REPEAL OF THE NEW YORK STATE SAFE ACT

ASSEMBLY BILL A3943

SENATE BILL S1193

Greg Whittaker

Session Intern – Assembly Member Bill Nojay

Manchester Metropolitan University

In Association With Buffalo State College

April 2015

Table Of Contents

I. Introduction

A) Events Leading To The SAFE Act

B) New York SAFE Act

C) Initial Response

D) Implications On Assigned Member & Their District

II. Repeal Of The SAFE Act

A) Assembly Bill A3943 & Senate S1193

III. Justifications

A) Unconstitutional - Second Amendment

B) “Message Of Necessity”

C) Gun Control Is Ineffective

D) Other Reasons

IV. Support Of The Repeal

A) Assembly & Senate

B) Interviewing Assemblyman DiPietro

C) Interviewing Assemblyman Nojay

V. Opposition To Repeal

A) Assembly & Senate

B) Interviewing Assemblyman Lenthol

C) Other Reasons For Opposition

VI. Leadership

VII. Policy Entrepreneurs

VIII. Divisions

A) Upstate vs. Downstate

B) Republicans vs. Democrats

IX. Prospects

X. Has Democracy Been Served?

XI. Conclusion

XII. Works Cited

Apendix A) A3943

Apendix B) Memorandum In Support Of Legislation

Introduction

Events Leading To The SAFE Act

The shooting carried out by Adam Lanza at Sandy Hook Elementary School in Newton,

Connecticut on December 14th 2012 shocked the nation and sparked mass debate about the

effectiveness of gun control law. After killing his mother, Lanza a 20 year old, took the lives

of 20 students and 6 adult staff members using a semi-automatic AR-15 assault rifle and two

pistols.1 Wearing black fatigues and a military vest whilst opening fire, he brought terror to

the school. Yet the Sandy Hook shooting was just one of 16 mass shootings across the

country in 2012. Other notable shootings include the killing of 12 people by student Andrew

Engeldinger during the July 20th midnight showing of “The Dark Knight Rises” in Aurora,

Colorado2 and the fatal shooting of 6, including himself, by Andrew Engeldinger in

Minneapolis, Minnesota. One common factor in all of these harrowing events was that the

guns used were bought legally and this disturbing fact fuelled an outcry for better gun

control laws.

Across the United States gun control legislation came to the forefront of the public and

political agenda. Whilst President Obama and other prominent politicians gave voice to the

call for stricter gun control across the country, the public too had grown sick of these

hideous events and called for action. In New York State, Governor Andrew Cuomo was quick

to act. Just 32 days after the Sandy Hook Elementary School shooting, comprehensive new

gun control legislation had been drafted, introduced, passed through both the New York

State Assembly and Senate, and signed into law. On January 15th 2013 the New York Secure

Ammunition and Firearms Enforcement (SAFE) Act was created. Yet despite public and

political thirst for effective gun control, the nature and speed of introduction was far from

universally welcomed. Indeed it was the subject of controversy in many sectors of the State.

1 CNN, “Sandy Hook shooting: What happened?”, http://www.cnn.com/interactive/2012/12/us/sandy-hook-timeline/, 20122 Michael Pearson, CNN, “Gunman turns 'Batman' screening into real-life 'horror film'”, http://www.cnn.com/2012/07/20/us/colorado-theater-shooting/, July 2012

New York SAFE Act

Passing the Senate on the 14th January 2013 with a vote of 43-19, and in the Assembly on the

15th January 104-34, 3 bill number 3288 amended a number of provisions in New York State

law regarding the possession, sale and transfer of firearms, long guns, assault weapons and

ammunition. Affecting areas of law in criminal procedure, correction, executive, general

business, judiciary, mental hygiene, and penal elements, the 46 page document covered a

breadth of information relating to gun control and gun access in the New York State.4 The Act

was wide reaching and more detailed exploration is needed to fully understand the strength of

feeling it generated throughout the State.

One significant element of the SAFE Act is the redefined classification of “assault weapons”,

paired with a new registration requirement for those who lawfully owned such guns before the

enactment of the new statute. This provision had one of the most extensive effects on the

public as the new definition changed the accepted variety of rifles, shotguns and handguns with

a new definition of assault weapons. Those with existing firearms licenses were also required to

renew or recertify these permits every 5 years.5 Furthermore there was a ban on the transfer of

assault weapons within New York State, including transfer by inheritance. The aim of the

legislation was to protect citizens from abuse of the weapons, but the consequential effect on

law abiding citizens was the subject of much heated discussion.

A second legislative change was a restriction on the types of magazines that individuals are

allowed to possess and limits on the number of rounds permitted to be loaded in a magazine.

