The Toughest Gun Control Law in the Nation: The Unfulfilled Promise of New York’s SAFE Act

Reviewed by Andrew C. McKevitt

When Governor Andrew Cuomo pushed a new gun control law, the Secure Ammunition and Firearms Enforcement (SAFE) Act, through the New York State Assembly in January 2013, just a month after the tragic mass shooting at Sandy Hook Elementary in Newtown, Connecticut, critics said he acted in haste. Cuomo’s administration started drafting a bill before the New Year; it submitted the bill to the Assembly on January 13 and, utilizing a rare emergency measure, the governor signed it an incredible 18 hours later. The SAFE Act was the most ambitious gun control package any state had ever passed, controlling New Yorkers’ access to guns through ten different mechanisms, from regulating assault weapon features and magazine size to mandating new reporting requirements for mental health professionals. Cuomo called it “the toughest gun control law in the nation,” giving this book its title and giving its authors, James B. Jacobs and Zoe Fuhr, two scholars at NYU Law School, reason for skepticism.

It wasn’t the first time that gun control legislation seemed to grow directly, and perhaps took quickly, out of tragedy. It’s common, for example, to find explanations for the United States’ first major postwar gun control law, the Gun Control Act of 1968, that attribute its passage to the assassinations of Martin Luther King and Robert F. Kennedy and their emotional aftermath. But, compared to the SAFE Act, there was nothing rushed about the GCA. The debate had begun five years earlier, in 1963, spurred by apparent rising crime rates, especially among young people. And then Lee Harvey Oswald murdered John F. Kennedy. The assassination of a popular president with a high-powered imported rifle purchased cheaply through the mail pushed gun control proposals into the national spotlight. Skeptics feared Americans were moving too quickly, prepared to sacrifice traditional comforts and liberties for a temporary feeling of security. Just three weeks after the assassination, senator Warren Magnuson (D-WA) opened hearings on firearms control bills with a word of caution: “the solution must not be one conceived in hysteria, born of ignorance, intended to foster complacency and destined to futility.… It must be dictated by the voices of reason, not emotion.”

Forty-nine years and a day later, a disturbed 20-year-old man carrying three guns, all purchased legally by his mother, murdered 26 people, including 20 children, in the most shocking mass shooting in the history of a country that had become accustomed to them. Sandy Hook sparked the most significant period of U.S. gun legislation since the early 1990s, when years of work had culminated in the Brady Handgun Prevention Act (1993), which mandated federal background checks on guns purchased from licensed dealers, and the Federal Assault Weapons Ban (1994), a section of a larger crime bill that made it illegal to sell a range of “military-style” semiautomatic firearms and large-capacity ammunition magazines. The latter sunsetted in 2004 without renewal, and one of the Obama administration’s goals after Sandy Hook was to write a new ban on assault weapons, in light of the killer’s use of a rifle built on the popular AR-15 platform. A polarized Congress would not act, however, and so the writing of new laws fell to the states, which had, historically, done far more to regulate guns (or not) than Congress anyway. Many state legislatures did indeed take action, though the conservative majority of them enacted laws that expanded rather than restricted gun rights, following the logic of the National Rifle Association that the best way to counter gun violence was to arm more people.

New York bucked the national trend in a big way, however, with the passage of the expansive SAFE Act. But why did New York need this new law, Jacobs and Fuhr ask, given that the state had passed a comprehensive gun control bill just a dozen years earlier? Violent crime had been on the decline in the state for two decades (with New York City experiencing the biggest urban crime decline arguably in modern history). The state experienced only two mass shootings in the previous quarter-century. And gun control advocacy groups already rated the state’s laws among the country’s best. Despite these trends, just one month after an unspeakable tragedy in a neighboring state, gun owners in New York now lived under a law born in the emotional politics of the post-Sandy Hook moment, one that, though they don’t quote Magnuson, Jacobs and Fuhr characterize as “conceived in hysteria, born of ignorance, intended to foster complacency and destined to futility.” In The Strongest Gun Control Law in the Nation, the authors provide a rare detailed analysis of a single state gun law, concluding that “effective gun control needs to go far beyond passing symbolically satisfying laws that cannot or will not be implemented and enforced.”

Jacobs and Fuhr see the SAFE Act as many of the law’s critics have seen it: it was “political theater” intended to energize the governor’s liberal base at home and attract a national audience for his political ambitions. Historians might question the claim — the evidence is circumstantial, lacking direct documentation from the governor or his staff to this effect — but absent any other clear motivation and accounting for the dramatic and aggressive way in which the bill passed, it’s convincing enough as an explanation. A majority of New Yorkers have supported the law simply because New York is a liberal state and liberals in the 21st century largely support gun control laws as a matter of course, not because they know anything of the particulars. The bill’s opponents, however, know its various provisions intimately, and Jacobs and Fuhr side with the critics, at least on the diagnosis of the SAFE Act’s problems, if not the prescriptions for amending it. Indeed, opponents, most notably the NRA’s statewide chapter, the New York Rifle and Pistol Association, sought to repeal the law from the moment it passed. They attacked both its substance and the process by which it became law. The Cuomo administration surely anticipated opposition from gun rights groups, Jacobs and Fuhr argue, but it underestimated the outsized effectiveness of the state’s gun-owning minority. Also unanticipated was the extent to which upstate county and local officials, including those in law enforcement, resisted the SAFE Act, because they felt excluded from the legislative process and because the resulting law imposed on them a host of new regulatory and paperwork requirements, from registration of now-prohibited assault rifles and ammunition sales to intrusive demands for mental illness reporting. Such officials often described the law as riddled with “unfunded mandates” — passing a law is cheap, but implementation and enforcement is expensive, and the Assembly dedicated little new funding in that regard. Police forces do not see themselves as regulatory agencies, and especially in more rural areas of the state, local officials are hesitant to harass “law abiding neighbors and constituents” with what those neighbors and constituents see as burdensome and unnecessary background checks and registration procedures.

