert J. Spitzer, Distinguished Service Professor and Chair, Political Science Department, SUNY Cortland

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