Gun control and the SAFE Act:Part Three: Assault weapons ban and pistol permit renewal
by Len Geller –
Assault Weapons Ban
Because assault weapons are extremely dangerous killing machines, able to release multiple rounds in a matter of seconds and then be reloaded in the blink of an eye, and also because such weapons have been used not only in the Sandy Hook massacre but in numerous other mass shootings, Governor Cuomo and the State Legislature felt a sense of urgency to further restrict the already existing ban on such weapons. They did this by expanding the legal definition of an assault weapon, thereby including more semi-automatic weapons under the ban.
For readers unfamiliar with the definition of a semi-automatic weapon, it is any rifle, shotgun or pistol that has a detachable magazine and fires one bullet or round with each pull of the trigger. An automatic weapon, on the other hand, fires a continuous stream of bullets when the trigger is depressed. Since automatic weapons have been federally banned in the United States since 1934, the assault weapons ban under New York law refers exclusively to semi-automatic weapons which, despite their name, are capable of discharging ten or more rounds (depending on the capacity of the magazine) in a matter of seconds and being reloaded just as quickly with another fully loaded magazine. Most shooters who have used both automatic and semi-automatic weapons actually prefer the latter because they are easier to control and therefore more accurate in finding the target.
Prior to the SAFE Act, an assault weapon was legally defined as any semi-automatic rifle, pistol or shotgun with a detachable magazine and two or more military-style features, such as a folding or telescoping stock, thumbhole grip, forward hand grips, bayonet mount, flash suppressor or grenade launcher. The SAFE Act continues the ban but changes the legal definition of an assault weapon to include any semi-automatic rifle, pistol or shotgun with a detachable magazine and just one or more of these military-style features. This redefinition of an assault weapon had the effect of making thousands of previously legal semi-automatic weapons illegal and their owners subject to legal penalties. To correct this situation, the SAFE Act included a grandfather clause legalizing prior ownership of such weapons as long as their owners registered them before April 15, 2014.
In 2015 controversy erupted over citizen compliance with the retroactive assault weapons registration. When the deadline was up, over 44,000 assault weapons had been registered in the state. This prompted the president of the New York State Rifle and Pistol Association (the state chapter of the NRA) to claim that since there was anywhere between 2 and 4 million assault weapons in New York, this low registration number was evidence of massive non-compliance with the SAFE Act. Regardless of the SAFE Act’s fate in the courts, he argued, the citizens of New York have effectively repealed it by refusing to register their guns. But when asked for hard evidence to back up this claim, he was unable to provide any. The estimate of 2-4 million assault firearms in the state turned out to be a wild guess based on the supposed sales of the AR-15 assault rifle since the 1960s as well as the estimated number of gun owners in the state. When opponents demanded evidence of these supposed sales going back 50 years, none was forthcoming, prompting one critic to quip that this was just “more verbiage from the gun lobby.” Since the State Police have no record of the number of assault weapons in the state, it is virtually impossible to determine this number with any degree of accuracy, and therefore impossible to determine the extent of non-compliance with the registration of assault weapons.
Ban on Large-Capacity Magazines
Accompanying the more restrictive ban on assault weapons was a further provision in the SAFE Act that reduced magazine (any bullet-feeding device) capacity and the loading limit in all legal semi-automatic weapons to seven rounds. Prior to the SAFE Act, both magazine capacity and loading limit were ten rounds, which meant that it was illegal to own or possess a large-capacity magazine greater than ten rounds and to load more than 10 rounds in that magazine. The only exception to this law was any large-capacity magazine purchased before September 13, 1994, the date of the first assault weapons ban in New York. Prior to the enactment of the SAFE Act, it was legal to own or possess a pre-94 large-capacity magazine just as long as it was not loaded with more than 10 rounds. The SAFE Act removes this pre-94 exemption by making it illegal to own or possess a pre-94 large-capacity magazine acquired before January 15, 2013, but reduces the penalty for doing so from a felony to a misdemeanor and allows anyone unaware of the new law not to be charged with an offense as long as they legally dispose of it or permanently modify its capacity to ten rounds within thirty days of being notified of its illegality by law enforcement or a county official. On the other hand, any person who purchases or obtains a pre-94 large-capacity magazine after this effective date will be charged with a felony.
As critics were quick to point out, and as Governor Cuomo conceded shortly after the SAFE Act’s enactment, most gun manufacturers do not produce seven-round magazines, and even if they did, they wouldn’t fit most semi-automatic weapons, so this provision of the SAFE Act had to be rolled back to allow ten-round magazines. Despite this glitch, the SAFE Act did not change the seven-round loading limit, except at officially recognized firing ranges and competitions where a ten-round load was permissible. Later in December 2013 in New York State Rifle and Pistol Association v. Cuomo, the federal district court in Buffalo struck down this provision of the SAFE Act, effectively restoring the ten-round limit. So the net effect with regard to magazine capacity and loading limits was zero. Both returned to the pre-SAFE Act standard of ten rounds, where they remain today.
