Alfred G. Osterweil, Appellant,v.George R. Bartlett, III, Respondent.BriefN.Y.February 13, 2013To be Argued by: PAUL D. CLEMENT (Time Requested: 10 Minutes) Appeal No. CTQ-2013-00001 Court of Appeals of the State of New York ALFRED G. OSTERWEIL, Appellant, - against - GEORGE R. BARTLETT, III, in his Official capacity as Licensing Officer in the County of Schoharie, Respondent. _______________________________ ON APPEAL FROM THE QUESTION CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 11-2420-CV BRIEF FOR APPELLANT DANIEL L. SCHMUTTER GREENBAUM, ROWE, SMITH & DAVIS LLP P.O. Box 5600 Woodbridge, New Jersey 07095 Tel.: (732) 549-5600 Fax: (732) 549-1881 - and - PAUL D. CLEMENT D. ZACHARY HUDSON BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 Tel.: (202) 234-0090 Fax: (202) 234-2806 Attorneys for Appellant Date Completed: May 7, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii JURISDICTIONAL STATEMENT .......................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 STATEMENT OF FACTS ........................................................................................ 4 SUMMARY OF ARGUMENT ............................................................................... 11 ARGUMENT ........................................................................................................... 13 I. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Second Amendment. ............................................... 13 A. A Ban On Home Handgun Possession By Part-Time State Residents Prevents The Exercise Of The Core Right Identified In Heller And Is Thus Unconstitutional. ............................ 14 B. A Ban On Home Handgun Possession By Part-Time State Residents Fails Under Any Arguably Applicable Standard of Scrutiny. .............................................................................................. 17 II. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Equal Protection Clause. ......................................... 26 III. This Court Should Construe New York Law Governing Home Handgun Possession As Not Requiring Domicile. ........................................ 29 CONCLUSION ........................................................................................................ 31 ii TABLE OF AUTHORITIES Cases Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573 (Ct. App. 1991) .....................................................................30 Anonymous v. City of Rochester, 13 N.Y.3d 35 (Ct. App. 2009) .......................................................................19 Ashcroft v. ACLU, 542 U.S. 656 (2004).......................................................................................19 Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) ............................................................................21 Carey v. Brown, 447 U.S. 455 (1980).......................................................................................22 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).......................................................................................27 District of Columbia v. Heller, 554 U.S. 570 (2008)............................................................................... passim Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214 (1989).......................................................................................19 Fla. Star v. B.J.F., 491 U.S. 524 (1989).......................................................................................22 Florida v. Jardines, No. 11-564 (U.S. Mar. 26, 2013)...................................................................26 Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).......................................................................................27 Hernandez v. Robles, 7 N.Y.3d 338 (Ct. App. 2006) .......................................................................19 In re Mahoney v. Lewis, 605 N.Y.S.2d 168 (App. Div., 3d Dep’t 1993) ............................................... 7 iii Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) ............................................................... 18, 22, 24 Longwood Central School District v. Springs Union Free School District, 1 N.Y.3d 385 (Ct. App. 2004) .......................................................................30 Matter of Contento v. Kohinke, 42 A.D.2d 1025 (App. Div., 3d Dep’t 1973) .................................................30 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ................................... passim People v. Abdullah, 870 N.Y.S.2d 886 (Crim. Ct., Kings County 2008) ........................................ 2 People v. Bounasri, 915 N.Y.2d 921 (Rochester City Ct. 2011) ............................................ 19, 28 People v. Perkins, 880 N.Y.S.2d 209 (App. Div., 3d Dep’t 2009) ...................................... 13, 17 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).........................................................................................19 Plyler v. Doe, 457 U.S. 202, 212 (1982) ..............................................................................26 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ...........................................................................................19 State of New York v. Collins, 435 N.Y.S.2d 161 (App. Div., 3d Dep’t 1981) ............................................... 