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Rights of Part-time New York Residents Affirmed

Friday, January 17, 2014

In a victory for gun owners who spend at least part of the year in the Empire State, on October 15, 2013, the New York State Court of Appeals issued an opinion in the case of Osterweil v. Bartlett that makes clear that part-time residents are eligible for New York handgun licenses.

The case arose when Alfred G. Osterweil, a resident of the town of Summit in Schoharie County, N.Y., submitted an application for a New York State pistol license in May of 2008. During the process, Osterweil alerted the Schoharie County Sheriff that he had purchased a home in Louisiana and intended to make that home his primary residence, while keeping another residence in Schoharie County. Unclear on how to proceed, the Schoharie County Sheriff queried Schoharie County Court Judge and licensing officer George R. Bartlett on the matter. Bartlett denied Osterweil’s pistol license application in May 2009.

In his denial, Bartlett claimed that the establishment of domicile in New York is required for an applicant to be eligible for a pistol license. Osterweil appealed the decision to the U.S. District Court for the Northern District of New York, which ruled in favor of Bartlett. Osterweil then appealed once more to the United States Court of Appeals for the Second Circuit, which in turn asked the New York State Court of Appeals to resolve a potentially dispositive statutory issue in the case.

New York state law states, “[a]pplications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides.” The State Court of Appeals determined that the case hinged on the different definitions of residence and domicile. Citing New York case law, the court determined that “an individual can have more than one residence, but only one domicile.” Therefore, the court held, “The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement.”

The court’s opinion also went on to cite the statute’s legislative history: “the … history of the statutes that underlay Penal 400 evinces an intent to ensure that an applicant for a handgun license applies in his place of residence, rather than an intent to limit licenses to applicants who make their domicile in New York.” According to the court, the requirement for applicants to apply within their own county of residence is intended to prevent “forum-shopping” for licenses in parts of the state where they are issued more readily than in others.

In choosing to base its ruling strictly on how the handgun licensing statute interacts with the definitions of residence and domicile, the court declined to opine on whether the New York law, as interpreted by Bartlett, is unconstitutional. Osterweil’s attorneys had argued that if New York’s pistol licenses were by law limited to those domiciled in the state, such a law would violate the Fourteenth Amendment’s equal protection clause and the Second Amendment.

While the constitutional issues posed by the case for now remained unresolved, the ruling is an important victory for New York gun owners, ensuring that those who divide their time between homes in New York and another state will not be deprived of the means of self-defense while doing so. 

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