Justice O’Connor Punts Second Amendment Question From Second Circuit To NY Court of Appeals

January 29th, 2013

Yes, Justice O’Connor is still hearing cases–this time considering whether New York’s denial of a handgun license (in the home, not carry) to a person who only lives in New York part-time is constitutional. Before confronting the Second Amendment issue, O’Connor found that it was unclear as a matter of New York law how this statute was understood.

Rather than resolving the issue, she certified this question to the New York Court of Appeals (the court of last resort in the Empire State):

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?

Of course, Justice O’Connor was not on the Court for Heller. Justice Alito replaced her. So it is an interesting counterfactual how SDO wrote about the right to keep and bear arms.

To begin, we agree with both parties that there is a serious constitutional question in this case. This Court has recently held that “Second Amendment guarantees are at their zenith within the home,” Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012), and a domicile requirement will operate much like the bans struck down in Heller and McDonald v. Chicago, 130 S. Ct. 3020 (2010), for part-time New York residents whose permanent homes are elsewhere. At the same time, this Court has acknowledged that the ground opened by Heller and McDonald is a “vast ‘terra incognita’” that “has troubled courts since Heller was decided.” Kachalsky, 701 F.3d at 89 (quoting United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J.)). It is open to Osterweil to make his domicile in New York, so even a domicile requirement may not be the kind of absolute ban that the U.S. Supreme Court has already addressed, and some regulation of itinerant handguns is clearly valid. See Kachalsky, 701 F.3d at 100 (“[E]xtensive state regulation of handguns has never been considered incompatible with the Second Amendment or, for that matter, the common-law right to self-defense.”). Thus, we would confront a serious and very difficult question of federal constitutional law if required to evaluate a domicile requirement.

Oh yeah, and Paul Clement, who argued Heller and McDonald, argued this case.

H/T How Appealing