OSTERWEIL V BARTLETT -2nd Circuit Court of Appeals, Oct. 26th

This case has to do with a person’s ability, who owns a house in NY, to get a license in NY when NY is not their domicile or primary residence.  PL 400 requires:

  3. Applications. (a) Applications 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,

Previous case law held that NY had to be your primary residence because the ability to possess a pistol was a privileged, not a right but that was pre-Heller and Chicago.  With Heller & Chicago we now have a SCOTUS decision that owning a handgun is a right not a privilege and we believe that your right should go with you to how many homes you own and not be limited to just your primary residence.   Could someone say that your right to free speech is good only in the state where your primary residence is located?

This is a very focused law suit because Osterweil, who is a lawyer, applied for a license under PL400 section 2a, “have and possess in his dwelling by a householder;” and not under PL 400 section 2f, “have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; ” that most people outside of NY City apply for.  Because 2a is limited only to your home, it avoids getting muddied by bringing up a “concealed” license.  That will have to come later.

We will also have to wait to see how it will impact NY residents because right now if you live in NY City and have a second house outside of NY City, you can only get a “Premise residence,” (or “premise business licenses”) and a premise license is only valid in your NYC home and does not allow you to take your handgun outside of the NYC residence you are licensed at.  (NYC did re-interpret NYC handgun rules and now they say that you can take the handgun to a NYC range to practice.)  If you live outside of NYC and have a license and also have a residence in NYC, your license is not valid in NYC unless NYC validates it and that they will not do. (CLICK HERE TO SEE MY ARTICLE FROM 2002)

11-2420-cv Alfred G. Osterweil (12) v. George R. Bartlett, III
Friday, Oct. 26, 2:00pm
Ceremonial Courtroom (9th Floor)
500 Pearl St., NYC
They have been given 12 minuets for each side.

CLICK HERE FOR THE OPENING BRIEF

Counsel for Plaintiff-Appellant

Daniel L. Schmutter
GREENBAUM, ROWE, SMITH  & DAVIS LLP
P.O. Box 5600
Woodbridge, NJ 07095
(732) 549-5600
dschmutter”*a*t”greenbaumlaw.com
Case: 11-2420 Document: 55 Page: 1 01/26/2012 509365 54

Here are the Judges:

Chief Judge Dennis Jacobs, appointed in 1992 by President George H. W. Bush.

Judge John Walker; Nominated by George H.W. Bush on September 21, 1989,

Justice Sandra Day O’Connor; (yes, the Sandra Day O’Connor,) appointment in 1981 by Ronald Reagan as a United States Supreme Court justice.  She retired on January 31, 2006 but continues to hear cases as a substitute judge.

 

 

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