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-/
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-/