By Nate Raymond
NEW YORK, Jan 29 (Reuters) - A federal appeals court asked
New York state's highest court Tuesday to weigh in on a lawsuit
challenging the constitutionality of the state's handgun laws
The 2nd U.S. Circuit Court of Appeals sought a ruling from
the New York Court of Appeals on whether a gun applicant who is
a part-time New York resident but permanently lives in another
state is eligible for a license.
The federal decision, authored by retired U.S. Supreme Court
Justice Sandra Day O'Connor sitting by designation, came in a
lawsuit filed in 2009 by Alfred Osterweil, who was denied a New
York handgun license after moving to Louisiana.
In mid-January, New York became the first state to enact
tougher gun laws following the Dec. 14 mass school shooting at
Sandy Hook Elementary School in Newtown, Connecticut.
In his lawsuit, which was initially filed pro se, Osterweil
said when he applied for a handgun, his primary residence was in
Summit, New York. While the application was pending, he moved to
Louisiana, maintaining his house in Summit as a vacation home,
the lawsuit said.
New York's penal code prohibits a person from obtaining a
state firearms license if they are a nonresident or are not
employed in New York.
Osterweil sent a letter to Schoharie County licensing
authorities asking if the move made him ineligible. A second
letter followed in July 2008, contending constitutional issues
might arise if he wasn't granted a license.
The letter followed the Supreme Court's June 2008 ruling in
District of Columbia v. Heller, in which the court recognized a
Second Amendment right to bear arms.
Osterweil's handgun application was sent to a county court
judge in Schoharie County who interpreted the penal code's rules
as restricting licenses on the basis of where someone is
domiciled, or permanently resides. The judge, George Bartlett,
denied the handgun application.
DOMICILE VS RESIDENCE
Osterweil subsequently filed a lawsuit against Bartlett,
challenging the domicile requirement, which he said violated the
Second and 14th Amendments.
In May 2011, U.S. District Judge Mae D'Agostino in Albany
upheld the domicile requirement and dismissed the lawsuit.
On appeal, Osterweil continued to challenge the domicile
requirement as unconstitutional. His appeal drew the support of
Paul Clement, who frequently represents parties advocating
conservative stances at the Supreme Court and who took on the
The New York State Attorney General's Office countered that
the state's highest court hadn't ruled on the issue of whether
the statute's mention of residence meant domicile. It asked the
2nd Circuit to certify the case for the New York Court of
Appeals to weigh in on what the statute meant.
If the statute means residence, Osterweil may meet the
criteria with his second home, while if it means domicile, he
wouldn't, since his permanent residence is in Florida.
On Tuesday, Justice O'Connor said an answer to the state-law
issue was required before reaching the constitutional question.
She referenced the Newtown massacre in her opinion, saying
the questions at issue in the case "certainly" were of
importance to the state.
"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," she wrote.
Clement did not respond to requests for comment. A
spokeswoman for New York Attorney General Eric Schneiderman
declined to comment.
The case is Osterweil v. Bartlett, 2nd U.S. Circuit Court of
Appeals, No. 11-2420.
For Osterweil: Paul Clement, Bancroft.
For Bartlett: Simon Heller, New York State Office of the
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