7 Ullman v. United States, 350 U.S. 422 (1956).......................................................................................25 United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) ..........................................................................18 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000).......................................................................................20 iv Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).......................................................................................25 Constitutional Provisions U.S. Const. amend. II ....................................................................................... passim U.S. Const. amend. XIV .................................................................................... 26, 27 Statutes 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 1294 ........................................................................................................ 1 28 U.S.C. § 1331 ........................................................................................................ 1 42 U.S.C. § 1983 ....................................................................................................1, 8 N.Y. Civil Rights Law, art. 2, § 4 ............................................................................13 N.Y. Penal Law § 261.01(5) ....................................................................................28 N.Y. Penal Law § 265.00(10) .................................................................................... 5 N.Y. Penal Law § 265.01(1) ...................................................................................... 5 N.Y. Penal Law § 265.02(4) ...................................................................................... 5 N.Y. Penal Law § 265.20 ........................................................................................... 5 N.Y. Penal Law § 400.00 ..................................................................................passim JURISDICTIONAL STATEMENT This case was originally filed pro se in the United States District Court for the Northern District of New York on July 21, 2009. A7. The District Court had subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 as it involved claims arising under 42 U.S.C. § 1983 and the Constitution. On May 20, 2011, the District Court entered a final judgment disposing of all claims. A180; see A151. Plaintiff-Appellant filed a timely notice of appeal on June 13, 2011. A181. The United States Court of Appeals for the Second Circuit had appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 & 1294. The Second Circuit certified one question to the New York Court of Appeals pursuant to New York Court of Appeals Rule 500.27 and Second Circuit Rule 27.2: 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? A197. This Court accepted the certified question on February 19, 2013. A198. 2 PRELIMINARY STATEMENT The Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), marked a watershed moment in Second Amendment jurisprudence. Resolving a question that had been the subject of ongoing debate for the better part of a century, the Court concluded that the text, structure, and history of the Second Amendment confirm that it “confer[s] an individual right to keep and bear arms.” Id. at 595. Two years later, the Court made clear in McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010), that this individual right is a fundamental one that applies with full force to the States. Given that Heller’s holding was contrary to the law that had governed most of the Nation, including the State of New York, see People v. Abdullah, 870 N.Y.S.2d 886 (Crim. Ct., Kings County 2008), one would have expected to see states and municipalities respond by examining their laws to determine whether they were consistent with the fundamental individual right the Supreme Court recognized. Instead, many states have doubled down. The nearly five years since Heller was decided have been marked by intransigence if not outright defiance of the Court’s decision. States continue to enforce pre-Heller regulatory regimes, premised on the mistaken belief that the Second Amendment does not protect an individual right, as if nothing happened. 3 The State of New York’s conduct in this litigation is a prime example. Appellant Alfred G. Osterweil (“Mr. Osterweil”) was denied a license to keep a handgun in his New York home because he is a part-time resident of the State. Although Heller came down before his permit request was denied and McDonald issued during the District Court proceedings, the State steadfastly maintained that those decisions did not change the reality that, as a part-time resident, Mr. Osterweil had no right to possess a handgun for defense of his home. Indeed, while Mr. Osterweil litigated pro se in federal district court, New York was quite happy to fight tooth and nail for a ban on home handgun possession by part-time New York residents despite the lack of cogent basis to distinguish Heller. Only after Mr. Osterweil retained counsel on appeal did New York begrudgingly recognize some tension between the denial of Mr. Osterweil’s permit and Heller’s teaching that the core purpose of the Second Amendment right is to allow “law- abiding, responsible citizens to use arms in defense of hearth and home” where the need for self-defense “is most acute.” 