Nobody groaned louder on election night than New York gun owners.
With the Democrat landslide in the formerly Republican-controlled state Senate, the fear was that the progressives’ hatred for guns and gun owners would be given free rein in Albany.
And maybe it will be.
But thus far, the gun-control initiatives expected from Gov. Andy have been less frightening than imagined. And depending on how the next three or four months go – and how implementation eventually takes place – the Second Amendment might come through this year’s legislative session none the worse for wear.
I know that’s not what people are saying.
Activists – even us pro-gun activists – like to think that the sky is always falling. In this case, while there is danger, maybe we can get through without any of the pieces falling on us.
Basically, what Andy seems to be advocating is legislation on bump stocks, waiting periods and red flags.
Legislature Democrats may also be looking at gun insurance.
Let’s look at those.
Gun insurance would be a problem. Built around the belief that law-abiding gun owners should be financially liable for damage done with guns stolen from them, some Democrats have said New Yorkers should be required to have $1,000,000 in liability insurance to buy a gun or get a pistol permit. Gun owners rightly fear that this is an attempt to disarm them by making gun ownership unaffordable.
And it would.
Especially for poor people, a disproportionate percentage of whom are – in New York – racial minorities.
Hopefully the fact this law would push the poor and many people of color outside the realm of legal firearm ownership will doom it.
As might the fact that the governor has not seemed to endorse it yet.
Of the things Andy has seemed to advocate, two of them are no problem.
Bump stocks, for example, are already (newly) banned by the federal government. The governor’s proposal would seem to merely backstop that federal ban and probably criminalize those which are already owned in the state.
Which is fine. Bump stocks have always been wrong. Since the 1930s, gun owners and federal courts have been OK with the government’s ban – for most people – on the ownership of machineguns and other fully automatic arms. That ban was meant to be on rate of fire, not mechanism, and the effort of bump stocks to step around mechanism to get to rate of fire has always been weaselly.
From the standpoint of the Second Amendment, banning bump stocks is no harm, no foul.
Andy’s background-check proposal has most gun owners scratching their heads, as it addresses a problem that exists only in theory.
When you buy a gun, you have to go through an FBI background check. That sounds more impressive than it is. As a practical matter, you fill out a form, the gun dealer calls a special number, gives them your name and information, and somebody looks you up in a federal data base, to see if you’re disqualified from owning a gun, for being a felon or dishonorably discharged or adjudged insane or something like that.
Then, after maybe three to five minutes, the gun dealer comes back with your OK and you’re cleared to buy the gun. From the standpoint of ease and convenience for the gun buyer, I’ve always thought the system is great.
But currently, in law, there is a three-day default to the buyer. Meaning that, if for whatever reason, the FBI doesn’t have an answer for you in three days, you get cleared automatically and can buy the gun. What Andy reportedly wants to do is make that default time 10 days instead of three.
To the ears of people not familiar with buying guns, that sounds like they’re extending a cooling-off period or something. To people who’ve never seen it take more than 20 minutes or half an hour, like I said, it’s a head scratcher.
But as a practical matter, it will almost never be an impediment to the lawful purchase of a firearm by a legal buyer.
From the standpoint of the Second Amendment, 10 days instead of three is no harm, no foul.
Where the red flags go up is when we start talking about red flags. Not that the idea of interceding to disarm troubled people is a bad one, but that there are chances of misuse of this new and broad governmental power.
As typically explained, the governor’s red-flag proposal would empower two teachers or police officers to go to a judge and ask that a person be determined dangerous to himself or others so that that person or that person’s home can be disarmed for a period of up to one year.
That might be a good idea.
But it needs to be legally constituted in such a way as to protect against misuse by teachers or police who are ignorant, vindictive or anti-gun. It has to advance the public’s interest in safety, not some empowered individuals’ antipathy toward guns. Red flag can’t be written so that it empowers activist teachers to go on anti-gun crusades, and it must recognize the specific but limited expertise of teachers.
It must also respect the Fourth Amendment spirit of probable cause.
And it must recognize that some local judges are anti-gun tyrants.
All across New York, there are county judges who, for no other reason than personal pique or prejudice, refuse to sign any concealed-carry pistol permits. This results in a patchwork of gun access across the state.
Empowering those anti-gun judges to disarm people and households could easily lead to improper use of the new red-flag power and uneven impact of this law from county to county.To avoid this, there should be a rapid, one-level appeal process. If the judge orders guns out of the home, the subject of the order could look to the first base umpire, to make sure the call was a good one.
If there could be protections against misuse by teachers, police and judges, the red flag idea could be a useful one. Our society and law have long accepted the view that the insane – especially the dangerously insane – could reasonably have their rights curbed, at least temporarily. This restriction would merely do that in regard to gun access.
From the standpoint of the Second Amendment, a red flag – done right and with controls -- is no harm, no foul.
So it might not be that bad.
For gun owners, the legislative session with Democrats in charge, it might not be that bad.
Let’s keep our fingers crossed.
(Photo by Drew Angerer/Getty Images)