Although a person may continue to possess magazines with a capacity of 10 rounds, the SAFE

Act “prohibits having more than 7 rounds loaded in any particular magazine.”6 Consequent

3 Legislative Retrieval System, “A2388”, http://leginfo.nysa.us/asmsen/navigate.cgi?NVDTO:, January 20134 Legislative Bill Drafting Commission - LBDC, State Of New York, “Senate – Assembly”, January 20135 The Office of Division Counsel, page 1, “Guide to The New York Safe Act for Members of the Division of State Police”, http://www.nypdcea.org/pdfs/NYSP_Safe_Act_Field_Guide.pdf, September 20136 The Office of Division Counsel, page 9, “Guide to The New York Safe Act for Members of the Division of State Police”, http://www.nypdcea.org/pdfs/NYSP_Safe_Act_Field_Guide.pdf, September 2013

opposition, with complaints by plaintiffs including the New York State Rifle & Pistol Association

led to the Federal Court in March 2014 holding this section; “Unlawful Possession of Certain

Ammunition Feeding Devices, was unconstitutional. As a result of the Court's decision members

are instructed not to enforce PL 265.37 at this time.”7 Currently however there remains

confusion and inconsistent action over this provision in the SAFE Act, with some police

enforcement agencies making arrests and other not.

The legislation also sought to keep guns out of the hands of people with mental illnesses by

requiring mental health professionals to report to the authorities any patient who was

considered to be dangerous. As a result about 34,500 people in New York are now barred from

having guns.8 Some mental health advocates have expressed concern that too many people

have been categorized as dangerous, whilst some experts claim the provision “will create a

chilling effect on people who need professional help but might otherwise avoid it because

their weapons might be taken away.”9

Other legislative changes have their supporters and those who object to their inclusion. The

requirement of a NICS (National Instant Criminal Background Check) for private sales of firearms

subject to certain exceptions may be seen as beneficial or as unduly intrusive and difficult to

enforce. Other elements including the establishment of several new penal law offences,

enhancement of the penalties for existing offences, and exemption of records relating to the Act

from public disclosure, provided a wide array of new gun control measures applicable in New

York State.

Initial Response7 Rick Karlin, Times Union, “State Police guide amended to ignore seven-round rule after court ruling on NY SAFE Act”, http://www.timesunion.com/local/article/State-Police-guide-amended-to-ignore-seven-round-5355959.php, March 20148Anemona Hartocollis, NY Times, “Mental Health Issues Put 34,500 on New York’s No-Guns List”, http://www.nytimes.com/2014/10/19/nyregion/mental-reports-put-34500-on-new-yorks-no-guns-list.html, October 20149 Phil Fairbanks, Buffalo News, “Nation’s big-city police chiefs’ group supports SAFE Act”, http://www.buffalonews.com/20130624/nation_x2019_s_big_city_police_chiefs_x2019_group_supports_safe_act.html, June 2013

Reaction to the Act was both varied and plentiful. Republicans, Democrats, gun clubs,

anti-gun clubs, police enforcement and lobbyists were amongst those who were vociferous

and speedy in their response. The wide reaching implications of the bill aroused strong

emotions, and although it was always assumed that the Act would face opposition, the scale

of that opposition was worrying. In the New York State Assembly and Senate there was

certainly a divide in support between the Republicans and Democrats. Passionate

arguments were heard in the Assembly as the Act became the focus of attention for many of

the Assembly Members. Although arguments for and against were vocal, the words reform

and repeal quickly became associated with the Act. The strength of feeling evoked in some

members led to a campaign focus against its introduction. In demonstrating such strength of

feeling, members were reflecting the views of many of their constituents.

Being one of the hardest affected areas of society, the response by gun club members

was instantaneous. Large gun associations such as National Rifle Association and New York

State Rifle & Pistol Association soon began legal action against the Act, with the latter filing

a lawsuit against Governor Cuomo within 3 months of the Act’s introduction.10 Petitions for

reform or repeal quickly became organised, with tens of thousands of signatures supporting

them. Gun club members had an overwhelming sense that the Act was unfair, unpractical

and inaccurate, criminalising individuals under the new definitions of assault weapons.

Whilst a negative reaction from gun clubs was to some extent expected, such a response by

the police was not. Their support of the legislation would be of prime importance in its

effectiveness, their initial response would be an important insight into its likely success.

Firstly, The New York State Sheriff’s Association stated that whilst they agreed with some

terms of the Act they, “strongly believe that modifications are needed to clarify the intent of

10 United States District Court, “New York State Rifle And Pistol Association, Inc., et, al v. Andrew M. Cuomo” https://www.nysrpa.org/files/SAFE/NYSRPA-SAFE-Memo-Preliminary-Injunction.pdf, April 2013

some of these new provisions and that revisions are needed to allow Sheriffs to properly

enforce the law in their counties.”11 This view was reflected in other police statements.

Supporting this feature the New York State Police said, “As with many large legislative

initiatives, the SAFE Act has raised questions from members of the field relating to the scope of

the Act and its effect on those police officers who will have the responsibility to enforce the

various provisions.”12 Moreover in some cases, such as the Albany Police Officers Union,

there was complete opposition; “The Albany Police Officers Union condemns and opposes

the New York Secure Ammunition and Firearms Enforcement Act.”13

Such comments should be balanced against some more positive views expressed. Overall it

can be said that a general feeling from those responsible for enforcement was a lack of certainty

about whether the Act was fair and enforceable. However this lack of wholehearted support

would present obstacles for its introduction, without the backing of those who would

implement it, legislation could easily fail.