Their sharp criticisms of Cuomo and the SAFE Act notwithstanding, the authors are not opposed to gun control per se. They agree with critics that the United States does not need more gun laws, but while the critics say the country needs fewer gun laws, Jacobs and Fuhr argue it needs smarter gun laws. The authors’ politics remain muted throughout the book but occasionally their recommendations reveal an even stronger regulatory impulse than the one that motivated Cuomo’s law. For instance, they believe the SAFE Act’s universal background check provisions are ineffective, not because such a system — a popular proposal among the mainstream of liberal gun control groups — is inherently unworkable. Rather implementing and enforcing a universal background check system would be expensive, requiring far greater resources than any legislative body is prepared to provide, and also likely necessitating a universal registration system for all firearms, a proposal that would meet the fiercest of opposition from a legion of gun rights groups.

Why Jacobs and Fuhr ultimately side with the critics in most instances in their rundown of the SAFE Act’s various provisions, then, is not because they share the gun rights groups’ visions of an armed society. Rather they acknowledge that gun rights proponents are attentive to the implementation of such laws after they’ve passed, because gun owners most of all bear the burdens of new background check requirements and ammunition registration provisions, as opposed to liberal gun control supporters, who tend to see the passing of gun laws as the way to address gun violence. Gun owners have to know the law if they want their activities to stay within it, and so they tend to be fairly astute critics of a gun law’s enforcement shortcomings. Jacobs and Fuhr emphasize that the Cuomo administration drafted a bill full of controls that were too costly, burdensome, or fanciful to implement and enforce. Take, for example, Cuomo’s demand that detachable magazines be limited to seven rounds. The national standard limit favored by gun control advocates is ten rounds. Cuomo wanted seven. Why? Because it was lower than ten, and the authors argue, Cuomo simply wanted to out-control the controllers, a political strategy that would never cost him votes among New York’s large liberal base. The problem was that almost no manufacturer produced seven-round detachable magazines. When the administration was confronted with this inconvenient reality, Cuomo’s response was to permit ten-round magazines so long as they weren’t loaded with more than seven rounds. He was ridiculed, rightly, because the episode demonstrated how the law was, to borrow Magnuson’s words again, “born of ignorance … and destined to futility.”

Futility feels like the best word to describe contemporary US gun politics as The Strongest Gun Control Law in the Nation portrays them. In that sense it’s fitting that the book’s foreword comes from Franklin Zimring, a Berkeley law professor who was one of the founders of the field of academic gun studies in the 1960s. Zimring describes the “paradox” of state-level gun controls like the SAFE Act: “the very political sentiments that made gun laws in these states easy to pass often made them operationally redundant or marginal.” Partisan state lawmakers then push the margins as far as they will go — one extreme example in my own red state was a proposal to allow guns on school grounds and college campuses so long as the carrier wasn’t a student or employee. But the contemporary back and forth of blue and red state legislatures pushing gun control or gun rights obscures the greater shift of our gun politics since the 1970s. Indeed, today we all debate on ground staked out by the NRA and gun rights proponents. That ground was edified by the 2008 Supreme Court decision in District of Columbia v. Heller, in which the court ruled for the first time that the Second Amendment guaranteed an individual right to own a firearm independent of service in a militia. Forty years ago, Americans argued about banning all privately owned handguns, which have been consistently responsible for 70 percent or more of all gun deaths annually; Zimring himself told Congress bluntly in 1969, “ban them.” Gun rights proponents responded with a decades-long ideological offensive that culminated in the Heller decision.

Even if the SAFE Act passed in liberal New York, it passed in a world of the NRA’s making. Such laws can do little more than offer symbolic victories while creating a weak bureaucratic and administrative regime enshrining private gun ownership in perpetuity. Further, substantive measures to address the United States’ 40,000 annual gun deaths would have to come from Congress, which, especially in light of Heller, is unlikely to act in the foreseeable future.

Andrew C. McKevitt is Associate Professor of History at Louisiana Tech University. He is the author of Consuming Japan: Popular Culture and the Globalizing of 1980s America (University of North Carolina Press, 2017). He spent the 2019-2020 year on leave, supported by a grant from the Louisiana Board of Regents, working on a book about the intersections of postwar U.S. gun violence and U.S. foreign relations.

Contemporary Era, Politics, ReviewsGuest UserAugust 4, 2020Comment