By Ian K. Friedman, Esq.
It is rare to find something gun related in the news coming out of New York State that could be considered positive. However, October 15, 2013 will go down as a day that was a marked exception to the rule. For nearly 20 years, New York State and New York City (which for purposes of firearm laws should always be treated as a separate entity) have denied part time residents of the state the ability to apply for and be granted a New York or New York City Pistol Permit. This is now no longer the case thanks to the great work of Attorney Daniel L. Schmutter who is lead counsel for Alfred Osterweil in the matter of Osterweil v. Bartlett.
Mr. Osterweil was denied a New York State Pistol Permit because the State contended he was no longer a resident, since he was changing his primary residence to Louisiana, while still maintaining strong ties to the community, including secondary home in New York. The reason for this denial is the previous interpretation of NY Penal Law § 400 (3)(a), which covers firearms licensing, held that domicile (effective banning anyone who owned a part time residence, but made their permanent domicile elsewhere) in New York State was required to be able to be granted a New York State (or New York City) Pistol Permit. Osterwil sued claiming violation of both his Second and Fourteenth Amendment rights under a 42 USC § 1983 claim. This claim was initially dismissed by the District Judge.
However, on appeal to the Second Circuit Court of Appeal, the New York State Attorney General, suddenly changed his position and argued that the law did not actually contain a domicile requirement, in an attempt to prevent the matter from being decided on constitutional grounds. The Second Circuit sent a certified question to New York Court of Appeals asking:
Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located? (Osterweil v Bartlett, 706 F3d 139, 145 [2d Cir 2013])
The New York Court of Appeals decided to overrule “an Appellate Division decision, Mahoney v Lewis (199 AD2d 734 [3d Dept 1993]),” which held that “as used in this statute the term residence is equivalent to domicile” (id. at 735).” This was one of the reasons given by Judge Bartlett, along with 400 (3)(a), and finally as a lawful regulatory measure under District of Columbia v. Heller (554 U.S. 570 ). It is clear that the New York State Attorney General was fearful of losing a case on Second and Fourteenth Amendment grounds and decided to concede that domicile was not the same as residence and concede a loss by technicality.
The New York State Pistol Permit is a process that can vary greatly from county to city to village (in short any and all political subdivisions in the state) in terms of what a person is asked on the application and how they can apply. In counties outside of the five Boroughs of New York City, a New York State Pistol Permit is valid in the entire state and can be range from a Restricted one limited to Target Shooting to Unrestricted Concealed Carry (this is not the case in New York City). In the vast majority of Counties, the approval process is headed by a Judge (the Defendant in this case was “George R. Bartlett III, the Schoarie County Court Judge and also the county’s licensing officer”); in a few areas a Sheriff or Chief of Police, and in NYC, the NYPD, handle the requests.
The process is also extremely expensive and invasive when compared to Pennsylvania’s more modern and liberal rules for obtaining a License to Carry Firearms (and of course an LTCF is not required to purchase a firearms). It is a process that for some will take more than a year to do and may require legal action to overturn a denial. It may also only result in a person being given a restricted license vs an unrestricted one (similar to the various gradings Massachusetts has in their firearms licensing system).
We at Prince Law Offices, P.C. can help residents of other states, who wish to obtain a New York State or New York City Pistol Permit, and who are part time residents of New York State and New York City. Now, it is possible to be a resident of Pennsylvania, New Jersey, Delaware, and every other state in the Union and no longer be denied your right to own (and carry) handguns in New York State (and own handguns in New York City).
As a licensed member of the New York (along with Pennsylvania) State Bar, I am prepared to assist in all matters related to New York Firearms Law: including improper searches for firearms “loaded with 8 rounds,” Questions about NY SAFE Act Compliance for both consumers and industry, trusts to ensure that grandfathered “Assault Weapons” can be safely transferred out of state and not confiscated by the State of New York, upon your death, and any other Firearms Law related matter.