Part-Time New Yorkers Can Get Gun Licenses
(CN) - A Louisiana man with a New York summer home can get a gun license in the Empire State, the 2nd Circuit ruled, declining to reach constitutional questions on his lawsuit.
Alfred Osterweil had wanted a New York license while living in Summit, N.Y., so-named because the Catskill Mountain town was once believed to have the highest elevation in the state. New York's actual record-holder is Keene, whose well-trod Mount Marcy cuts the clouds at more than a mile high.
Months after submitting his May 2008 application in Schoharie County, Osterweil moved to Louisiana and kept his Summit home as a part-time vacation residence.
When he informed licensers about the change, Schoharie County Judge Goerge Bartlett rejected his application on the grounds that New York's "resident" requirement was actually a "domicile" requirement. Osterweil challenged that distinction as unconstitutional in the Northern District of New York under the Second and 14th Amendments, but a federal judge granted the state summary judgment.
His appeal of that decision went to the 2nd Circuit where former U.S. Supreme Court Justice Sandra Day O'Connor had stepped out of retirement to participate in the three-judge panel hearing the case.
In a 14-page February ruling , O'Connor wrote that the then-recent Sandy Hook Elementary School Massacre highlighted the importance of gun control issues: "Questions like the one before us require a delicate balance between individual rights and the public interest, and federal courts should avoid interfering with or evaluating that balance until it has been definitively struck."
She and her colleagues nonetheless punted the issue to the New York Court of Appeals by asking them to resolve the question: "Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?"
The court answered yes on Oct. 15.
On Monday, a three-judge panel of the 2nd Circuit accepted that guidance and declined to reach the constitutional question, stating that it was "based on a flawed reading of the licensing statute."
An attorney for Osterweil did not immediately respond to a request for comment.