Scholarship Highlight: James B. Jacobs & Zoe Fuhr, “The Toughest Gun Control Law in the Nation” (NYU Press 2019)

Yesterday, amici filed briefs in support of the City in New York State Rifle & Pistol Association Inc. v. City of New York—the Second Amendment case that many thought (and some still think) might be a blockbuster. (Full disclosure: Along with Darrell Miller and Eric Ruben, I submitted an amicus brief in support of neither side.) There is much to say about the implications for the future of the Second Amendment, but the strange saga of NYSRPA so far also raises interesting questions about the law and politics surrounding New York’s gun laws.

Over the past few years, no scholars have done more to explore those questions than Jim Jacobs and Zoe Fuhr of NYU. (Jacobs is the Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts at NYU School of Law, and Zoe Fuhr earned her LLM at NYU and served as a fellow at the Center for Research in Crime and Justice.) In prior work, they have explored various aspects of New York’s SAFE Act, passed in 2013 in the wake of Sandy Hook. Now they have completed a book on the topic, which will certainly be a standard reference.

The Toughest Gun Control Law in the Nation: The Unfulfilled Promise of New York’s SAFE Act (NYU Press 2019) is, among other things, a lengthy case study of the SAFE Act—the politics that led to its passage, whether it was “necessary,” and how it works in practice. This alone would be a sufficient reason to recommend the book, given the prominence of New York’s gun laws in the broader debate about gun regulation and the Second Amendment. But Jacobs and Fuhr do much more than that, and a few themes in particular are worth highlighting.

For one thing, the book consistently emphasizes the gap between the passage of gun regulations and their implementation and enforcement. It is one thing to forbid persons subject to a domestic violence protection order from possessing a weapon. It is quite another thing to enforce that prohibition, especially in a state where roughly 300,000 such orders were issued in 2015.

In the legal academy, at least, discussions of gun regulation too often focus either on laws-on-the-books or cases-in-the-courts, rather than on law enforcement as such. In that respect, Jacobs and Fuhr help shed light on how gun laws actually work—a virtue their work has in common with Emily Bazelon’s Charged, which among other things explores the roles of prosecutors and gun courts in New York.

Unsurprisingly, Jacobs and Fuhr are not particularly interested in “symbolic” gun regulation or “political theater.” They show how, especially in a state like New York that already has relatively stringent gun regulations, the urge to “do something” in the wake of an atrocity like Sandy Hook might not actually result in meaningful change.

That does not necessarily mean that further regulations would be pointless, only that the implementation problem becomes harder when parts of the state—New York City, for example—is already subject to strict laws and relatively zealous enforcement. The challenge becomes how to make that enforcement more uniform, as Frank Zimring notes in his introduction to the book:

The geographic areas and units of government where the new controls make the most demands on local officials and citizens are also the places where both citizens and law enforcement officials are the least supportive of firearms control and its attendant paperwork. Making programs such as recertification and mental health reporting requirements work well in upstate counties and cities is a challenge that demands careful administrative planning and diplomatic skills in the care and feeding of local enforcement.

Zimring’s introduction, in turn, reminded me of a line from Mike Dorf’s terrific piece in the Duke Law Journal Online last year:

I live and work in a liberal enclave (Ithaca) within a conservative region (central New York State). When I venture a few miles from home I frequently see yard signs that read “Support the Second Amendment: Repeal the SAFE Act.”

Dorf notes that provisions of the SAFE Act have been upheld by the Second Circuit, but that the people who post such signs “would say that the real Second Amendment bars the SAFE Act, regardless of the ruling.”

There will surely be many more such rulings, as the law and politics of the SAFE Act are likely to remain central to the development of the Second Amendment and the broader gun debate. That makes Jacobs and Fuhr’s book essential reading.