Was a part-time resident of New York, permanently domiciled elsewhere, eligible for a New York handgun license? Answer: Yes.

In Osterweil v. Bartlett, 2013 NY Slip Op 06637, the Court of Appeals was called upon to decide “whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located.” Id. at 2.

Osterweil, whose primary residence was in Louisiana, had a vacation property in Summit, New York.

Penal Law § 400(3)(a) provides that “[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, is principally employed or has his principal place of business as merchant or storekeeper.” Id. (emphasis added).

The County Sheriff asked a County Court Judge and the County’s licensing officer whether Osterweil was entitled to the handgun license. The court denied the license application. Osterweil filed a lawsuit, pursuant to 42 USC § 1983, in the United States District Court for the Northern District of New York, “alleging that Judge Bartlett had violated his Second Amendment right to keep and bear arms and his Fourteenth Amendment right to equal protection, by denying his license application on the ground of his domicile”. Id. at 3.

The District Court rejected Osterweil’s Second and Fourteenth Amendment claims and sustained the denial of the license. On appeal, the Second Circuit certified the following question to the Court of Appeals:

“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]). Id.

In answering the certified question in the affirmative (i.e., that Osterweil was eligible for the handgun license), the Court of Appeals adverted to Penal Law § 400(3)(a) and noted that:

The applicant’s residence is referred to in the context of delineating the procedure whereby an individual files an application for a license. The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.). 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. Were it so, we would expect to see the manner of proof of domicile set out in the statute. Id. at 4.