554 U.S. at 628, 635. Even then, however, the State of New York did not simply concede that the Second Amendment and a ban on issuing licenses to part-time residents were fundamentally incompatible. Instead, the State continued to defend a policy banning premises licenses for part-time residents, while suggesting that certification to this Court would be appropriate. The time has come for this Court 4 to make clear what should have been obvious the day McDonald confirmed that Heller was fully applicable to the laws of New York: a ban on part-time residents’ possession of handguns for defense of hearth and home is fundamentally incompatible with Heller and the Second Amendment. New York statutory law, which speaks of residence and not domicile, does not compel a contrary view and thus must be interpreted consistently with the Second Amendment. STATEMENT OF FACTS Mr. Osterweil is a retired attorney who previously served in the U.S. Army. A108. For a number of years, Mr. Osterweil lived with his family full-time on a 21-acre plot of land in Schoharie County in Summit, New York. A15. While in Schoharie, Mr. Osterweil served as a commissioner on the Summit Fire District Board of Commissioners and as an unpaid member of the Board of Directors of the Western Catskills Revitalization Corporation. After he retired, he decided to split his time between New York and Louisiana. He now spends the majority of his time in Louisiana and is domiciled there. Mr. Osterweil keeps a .22-caliber revolver in his Louisiana home for purposes of self-defense. A109, A110. On May 21, 2008, Mr. Osterweil applied to Schoharie County officials for a New York State pistol license pursuant to N.Y. Penal Law § 400.00(2)(a), without which he may not lawfully possess a handgun in his home under New York law. 5 A7; A25 ¶ 2. 1 To obtain a license, an applicant must meet several requirements. The licensing process begins with the submission of an application to the local licensing officer. 2 § 400.00(3). The applicant must be over 21 years of age, of good moral character, not have a history of crime or mental illness, and there must not exist any other “good cause” for denying the license. § 400.00(1). The application triggers a local investigation probing the applicant’s mental health and criminal history, moral character, and, in some circumstances, whether there is a “need” for the requested license. § 400.00(2). The investigating authority also takes the applicant’s fingerprints and uses that information to check for criminal history through the New York State Division of Criminal Justice Services (“DCJS”), the National Crime Information Center (“NCIC”), and the Federal Bureau of Investigation. See id; A57. The New York licensing law also states that an application for “a license to carry or possess a pistol or revolver” “shall be made . . . to the licensing officer in the city or county . . . where the applicant resides, is 1 As this Court is well aware, New York law imposes a general ban on handgun possession. N.Y. Penal Law §§ 265.01(1), 265.02(4), 265.20. In order to legally possess a handgun, one must qualify for an enumerated statutory exemption from that prohibition. Having a § 400.00(2)(a) license provides such an exemption. 2 The identity of the licensing officer varies from place to place under New York law. In many places, the licensing officer is the state “judge or justice of a court of record having his office in the county of issuance.” § 265.00(10). In some instances, the police commissioner or sheriff plays the role. Id. 6 principally employed or has his principal place of business as merchant or storekeeper.” § 400.00(3)(a). Mr. Osterweil’s home-handgun license application set this statutory machinery in motion. The Schoharie County Sheriff initiated the required investigation. A25 ¶ 3. He verified the information set forth in Mr. Osterweil’s application, contacted his references, conducted a background check using state information resources and the NCIC, and obtained and submitted Mr. Osterweil’s fingerprints to the DCJS and the FBI. A25 ¶ 3. On June 24, 2008, the Sheriff sent a letter to Mr. Osterweil informing him that he needed to come to the Sheriff’s office “to correct and/or complete some information” on his application. A25-A26 ¶ 4. In a letter sent on June 25, 2008, Mr. Osterweil informed the Sheriff that since the time he had submitted his original permit application he had purchased a home in Louisiana that he intended to use as his primary residence, and that he would now use his Schoharie residence for only part of the year. A26 ¶ 5. The letter inquired whether under such circumstances Mr. Osterweil was still eligible for a permit. A26 ¶ 5. On February 18, 2009, the Sheriff informed Mr. Osterweil that he was forwarding his application to Bartlett. A27 ¶ 13. As relevant here, in a February 20, 2009 letter, Bartlett informed Mr. Osterweil that his non-resident status would likely prevent the issuance of a home handgun license. A27 ¶ 14. 