In contrast to the negative comments outlined, others voiced approval of the SAFE Act. Many

Assembly Members, anti-gun clubs, and associations came to support its introduction,

perceiving it in a positive light. The first wave of positive response could be seen through groups

such as New Yorkers Against Gun Violence who described the Act as, “one of the most

comprehensive gun laws in the nation, with provisions to keep guns out of the hands of

dangerous individuals and bans on assault weapons and high-capacity magazines.”14 Some

viewed it as an innovative piece of legislation which led the way for the rest of America to

bring about reform to reduce gun crime.

11 New York State Sheriffs' Association, “Sheriffs’ Response to NY SAFE Act”, http://www.nysheriffs.org/articles/sheriffs%E2%80%99-response-ny-safe-act, Date N/A12 The Office of Division Counsel, page 1, “Guide to The New York Safe Act for Members of the Division of State Police”, http://www.nypdcea.org/pdfs/NYSP_Safe_Act_Field_Guide.pdf, September 201313 Albany Police Officers Union, https://www.nysrpa.org/files/SAFE/AlbanyPoliceUnionLetter.pdf, April 201314 New Yorkers Against Gun Violence, “Gun Debate on NY SAFE Act”, http://nyagv.org/event-ny-safe-act-debates-friday-april-5/, April 2013

Another area of support came from the Major City Chiefs Association who said, “Assault

weapons are enablers of violent crime and mass murder… the type of semiautomatic rifle

used in Webster is now banned as an assault weapon under the SAFE Act.”15 The Webster

incident was a shooting in December 2012 in which a gunman ambushed fire fighters

attending a house fire in the Rochester suburb of Webster, N.Y, killing two firemen.16 The

weapons used were banned under the SAFE Act. Of course the bill couldn’t have passed into

legislation without the support and vote of a majority in the Assembly. Despite the concerns

indicated, a number of high ranking Assembly Members quickly voiced support for Act,

regarding it the most efficient and necessarily tough gun control law in the United States.

Initial response by society as a whole to the SAFE Act could be said to be more negative

than positive. The application of a new definition of assault weapon provided the biggest

focus point for most of those negative responses. Disapproval of the Act was to be expected

from some sectors, but its momentum especially in New York City was perhaps wider and

stronger than would be predicted. Yet whether or not the Act had gained popular support, it

was still an established law in the New York State.

Implications On Assigned Member & Their District

My assigned Assembly Member is Bill Nojay who is the representative of the 133rd

Assembly District of New York State. As a member of the minority Republican Party he was

elected to the Assembly in 2012. Made up of Livingston County, and parts of Monroe

County and Steuben County, the district is a very rural area just below the city of Rochester.

Shooting is a widely accepted and supported interest with almost all households owning a

15 Phil Fairbanks, Buffalo News, “Nation’s big-city police chiefs’ group supports SAFE Act”, http://www.buffalonews.com/20130624/nation_x2019_s_big_city_police_chiefs_x2019_group_supports_safe_act.html, June 201316 Victoria Freile and Doug Stanglin, USA Today, “4 firefighters shot, 2 killed at Webster, N.Y., fire”, http://www.usatoday.com/story/news/nation/2012/12/24/webster-new-york-firefighter-shot/1788917/, December 2013

firearm. The introduction of the SAFE Act was inevitably a heated topic of debate amongst

the constituents of the district and the subject of many petitions to Assemblyman Nojay.

Within the 133rd district there are 18 gun clubs, some with over 1,000 members. The

effect of the SAFE Act upon his constituents, especially the large number of gun owners, was

prolific. Many constituents have raised concerns that enhanced regulation of firearms is a

stride towards total seizure of all firearms. The Assemblyman himself voted against the SAFE

Act and has been very outspoken against it; he has created, co-sponsored and multi-sponsored

numerous repeal bills. In doing so Assemblyman Nojay is acting to reflect the concerns of many

of his constituents and to represent their wishes.

Repeal Of The SAFE Act

Assembly Bill A3943 & Senate S1193

Given the haste in which the New York SAFE Act was adopted, and the breadth of its

reach, it is no surprise that many questions arose about how the Act would be interpreted in

relation to firearm owners, dealers, distributors, manufacturers and the law enforcement

community. These questions were soon translated into political action. From day one of its

introduction a variety of reform and repeal bills have been sought. In the years since its

introduction, the Assembly and Senate have seen a number of political campaigns from

politicians and candidates, especially those from Upstate New York, run supporting repeal.

The most recent repeal bill was introduced in 2015 by Assemblyman David DiPietro, a

Republican member of the New York State Assembly representing 147th district, and Senator

Kathleen Marchoine, also a Republican serving as a State Senator from New York's 43rd

district. The same-as bill would repeal chapter 1 of the laws of 2013, “amending the criminal

procedure law and other laws relating to suspension and revocation of firearms licenses;

private sales or disposal of firearms, rifles or shotguns.”17 Effectively seeking to repeal the

controversial provisions of the SAFE Act, the bill has gained support from the general public

as well as many interest groups. There are a plethora of reasons why politicians and the

public have sought repeal of the Act. Some of the major objections cited will now be

discussed in more depth.

