Retired Supreme Court Justice Sandra Day O’Connor, sitting temporarily on a federal appeals court, suggested in an opinion on Tuesday that it might be unconstitutional for a state to deny handgun licenses to individuals who have only temporary homes in the state, when they want a gun to protect their home there. And, in discussing the need for care about gun safety, the O’Connor opinion cited the Newtown school childrens’ massacre as a reason to keep guns out of the “wrong hands.”

The comments came as she wrote for a three-judge panel of the Second Circuit Court, as it asked New York’s highest state court for an interpretation of a state law on who may obtain a handgun permit in the state. The case involves a Louisiana man, Alfred G. Osterweil, who has a vacation home in New York, but was denied a permit because his formal residence is in Louisiana. He claimed the denial violated his Second Amendment right to have a gun. (The case is Osterweil v Bartlett, Circuit docket 11-2420.)

The Louisiana man’s lawyer had urged the Second Circuit to go ahead and decide his Second Amendment challenge to the denial of a permit, but the panel opted instead to first ask the state Court of Appeals (its highest court) to decide whether the licensing limitation to “residents” meant only those who live full-time in the state. A New York county official had denied Osterweil a permit after interpreting the law to allow licenses only for full-time residents. That official also ruled that denying a license to a part-time resident did not violate the Second Amendment, because the state had an ongoing interest in making sure that those who have guns in the state remain proper users of such weapons.

Osterweil challenged that denial in federal court, but lost in a U.S. District Court. He then asked the Second Circuit to find a constitutional violation, ensuring him a right to have a gun for use when he visits his vacation home in Summit, N.Y.; he noted that he has a gun that he keeps at his Louisiana home. His appeal led to Tuesday’s ruling.

Justice O’Connor, though retired from the Supreme Court, remains a federal judge with the power to sit temporarily on lower courts. It was in carrying out such an assignment that she led the panel in the new ruling.

She wrote that New York’s highest court had not yet settled the scope of the gun licensing law. She said that issue is important to the state. “The regulation of firearms,” she wrote, “is a paramount issue of public safety, and recent events….are a sad reminder that firearms are dangerous in the wrong hands.” (At that point in her opinion, she cited a news article about the Newtown elementary school killings.)

If the state court were to conclude that the gun licensing law only requires one to live temporarily in the state, O’Connor wrote, that would end the Louisianan’s protest, and he apparently would then be entitled to a license. If, however, the state court were to rule that only permanent residents are eligible, the opinion said, the Second Circuit would then have to face and decide the Second Amendment issue. She said the panel agreed that the case potentially raised “a serious constitutional issue,” and commented that limiting gun rights to full-time New Yorkers would “operate much like” flat bans on gun rights — bans that were struck down twice by the Supreme Court as it established a personal right to have a gun under the Second Amendment.

But, she concluded for the panel, the existence of a serious constitutional question was “a good reason” to first ask the advice of the state court, and was “not a reason to race ahead” to answer that question. Courts, she wrote, normally avoid deciding constitutional questions when doing so is unnecessary to decide a case.

The opinion set no time limit on the state court’s answer to the question about the scope of the New York residency law, but it expressed confidence that any delay would not be extensive.

(The blog thanks Howard Bashman of How Appealing blog for the alert to this decision, and for a link to the O’Connor opinion.)

Recommended Citation: Lyle Denniston, A new gun rights issue arises, SCOTUSblog (Jan. 29, 2013, 6:03 PM), https://www.scotusblog.com/2013/01/a-new-gun-rights-issue-arises/