ALBANY 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.