Skip to comments.A new gun rights issue arises (NY)
Posted on 02/01/2013 7:13:28 PM PST by neverdem
Retired Supreme Court Justice Sandra Day O’Connor, sitting temporarily on a federal appeals court, suggested in an opinion on Tuesday (PDF)that it might be unconstitutional for a state to deny handgun licenses to individuals who have only temporary homes in the state, when they want a gun to protect their home there. And, in discussing the need for care about gun safety, the O’Connor opinion cited the Newtown school childrens’ massacre as a reason to keep guns out of the “wrong hands.”
The comments came as she wrote for a three-judge panel of the Second Circuit Court, as it asked New York’s highest state court for an interpretation of a state law on who may obtain a handgun permit in the state. The case involves a Louisiana man, Alfred G. Osterweil, who has a vacation home in New York, but was denied a permit because his formal residence is in Louisiana. He claimed the denial violated his Second Amendment right to have a gun. (The case is Osterweil v Bartlett, Circuit docket 11-2420.)
The Louisiana man’s lawyer had urged the Second Circuit to go ahead and decide his Second Amendment challenge to the denial of a permit, but the panel opted instead to first ask the state Court of Appeals (its highest court) to decide whether the licensing limitation to “residents” meant only those who live full-time in the state. A New York county official had denied Osterweil a permit after interpreting the law to allow licenses only for full-time residents. That official also ruled that denying a license to a part-time resident did not violate the Second Amendment, because the state had an ongoing interest in making sure that those who have guns in the state remain proper users of such weapons.
Osterweil challenged that denial in federal court, but lost in a U.S. District Court. He then asked the Second Circuit to find a constitutional violation, ensuring him a right to have a gun for use when he visits his vacation home in Summit, N.Y.; he noted that he has a gun that he keeps at his Louisiana home. His appeal led to Tuesday’s ruling.
Justice O’Connor, though retired from the Supreme Court, remains a federal judge with the power to sit temporarily on lower courts. It was in carrying out such an assignment that she led the panel in the new ruling.
She wrote that New York’s highest court had not yet settled the scope of the gun licensing law. She said that issue is important to the state. “The regulation of firearms,” she wrote, “is a paramount issue of public safety, and recent events….are a sad reminder that firearms are dangerous in the wrong hands.” (At that point in her opinion, she cited a news article about the Newtown elementary school killings.)
If the state court were to conclude that the gun licensing law only requires one to live temporarily in the state, O’Connor wrote, that would end the Louisianan’s protest, and he apparently would then be entitled to a license. If, however, the state court were to rule that only permanent residents are eligible, the opinion said, the Second Circuit would then have to face and decide the Second Amendment issue. She said the panel agreed that the case potentially raised “a serious constitutional issue,” and commented that limiting gun rights to full-time New Yorkers would “operate much like” flat bans on gun rights — bans that were struck down twice by the Supreme Court as it established a personal right to have a gun under the Second Amendment.
But, she concluded for the panel, the existence of a serious constitutional question was “a good reason” to first ask the advice of the state court, and was “not a reason to race ahead” to answer that question. Courts, she wrote, normally avoid deciding constitutional questions when doing so is unnecessary to decide a case.
The opinion set no time limit on the state court’s answer to the question about the scope of the New York residency law, but it expressed confidence that any delay would not be extensive.
(The blog thanks Howard Bashman of How Appealing blog for the alert to this decision, and for a link to the O’Connor opinion.)
The Second Amendment has no limits on firepower nor on geographical location.
The Second Amendment has no limits on firepower nor on geographical location.
Next question, if you just traveling through the state to get to New England can you get a permit?
Next question, can I apply for a New York gun permit from Virginia?
Next question, do I actually ever have to visit New York to be issued a permit?
Seems to me the USSC following the dicta that you can't absolutely prohibit the carrying of a firearm could well end up allowing non-resident, non-visitors to have permits to carry firearms in New York even though residents could be denied such permits.
We also need to go to work on this business of government officials being able to violate gun free fire zones at will.
This reply is off-topic, but may be of interest to those interested in New York state’s putsch for gun control and confiscation.
I was told this by a friend who lives there, can’t vouch for its content, but this is what he told me. Take it with a grain of salt.
Recently there was a gun show in northern Pennsylvania not too far from the New York state line (not the big one in Harrisburg that got cancelled).
In the parking lot, there were individuals from New York state (not sure whether they were agents of the NY state police, or some other NY state agency), who copied down the license plate numbers of any New York registered vehicles that were parked for the show (remember, this is happening inside PA).
Later on, the NY state police set up roadblocks on the roads leading back across the state line, and stopped and questioned vehicles that were “on the list”. I don’t know whether they simply questioned the drivers or conducted a “plain sight” search (or anything more than that), but I’m told they confiscated any ammunition purchased at the show as being brought into NY state in violation of the new state law — which isn’t even in effect as of yet.
Again, can’t vouch for the absolute veracity of this, but that’s what I was told.
Is this a portent of what’s to come there?
I have been screaming about this for years - I have a cabin in NY, but live in VA. Glad to see it is finally getting some attention.
“In the parking lot, there were individuals from New York state (not sure whether they were agents of the NY state police, or some other NY state agency), who copied down the license plate numbers of any New York registered vehicles that were parked for the show (remember, this is happening inside PA).
Later on, the NY state police set up roadblocks on the roads leading back across the state line, and stopped and questioned vehicles that were on the list. I dont know whether they simply questioned the drivers or conducted a plain sight search (or anything more than that), but Im told they confiscated any ammunition purchased at the show as being brought into NY state in violation of the new state law which isnt even in effect as of yet.
