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Second Circuit Certifies Gun License Question to State Court

By Robyn Hagan Cain on February 05, 2013 | Last updated on March 21, 2019

Justice Sandra Day O'Connor is popping up throughout the circuits lately. It's like she's the judicial groundhog, telling us we're in for six more weeks of legal winter.

For part-time New York residents seeking a gun license in the state, that legal winter will be spent waiting for the New York Court of Appeals to answer a certified question.

Justice O'Connor is part of the Second Circuit Court of Appeals panel that will evaluate the constitutionality of New York's handgun licensing law, which only awards licenses to New York residents or persons employed in New York.

When Alfred Osterweil, the plaintiff in this case, applied for a New York handgun license in May 2008, he met the residency criteria. While his application was pending, however, Osterweil moved his primary residence to Louisiana, keeping his home in Summit, New York, as a part-time vacation residence.

Osterweil sent a letter to the Schoharie County licensing authorities, asking whether the move made him ineligible for a license. In July 2008 -- after the Supreme Court issued its Heller ruling -- Osterweil sent another letter suggesting that if the change foiled his license application, there would be a constitutional problem.

Schoharie County Court Judge George Bartlett denied Osterweil's application, finding that New York restricted licenses on the basis of where someone is domiciled, or permanently resides, Thomson Reuters News & Insight reports.

Osterweil then sued Bartlett, challenging the domicile requirement. In May 2011, U.S. District Judge Mae D'Agostino upheld the requirement, and dismissed the lawsuit.

Osterweil appealed, arguing that the domicile requirement is unconstitutional under the Second and 14th Amendments. But before the Second Circuit can decide the case, it wants the New York Court of Appeals to address a state law issue in the case: whether the statute's mention of residence means domicile.

The Second Circuit has asked the state court to decide if an applicant who owns a part-time residence in New York, but makes his permanent domicile elsewhere, is eligible for a New York handgun license in the city or county where his part-time residence is located.

The average time from the New York Court of Appeals' receipt of a certified question to its determination of whether to accept the question is only 38 days, but the average waiting period for an answer hovers around seven months. Those hoping for a speedy resolution are likely out of luck. Legal winter in this case will probably last at least another eight months.

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