Justifications

I) Unconstitutional - Second Amendment

One justification for the repeal bill is the complaint that the introduction of the SAFE Act

was unconstitutional. Citing the Second Amendment, an argument has been raised that the

Act goes against one of the supreme laws ratified in 1788 by the Founding Fathers, and that

it needs to be repealed to preserve the Amendment. Quoting from the constitution the

Amendment states; “A well-regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.”18 Citing this supreme

law demonstrates how opponents perceive the Act to be an infringement on civil liberties.

The ability of an individual to defend themselves is a right enshrined in the Second

Amendment, allowing citizens the right of weapons to self-defence.

In recent times major court cases have addressed this issue. The cases of District of

Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) enhanced support for

reform due to concerns the Act is unconstitutional. In the case of Heller the Supreme Court

found, “The Second Amendment protects an individual right to possess a firearm

unconnected with service in a militia, and to use that arm for traditionally lawful purposes,

such as self-defence within the home.”19 Consequently the Court found that protection for

17 Legislative Retrieval System, “A3943”, January 201518 Cornell University Law School, “Second Amendment”, https://www.law.cornell.edu/wex/second_amendment, Date N/A19 Supreme Court of the United States, “DISTRICT OF COLUMBIA ET AL. v. HELLER”, October 2007

citizens who own, acquire or handle weapons for common and lawful function would be

banned under the SAFE Act. Referring to the judicial comments concerning ‘individual right’

many supporters use this as evidence in their justification of the need for repeal.

Further support can be found in the McDonald case as the Supreme Court found the right

of an individual to "keep and bear arms protected by the Second Amendment is

incorporated by the Due Process Clause of the Fourteenth Amendment.”20 The Due Process

Clause prohibits State and local government officials from depriving persons of life, liberty,

or property without legislative authorization. This clause has also been used by the Federal

Judiciary to inform most of the Bill of Rights, which was created to protect and enumerate

the rights of citizens, applicable to all States. Effectively it applies the Second Amendment to

the Constitution and to the Federal and State government. In the McDonald case the

majority found the right to bear arms to be a fundamental right.

II) “Message Of Necessity”

Another justification for the repeal bill is unease about the manner in which the Act was

signed into law. Since 1938, the New York State Constitution has required a proposed bill to

age for three days before it is allowed to be voted on. The Constitution states, “No bill shall

be passed or become a law unless it shall have been printed and upon the desks of the

members, in its final form, at least three calendar legislative days prior to its final passage.”21

This rule is applied so that legislators have the time to read and understand the bill before

casting a vote. But the Governor can waive the rule if, in their opinion, it necessitates an

immediate vote. Under this power the governor, “shall have certified, under his or her hand

and the seal of the state, the facts which in his or her opinion necessitate an immediate vote

20 Supreme Court of the United States, “MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL”, October 200921 Michelle Breidenbach, Syracuse.com, “The Safe Act "emergency": How Cuomo, past governors bypassed public to make laws”, http://www.syracuse.com/news/index.ssf/2013/03/state_emergency_gun_law.html, March 2013

thereon.”22

Concerns have been raised that one of the keynotes of legislative democracy, the

opportunity for constituents to be informed of proposed legislation and provide feedback

on their views, has been bypassed by the use of necessity. Not only did its application make

it impossible for the legislators to seek informed views from the public, but the lengthy 46

page document made it difficult for the legislators to read and absorb the implications of all

the information it contained before making a decision.

Governor Cuomo justified his use of necessity by explaining; “Some weapons are so

dangerous, and some ammunition devices are so lethal, that New York State must act

without delay to prohibit their continued sale and possession in the state in order to protect

its children, first responders and citizens as soon as possible… For this reason, in addition to

enacting a comprehensive package of measures that further protects the public, immediate

action by the Legislature is imperative.”23 It may be argued that the use of necessity was not

clear and that there is a lack of clarity about when it should be applied. Furthermore there

was a view that it was not required in this specific case, as many aspects of the SAFE Act

were not applied until several months after its passage into law suggesting there was no

need for such haste.

The SAFE Act appears to have angered the public more than any other bill which has

been processed so quickly through the legislative stages. Governor Cuomo evoked a fierce

reaction from his use of a message of necessity, with Republicans and Democrats alike

accusing him of using the Act just for his own personal political goals. The root of such

concern is the fact that the Act was passed with no hearings, no testimony, and no time for 22 Michelle Breidenbach, Syracuse.com, “The Safe Act "emergency": How Cuomo, past governors bypassed public to make laws”, http://www.syracuse.com/news/index.ssf/2013/03/state_emergency_gun_law.html, March 201323 Nick Reisman, Time Warner Cable News, “Cuomo’s Message Of Necessity On Guns”, http://www.nystateofpolitics.com/2013/01/cuomos-message-of-necessity-on-guns/, January 2013

opponents to make a case to their legislators and no opportunity for informed debate. It

was introduced, passed through both houses, and signed into law by Governor Cuomo in

just two days.

