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In NY Handgun Eligibility Case 2nd Circuit Passes the Ball to NY Court of Appeals View Count:  380

On Tuesday, the 2nd U.S. Circuit Court of Appeals asked for a ruling from the New York Court of Appeals on the question as to whether a gun applicant who is a part-time resident of New York, but permanent resident of another state, is eligible for a gun license in New York.

The decision of the federal court to ask for a ruling by the New York Court of Appeals came from a lawsuit filed by Alfred Osterweil who was denied a handgun license in New York after he moved to Louisiana.

Osterweil’s lawsuit claims that at the time of making the application for the handgun license, his primary residence was in Summit, New York, but that he moved to Louisiana, while the application was still pending. However, he maintained his house in Summit, New York, as a vacation home.

  
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According to current New York penal code, a person cannot obtain a state firearms license if he is not a resident, or is not employed in New York.

On being denied his gun license, Osterweil wrote to licensing authorities in Schoharie County, asking whether his move to Louisiana had made him ineligible. He sent his second letter in July 2008, mentioning that his constitutional rights may be infringed if he was not granted a handgun license. The letter was sent after the Supreme Court ruling of District of Columbia v. Heller, in which the Second Amendment right to bear arms was recognized.

Subsequently, county authorities sent Osterweil’s handgun application to the county court, where the judge, George Bartlett, denied the application on domicile requirements.

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Osterweil filed his lawsuit challenging the domicile requirements and holding that his Second and 14th Amendment rights had been violated. In 2011, a federal court in Albany dismissed the lawsuit after upholding the domicile requirements.

Osterweil went on appeal challenging the domicile requirements to be unconstitutional. The New York State Attorney General’s Office defended its position by claiming that the highest court in the state had not yet given any ruling as to whether the mention of residence in the statute meant domicile. The state asked the 2nd U.S. Circuit to certify the case to the New York Court of Appeals for interpretation of the statute.



The 2nd Circuit complied recognizing the seriousness of the issue. Referring to the Newtown massacre in her opinion, Justice O’Connor wrote, “The regulation of firearms is a paramount issue of public safety, and recent events in this circuit are a sad reminder that firearms are dangerous in the wrong hands.”

The case is Osterweil v. Bartlett, 2nd U.S. Circuit Court of Appeals, No. 11-2420

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