Monday, January 7, 2013

Getting A Gun in New York

    Two years ago while preparing to deliver a lecture at Purchase College, the State University  of New York on ‘Gun Violence in America’ I decided to see what it would take for me to legally acquire a gun in Westchester County, New York, where I live. The first step in the process involved signing up for a National Rifle Association gun safety course costing $120 dollars, plus $15 for  NRA study material. I had to register at the range in-person and present a valid photo ID, which also had to be carried when attending class. The course was taught by two NRA certified instructors who covered rules for safe gun handling which   included keeping it unloaded until ready to use, keeping one’s finger off the trigger until ready to shoot, keeping the barrel pointed in a safe direction as dictated by the situation, safe storage, the characteristics of different types of guns, and local carry laws. After taking a paper and pencil exam in the last class   I was given a certificate attesting to the fact that had completed the course with a ‘Written NRA test score’ of 94. The certificate bore the instructor’s notary-like seal and was no good without it.

     The next stop was the County Police Pistol License Unit where I was given two sets  of forms and a 32-page manual, Pistol License Safety and Information Handbook for Westchester County.   One set of forms  was for character references,  the other was a multipage ‘Background Investigation Worksheet’ which sought standard information such as present and past addresses and employment status, but also contained a series of questions asking whether I had ever been treated for substance abuse or mental illness, whether a court Order of Protection had ever been issued against me or for me, and whether I had ever been arrested or charged with a crime. There were also forms requiring my notarized signature authorizing the County Police to do a criminal background check on me and have the State Department of Mental Hygiene  conduct a search of their records for my name. I had my character references fill out their forms and affix their notarized signatures, and I identified the gun for which I would seek a license, either a 15-shot Smith and Wesson  or a 17-shot Glock. I could have requested a ‘full carry’ license or one for  premises only  or  employment only,  but ultimately  the Licensing Officer retained the discretion to restrict the purpose of possession to such activities as  target shooting or hunting. I indicated on a form that I would use my gun for target shooting.  

     The only remaining step was to hand in the notarized character references, and the ‘Background  Investigation’ forms  along with proof of residence and citizenship, information about the gun, and the training certificate establishing that I had taken and passed the NRA course,  but that is as far as I went.        I went through all of the steps in the licensing process because I wanted to be able to speak more authoritatively on that aspect of the larger issue of  guns in American society, not because I felt a personal need to own one.  There is absolutely no question that  had I submitted the paper work I would have been licensed and would have had the legal right to own a gun in New York.

      Based on this experience I would say the following about the process in New York and about the larger issue of gun regulation in the United States? Let me address these matters in terms of a series of questions and answers.

       1.    Did I have a constitutional right to be licensed to  own a gun?

               In a 5-4 decision in the Heller case, decided in, 2008,  the Supreme Court  overturned decades of prior court decisions and said “yes”

       2.    Did New York violate my constitutional right to own a gun by requiring that I jump through a series  of hoops—time, money, copious paper work---in order to enjoy this right?

               No it did not..  No constitutional right necessarily comes without restrictions.  The right to vote is fundamental, but states surround the exercise of that right with a number of regulations legitimately intended to maintain the integrity of the democratic process. The First Amendment “free speech” clause does not give anyone the right to deal in  child pornography nor, as Supreme Court Justice Oliver Wendall  Holmes famously wrote in the  Schenk case, does  free speech  mean the right to  shout ‘fire’ in a crowded theater when there is no fire.  In other words the state can impose reasonable restrictions on the exercise of a constitutional   right when those restrictions are crucial to public safety and welfare.

3.       Are gun regulations necessary to public safety and welfare?

                    The answer unequivocally is ‘yes’. Viewed as a public health issue guns cause in access of 30,000 deaths a year, unrelated to crime prevention or self defense, and an additional, estimated 200,000 injuries. The presence of firearms, acknowledged as a constitutional right, nevertheless imposes   enormous costs on the society by exposing much of the population to potentially lethal danger. Obviously, society has a right and a duty to require adherence to reasonable regulation in exchange for the exercise of that right.

4.       Are New York regulations a model for the nation?

                  The answer is ‘yes’ and ‘no’. New York is a tough state in terms of access to firearms. In some states guns  can be bought as easily as buying a six pack of beer. But, on the other hand, New York is not tough enough. I would surely have been licensed had I submitted the paper work, but should not have been. I have used firearms in the past for hunting and target practice, but in circumstances in which there were experienced hunters around or army instructors. Put simply, the training course was not rigorous enough, through no fault of the instructors. They taught what they were expected to teach. There are calls in the national debate for universal mental health, criminal history, and civil misbehavior background checks for would-be gun owners. Westchester County already does these things and is to be commended, but it is not enough.  Serious federally-mandated regulations should go beyond what is done in a tough state like New York and embrace at least the following without violating any one’s constitutional rights:

A.      Seriously rigorous mandatory classes in gun safety and use, and

B.      mandatory background checks  whether the firearm is purchased from a licensed dealer or purchased privately (presently private sales do not require background checks).

C.      Technical and definitional issues complicate designating certain classes of firearms as ‘assault weapons’ but serious legislators  can overcome these and  ban civilian possession of weapons, clips, and magazines  meant primarily for mass killing.

D.      The assault weapons ban in effect from 1994 to 2004 left thousands of high-powered guns in private hands.  New legislation should contain a federal ‘buy-back’ program for assault weapons presently in civilian hands.  

         E.    States with lax gun laws  presently impose enormous costs on states with tough gun laws   given that much           of the gun mayhem in tough states involves weapons brought in from easy states. Tough states might consider bringing suit in  federal court for recovery of money damages and, if successful, might provide an incentive to easy states to toughen their laws in order to avoid the financial hit from failing to do so.  

       Constitutional rights, properly exercised, enhanced the collective good: more people are able to vote;  more people contribute to public discourse by speaking freely;  more people enjoy  equity in the work place. On the other hand, a conception of  ‘rights’ that decreases the collective good by making it more likely that innocent citizens will be gunned down in malls,  movie theaters,  schools, churches or other ‘safe’ places is an affront to the Constitution and those who died defending it.     




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