III) Gun Control Is Ineffective

The belief that gun control is ineffective provides the biggest social justification for a

repeal bill. Politicians from both sides of the aisle, but especially Republicans, tend to

believe that removing guns from law abiding people does not serve to keep the State or

country safer. One notable factor in the mass shootings in the past two decades is that most

of them have taken places in ‘gun free’ areas.24 Despite a recent focus on greater gun

control, it does not necessarily follow that this will result in fewer gun crimes.

This can be clearly illustrated in the State of Connecticut, where the Sandy Hook

Elementary School shooting took place, as the gun murder rate in Connecticut has doubled

since 2005 from 1.3 per 100,000 persons to 2.6 per 100,000.25 Yet gun laws have assumed

particular significance in the State since the event, with the Assembly passing some of the

nation’s toughest gun laws, similar in character to those of the SAFE Act.

Another issue lies in the feasibility of making arrests in relation to the new legislation.

Data released by the State shows that one major fear among gun owners has not come to

fruition; law enforcement officials have not gone out of their way to enforce provisions of

the SAFE Act against otherwise law-abiding state residents.26 The State Sheriffs Association

has raised numerous concerns concerning the law and says it's difficult to enforce, indeed

24 Erich Pratt, USNEWS, “Stricter Gun Control Laws Will Only Make Citizens Less Safe”, http://www.usnews.com/debate-club/did-the-sandy-hook-shooting-prove-the-need-for-more-gun-control/stricter-gun-control-laws-will-only-make-citizens-less-safe, December 201225 Connecticut Against Gun Violence, “Facts”, http://www.cagv.org/facts/, 201326 Thomas Kaplan, NY Times, “Cuomo’s Gun Law Plays Well Downstate but Alienates Upstate”, http://www.nytimes.com/2014/10/25/nyregion/with-gun-act-cuomo-alienates-upstate-new-york-constituency.html?module=Search&mabReward=relbias%3Aw%2C{%221%22%3A%22RI%3A11%22}&_r=0, October 2014

some counties and municipalities are actually instructing their workers not to implement all

aspects of the act. This limited implementation by the police force has provided one of the

most compelling advocates of repeal.

IV) Other Reasons

According to the FBI Uniform Crime Reports published in 2013, the rate of homicide per

100,000 in New York State had fallen from 4.9 in 2003 to 3.5 in 2013.27 The rate had fallen

1.4% before the introduction of the Act, so it may be argued that this reflects a pattern of

reduction which would have occurred anyway, further bringing into question the need for

the Act. Many law abiding citizens feel that it was unnecessary. Although a considered

response to the traumatic mass shootings should not be questioned, punishing those who

had not broken the law but found themselves criminalised under rushed new guidelines is

open to question. As in New York State, the national murder rate is also in a decline. In 2013

the rate was 4.7 per 100,000, down from 5.7 a decade ago. New York State was ranked 30th

in murder rates nationally in 2013 yet introduced one, if not, the toughest gun laws in the

country.28

29

27 Death Penalty Information Centre, “NATIONWIDE MURDER RATES, 1996 – 2013”, http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state#MRalpha, 201528 Death Penalty Information Centre, “NATIONWIDE MURDER RATES” http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state#MRord, 201529 Death Penalty Information Center, “National Murder Rate 1970 – 2011”, http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state#MRord, 2015

Socially, there is also a view that citizens have begun to alter their opinion on gun

regulation. A recently conducted comparative survey found that just over ten years ago

three in five Americans, 60%, favoured stricter laws regulating the sale of firearms

compared with 47% now. This percentage is significantly below the 58% recorded in 2012

after the school shooting in Newtown, Connecticut, which was the major influencing factor

for the SAFE Act. The call for more stringent laws has reduced to near-record low.

30

Support Of The Repeal

Assembly & Senate

Support of the repeal bill has been found in both the Assembly and Senate, with many

openly expressing their desire for changes to the SAFE Act. Most, if not all of this support

has derived from Republicans, usually from Upstate New York. As a representative of the

147th District just outside of Buffalo, Assemblyman DiPietro, who introduced the repeal bill,

has received numerous Republican multi-sponsors. Currently there are 25 co-sponsors of

the bill, notably Assembly Member Certetto, Friend, Graf, Crouch, Hawley, Katz, Barclay,

30 Art Swift, Gallup Poll Social Series, “Less Than Half of Americans Support Stricter Gun Laws”, http://www.gallup.com/poll/179045/less-half-americans-support-stricter-gun-laws.aspx, October 2014

Lalor, Lopez, Finch, Corwin, Palmesano, Giglio, Nojay, Oaks, Tedisco, Brabenec, Murray,

Wozniak, Goodell, Kolb, Lawrence, Kearns, Stec and Guntur. Blankenbush, Magee, and

Montesano are also multi-sponsors. Many others have voiced opposition in the Assembly

but have not gone as far as to sponsor legislation of repeal.

