Critics say New York’s new gun control law will fuel mass incarceration

On June 23, the day that the Supreme Court struck down New York state’s strict gun control laws, a coalition of public defender organizations released a joint statement calling on the Legislature to craft new gun laws that would avoid the mistakes of the old.

“Gun regulation need not mean funneling low-income Black and brown people into the criminal legal system,” reads the statement signed by the Bronx Defenders, Brooklyn Defender Services, Black Attorneys of Legal Aid, and a handful of upstate county public defender organizations.

“Today, we call on the Legislature to design new gun regulations that are rooted in equity, not racism and to address the mass criminalization and incarceration of people of color for unlicensed gun possession. We look forward to working with the Legislature to chart a new course in addressing gun violence – one that does not perpetuate racial discrimination and harm.”

The Legislature and Gov. Kathy Hochul did respond with sweeping new gun control legislation that was signed into law. However, it wasn’t what some public defenders and others were hoping for, prompting private complaints that the new laws did not respond to old concerns and would fuel mass incarceration. 

The public defender groups had previously submitted an amicus brief to the Court showing how the state’s century-old gun control law had led to the disproportionate incarceration of people of color. Once the law had been ruled unconstitutional, the public defenders hoped that the Legislature could craft a better law. 

Following the SCOTUS decision, Hochul called an extraordinary legislative session and the Legislature passed a new gun control bill. The bill changes the criteria for police to consider when granting concealed carry gun licenses. Previously, license applicants needed a “letter of good cause” showing a specific reason why they required a gun. Now, applicants must demonstrate “good moral character” and complete firearms safety training. 

The bill passed largely along party lines, with only eight Democrats — all Assembly members representing upstate districts — who voted against it. 

Officially, the public defender groups have not taken any position on the new gun control laws. But privately, some defenders and criminal justice reform advocates say that the new gun laws have the same problems as the old gun laws.

M.K. Kaishian, a civil rights attorney who worked at Brooklyn Defender Services until leaving in January to start her own private practice, told City & State that the new gun control law doubles down on the state’s current arrest-based approach to gun regulation.

“Instead of going after manufacturers, all those other sort of top-level issues, continuing to focus on individual possession cases where the police are in charge of that enforcement just ensures that we’re going to continue to see the over-criminalization of Black and brown New Yorkers,” she said. “It’s just more of the same.”

Kaishian said that the state’s gun control strategy is focused on making it next to impossible to get a gun license and then arresting as many people as possible for unlicensed gun possession. Like the old “War on drugs” campaign, this arrest-based approach to gun control disproportionately affects non-white people who live in the most heavily-policed neighborhoods.

“Here in New York City, we have a pretrial jail population on a top charge of criminal possession of a weapon in the second degreen – which is possession of a gun without any requirement that it’s brandished, fired, or otherwise used in a crime – and that population that is facing that as a top charge at Rikers Island and other city jails is 96 to 97% non-white, at least,” she said.

According to Kaishian, criminal possession of a weapon in the second degree carries a mandatory minimum sentence of three and a half years in prison and is considered a violent felony that is bail-eligible. The result is that people who are stopped and frisked by the New York Police Department (most likely a disproportionate number of Black and brown men) and found to be carrying an unlicensed gun will spend months at Rikers and years at an upstate prison – all for engaging in activity that is theoretically protected by the Constitution.

Lisa Schreibersdorf, the founder and executive director of Brooklyn Defender Services, echoed some of Kaishian’s points while making clear that her organization has not taken a formal position on the new gun laws.

“While most people in a rural community would not face a jail sentence for failing to license their gun, people of color living in urban areas are specifically targeted by police, prosecutors and the courts for harsh prison sentences, even where there is no evidence of possession with intent to use the gun unlawfully,” she said. “Whether any of us agree or disagree with the ruling, the Supreme Court has said there is a right to carry a firearm in the United States. That means that we cannot apply this rule differently based on a person’s identity or where they live.”

Schreibersdorf called on the Legislature to consider the unintended consequences of the state’s gun control laws and the ways that they have fueled mass incarceration.

“While we do not have a position on New York’s revamped gun regulations .. it is worth noting that many people may end up in violation of these laws based on mistakes or other reasonable choices, such as bringing a registered gun from another state,” she added. “It is critical that the Legislature look at the punishments for failing to obtain a firearm license and create a plan that will meet the requirements of the Bruen case and rectify the long-standing injustice that has contributed to the disproportionate impact these laws have had on Black and brown men.”

The Legal Aid Society, Black Attorneys of Legal Aid, and the Bronx Defenders all declined to comment on the record when asked about the new gun control laws, instead referring back to their earlier statement on the Bruen decision.

Among eight Democrats in the Legislature who voted against the bill was Assembly Majority Leader Crystal Peoples-Stokes, whose Buffalo district was recently the site of a racist mass shooting. She declined to discuss her vote on the record.

The other seven Democrats who voted against the bill – Assembly Members Marianne Buttenschon, William Conrad, Aileen Gunther, Pamela Hunter, Billy Jones, Al Stirpe, and Carrie Woerner – also represent upstate districts.

Hunter, whose district includes part of Syracuse, told City & State that she voted against the bill because it was “a quick knee-jerk reaction to the Supreme Court ruling” that would not solve the underlying issue of gun violence.

“None of the provisions in this bill would have stopped the shootings in my community and the mass shootings we see every day,” she said in a statement. “I also believe this legislation would harm law-abiding gun owners, specifically minority gun owners … We are addressing the Supreme Court decision in a way that too easily allows carriers in compliance to be subjected to felony charges and discriminatory enforcement.”

Still, this kind of skepticism toward gun control remains relatively rare within New York’s Democratic party, particularly downstate. Even the most left-wing members of the party, who are generally in favor of criminal justice reform, ended up voting for the recent gun control bill.

The future of the state’s gun control law is uncertain, though there’s a good chance it will end up in front of the Supreme Court. If the Court once again overturns New York’s gun control law, how will the Democrats react? Will they once again rush to enact the strictest possible law, or will they take the public defenders’ concerns to heart and focus on gun control measures that involve less criminalization?

Kaishian said she believes that legislators, particularly those on the left flank of the Democratic Party, are increasingly open to considering alternatives to incarceration – even if their votes on the most recent gun control bill do not reflect that.

“Votes on the floor and whether they're willing to have a conversation about it can be sometimes years apart, but those conversations are still very important, as long as people are willing to listen to them,” she said.