The reaction to the expanded assault weapons ban and the magazine and loading provisions of the SAFE Act was swift and predictable. Supporters of the SAFE Act heralded the changes as important, long overdue, and making New Yorkers much safer, but opponents denounced the changes as ineffective in controlling gun crime, putting citizens at a distinct disadvantage when confronting criminals, and placing an undue burden on gun owners, thus violating their Second Amendment rights. In response to these provisions, a coalition of gun-rights supporters led by the New York State Rifle and Pistol Association challenged the constitutionality of the SAFE Act in court. In New York State Rifle and Pistol Association v. Cuomo (2013), the same case mentioned earlier, the federal district court in Buffalo upheld the constitutionality of the assault weapons ban and prohibition on large capacity magazines, arguing that they further the state’s overriding interest in keeping its citizens safe, do not disarm citizens (the purchase and possession of semi-automatic weapons are still legal in New York), and therefore do not violate the Second Amendment. On appeal, this ruling was upheld and confirmed by the U.S. Court of Appeals for the 2nd Circuit in 2015. I will return to these Second Amendment issues in the conclusion.
Renewal of Pistol Permits
One final provision of the SAFE Act that affects thousands of New Yorkers is the new requirement that pistol permits must be renewed or recertified every five years. Previously, they didn’t have to be renewed at all. If a citizen had a pistol permit before the enactment of the SAFE Act, he or she must renew it by January 15, 2018. If a permit holder fails to renew within five years, their handgun license will be revoked, and all firearms in their possession, including rifles or shotguns, must be surrendered to a law enforcement agency. By law, all state records and databases relating to the SAFE Act, including pistol permit renewal records, are exempt from public disclosure. In addition, the SAFE Act allows permit holders to file an “Opt Out” form that extends this public disclosure exemption to county permit records as well. Needless to say, thousands of New York pistol permit holders have chosen this option.
Like the more restrictive ban on assault weapons, this provision has come under heavy fire from gun owners and gun rights supporters. According to critics, this requirement does nothing but make it more difficult for law-abiding gun owners to exercise their Second Amendment rights. If a pistol permit holder has become ineligible to retain their permit and guns because of a felony conviction, order of protection, possession of an illegal weapon, or a mental health report, this will be adjudicated through a legal process unrelated to the permit renewal process. So why do we need it? This is a good question. One answer, according to supporters of the new requirement, is to make sure that an ineligible permit holder has not fallen through the cracks, and if they have, to fix the mechanism responsible. Another reason is to clean up the county databases that probably have hundreds if not thousands of names of permit holders who have moved out of the county and/or out of the state, are deceased, or simply no longer own any handguns. As for the charge that this will make it more difficult for law-abiding gun owners to exercise their Second Amendment rights, supporters of this provision argue that the renewal process in fact couldn’t be easier. All a permit holder has to do is go online to the SAFE Act website, follow the prompts and fill in the information. It takes a whole five minutes and is free of charge.
Conclusion
The major issue facing New Yorkers in the gun-control debate is the same issue that faces the country in the debate over terrorism: how to balance individual liberty and personal privacy with concerns for public safety and security. There is no easy answer to this question. In the landmark Supreme Court decision of District of Columbia v. Heller (2008) in which the Court defined the Second Amendment as an individual or personal right to self-defense and self-protection unrelated to a citizen’s militia service, the Court also made it clear that this right is not absolute or unlimited, but one that may be restricted by concerns for public safety and security. In other words, the Court staked out a middle ground between the untenable extremes of absolutely prohibiting firearms and imposing no or very few restrictions on their ownership, possession and use. The SAFE Act does the same thing. On the one hand, it recognizes the right to bear arms and does not constitutionally infringe on that right, although it may have gone too far in restricting the rights of mental health patients. It preserves the right to own and possess semi-automatic weapons for self-defense, hunting, and other recreational purposes, while leaving in tact the right to own a handgun for self-protection. It also allows New Yorkers to keep any assault weapons purchased before the enactment of the SAFE Act, provided they were registered within one year of its enactment. On the other hand, it establishes limitations on the Second Amendment by redefining and outlawing assault weapons, banning large-capacity magazines, making it as difficult as possible for the most dangerous elements of society to gain access to guns legally, and imposing harsher penalties for gun crimes. While citizens will continue to disagree on where to draw the line between liberty and public safety, it is essential to strike a reasonable balance between them. What form this compromise will take can only be decided politically, and that debate will not and should not end.