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Staff Memorandum Staff Memorandum HOUSE OF DELEGATES Agenda Item #12 REQUESTED ACTION: Approval of the report and recommendations of the Task Force on Mass Shootings and Assault Weapons. The Task Force on Mass Shootings and Assault Weapons was appointed in 2018 by then-President Michael Miller to update the 2015 report entitled “Understanding the Second Amendment – Gun Regulation in America Today and Yesterday” with a focus on the role of mass shootings and assault weapons on gun violence in the United States. The Task Force’s report, entitled “Reducing the Epidemic of Mass Shootings in the United States – If Not Now, When?” is attached. The report reviews the current state of the law relating to gun regulation as well as data on mass shootings and assault weapons; Task Force members also met with firearms experts. It addresses the connection between domestic violence and mass shootings; the connection between mental health and mass shootings; and the regulation of the sale and transfer of guns, accessories, and ammunition. The report makes the following recommendations: ● Ban the possession, sale, and manufacture of assault-style weapons. ● Ban large-capacity magazines that hold more than 10 rounds of ammunition. ● Ban bump stocks and other devices that effectively enable semi-automatic firearms to be fired in fully automatic mode. ● Ban firearms manufactured without a license and without a serial number. ● Enact universal background checks for all gun sales, private and through licensed dealers. ● Expand the time for background checks to be completed before finalizing firearm sales. ● Require gun owners to obtain a license as a purchase and possession requirement for all types of firearms. ● Expand the category of individuals who are prohibited from purchasing or possessing firearms. ● Close reporting loopholes to ensure all disqualifying data is reported to the National Instant Criminal Background Check System (“NICS”). ● Enact extreme risk protection orders, i.e., “red flag” laws. ● Impose penalties for failure to notify the authorities of stolen or lost guns. ● Impose penalties for unlocked/unsecured guns in certain circumstances. ● Affirm that intermediate scrutiny and preponderance of the evidence proof apply to gun laws that do not substantially burden core Second Amendment rights. ● Educate the public regarding gun legislation and their rights to seek protection in situations of domestic violence. ● Promote and fund research and data collection regarding gun violence, including mass shootings. The Task Force presented an informational report with its recommendations to the House at its January 2020 meeting. On October 23, it held a Dialogue about the report with interested members; the recording of that meeting is available with the materials for the November 7 meeting at https://nysba.org/house-of-delegates-meeting-agendas-and- materials/. The report will be presented at the November 7 meeting by Margaret J. Finerty and David M. Schraver, co-chairs of the Task Force. Report of the New York State Bar Association Task Force on Mass Shootings and Assault Weapons November 2020 The views expressed in this report are solely those of the Task Force and do not represent those of the New York State Bar Association until adopted by the House of Delegates. New York State Bar Association Task Force on Mass Shootings and Assault Weapons Reducing the Epidemic of Mass Shootings in the United States – If Not Now, When? Final Report November 2020 TABLE OF CONTENTS MEMBERS OF THE NEW YORK STATE BAR ASSOCIATION TASK FORCE ON MASS SHOOTINGS AND ASSAULT WEAPONS ............................................................. 5 ACKNOWLEDGMENTS ....................................................................................................... 6 INTRODUCTION ................................................................................................................... 8 EXECUTIVE SUMMARY ..................................................................................................... 10 New York State Bar Association’s Role ..................................................................... 10 Recommendations ....................................................................................................... 10 Mass Shootings ........................................................................................................... 11 Assault Weapons ......................................................................................................... 12 Recent Developments in the Law................................................................................ 13 Domestic Violence and Mass Shootings ..................................................................... 13 Mental Health and Mass Shootings ............................................................................. 14 The Sale and Transfer of Guns, Accessories and Ammunition .................................. 14 REPORT SECTION ONE: Update on District Of Columbia v. Heller and The Current State of The Law ..................................................................................................................... 16 I. Overview ...................................................................................................... 16 II. Types of Gun Safety Laws ........................................................................... 17 A. Guns in Public or Public Carry Laws ........................................... 17 B. Possession of Firearms by Criminals or Other Dangerous People ............................................................................................ 18 C. Unusually Dangerous Weapons and Ammunition ........................ 18 D. Commercial Sale of Firearms ....................................................... 18 E. Firearms in Sensitive Places ......................................................... 19 F. Other – Including Registration, Transfer, and Safety of Firearms ........................................................................................ 19 III. Second Amendment Challenges ................................................................... 19 A. The Courts’ Reasoning in Second Amendment Cases ................. 19 B. The Supreme Court Has Repeatedly Denied Certiorari in Second Amendment Cases, But Granted Certiorari in New York State Rifle & Pistol Ass’n Inc ................................................................ 25 IV. Recent Lower Court Cases ........................................................................... 27 A. Firearm Cases...................................................................................... 27 B. Bump Stocks, etc ................................................................................ 47 REPORT SECTION TWO: Mass Shootings and Domestic Violence ................................... 49 I. The Nexus Between Domestic Violence and Mass Shootings .................... 49 II. Federal and State Laws Addressing the Connection between Domestic Violence and Mass Shootings ...................................................................... 52 III. Orders of Protection and Gun Restrictions Under New York State Law .... 53 Page 2 of 154 A. Obtaining an Order of Protection in New York ..................................... 52 B. Resulting Restrictions on Access to and Possession of Guns ................ 55 C. Computerized Registry for Orders of Protection ................................... 57 D. Retrieval of Firearms and Restoration of Gun Permits .......................... 59 IV. Specific Recommendations .......................................................................... 59 REPORT SECTION THREE: Mass Shootings and Mental Health Issues ............................ 61 I. Extreme Risk Protective Order Laws Should be Implemented in all Jurisdictions .................................................................................................. 63 A. Rationale Behind Extreme Risk Protective Orders ............................. 63 B. Specific Examples of Mass Shootings Where Signals Were Given ... 64 C. New York State’s Red Flag Law ........................................................ 67 D. Other State ERPO Laws...................................................................... 71 E. Proposed Federal Legislation .............................................................. 72 F. Due Process Considerations with ERPO Laws ................................... 73 G. Recommendation of the Task Force ................................................... 74 II. Expand the Categories of Individuals Prohibited from Purchasing or Possessing Guns ........................................................................................... 74 A. Federal Law ........................................................................................ 75 B. Involuntary Outpatient Commitment .................................................. 76 C. Voluntary Admission to a Mental Institution ..................................... 77 III. All Disqualifying Events Prohibiting Gun Ownership Should be Reported to NICS ......................................................................................................... 77 A. The National Instant Criminal Background Check System (“NICS”) ............................................................................................. 77 B. Performing a Background Check ........................................................ 79 C. State Submissions of Mental Health Records to NICS and The National Instant Criminal Background Check System (NICS)
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