Part-Time Residents' Gun Possession

Addressing a longstanding injustice that affects retirees and others who divide their time between different states, the case of Osterweil v. Bartlett challenges New York’s refusal to issue handgun permits to part-year residents. The plaintiff lives part of the year in Louisiana and part of the year in upstate New York, where local authorities denied him the permit that is required to possess any handgun in the home under New York law.  

Mr. Osterweil (a retired lawyer) sued, rightly arguing that the right to keep arms in one’s home is not limited to full-time residents. Unfortunately, in May 2011, a federal district judge rejected his claim. Relying on decisions handed down before Heller, the court ruled that because it’s harder for New York to track the eligibility of part-time residents, licenses can fairly be limited to “those people who have the greatest contacts with New York.”

With the support of the NRA, Mr. Osterweil appealed—now represented by former U.S. Solicitor General Paul Clement. The case was decided on Jan. 29 by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. (One of the judges was retired Supreme Court Justice Sandra Day O’Connor.)  Rather than answering the fundamental question, the court agreed with the state that there should first be a ruling from the New York courts on the meaning of the state law. In other words, the federal judges decided to ask the state courts whether New York law really does prohibit issuance of handgun licenses to part-time residents.

To deal with situations like this, the federal courts use a process known as “certification,” in which the issue is sent to the state’s highest court for consideration. In this case, that court is the New York Court of Appeals, which accepted the question on Feb. 19. While a state court ruling that part-time residents are entitled to apply for permits would give welcome relief for many, this latest procedural twist also means that Mr. Osterweil’s exercise of his fundamental Second Amendment right to protect himself in his home will, unfortunately, be further delayed.