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Rachel May and Robert Smullen on the Campbell Conversations

In the wake of the Buffalo and Uvalde shootings, Governor Kathy Hochul and the New York State legislature passed a set of new gun control laws. Then, the U.S. Supreme Court overturned New York's concealed carry permitting process. In response, the governor and the legislature, in a special session, passed another set of laws. On this week's episode of the Campbell Conversations, Grant Reeher speaks with NYS Assemblyman Robert Smullen, a Republican representing the 118th assembly district and Senator Rachel May, a Democrat representing the 53rd senate district.

Program transcript:

Grant Reeher: Welcome to the Campbell Conversations, I'm Grant Reeher. In the wake of the Buffalo and the Uvalde shootings, Governor Hochul and the legislature passed a set of new gun control laws. Then the U.S. Supreme Court overturned New York's concealed carry permitting process. And in response, the governor and the legislature and a special session passed another set of laws. Joining me today on the program to discuss all of these laws are two legislators with contrasting views. Assemblyman Robert Smullen, a Republican, represents the 118th Assembly District Senator Rachel May, a Democrat, represents the 53rd Senate district. Senator May, Assemblyman Smullen, welcome to the program.

Rachel May: Thank you, happy to be here.

Robert Smullen: Thanks so much.

GR: You bet, I really appreciate you both making the time. Well, let me just start with a basic question about the legislative process regarding both sets of these new laws. And they reminded me a bit of the SAFE Act in that they were pushed through very quickly, and in each case in a matter of a couple of days. And the first instance, I think there was like over a hundred other laws that were passed during that long weekend at the end of the session. So, Senator May, the question I wanted to start with you on this is do you have any concerns about the process here? I mean, this seems awfully quick and rushed.

RM: So we do work fast and sometimes it does feel rushed. But I think a lot of these laws were years in the making. And, you know, there were refinements happening and negotiations happening down to the last minute. But the basics of them were not that new.

GR: OK, all right. Fair enough. And Assemblyman Smullen, do you have a comment on the process here?

RS: Well, the extraordinary session that the governor called was very controversial because it was done without any public input. Basically, they called us into session and wouldn't release the bill language for 24 hours until we were actually in session. And then and then this is the biggest part of it, they passed the entire thing on a message of necessity, which violates the three day aging process, which our laws are set up so public, so legislators, so those are interested, can comment on it. And these laws were passed just last week with zero public hearings anywhere in the state. You know, it's outrageous that you could make a constitutional issue like this and then just ram it home almost, you know, it ended up being late into the evening before this was passed. It was absolutely ridiculous.

GR: Well, Senator May, the assemblyman is commenting on the second set of laws there in response to the Supreme Court decision. Do you have a different view, a different experience about those?

RM: Well, we were all somewhat frustrated with how that happened, that we didn't get the language until the last minute. But I also know that we were hearing about enormous urgency from our constituents who were very concerned about the Supreme Court decision and the sudden rush to buy more weapons out there that were, you know, potentially going to be used in gun violence. And so we needed to act quickly. So, you know, sometimes you have to balance those things.

GR: OK, well, I want to come back to that second set of laws a little bit later in our conversation. But let me back up and look at the first ones that were in response to those two mass shootings in Buffalo and Uvalde and really aren't connected to the Supreme Court decision in any way. And Senator May I’ll continue with you on this. There was a whole raft of them, but which law or a couple of laws at most do you regard as the most important in the package?

RM: So for me, I think the most important was raising the age to 21 for a permit, just applying the same permit process that we have for a pistol permit to the semiautomatic long guns, because you know, I've talked to people on all ends of the political spectrum who agree with that that that 18 is too young for somebody to just be able to buy a weapon like that and without any kind of training or serious permitting. So I think that was a really important thing that we did.

GR: So the raising of the age from 18 to 21 and then the adding of the pistol permitting process, an equivalent of that, for all semi-automatic rifles. Okay, and just tell me really quickly the connection between that and reduction of crime in your view.

RM: Well, that was obviously a specific response to what had happened in in Buffalo and all they where they were 18-year-olds who had gotten weapons legally and used them in this horrific way. But we also see we just know that 18-year-olds haven't got the same impulse control and just the brain development that older adults have and we're willing to regulate alcohol, cigarettes, porn, all kinds of things that we know are about impulse control and to not have these very powerful weapons of death, weapons that are designed to kill people, you know, high rapidity and in horrible ways not to have always be regulated the same way is just, you know, a real failing in our society.

GR: I want to come back to the permitting process specifically there that you mentioned in a little bit. But Assemblyman Smullen, let me come back to you and say sort of the same question that I started with Senator May there. Which law or two perhaps are you most concerned about that were passed?

