NY Part Time Residency Case Update - Osterweil

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  • Recoil45

    Active Member
    Jul 29, 2011
    174
    NY
    Attorneys representing both the government and a man whose
    application for a pistol permit was denied asked New York's highest
    court Thursday to rule that state law does not prohibit issuing
    permits to people who only live in-state part time.

    However, Alfred Osterweil's lawyer urged the Court of Appeals to
    directly cite his Second Amendment right to bear arms as the reason
    why, calling into question whether New York's gun law is
    unconstitutional and should be struck down.

    "This is fundamentally a civil rights case," Daniel Schmutter said.

    The case of Osterweil came to the Court of Appeals by way of the
    federal courts, where he challenged Schoharie County's rejection of
    his 2008 handgun license application. While keeping a part-time
    vacation residence there, he advised the sheriff processing his
    application he had changed his primary residence to Louisiana.

    A county judge ruled he didn't qualify under the state law that
    requires license applications in the city or county where the
    applicant resides, is mainly employed or has his principal business.
    The judge cited a 1993 state court ruling and concluded it required
    Osterweil to have his domicile in New York.

    A federal appeals court is considering Osterweil's claim that
    rejection violated his Second Amendment rights, but asked the state
    court to first determine the meaning of "resides" under the statute.

    Assistant Solicitor General Claude Platton said the court should
    write a much narrower decision and simply interpret the law as
    requiring permit applicants to have a residence in New York but not
    necessarily a primary residence. He conceded the other interpretation
    would make New York's law unconstitutional.

    "We believe that residency is what the Legislature intended," he said.

    Several judges questioned whether they needed to address any
    constitutional issues raised by the case. They noted the U.S. Supreme
    Court's 2008 ruling, which struck down the District of Columbia's
    handgun ban and recognized an individual's right to possess firearms
    for traditionally lawful purposes, such as self-defense at home.

    "Mr. Schmutter makes the argument, why waste time? You know you've
    got a lot of guns in this state. This thing's going to keep coming
    back and coming back. Here it is teed up perfectly," said Judge
    Eugene Pigott Jr.

    Making a constitutional ruling would get the gun issue off the
    court's docket for the next 10 years, he said.

    "Why not just get it over with?" he asked.

    Chief Judge Jonathan Lippman, noting both sides want the same result,
    that Osterweil get his permit, asked for justification for making a
    constitutional statement or decision for what appears to be a
    statutory question, like many others the court routinely addresses by
    looking at laws and precedents and making a determination.

    "Do we take the case that's in front of us?" he asked.



    More here:
    http://www.dailygazette.com/news/2013/sep/12/ny-court-considers-schoharie-county-pistol-permit-/
     

    pbharvey

    Habitual Testifier
    MDS Supporter
    Dec 27, 2012
    30,158
    I suspect there will be Marylanders establishing residency in other states and then reestablishing residency in Maryland in order to legally purchase firearms on the ban list.
     

    ryan_j

    Ultimate Member
    Aug 6, 2013
    2,264
    I love it. Little by little the momentum is gathering and the snowball is building up.
     

    CrazySanMan

    2013'er
    Mar 4, 2013
    11,390
    Colorful Colorado
    I love it. Little by little the momentum is gathering and the snowball is building up.

    This. However, we can't let our guard down and become complacent. We must continue to scream and kick and fight every single push against the 2A. We are gaining ground, we cannot afford to lose any.
     

    Ungermc

    Uses Gun-oil Aftershave
    I've been thinking of talking to my attorney about using my property in WV to change my state of residence, but still maintaining my house in MD as a 'vacation home' or investment property. For instance, I might spend the work week at my house in MD to avoid a long commute, but return to my home in WV on the weekends (or so this is the scenario I'd present).
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    IMO the 2nd Circuit sent this case to the NY court in order to dodge the 2A question. The NY court, at least according to the article, will most likely narrowly rule that any residence(primary or secondary) will suffice as "residency" for purposes of getting a pistol permit. The 2A claim won't be addressed, but this guy WILL get his permit.
     

    SilverBulletZ06

    Active Member
    May 31, 2012
    102
    IMO the 2nd Circuit sent this case to the NY court in order to dodge the 2A question. The NY court, at least according to the article, will most likely narrowly rule that any residence(primary or secondary) will suffice as "residency" for purposes of getting a pistol permit. The 2A claim won't be addressed, but this guy WILL get his permit.

    If CA2 will go against Kachalsky by stating that we don't arm people in case of "imaginary" confrontation I have no doubt they can pull something out pointing to voter law or some other such nonsense to deny the right.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    If CA2 will go against Kachalsky by stating that we don't arm people in case of "imaginary" confrontation I have no doubt they can pull something out pointing to voter law or some other such nonsense to deny the right.

    In this case it's almost a concession by CA2 (which included Sandra Day Oconnor on the panel) that they know the law would be struck down by SCOTUS, but they're giving it to the NY court in order to make it go away. If NY simply affirms in this case, it goes back the CA2 and most likely they have to rule the 2A applies here, and the permit must be issued.
     

    john_bud

    Ultimate Member
    Sep 23, 2009
    2,045
    My money is on them using delay tactics until Obama can replace the "wrong thinking" portion of the court with some more "progressive thought". Then they can strike down as much of the constitution as they want with impunity.
     

    randian

    Active Member
    Jan 13, 2012
    715
    California has a similar law in place (only residents can get permits). No way CA9 rules in favor of granting a permit, though.
     

    DC-W

    Ultimate Member
    Patriot Picket
    Jan 23, 2013
    25,290
    ️‍
    Holy crap! My family lives in Rochester and I do spend some time up there each year. Permit for me???? :innocent0
     

    ryan_j

    Ultimate Member
    Aug 6, 2013
    2,264
    This is interesting. Is it now open to all nonresidents or just part time residents? I live in the NW corner of NJ and even if I get a carry permit, the way I travel to PA takes me briefly through NY. Now, assuming by some miracle I get a NJ permit I can either illegally carry for about a mile or I can lock my pistol in the trunk until I hit PA.
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    This is interesting. Is it now open to all nonresidents or just part time residents? I live in the NW corner of NJ and even if I get a carry permit, the way I travel to PA takes me briefly through NY. Now, assuming by some miracle I get a NJ permit I can either illegally carry for about a mile or I can lock my pistol in the trunk until I hit PA.

    You must own property in NY the way I read it.
     

    jrosenberger

    Active Member
    Jan 19, 2011
    332
    NH
    The court dodged the 2A question. This is a small victory at best.

    Missed this until now, they did indeed dodge the 2A question. CA2 opinion from 12/23: http://caselaw.findlaw.com/us-2nd-circuit/1653279.html

    "Given this conclusion, we decline to reach the constitutional question raised by Osterweil's appeal, which is based on a flawed reading of the licensing statute. We hereby vacate the decision of the District Court and remand for further proceedings consistent with this opinion."
     

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