The same-as bill introduced in the Senate by Senator Kathleen Marchione has also gained

the support of 14 co-sponsors. Senators Amedore, Boyle, Croci, DeFrancisco, Farley, Funke,

Gallivan, Larkin, Libous, Murphy, O’Mara, Ranzenhofer, Ritchie, and Seward have signed. In

total 44 members across both houses have committed to repeal of the SAFE Act bill and as

representatives of their constituents, this provides an insight into the views of those living

within the districts.

Interviewing Assemblyman DiPietro

I was fortunate to be able to interview the lead sponsor of the repeal, gaining a useful

insight into his concerns, hopes and expectations. Indicating the Second Amendment as the

main reason for the repeal bill, the Assemblyman nevertheless described the prospects of

success as “slim to none in a democratic Assembly.” Whilst he commented that there is

room for compromise from the gun owners, he felt this wasn’t likely from the governor. He

described the SAFE Act as, “the worst bill ever written, from every angle.”31

Interviewing Assemblyman Nojay

As a great supporter of repeal of the SAFE Act, my assigned Assembly Member reflected

the ideology of Assemblyman DiPietro and many others by referencing the importance of

the right to self-defence via the Second Amendment. He stated that the Act was a

“government restriction on individual liberty and freedom.” Likewise, he felt that

compromise should be possible but he believes that there isn’t the will from the political left

31 Greg Whittaker. Personal interview with Assemblyman David DiPeitro on March 10th, 2015

to achieve this. However as a representative of the 133rd District, the Assemblyman is vocal

in expressing the concerns of the constituents. In his final comments he said, “The SAFE Act

will be a raging political battle for years to come.”32

Opposition To Repeal

Assembly & Senate

Despite considerable opposition there are Assembly Members and Senators who

continue to voice support for the SAFE Act. One factor in the introduction was that

bipartisan support was used. Many use this fact to demonstrate the bill wasn’t as

controversial as it may first appear. Opposition to repeal can be heard in the Assembly

through members such as Silver, Lenthol, Cahill, and Weinstein and in the Senate

from Senators Klein, Parelta, Smith, and Skelos. Those who oppose a repeal bill will be

representing the views of the majority of their constituents. Demographically speaking this

indicates that most of the opposition is from or surrounding New York City, where the SAFE

Act is generally perceived as a comprehensive positive piece of legislation.

Interviewing Assemblyman Lenthol

As Chair of Codes Committee, Assemblyman Joseph Lenthol remains a lead supporter of

the SAFE Act. In a personal interview, he informed me that he believed it was the right time

to pass the law, pointing out in particular the clauses keeping guns out the hands of the

mentally unstable. He hoped the creation of the Act would “make it more difficult for large

numbers to be killed.” Discussing a repeal of the SAFE Act, the Assemblyman said there

should be no repeal as “New York is setting the precedent for the rest of the country.” He

felt repeal would be particularly challenging for those affected by the shootings. He

expressed a belief that compromise could be reached, but not with the section relating to

32 Greg Whittaker. Personal interview with Assemblyman Bill Nojay on March 11th, 2015

ownership of guns by those with mental instability. In his final comments the Assemblyman

said that we “live in a civilized society, and should act like it. The Act is needed to prevent

senseless murders that happen too often.”33

Other Reasons For Opposition

Some argue that the SAFE Act attempts to address public safety in the face of advances in

firepower and high-capacity rifles and pistols, and that it is a necessary positive step

towards reducing murders and gang killings made possible by these high capacity guns. A

further powerful and emotive argument is also raised that citizens owe support of the Act to

the victims of mass shootings like Sandy Hook, to the community, and to themselves.

Leadership

The leadership of the New York State Legislator provided the political and administrative

foundation for the introduction of the SAFE Act, thus their stance on the legislation is clear.

Governor Cuomo was an avid supporter of the introduction of the SAFE Act, and prides

himself on the introduction of the bill. He has openly supported it and has pushed for New

York State to be at the forefront of gun control in the United States. Reflecting on the

introduction of the Act, the Governor said; "The SAFE Act stops criminals and the

dangerously mentally ill from buying a gun by requiring universal background checks on gun

purchases, increases penalties for people who use illegal guns, mandates life in prison

without parole for anyone who murders a first responder, and imposes the toughest assault

weapons ban in the country.”34 Following the initial hostile reception from many sectors he

stated, "the NY Safe Act is saving lives.”35 He believes that not only was the Act the first of its

33 Greg Whittaker. Personal interview with Assemblyman Joseph Lenthol on March 17th, 201534 Governor Andrew Cuomo, State of New York (NYS), “ NYSAFE”, http://programs.governor.ny.gov/nysafeact/gun-reform, Date N/A35 Teri Weaver, Syracuse.com, “New Cuomo ad claims NY Safe Act 'smartest gun law' in America: campaign fact check”, http://www.syracuse.com/news/index.ssf/2014/10/new_cuomo_ad_claims_ny_safe_act_smartest_gun_law_in_america.html, October 2014

kind in gun control legislation, but also that it was the best.

