Academic journal article Albany Law Review

Universal Background Checking - New York's SAFE Act

Academic journal article Albany Law Review

Universal Background Checking - New York's SAFE Act

Article excerpt

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. …

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