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NY Must Resolve Gun Owner’s Residency Issue

MANHATTAN (CN) - The 2nd Circuit has declined to answer whether a Louisiana man with a New York summer home can get a gun license in the Empire 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," former Supreme Court Justice Sandra Day O'Connor wrote for a three-judge panel.

O'Connor stepped out of retirement to hear the federal appeals court case.

In explanation of the remark about "recent events," the decision footnotes an article on the Sandy Hook Elementary School massacre in Newtown, Conn.

"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," O'Connor wrote.

Alfred Osterweil brought the case after he was denied a gun license that he sought 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 under the Second and 14th Amendments, but a federal judge granted the state summary judgment.

O'Connor and her colleagues elected last week to have New York's highest state court, the Court of Apppeal, resolve the case.

New York Penal Law requires one to apply "in the city or county ... where [one] resides," but courts have been split on whether a "residence" is a "domicile" since 1889, according to the 14-page ruling.

"Indeed, any ruling we might make on this state law question would not be binding on New York state courts and thus has the potential for sowing confusion," O'Connor wrote.

The certified question asks: "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?"

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