RS: Well, we just spoke about the one which was raising the age to 21. And it's somewhat ironic that New York would follow the lead of California in this case when their law, which raised the age to 21, was actually set aside by the Ninth Circuit Court of appeals, the very liberal San Francisco Court of Appeals in California, was actually set aside. So, New York essentially doubled down on California's mistake and said, well, we're going to raise the age to 21 even though it was declared to be unconstitutional by the Supreme Court but by the Ninth Circuit Court of Appeals. And you know, people's brains do age differently. But I think if we can ask young men and women from around this country to serve in the military at 18 to support and defend the Constitution of the United States that's legally in most states in most jurisdictions when they become adults that that's why the age should be 18. Now I'm in favor of making sure that the wrong people those with mental health issues, with mental health conditions that were clearly evident in these two cases in Buffalo and in Uvalde. Very troubled, very sick, you know, mentally ill people shouldn't be allowed to have weapons as such. That's who we should be going after. Not the broad population at large. Not infringing on people's Second Amendment rights because the first gun package that we gave before the session ended, raising the age, was only one of several very bad laws that was passed. Another one was about microstamping, which is a technical law, but it simply doesn't work. It's really just designed to irritate law-abiding gun owners to make it very difficult for licensed firearms dealers to, you know, to do the business that they're allowed to do under the Constitution. But the third one was body vests. They didn't even consider the language thoroughly enough to know that it's body armor, not body vests. It just shows the lack of understanding from, in this case, the progressives who were going to pass this legislation because it's an election year. They're looking to pander to their base to make sure that they're on record with gun control legislation following these terrible, terrible tragedies. Without actually thinking them through, whether it's their constitutionality, the technical ability to administer these laws. None of these things were taken into consideration.

GR: There's a lot to unpack there, and I want to give Senator May a chance to come in. But let me ask a super quick follow-up question, if I could. You mentioned the constitutionality issue and the federal courts on the California case. So I would expect that, and either of you can jump in and correct me if I'm wrong, I would expect that on more than one of these laws, there are going to be lawsuits filed pretty quickly. I imagine they’re already in the works.

RS: Without a doubt, and the reason is that this legislation having to do with the Second Amendment has been coming for decades, that in 2008, there was the D.C. versus Heller decision, which fundamentally, you know, said that people have the right to keep and bear arms. Subsequent to that, there was the McDonald / Chicago decision in 2010 and now we've got the NYSRPA versus Bruen decision in 2022 which is codifying, not just that at the state level, but at the United States Supreme Court the highest court in the land says that the people's right to keep and bear arms shall not be infringed. It includes their right to be able to defend themselves.

GR: So let me jump in there and Senator May, if I could ask you two questions on that. One is, because I read several pieces about how there was an expectation that a lot of these would be challenged. Is there a value for New York as a state in saying, look, we really think that, you know, we have a majority in the legislature that think that this is really important and we're going to push these things forward and force the courts to keep overturning them. It's kind of like doing from the more liberal perspective what conservatives were doing with abortion cases. And that ended up with passing laws that sort of forced the hand there. Can you speak to that?

RM: Well, first of all, we don't just have a majority in the legislature we have a majority in the state, a very strong majority of New Yorkers who want much stronger gun laws, stronger than what we passed, actually. New Yorkers don't want military style assault weapons in civil life. And we were, you know, the assemblyman said pandering to the base, we were serving the people of New York and what they want. So, I also want to respond to his comment about allowing people to serve in the military at age 18. That's true, but they also don't just hand them a weapon and say go, you know, do whatever you want with it. They have lengthy training and the weapons are locked up and they're used only in very controlled situations. And so the idea that we would transfer that into civil life is really not responsible, I think.

GR: Well, there's a there's a screening process, too, for going into the military, you know. But anyway, go ahead.

RM: But it's also the case that the change in interpretation of the Second Amendment has happened because of a very lengthy, concerted effort by the NRA, by the right-wing in this country, really to shift the way we think about that from a well-regulated militia to something more about just making sure there are guns in every aspect of American society and that this is somehow our identity, that we have to have guns everywhere. And I do think that we need to push back about that. And if it means going back to court and going back to court and forcing the courts to rethink it, you know, that that's one way to do that. Or, you know, helping people in the public understand how important it is to make sure that we are putting judges in place who will reflect what the people actually want and not just a particular agenda of the gun lobby.

GR: Let me ask a question about microstamping, the assemblyman mentioned that as well. I have read in numerous places that struck me as being fairly objective, that microstamping is not connected to crime-solving, that it hasn't been demonstrated to work that way. Senator May, were you exposed to any data on that when that feature was being considered? Because I think that was one that has been in development in New York for a while. You know, going back to your earlier point about how these laws have been in process for years.

