Good News for People Who Like Guns and Vacation Homes

| Thu Jan. 31, 2013 11:19 AM EST

Second Amendment alert: New York is preventing Americans with second, third, and fourth homes in the state from obtaining pistol and revolver licenses—and a federal appeals court opinion issued Tuesday suggested this might violate the Constitution.

The case involves a man named Alfred G. Osterweil who owns a vacation home in Summit, NY, and who was denied a handgun permit in the state because his formal residence is in Louisiana. A local judge said this was okay because New York law only allows licenses for full-time residents, and argued that this did not violate the Second Amendment because it's more like a regulation than an outright ban. (An outright ban would be unconstitutional.) He held that it is in the state's interest to "monitor… its hand gun licensees to ensure their continuing fitness for the use of deadly weapons," the opinion said. If Osterweil is out of state for much of the year, the argument goes, New York can't keep tabs on whether he is a law-abiding citizen or a mass murderer.

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Osterweil objected, filed a federal suit, and lost. He then appealed, prompting Tuesday's Second Circuit opinion. Retired Supreme Court Justice Sandra Day O’Connor, sitting temporarily on the three-judge panel, wrote in the opinion that this was indeed "a serious constitutional question," but that the court needed more information before it could make a ruling.

O'Connor agreed that the requirement of full-time residency could be construed as an important safety regulation. "Some regulation of itinerant handguns is clearly valid," she wrote, pointing to December's Newtown massacre. "The regulation of firearms is a paramount issue of public safety, and recent events….are a sad reminder that firearms are dangerous in the wrong hands."

But the constitutional issue arises, O'Connor wrote, because in recent years, the Supreme Court has ruled that a core guarantee of the Second Amendment is the right for Americans to protect their homes—presumably all four or five of them. Believe it or not, the landmark 2008 case District of Columbia v. Heller was the first Supreme Court case in US history to find that the Second Amendment protects an individual right to keep and bear arms for self-defense. The 2010 McDonald v. Chicago case reinforced that ruling. O'Connor wrote that limiting gun rights to permanent New Yorkers could operate like the outright gun bans that were struck down in those two cases.

But O'Connor's appeals court is not rushing to judgment. It opted instead to first ask New York's highest court to clarify its own law on whether the licensing limitation to "residents" really means only those who live full-time in the state.

If the state court interprets the law as only allowing permanent residents to get handgun permits, the Second Circuit Court will then take up the question of its constitutionality. That decision would affect the shoot-em-up rights of people with multiple homes from Maui to Nantucket. But it is likely that the lower court will decide that the word "resident" is not that strictly defined. If that happens, the case is finished and Osterweil and his fellow vacationers will be free to defend their homes-away-from-home with New York state-sanctioned pistols.

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