7 After several exchanges between Mr. Osterweil and Bartlett, Bartlett issued a decision on May 29, 2009, denying Mr. Osterweil’s request for a pistol permit. A134 (Exh. 21). Bartlett concluded that pistol permits may not be issued to “non- residents,” and that Mr. Osterweil was a “non-resident” under New York law. A143-A144 & n.2. That conclusion was primarily based on Bartlett’s application of In re Mahoney v. Lewis, 605 N.Y.S.2d 168 (App. Div., 3d Dep’t 1993), which held that § 400.00(3) requires that an individual be a New York domiciliary to be eligible for a handgun license. See id. at 168-69 (“we expressly have held that ‘where a statute prescribes “residence” as a qualification for a privilege or the enjoyment of a benefit, the word is equivalent to “domicile”’” (quoting State of New York v. Collins, 435 N.Y.S.2d 161, 162 (App. Div., 3d Dep’t 1981)). Bartlett further determined that New York’s domicile requirement was consistent with Heller. A145-A150. Bartlett never concluded that Mr. Osterweil lacked the necessary character or qualifications to obtain a home handgun license. The license denial was predicated entirely on the conclusion that Mr. Osterweil is domiciled in Louisiana and therefore is not a New York resident, notwithstanding that Mr. Osterweil owns a home in New York and lives there part of the year with his wife, that he has family in Summit, and that Mr. Osterweil and his wife have participated and continue to participate in social, political, and community affairs in Schoharie 8 County, including remaining as dues-paying members of the Summit Snow Riders, a local social group, and the Summit Conservation Club. A123. Mr. Osterweil, proceeding pro se, filed suit pursuant to 42 U.S.C. § 1983 against Bartlett, David A. Patterson, then Governor of the State of New York, and Andrew M. Cuomo, then Attorney General of the State of New York. A7-A8. Bartlett and his co-defendants were represented by the New York State Department of Law and the Office of the Attorney General of the State of New York. As relevant here, Mr. Osterweil’s complaint alleged that the defendants denied him his fundamental Second Amendment right to keep and bear arms by denying his license request based on his part-time resident status and that this denial ran afoul of the Equal Protection Clause. A10-A11. After the defendants other than Bartlett were dismissed from the suit, A200, both Mr. Osterweil and Bartlett moved for summary judgment. 3 A14, A22. The New York Attorney General’s Office argued that Heller and McDonald did not call into question state law “limiting its residency-based permits to domiciliaries” and that limiting home handgun possession to domiciliaries was consistent with “long-standing New York precedent.” A219-A220 (citing Mahoney). The New York Attorney General’s Office told the federal court that Mr. Osterweil’s 3 Mr. Osterweil’s Second Amendment claims were initially dismissed. He filed a motion for reconsideration after the Supreme Court issued its decision in McDonald, and Mr. Osterweil’s Second Amendment claims were reinstated. 9 contention that the Second Amendment protected his right to keep a handgun in his New York home was predicated on a misreading of Heller and McDonald. A218. The District Court was convinced by New York’s arguments and ruled against Mr. Osterweil, holding that limiting home handgun licenses to domiciliaries did not violate the Second Amendment or the Equal Protection Clause. A164-A172. Mr. Osterweil retained counsel and appealed the District Court’s denial of his constitutional rights. Just eight days before New York’s brief was due to the Second Circuit (and a full 83 days after Mr. Osterweil’s attorneys filed their opening brief) New York filed a motion asking the Second Circuit to certify the following question to this Court: “Does the applicant residency requirement in New York’s pistol permit statute, N.Y. Penal Law § 400.00(3), require not merely residency but domicile in the State of New York?” A254. In sharp contrast to the views it expressed in federal district court, New York opined that “[f]ollowing the Supreme Court’s recent and dramatic shift in Second Amendment jurisprudence, there is reason to question whether the Court of Appeals would” conclude that New York law requires domicile as a precondition for a home handgun license. A251; see A236 (Bartlett Affirmation admitting that the “continuing vitality” of New York precedent “requir[ing] not merely residence but domicile” to be eligible for a handgun license “has been cast in doubt by subsequent Supreme Court jurisprudence”). After that motion was referred to the merits panel, New York 10 reiterated its view that a domicile requirement was constitutionally suspect in its brief on the merits and again requested certification. See A264 (admitting that the Second Amendment right likely extends to protect home handgun possession for “individuals who reside in New York seasonally and are domiciled elsewhere”); A188 (noting New York’s argument in the Second Circuit “that the New York Court of Appeals would likely apply only a residence requirement” in light of Heller and McDonald). At the same time, however, New York also argued-in seeming conflict with the premise of its request for certification-that a domicile requirement would be constitutional under intermediate scrutiny. Despite the ongoing denial of Mr. Osterweil’s constitutional rights, the Second Circuit certified the following question to this Court: 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? A197. This Court accepted the certified question. A198. 