Speaker of the Assembly, Carl Heastie, has also been a supporter of the legislation. Prior

to becoming the Speaker he stated, “Gun violence has been a problem in our communities

for far too long. Stronger gun laws will let our children and families live without the fear of

random violence taking away everything they hold sacred.”36 Controversially, the leader of

the Republican Senate, Dean Skelos, was one of the main members who helped speedy

introduction of the SAFE Act by suspending Senate rules and bringing the Act to the floor.

He later voted in favour of the SAFE Act and advocated its passage. It is thus evident that

the leadership support the SAFE Act and will not be supporters of A3943.

Policy Entrepreneurs

“Policy entrepreneurs can influence policy changes and decisions. These people invest

their time, knowledge, and skills into promoting policies with which they agree.”37 In this

sense Governor Cuomo, Assemblyman David DiPietro, and Senator Kathleen Marchione are

three policy entrepreneurs for the issue of gun control. The Governor used the event of

Sandy Hook to implement the toughest gun control in the United States. For those who

support repeal, the sponsors of the bill are recognising and responding to the expressed

views of many citizens, gun clubs, local government, and local law enforcement to gain

involvement in gun control policy within New York State.

Divisions

Upstate vs. Downstate

In the passage of such strict new gun laws, Governor Cuomo alienated vocal constituents

36 New Yorkers Against Gun Violence, “On 1st Anniversary of NY SAFE Act, NYAGV and State Legislators Announce 2014 Legislative Priorities”, http://nyagv.org/wp-content/uploads/2014/01/legislative-agenda-2014.pdf, January 201437 Deserai Anderson Crow, The Policy Studies Organization, “Policy Entrepreneurs, Issue Experts, and Water Rights Policy Change in Colorado”, http://sciencepolicy.colorado.edu/admin/publication_files/2010.46.pdf, 2010

across Upstate New York. Assembly Members and citizens across this area see the use of

guns as an integral part of recreational activities, through hunting, sport and also in

protection. There is an apparent divide between members from Upstate and Downstate

New York. So important is the issue that some campaigns run by Upstate Assembly

Members have focused specifically on support of repeal, which in turn got them re-elected.

Cross party voting was also seen in the SAFE Act exemplifying the division. Democrat

Party Members Gunther, Magee, Schimminger, Kearns, Lupardo, Brindisi, and Skoufis voted

no for the SAFE Act as their districts reside in Upstate New York. In the Republican Party

Assembly members Ra, Lupinacci, Curran, Malliotakis, and McDonough voted in favour as

their districts reside in New York City or Long Island.

In contrast to the consensus in Upstate New York, Downstate guns are often viewed as

weapons for breaking the law and allowing greater likelihood for murders. A discrepancy

between the two areas has provided one major focus for ideological arguments surrounding

a repeal bill. The SAFE Act statistics show the vast majority of charges occurred in New York

City. Since the law took effect in March 2013, there were 3,930 arrests as of mid-December,

the overwhelmingly majority of which, 3,230, were in New York City.38 It is therefore no

surprise that most of the support for the Act is found in Downstate New York.

Republicans vs. Democrats

Members of the Assembly and Senate share a common goal of making New York a safer

State, but there are differences of opinion in the best way to achieve this. A large sector of

the Republican Party is actively against the SAFE Act and support a repeal bill, whilst many

Democrats take a different view, especially those from New York City and Long Island. Those

38 Joseph Spector, Democrat & Cornicle, “NY SAFE Act reform on the table”, http://www.democratandchronicle.com/story/news/local/2015/01/08/new-york-safe-act-republicans-gun-law/21468129/, January 2015

Republicans who voted with them in favour of the SAFE Act may have done so because they

represent a liberal district, and would not wish to appear too conservative. As Assembly

Members are subject to re-election every two years, voting records become an influential

factor in constituent decision making. Voting by some Assembly Members for the SAFE Act

may be seen as a politically motivated, rather than inspired by crime reduction.

Prospects

Repeal bill A3943 was recently referred to the Codes Committee, chaired by Joseph

Lenthol, a staunch supporter of the SAFE Act. The likelihood of this bill reaching the floor for

debate therefore appears minuscule with the current majority controlled Democrat

Assembly. The feelings of those opposed to the Act are unlikely to change but such strength

of opposition amongst sections of the Republican Party members is equally unlikely to

spread beyond their side of the aisle. Instead sponsors are seeking to assemble support

from the public. There is a hope amongst some that changes could be made so that a repeal

bill has a better chance to reach the floor. Even so, the chances of it ever going to a debate

and vote appear low.

Has Democracy Been Served?

The very essence of government, democracy, may not have been served in the passage of

the SAFE Act. By using a message of necessity the Governor did not allow enough time for

Assembly Members and Senators to read the bill in depth and to identify the feelings of

their constituents, yet they have a duty to portray their views. I personally believe that the

repeal bill rather than the SAFE Act in its original form provides a platform for democracy as

both sides of the political and geographical divide are able to represent the views of those

they represent, giving considered responses to gun control legislation.