RM: Right. Yeah, I mean, my understanding is that there are it does facilitate identification of at least of the weapon that was used in a crime. And the vast majority of gun crimes as I understand it, are not solved. So any tools that we can put in the hands of law enforcement are important to put there.

GR: Assemblyman Smullen, do you have a response on the microstamping?

RS: Well, certainly it's that is an unachievable goal. It's designed to simply to harass law-abiding gun owners. And criminals don't pay any attention whatsoever to laws about such things as microstamping. It can be easily spoofed by simply filing off the microstamping dimple that's either on the receiver or, you know, on the weapon itself. So, you know, it's not going to work. It's just one of a hundred different techniques. For instance, there's going to be an ammunition tax soon to harass law-abiding gun owners, specifically the ammunition on top of, you know, normal taxes. So, it's just designed to harass.

GR: You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher and I'm talking with New York State Senator Rachel May and Assemblyman Robert Smullen. And we've been discussing the state's new gun control laws. Assemblyman Smullen right before the break, you let out a tantalizing comment about an upcoming tax on ammunition. What quickly were you referring to?

RS: Well, what it is, is it's designed to tax ammunition in addition to the normal taxes that people pay on goods. And it's simply designed to make ammunition more expensive. So sports people that buy ammunition are less inclined to do so.

GR: And this has been passed, or it's something that has been proposed or what is the status of that?

RS: It's a proposed law. There's also been a law that passed the assembly, which had to do with banning lead ammunition on state land because the supposed idea that it would somehow pollute the water supply or, you know, interfere with wildlife. So these what I call them, are micro laws that are designed to just basically harass the sporting industry.

GR: Okay, and there's a similar law in California on the lead, I believe. Well, let me move on and I want to I want to drill down a little bit on one of the features of the law that you both identified were important, and that was the new licensing process for semiautomatic rifles, similar to what will become the new licensing process for handguns in the state. And that has been referred to by many as the centerpiece of this set of laws, in addition to raising the age for purchasing them, Senator as you mentioned, from 18 to 21. I read this law several times and I did not see any details on exactly how expansive this is going to apply. What I can find is that it is going to include every semiautomatic rifle. Either of you, correct me if I'm wrong, including rimfire rifles and including those with internal magazines as well as external magazines. So, from either of you, do I have that right?

RM: I believe so.

GR: All right. So then, Assemblyman Smullen, let me ask you this. Would this new law then include something like, and I have to go into the weeds here, but something like a Ruger 10/22, it’s a .22 rimfire rifle which is semiautomatic. It's the most popular rimfire rifle in the market and has been for a while. And it's the one often used to introduce adolescents to hunting small game and sporting shooting. Is it going to include that?

RS: It includes everything that's a semiautomatic rifle, which is, you know, really, really onerous. But the thing that really makes it all encompassing is in the new law that we just passed, is what areas it applies to. I don't know if you want to speak now about the concealed carry thing, but what you just mentioned about the rifle that kids learn safe handling procedures on, absolutely it applies to that.

GR: Okay, and Senator May, was there discussions about that? Because that is an awfully popular rifle that I don't think as far as I know has ever been used in any mass shooting. It's not a weapon of crime that I'm aware of.

RM: I don't remember a discussion of that particular weapon. I do just, you know, the idea that you need this permit to get a pistol, but not a long gun was a significant issue for us.

GR: Okay, all right. Well, maybe then we should move on to the concealed carry, because that really is linked to this, because this is going to be the process that folks are going to have to go through, whether they want a semiautomatic rifle or a or a handgun permit for concealed carry. So I'm going to try to summarize what happened here. It's very complicated, but the U.S. Supreme Court overturned what had been in New York, often referred to as a, ”may issue” permitting regime regarding handguns in favor of something, what they regarded as simpler and more objective a “shall issue” system, which is used in most states in the country. And then there were these new state laws in New York that were passed in a special session and response to that. So, in addition to specifying a host of public places that the handguns cannot be carried concealed, the state replaced its current permitting process with one that arguably still has lots of hoops according to the new law. Here's my reading of it. In order to obtain a concealed carry permit in New York, an applicant must complete 16 hours of in-person live curriculum, two hours of a live fire range training course. The applicants have to complete a number of forms and provide the details of the other individuals that reside in the same residence as they do. They must also provide the licensing officer with four character references as well as, and here I'm quoting, “a list of former and current social media accounts of the applicant from the past three years.” Okay, that's a lot, that's a lot to unpack. Senator May, let me ask you this question about this. I don't think it's a stretch to say that it's not going to be possible for many people who might feel the need for a handgun permit for their own personal protection to get that. And if we think of who in particular those hoops or those regulations are going to work against, I don't think it's hard to see that it's going to be people, first of all, with less means, less available free time, the people who are most vulnerable to violent crime and most likely to be non-white. Those are going to be the folks I think that are going to have the toughest time complying with that. And I just was wondering, did your caucus talk about that? Because, you know, I know those issues are important to the Democratic caucus. So, did your caucus talk about that when you were thinking about these regulations on the permitting process?