4 4 New York represented to the Second Circuit that Mr. Osterweil’s Second Amendment right to protect his New York home, which has now been continuously violated for nearly five years, would not be affected by certification as he only uses his New York home in the summer and the matter would be resolved before the summer of 2013. A285. As Mr. Osterweil’s reply brief is not even due until June 25, 2013-and as Mr. Osterweil pointed out in response to the State’s flawed contention, see A317-A318 (“it is optimistic to think that this case will come to a close before summer 2013” if certification occurs)-New York was obviously wrong. In all events, we respectfully request that this Court expedite consideration of this matter in light of the ongoing denial of Mr. Osterweil’s 11 SUMMARY OF ARGUMENT Mr. Osterweil applied for a license to possess a handgun in his New York home nearly five years ago. Bartlett’s denial of that request, which was defended by the State of New York and signed off on by a federal district court, was predicated on the view that N.Y. Penal Law § 400.00(3) prohibits home handgun possession by part-time New York residents not domiciled in New York. Bartlett, New York, and the District Court all should have known better: a categorical ban on home handgun possession by part-time residents directly conflicts with the Second Amendment right to keep and bear arms and the guarantee of equal protection under the law. Heller made clear that the Second Amendment protects individual rights as a general matter and the right to keep and bear a handgun for self-protection in the home in particular. McDonald recognized that the right protected by the Second Amendment is not just an individual one, but a fundamental right protected against intrusion from state and local governments. Those decisions make clear that the policy applied by the state official here-a ban on home handgun possession by part-time residents-is indefensible. Not one word in either decision suggests that the Second Amendment is a part-time right such that a lawful, but not full-year, resident may be denied an ability to possess a handgun in the home. Second Amendment rights based on what the State all but concedes is a misconstruction of New York law. 12 As Justice O’Connor recognized in her opinion certifying the question to this Court, a ban on home handgun possession by part-time residents is tantamount to a complete prohibition of the exercise of the core right protected by the Second Amendment. A domicile requirement effectively eviscerates the right of part-time residents to defend their New York homes using handguns. Such a ban-which mirrors the ban struck down in Heller-cannot stand. Defense of home is not less vital or constitutionally protected when the hearth is only fired up during a part of the year. If anything, the constitutional right is more vital for part-time residents because part-time residences tend to be more rural and the absence of full-time occupants can make them attractive targets for criminal activity. Heller leaves no doubt that a ban like that imposed on Mr. Osterweil violates the Second Amendment under any level of scrutiny; it is simply antithetical to the constitutional right. Given the State’s track record it is unclear exactly what interests it will assert in this Court. The ones it has trotted out to this point fail to justify a categorical ban on home handgun possession by part-time residents. An interest in monitoring licensees cannot justify such a severe restriction on a fundamental right. And a generic interest in public safety and crime prevention cannot justify an absolute ban. If it could, the law struck down in Heller would still be in force. 13 Were that not enough, a ban on home handgun possession by part-time residents runs afoul of the Equal Protection Clause. Part-time residents like Mr. Osterweil have just as much of a right to protect their hearth and home as their full- time resident neighbors. Indeed, the part-time nature of Mr. Osterweil’s residence may make his need for home handgun possession when he is in-residence even greater. In sum, the ban on part-time residents’ possession of handguns for self- protection in the home applied by the state official is fundamentally incompatible with the Second Amendment and Heller. New York law, which speaks only of residence, not domicile, does not compel this clearly unconstitutional result. The certified question should be answered in the affirmative. ARGUMENT I. