Very often, legislative bodies pass ill-advised laws in response to tragedies in hopes that the new laws will work to prevent similar tragedies from happening in the future. I used to work for a judge who would say bad facts make bad law. This is true in the legislative process and no truer is the case with the NY-SAFE Act, which passed in January 2014, shortly following the Newtown, Connecticut school-shooting tragedy. Since its passage, law-enforcement officials, 2nd amendment advocates, outdoor enthusiasts, and others have panned the law. The general criticisms of the law, which I agree with, are: (1) that its drafters had a limited knowledge of firearms, (2) the law will not do much to prevent another Newtown tragedy, and (3) it infringes on law-abiding citizens’ 2nd Amendment rights. 

Since its passage, there have been numerous attempts to repeal the SAFE Act, or at the very least amend the law to remove some of its more egregious provisions. 

Unfortunately, because the New York Assembly is controlled by New York City Democrats who generally favor any gun-control measures, legislative efforts have failed. Furthermore, even if the New York Legislature voted to repeal the act, or make significant changes to it, that legislation would likely be vetoed by Governor Andrew Cuomo. The governor after all drafted the legislation and was its biggest champion.

It is the governor’s continued, unwavering advocacy for gun control and the SAFE Act that makes the latest news regarding the legislation a head-scratcher. On July 10, Jim Malatras, the governor’s director of state operations, and Senate Majority Leader John Flanagan entered into a memorandum of understanding (MOU) that was first reported to be an agreement to, among other things, scrap the requirement that background checks be performed on purchasers of ammunition. However, after pushback, especially from supporters of the SAFE Act, the governor’s counsel clarified the intent of the MOU was not to permanently scrap the background-check requirement but rather postpone its implementation until technology is developed to perform these background checks. Turns out this was much ado about nothing because most people who understand the provisions of the SAFE Act already knew that the background-check provisions were unworkable.

I understand the Senate majority leader’s willingness to enter into an MOU. After all, he and his conference, which is made up of mostly suburban and upstate legislators, have advocated for amendments to the SAFE Act (even full repeal) and presumably, they would be happy to get those changes whether by legislation or otherwise. However, I am troubled by the use of the MOU. The governor’s use of an MOU, even though it didn’t amount to much in this case, illustrates Cuomo’s willingness to bypass the legislative process. Why should the governor and a leader of a legislative conference be able to enter into an agreement that would, if it did what it was initially reported to do, bypass enacted legislation? This circumvents the democratic process. While I agree that the ammunition background-checks provision of the SAFE Act should be repealed, if this can be done by use of an MOU with one leader of the legislature, why couldn’t other policies be implemented or ignored by the same means?

We, unfortunately, have seen this in other areas and most recently with the governor empaneling a wage board that will presumably raise the minimum wage for fast-food workers to $15 an hour. The governor couldn’t get the legislature to increase the minimum wage so he decides to do it on his own and target the fast-food industry. Many can understand that the governor wants to enact his agenda and that, at times, he is frustrated with his inability to get the state legislature to agree to pass his agenda. Frustration, however, is not a valid reason to bypass the democratic process. If he can’t convince legislators to support his proposed policies, maybe he should be a stronger advocate. Or, maybe his policies simply aren’t worth supporting.        

William (Will) A. Barclay is the Republican representative of the 120th New York Assembly District, which encompasses most of Oswego County, including the cities of Oswego and Fulton, as well as the town of Lysander in Onondaga County and town of Ellisburg in Jefferson County. Contact him at barclaw@assembly.state.ny.us, or (315) 598-5185.