Again, cant vouch for the absolute veracity of this, but thats what I was told.”
Here is how the NY residents who went to PA should have handled it:
Have a friend park his car somewhere else. A few miles away from the “show” at the very least. After the show take your “stuff” to the car that was parked somewhere else. Put your “stuff” in that car. Then the two drives go their separate ways. The car on the “check list” gets pulled over and searched. Nothing is found. The car not on the “check list” doesn’t get pulled over.
Yes - lot’s of questions for New York. My vacation camp in NY has a new bear problem. We need a gun when we walk in the woods.
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NYSRPA checked this. NYS police did not have roadblocks set for this event. False rumor.
Not to worry...maybe NY will let you have a BB gun.
License is another word for infringement.
#4: Re your questions. Some are superfluous to the issue.
Let’s deal with the original issue, a person who lives out of state (Louisiana) has a second vacation home in NY. Can he be issued a gun permit in NY because he lives there part-time?
His claim should be, besides that of the 2nd Amendment, that since he pays property taxes (to county, city, state, etc), he is taxed as a resident, and not as a visitor who doesn’t own any property there.
Therefore his staying on “property” he owns in NY qualifies him as a “legal resident”, even if it is only parttime.
This is solely a “owning property, paying taxes on them” issue, not that of an itinerant visitor (who pays no property tax). Let’s keep the argument simple and direct.
Next question: Why doesn’t NY have reciprocity with other states who issue their residents legal CC Permits? Also, if their own state has such as reciprocity, make it a state to state issue.
If one’s state doesn’t have a reciprocity system, advocate for it.
If there is a “reciprocity agreement” between the states involved, you might not have to appear in the other state to get a permit, though it would be a significant deterrent to fraud if you appeared in person with your state permit and other identity papers.
Another way might be for your local police to vouch for your identity and have them send NY confirmation of your local permit and identity, for a set processing fee.
Ergo, New York has no right to establish its own permitting and use standards.
Well, I’m the itinerant non-taxpayer you’re talking about, so let me chime in.
My elderly father lives in NY. Since Mom passed away, we visit more frequently. He lives in a highly populated area where (guess what) crime is increasing.
I have other family in DC and Virginia, and we visit there two or three times a year. The drive down passes through NY, NJ, and Maryland.
I have a home state CCW, as well as VA non-resident. I cannot get NY or DC (because there are no non-resident permits), and I have been told that although there are such things as NJ and MD non-resident CCW permits that they are never issued to people like me.
So, as a NY-NJ-MD-DC non-resident, I am disarmed by the law. This is a substantial infringement on my liberty (even if there were no 2A), it puts my family at risk, it fails to give full faith and credit to the actions of my home state as well as the other states that have issued me permits.
The right of self-defense is a natural, not a constitutional one. This infringement on my liberty by the states of NY, NJ and MD, and by Congress in the case of DC is EXACTLY what the opponents of Amendments I-VIII said would happen if some of our natural rights were enumerated, which is why IX and X were included.
So, although I lack standing to sue NYS or Congress in the case of DC, I’m not sure the nonresident CCW holders who have been arrested, had their firearms confiscated, or who have been fined and incarcerated in those places don’t have a case.
“The opinion set no time limit on the state courts answer to the question about the scope of the New York residency law, but it expressed confidence that any delay would not be extensive.”
Even in this day and age of dwindling job positions around the country, I would be hard pressed to even accept a temp position in NY...To me it would not be worth it...
I fully expect NY to place border stations on all roads in and out of NYS.
DC has private liquor stores ~ they have sales ~ they have lower liquor taxes ~ or did for many years ~ Congressmen buy their booze in DC so it'd best be low.
People from Maryland would drive over to DC to buy booze. Maryland cops would hang out to watch what they bought, then, sometimes, they'd follow them home, or, if the guy bought enough ~ they'd know he was buying for a business ~ and they'd just show up at his business and bust him. Ya' gots' to have them thur murland stamps on ye bottles!
Only rarely did they tag someone for his personal purchases ~ just wasn't worth it.
Currently they seem to be out of that business. Both Maryland and Virginia tightened up some of the laws regulating out of state cops when we found out Mayor Bloomburg was using NYC cops to run guns. Currently he can't even fly into Dulles or Reagan airports for fear of arrest. He has to go to Baltimore!
“”Have a friend park his car somewhere else....””
People from Mass were using that technique for tax-free N.H. booze.
My long haul trucker customers have one answer to the quirks of getting safely thru NY. They all tell me that the one type of firearm they can carry in their trucks any place in the country including NY City is a shotgun. So they love to buy basic riot guns which is a 18”barrelled pump or semi auto, extended mag, sometimes folding butt stock but always meeting the 26” minimum OA length rule——and a box of OO buck. Even tho I’m a farwester I have plenty of longhaulers pop in and I’ve sold dozens of such guns to these guys over the past two or three decades. It doesn’t address all the fine points of carry/concealed carry of other sizes of guns but it dam sure works for these guys.
As Heller is now law I think it possible to apply Heart of Atlanta to this case. A person is being denied a stated constitutional right upon entry into another state. Veru=y much like the refusal to service African Americans in Heart of Atlanta. NT has no right to interfere with an interstate traveller exercising his liberties just because he is not a full time resident of NY. As long as Heller is maintained I think this case goes against NY.