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Second Amendment. The Second Amendment provides that “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II; see N.Y. Civil Rights Law, art. 2, § 4 (“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.”); People v. Perkins, 880 N.Y.S.2d 209, 210 (App. Div., 3d Dep’t 2009) (a violation of the Second Amendment is “by extension” a violation of Civil Rights Law § 4). In 14 District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court recognized that the Second Amendment protects the fundamental right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 628. And in McDonald v. Chicago, 130 S. Ct. 3020, 3021, 3050 (2010), the Court concluded that “the Second Amendment right recognized in Heller” was a fundamental right that was fully applicable to the States. Those two precedents taken together make it crystal clear that a complete ban on home handgun possession by part-time residents like that applied to Mr. Osterweil is unconstitutional. A. A Ban On Home Handgun Possession By Part-Time State Residents Prevents The Exercise Of The Core Right Identified In Heller And Is Thus Unconstitutional. A complete ban on home handgun possession by part-time New York residents cannot be squared with Heller. Heller held that the District of Columbia’s ban on handgun possession in the home violated the Second Amendment. Heller, 554 U.S. at 635. In so doing, the Court stated that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation,” and that the core purpose of the right is to allow “law-abiding, responsible citizens to use arms in defense of hearth and home” where the need for self-defense “is most acute.” Id. at 592, 628, 635. “[H]andguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” Id. at 629. 15 The proscription applied to Mr. Osterweil is limited to part-year residents, but it is no less categorical or severe than the ban struck down in Heller. As Justice O’Connor’s opinion certifying the question to this Court recognized, “a domicile requirement will operate much like the bans struck down in Heller and McDonald . . . for part-time New York residents whose permanent homes are elsewhere.” A194. Such a requirement prohibits an entire class of law-abiding individuals who would otherwise be able to possess handguns in their homes “for the core lawful purpose of self-defense” from doing so based on the bare fact that they are not domiciled in New York. Heller, 554 U.S. at 630. But neither the Second Amendment nor Heller draws a distinction between part-time and full-time residents. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” Heller, 554 U.S. at 636; see McDonald, 130 S. Ct. at 3044 (“[T]he Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”); id. at 3048 (The right to keep and bear arms is “valued because the possession of firearms [i]s thought to be essential for self-defense.”). There is no reason to think that the part-time nature of Mr. Osterweil’s occupancy of his New York home should impact the calculus. The Second Amendment is not a second-class right, nor is it a part-time one. An individual 16 living part-time in a home has no less need for self-protection and, in fact, may have an even greater need for protection when in-residence. Second homes are often more rural than primary residences, and the fact that such homes are not constantly inhabited can make them attractive targets for criminal activity. The scope of Mr. Osterweil’s Second Amendment right to defend his hearth and home cannot be eviscerated by an arbitrary temporal distinction. Heller did not base its holding on how many months out of the year a person lives in his home, where he is registered to vote, or where he has his driver’s license. As explained in Heller, and reaffirmed in McDonald, the right to keep and bear arms arises from the fundamental right of self-defense, which is most critical in the home. The fundamental right of self-defense is no less acute because one has more than one home, or spends less than twelve months per year in one’s home. Those likely to cause a confrontation or illegally enter a home will be neither impressed nor deterred by the part-time nature of a person’s occupancy. Lest there be any doubt, a domicile requirement is quite unlike the “longstanding prohibitions on the possession of firearms” that the Heller Court suggested might be acceptable, such as bans on the possession of firearms by felons, the mentally ill, and minors, as well as “laws forbidding the carrying of firearms in sensitive places,” “or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27. Nor would a domicile 17 requirement reflect an effort to defer to the licensing decision of another state, whether positive or negative. Under the ban applied to Mr. Osterweil, a part-time resident fully licensed in his state of domicile still would not be able to lawfully possess a handgun in his New York home. 5 The Second Amendment right, especially when it comes to self-defense in the home, is fundamental; it is not a seasonal right that can be denied during the summer, or limited to full-year residents. The Supreme Court has made clear that any law that categorically bans the possession of handguns in the home is unconstitutional. That is exactly what the law at issue here, as interpreted and applied to Mr. Osterweil during the last five years, does and it is thus unconstitutional. B. A Ban On Home Handgun Possession By Part-Time State Residents Fails Under Any Arguably Applicable Standard of Scrutiny. Heller’s dispositive treatment of bans on handguns in the home mandates that any law requiring domicile as a precondition for home handgun possession is unconstitutional. The Court can thus follow Heller’s lead and find the policy 5 The New York Supreme Court, Appellate Division, Third District, has upheld the State’s general licensing scheme against a Heller-based challenge, holding that “article 265 does not effect a complete ban on handguns and is, therefore, not a ‘severe restriction’ improperly infringing upon . . . Second Amendment rights.” Perkins, 880 N.Y.S.2d at 210. Whatever the merits of that conclusion, it provides no support for the argument that the complete ban applied to Mr. Osterweil is somehow permissible. 