RM: We did. But I think that what was the overwhelming deciding factor was that these laws went in New York for a hundred years and elsewhere have saved lives and saved lives in families. Families, if you have a family where you don't have the resources to do the safe storage and supervision of the kids and all of that, that you're more likely, if there is a weapon in in that household, then it's more likely to be an accident or an injury than probably in other household. So, yes, it may be harder but it also may save more lives. And I, you know, I think the Supreme Court is wrong in their decision and really is making it more likely that lives will be lost. And we were trying to intervene backwards to say we value saving lives in New York State and we're going to do what we can.

GR: Okay, all right. I see. Assemblyman Smullen, I imagine you have a somewhat different view of that. Do you want to express that?

RS: Well, certainly. You know, it's somewhat ironic that New York State could think that they could overrule the Supreme Court after the Supreme Court passes down a very clear ruling on this case. And it's also somewhat ironic that it's poor people in crime ridden areas are going to have the most trouble being able to defend themselves against crime, against criminals who pay zero attention to the laws anyway. By definition, they're criminals and they break the law routinely. And all we do now is let them out on cashless bail regime, on early parole and all of the things that have had crime just going off the charts in New York state, particularly in New York City, where crimes that are committed with guns is literally off the charts. It's just antithetical to what we believe that people should be able to defend themselves against criminals, that we're going to now make it as hard as possible for them to exercise their Second Amendment rights.

GR: Well, what about the argument that the senator has made several times now, which was, and Senator, if I've got it wrong, you interrupt me. But, you know, basically these are tradeoffs and on balance, these things will reduce overall crime by making guns less available. And if we go back to the issue of who's going to be having the hardest time getting a permit here, you know, those are in high crime areas. And so that on balance, there's a reduction in the availability of firearms for those purposes.

RM: Let me add to that. It's not just crime, it's accidental violence. It's suicide. There are a lot of other ways that guns are used when they are in the household. And that was on our minds as well.

GR: Okay, yeah. An important point. 60% of all gun deaths are homicides. We always have to remember. I mean, are suicides.

RM: And let me also say we were not overruling the Supreme Court, we were saying, they said the way we had the law in the past didn't pass muster. But they actually gave guidance of what kinds of things you could do to regulate concealed carry. And so that's what we were doing was responding to their, essentially request that we change the law and we weren't overruling them.

GR: We're almost out of time. But I wanted to add one more thing from the Supreme Court decision, which is right on your point. And I think I'll let Assemblyman Smullen then have the last word, because I'm wondering about exactly that issue. The Supreme Court also said any permitting scheme can be put toward abusive ends. We do not rule out constitutional challenges to “shall issue” regimes. These are the ones that are more objective standards. “Where, for example,” and I'm quoting here, “lengthy wait times and processing licensing applications or exorbitant fees deny ordinary citizens the right to public carry.” I'm guessing and we got about 45 seconds left that there will be a lawsuit saying that the regulations that I described a few minutes earlier constitute lengthy wait times and exorbitant fees however, we just define exorbitant. Assemblyman Smullen, thoughts about that or more generally on 30 seconds.

RS: Absolutely. And the biggest issue that we haven't talked about is what is a sensitive area? In New York State, it's now everywhere. Government facilities, child care programs, schools, libraries, zoos, playgrounds, polling places, libraries, public transit, buildings, grounds, performance art stadiums, entertainment. It goes everywhere. So no one can carry in those places now, including parks, which includes the Adirondack Park. So, this licensing regime is unconstitutional and it will be challenged and it will be overturned.

GR: Well, we'll have to see. And I appreciate both of you making the time to talk about this very contentious topic. That was Assemblyman Robert Smullen and State Senator Rachel May. Again, thanks for making the time to talk with me and as always, for disagreeing but disagreeing civilly. I appreciate that. Thank you.

RM: Thank you.

RS: Thank you Grant. Nice to see you, Senator.

RM: Likewise. Yeah.

GR: You've been listening to the Campbell Conversations on WRVO Public Media, conversations and the public interest.

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Grant Reeher is Director of the Campbell Public Affairs Institute and a professor of political science at Syracuse University’s Maxwell School of Citizenship and Public Affairs. He is also creator, host and program director of “The Campbell Conversations” on WRVO, a weekly regional public affairs program featuring extended in-depth interviews with regional and national writers, politicians, activists, public officials, and business professionals.