Gun Control’s Long Game

AP Photo/Mike Groll

You could be forgiven for thinking that recent news out of New York proves gun-rights supporters have lawmakers on the run. In mid-February, 500 outraged opponents of gun restrictions held a rally in Albany’s freezing temperatures to protest the state’s new gun-control regulations passed January 15. The president of a large state gun dealer said on January 21 that tens of thousands of assault rifle owners would boycott an April 2014 registration deadline mandated by the law. An anonymous source in Governor Andrew Cuomo’s office responded like a parent who’s given up doing anything about their acting-out teen: “Many of these assault-rifle owners aren’t going to register; we realize that.”

That official called it right. Those who expect the New York SAFE Act— which bans the purchase of new assault weapons and requires registration of those owned before the law took effect—to keep new assault rifles out of New York immediately will probably be disappointed.

Local prosecutors and cops have wide latitude in how aggressively to pursue busts and convictions under state law, says James B. Jacobs, professor of constitutional law at New York University. In a wink and nod to gun-rights supporters, the New York Sheriff’s Association issued a statement on January 25 asserting that the law doesn’t require its members to “go door-to-door to confiscate any weapons newly classified as assault weapons, and [sheriffs] will not do so.” In downstate Ulster County, the district attorney told a local paper that when dealing with otherwise law-abiding citizens who have banned weapons, “(police) will take those items away, but that’s not necessarily something we would prosecute.”

All of that would seem to augur poorly for getting results on the ground with new gun laws in other states. Why pass an assault-weapons ban if it’s honored more in breach than observance?

Because the law has a long game with benefits that far outweigh the short-term worries of spotty enforcement. The law’s long-term goal—making reasonable limits on gun ownership a Mom-and-apple-pie idea and kick-starting the movement toward smarter state gun laws—will matter far more than the current quibbles stirring the pot.

Separate and apart from the sanctions they mete out, laws shape values. “When you’re talking about public health issues … one of the roles that law plays is an expressive function,” says Timothy Lytton, a law professor at Albany Law School who studies the effectiveness of laws aimed at improving public health. “It normalizes certain types of behavior and abnormalizes others. So if you pass a ban on certain types of weapons, those become not normal weapons; they get carved out.” Gun-rights organizers also recognize law’s powerful effect in setting parameters of acceptability—it’s why for years they’ve pushed for expanded state concealed-carry permits. “They want the law to help them change what’s normal, and that seems to me to be a valid use of law,” says Lytton.

The link between laws and values is one reason gun rights supporters haven’t clamored for the right to own machine guns, even in the deep-red areas of upstate New York—a federal law banning the transfer and possession of fully automatic weapons (with limited exceptions) went into effect in 1986. “[Machine guns] aren’t considered a normal weapon to own,” Lytton says. (The provision in the 1986 law banning machine guns was part of an NRA-supported compromise that relaxed many of the gun restrictions passed in the Gun Control Act of 1968 following the King and Robert Kennedy assassinations.) 

More important, New York’s law now looks like the launching pad for a state-based, small-bore approach to gun control that could mean the end of a many-years run of expanded gun rights.

We’re seeing renewed activity at the state level,” says Adam Winkler, a UCLA law professor and author of Gunfight: The Battle Over the Right to Bear Arms in America. Winkler. “New York is the first to pass new gun measures after Newtown, and it’s not likely to be the last.” As of now, smarter gun legislation is moving in at least ten states, including Colorado, Delaware, Maryland, New Hampshire, Oregon, Iowa, Vermont, Rhode Island, New Jersey, and Connecticut.

That grassroots, incremental strategy has been mostly absent from the gun control movement, according to Kristin Goss, author of The Missing Movement for Gun Control in America. Goss, associate professor of public policy at Duke, says using states as laboratories makes sense in our fragmented federal system. (In much the same way, passage of women’s suffrage laws in 13 states built momentum for adoption of the Nineteenth Amendment in 1920, and Massachusetts’ healthcare law served as a model for national health care reform in 2010.) Smarter gun laws will be more likely to spread if states pass bills that make incremental changes and “nothing terrible happens, people’s lawfully owned firearms aren’t confiscated, tyranny doesn’t come to that state,” says Goss.

And as state politicians who pass those laws survive politically, those elsewhere will discover political courage. There’s no reason they shouldn’t survive—a February 7 Pew Research Center polls finds 83 percent of Americans favor background checks for private gun sales and sales at gun shows, 67 percent want a federal database to track guns sales, and 56 percent are for banning assault weapons.

Cuomo’s continued popularity despite the well-publicized backlash proves that. The press made much of the 15-point drop in his approval rating—down to 59 percent in a Quinnipiac University survey two weeks after the gun law passed. But a Siena College poll a week later showed his favorability at 67 percent, down only four points. And the gun-rights supporters crowding Albany’s streets really are a vocal minority—almost two-thirds of New Yorkers support the new law, according to Siena’s poll. Even in New Jersey, Governor Chris Christie’s support for stricter gun laws hasn’t hurt him even among the state’s Republicans, 93 percent of whom approve of his job performance, according to a Quinnipiac poll this month.

“For the last 20 years, it’s been dogma in Democratic circles to avoid gun control at all costs," says Winkler. Because of Cuomo’s presumed presidential ambitions, the fact that he’s willing to take a strong stand for gun control laws is good sign for advocates, he adds.

In fact, it was political leaders’ abandonment of gun control that dragged down public support for stricter laws originally, says Goss. “As a political scientist, I can say that public opinion is indexed to what political elites are talking about, and there was a conspiracy of silence on gun control for many years by Democrats and Republicans.”

Newtown ended that era, creating new energy for a mass movement for gun control. Moms Demand Action for Gun Sense in America, a grassroots group launched the day after the shooting, has grown to 80,000 members and 80 chapters in just over two months. The number of active Brady Campaign donors appears to be up to 80,000 as well, according to third-party mailing list data—a 2010 report had put the number at about a third of that. (The campaign didn’t respond to a question about its donor numbers.)

The gun lobby is doing its best to give the appearance that the opposite is happening—that there’s mass public outrage over new gun laws. The NRA sent its president to appear at a rally February 28 that drew 5,000 protesters chanting, “We will not comply” and holding signs comparing Cuomo to Hitler. The event generated wall-to-wall media coverage, with The New York Times calling it “one of the largest rallies at the State Capitol in years.” NRA president David Keene told the protestors, “We’ve lost battles before. We will not lose the war.”

But the fact that neither Cuomo nor the New York Republican legislators who voted for the bill are discussing repeal means they know they can wait out the protestors. There’s momentum for better gun laws now, and a no-longer-silent majority who aren’t swayed by the fake moral outrage for unrestricted gun rights that’s showing up in the streets of Albany.

The new state laws that are coming will move the national debate away from the NRA’s preferred frame—whether more guns equals a safer public—and toward discussion of the practicality of common-sense repairs—background checks, assault weapons bans, insurance requirements for guns, and the like. State legislators will design fixes for those issues even while Americans continue to perceive ourselves as a gun-loving culture. But if the cultural conversation nationally refuses to change, it likely won’t matter—one day people will wake up and realize they don’t really miss their AR-15s after all.