18 applied here unconstitutional without specifying a level of scrutiny. Like the law in Heller, the policy applied to Mr. Osterweil is unconstitutional because it is antithetical to the core Second Amendment right. In all events, a ban on home handgun possession by part-time residents also fails any arguably applicable level of scrutiny. “In Heller, the Supreme Court concluded that the Second Amendment codifies a pre-existing ‘individual right to possess and carry weapons in case of confrontation.” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 88 (2d Cir. 2012) (quoting Heller, 554 U.S. at 592). That right was “fundamental to the newly formed system of government” at the Founding, McDonald, 130 S. Ct. at 3037, and is “fundamental to our scheme of ordered liberty,” United States v. Decastro, 682 F.3d 160, 166 (2d Cir. 2012). See McDonald, 130 S. Ct. at 3042 (“[T]he Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”); id. at 3041 (“Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental.”); id. at 3037 (“The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights.”); id. at 3040 (39th Congress’ “efforts to safeguard the right to keep and bear arms demonstrate that the right was still recognized to be fundamental”); id. at 19 3041 (“In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection.”). When a law interferes with “fundamental constitutional rights,” it is subject to “strict judicial scrutiny.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 15 (1973); see, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 54 (1983) (“strict scrutiny [is] applied when government action impinges upon a fundamental right protected by the Constitution”); Anonymous v. City of Rochester, 13 N.Y.3d 35, 45 (Ct. App. 2009) (laws “interfering with the exercise of” a fundamental right are “subject to strict scrutiny”); Hernandez v. Robles, 7 N.Y.3d 338, 375 (Ct. App. 2006) (when a law “burdens a fundamental right . . . it is subjected to strict scrutiny”). A law survives strict scrutiny only when it is narrowly tailored to serve a compelling government interest. See People v. Bounasri, 915 N.Y.2d 921, 922 (Rochester City Ct. 2011). To be narrowly tailored, a law must actually advance the compelling interest it is designed to serve, and be the least restrictive means of achieving that advancement. See Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 226 (1989); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). Burdening a significant amount of conduct not implicating the asserted interest is evidence that the law at issue is inadequately tailored. When applying strict scrutiny, the challenged law is presumed invalid, and the 20 government bears the burden of rebutting that presumption. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). 6 A domicile requirement like the one applied to Mr. Osterweil comes nowhere close to withstanding strict scrutiny. In the Second Circuit, New York argued that “a domicile requirement” “serves the substantial state interest in monitoring the activities of firearms licensees . . . .” A279. The State also noted its “interests in public safety and crime prevention.” A297. Those interests fall well short of justifying the ban accomplished by a domicile requirement. First and foremost, by arguing that “a domicile requirement” “serves the substantial state interest in monitoring the activities of firearms licensees,” id. at 20 (emphasis added), New York essentially conceded that such a requirement would not serve a compelling interest as required to survive strict scrutiny. In all events, such a contention would be unavailing. The interest of the government in monitoring its licensees cannot itself be a compelling interest in any republic worthy of the name. A licensing process with adequate monitoring might be a means to some other compelling end, but it cannot be an end in itself. 6 That strict scrutiny applies to laws that substantially burden Second Amendment rights is confirmed by the approaches that the Supreme Court rejected in Heller and McDonald. Heller explicitly and definitively rejected not only rational basis review, 554 U.S. at 628 n.27, but also the “interest-balancing” approach endorsed by Justice Breyer-which is intermediate scrutiny by another name. See id. at 634; McDonald, 130 S. Ct. at 305 (plurality op.) (“while [Justice Breyer’s] opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion”). 