The 2d Amendment comes to the 2d Circuit

The national gun debate came to the Second Circuit this week as the Court of Appeals took up a Second Amendment issue that is so tricky that it sent the case to the New York Court of Appeals to iron out a threshold legal issue.

The case is Osterweil v. Bartlett, decided on January 29. The plaintiff was a temporary New York resident who wanted a gun for his part-time residence in Schoharie County (he lived in Louisiana). New York law provides for gun licenses "where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper." Plaintiff's application was denied because he did not reside in New York anymore. Does this violate the Second Amendment?

Chief Judge Jacobs and Judge Walker are sitting on the panel of this case. Also on the panel is retired Supreme Court Justice Sandra Day O'Connor, who writes the decision. She notes that the Supreme Court in 2008 said that the Second Amendment protects the right to keep a handgun at home for self-defense. She thinks this case raises a serious constitutional issue, and my guess is that the Supreme Court would say that New York's residency restriction violates the Constitution.

The district court said that the law is reviewed under intermediate scrutiny because "the law allows the government to monitor its licensees more closely and better ensure the public safety." But Justice O'Connor is not sure New York's law really prohibits non-residents from owning a gun. In different contexts, state laws define "residence" differently. If "residence" in this instance includes a temporary residence, then there is no constitutional problem, because then plaintiff can get the gun license even though he now primarily lives out of state. If residence means "domicile," then we have a real issue here. To solve this riddle, the Second Circuit certifies this case to the New York Court of Appeals, which can issue a definitive issue on this important issue of state law.