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New York Civil Appeal Centers on State’s Strict Gun Control Laws

Alfred Osterweil, a retired attorney and former U.S. Army serviceman, wanted a permit to carry a pistol in New York.

He applied for one back in 2008 in Albany, but was denied on the grounds that his residency here was only part-time, and state law did not allow issuance of permits to those who are not full-time residents. Osterweil filed a civil lawsuit the following year.

The case has been winding its way through the New York civil appeals process, and now it is set to be heard by the state’s highest court.

Those representing him say at its core, the lawsuit is about civil rights and that the state’s strict gun laws – some of the toughest in the nation – are unconstitutional and should be struck down. But the case has been brought at a particularly challenging time. We’ve had a series of high-profile, mass shootings, which prompted swift action from state lawmakers to tighten gun access.

Specifically, lawmakers shored up the state’s existing assault weapons ban, limited ammunition magazines to seven bullets rather than 10 and strengthened rules that govern the mentally ill, including requirements to report behavior that could be potentially harmful.

There are calls across the country to restrict access even further. Even Starbuck’s is weighing in, with the CEO issuing a statement recently, requesting that gun owners please not bring their weapons into the store, even when they are lawfully permitted to do so.

The courts are supposed to be insulated from political matters, though. This case will need to be decided solely on its merits and the issue of law.

The plaintiff says that while he maintains a part-time vacation residence in Albany, his primary residence is in Louisiana.

A county judge ruled that he didn’t qualify to be granted a permit in a city or county where he did not permanently reside, is mainly employed or has his principal business. In that ruling, the judge cited a 1993 decision from the state court, which found that one must have established his or her domicile in New York in order to be granted a permit for a firearm.

From there, the plaintiff filed a federal case. That case has made it to the appellate level. However, justices say that they need the state’s high appeals court to define what the statute means by the term “resides.”

The plaintiff holds that the state’s treatment of part-time residents, as opposed to those who are domiciled in New York, violates the Equal Protection Clause of the 14th Amendment.

Interestingly, the assistant solicitor general is asking that the court write a much narrower decision to interpret the law as requiring gun permit applicants to have New York residence, but not necessarily permanent residency, in order to have their request fulfilled. By interpreting it as allowing for only full-time residents to obtain permits, the solicitor general said, the state could be vulnerable to lawsuits challenging the constitutionality of the entire statute.

The Law Offices of Ira S. Newman provides civil appeals representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.

Additional Resources:
Court of Appeals to consider Schoharie County pistol permit refusal, Sept. 12, 2013, By Michael Virtanen, The Associated Press
Osterweil v. Bartlett, Jan. 26, 2012, U.S. Court of Appeals for the Second Circuit
More Blog Entries:
Civil Rights Victory in NYC Rent-Control Tug-of-War, Aug. 12, 2013, Long Island Civil Appeals Lawyer Blog