Conclusion

Whilst there is far from universal agreement on the arguments put forward to justify a

repeal bill, it is hard to deny that the creation and implementation of the SAFE Act remains

controversial. Issues such as the hurried legislative process, stated contravention of the

Second Amendment and lack of police and widespread public support continue to arouse

passionate dispute. Combined with a view that gun control is ineffective and identified

changes in public perception of need, these factors provide strong justifications for a repeal

bill. Far from being a democratic process in action, the SAFE Act is perceived by some to

reflect an opportunistic quest for power by Governor Cuomo.

The Act created an historical division, reflecting differing views in Upstate vs. Downstate

New York. There are few members who have not expressed a strong position on the SAFE

Act; political arguments have raged and seem likely to continue. Powerful emotions aroused

in citizens and legislators all impact on demands for the Act to be addressed by repeal. Yet it

appears unlikely that A3943 will ever have the chance to gain debate under the current

Governor and leadership of the Assembly and Senate. For some there is still hope that by a

combination of compromise, enhancing the profile of the repeal bill and gaining momentum

through public support, repeal is still possible. But as described by Assemblyman Nojay, the

SAFE Act is not the end, it’s only the beginning.

Works Cited (A-Z)

Albany Police Officers Union,

https://www.nysrpa.org/files/SAFE/AlbanyPoliceUnionLetter.pdf, April 2013.

Anemona Hartocollis, NY Times, “Mental Health Issues Put 34,500 on New York’s No-Guns

List”, http://www.nytimes.com/2014/10/19/nyregion/mental-reports-put-34500-on-new-

yorks-no-guns-list.html, October 2014.

Art Swift, Gallup Poll Social Series, “Less Than Half of Americans Support Stricter Gun Laws”,

http://www.gallup.com/poll/179045/less-half-americans-support-stricter-gun-laws.aspx,

October 2014.

CNN, “Sandy Hook shooting: What happened?”,

http://www.cnn.com/interactive/2012/12/us/sandy-hook-timeline/, 2012.

Connecticut Against Gun Violence, “Facts”, http://www.cagv.org/facts/, 2013.

Cornell University Law School, “Second Amendment”,

https://www.law.cornell.edu/wex/second_amendment, Date N/A.

Death Penalty Information Centre, “National Murder Rate 1970 – 2011”,

http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state#MRord, 2015.

Death Penalty Information Centre, “NATIONWIDE MURDER RATES”

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Deserai Anderson Crow, The Policy Studies Organization, “Policy Entrepreneurs, Issue

Experts, and Water Rights Policy Change in Colorado”,

http://sciencepolicy.colorado.edu/admin/publication_files/2010.46.pdf, 2010.

Erich Pratt, USNEWS, “Stricter Gun Control Laws Will Only Make Citizens Less Safe”,

http://www.usnews.com/debate-club/did-the-sandy-hook-shooting-prove-the-need-for-

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http://programs.governor.ny.gov/nysafeact/gun-reform, Date N/A.

Greg Whittaker. Personal interview with Assemblyman Bill Nojay on March 11th, 2015.

Greg Whittaker. Personal interview with Assemblyman David DiPeitro on March 10th, 2015.

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Joseph Spector, Democrat & Cornicle, “NY SAFE Act reform on the table”,

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governors bypassed public to make laws”,

http://www.syracuse.com/news/index.ssf/2013/03/state_emergency_gun_law.html, March

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http://www.nysheriffs.org/articles/sheriffs%E2%80%99-response-ny-safe-act, Date N/A.

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http://www.buffalonews.com/20130624/nation_x2019_s_big_city_police_chiefs_x2019_gr

oup_supports_safe_act.html, June 2013.

Rick Karlin, Times Union, “State Police guide amended to ignore seven-round rule after court

ruling on NY SAFE Act”, http://www.timesunion.com/local/article/State-Police-guide-

amended-to-ignore-seven-round-5355959.php, March 2014.

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AL”, October 2009.

Teri Weaver, Syracuse.com, “New Cuomo ad claims NY Safe Act 'smartest gun law' in

America: campaign fact check”,

http://www.syracuse.com/news/index.ssf/2014/10/new_cuomo_ad_claims_ny_safe_act_s

martest_gun_law_in_america.html, October 2014.

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of State Police”, http://www.nypdcea.org/pdfs/NYSP_Safe_Act_Field_Guide.pdf, September

2013.

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%22RI%3A11%22}&_r=0, October 2014.

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Andrew M. Cuomo” https://www.nysrpa.org/files/SAFE/NYSRPA-SAFE-Memo-Preliminary-

Injunction.pdf, April 2013.

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fire”, http://www.usatoday.com/story/news/nation/2012/12/24/webster-new-york-

firefighter-shot/1788917/, December 2013.

APPENDIX A: A3943

APPENDIX B: Memorandum In Support Of Legislation