21 In the Second Circuit, New York contended that Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), justified its reliance on an interest in monitoring licensees. Not so. Bach stated that New York had a “substantial and legitimate interest”-not a compelling one-“in monitoring gun licensees” in the context of a “mere visitor[’]s” challenge to the State’s licensing laws. Id. at 87, 91-92. Whatever validity that argument has in the context of an individual merely passing through a State, the possession of an in-state residence provides a basis for the imposition of all manner of state regulations and responsibilities that the state can sufficiently monitor. The State cannot simply throw up its hands and suggest the job becomes too difficult when a fundamental right is implicated. 7 An asserted interest in promoting public safety and preventing crime fares no better. To be sure, the Second Circuit has recognized that the State of “New York has [a] substantial, indeed compelling, governmental interest[] in public 7 Bach held that the Second Amendment right to keep and bear arms “imposes a limitation on only federal, not state, legislative efforts,” and disposed of Bach’s Second Amendment claim on that ground. Bach, 408 F.3d at 84-86. Thus Bach’s views on the scope and nature of Second Amendment rights are outdated. Moreover, though Bach concluded that “New York’s interest in monitoring gun licensees”-“an interest in continually obtaining relevant behavioral information”-“is substantial and [] New York’s restriction of licenses to residents and persons working primarily within the State is sufficiently related to th[at] interest,” id. at 87, 91, that conclusion was clearly infected by the Court’s misapprehension of Second Amendment rights. And, in any event, the Court described the State’s interest as “substantial,” not “compelling,” and thus Bach- even if it were still good law-would dictate that the State’s monitoring interest fails strict scrutiny. 22 safety and crime prevention.” Kachalsky, 701 F.3d at 97. But that interest cannot be invoked in support of the domicile requirement applied to Mr. Osterweil. If protecting public safety and preventing handgun crime were interests sufficient to allow the State to prevent home handgun possession, then the District of Columbia handgun ban would still be on the books. It is not. As Heller made clear, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 554 U.S at 636. Banning handgun possession in the home in the name of public safety and crime prevention is one of them. When a law or regulation fails to cover a substantial swath of conduct implicating the asserted compelling interest, such underinclusiveness not only demonstrates the absence of narrow tailoring, but also serves as evidence that the interest is not significant enough to justify the regulation. See Carey v. Brown, 447 U.S. 455, 465 (1980); see also Fla. Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J., concurring) (“[A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”) (citation and internal quotation marks omitted). A domicile requirement prevents part-time residents who are not domiciliaries from possessing handguns in their homes. But there is no time limit linked to the domicile requirement. One could be domiciled in New York and spend little-to-no time there. So, a New York domiciliary can have a license to have a handgun in 23 their home spending nearly no time there, and a non-domiciliary who spends substantially more time in New York cannot. That completely undermines the assertion that the State’s interest in monitoring its licensees is compelling. Even assuming against fact and logic that the State did have a compelling interest in ensuring public safety through monitoring its licensees, a part-time resident handgun possession ban would not be narrowly tailored to serve that interest. First, as just discussed, there is a profound mismatch between the asserted interest and the actual requirement. Second, the State has not provided evidence- not even while Mr. Osterweil was proceeding pro se-that a residency requirement in and of itself does anything to further its public safety interest. The application process that an individual must go through to obtain a home handgun possession permit in New York is robust. The required investigation involves checking references, consulting FBI databases, and taking fingerprints. See N.Y. Penal Law § 400.00(4). The application package is reviewed by a licensing officer, often a judge. Id. It is hard to imagine what benefit excluding part-time residents from obtaining licenses could add. Moreover, the logical answer to any legitimate concerns with the ability to monitor those domiciled elsewhere would be deference to the licensing decision of the state of domicile, not a categorical ban in direct conflict with Heller. 24 What is more, excluding all non-domiciliaries is certainly not the least restrictive means of achieving the State’s monitoring and public safety goals. A part-time resident possession ban would not be limited to those individuals who pose a heightened threat to others, or to circumstances that for some other reason might create a particularly serious danger to the public. Moreover, there are myriad ways that the State could achieve its goals-such as periodically consulting the national and comprehensive NCIC database that it already consults during licensing, requiring annual application updates from part-time residents, or cooperating with the law enforcement organs of other states-short of an illegitimate and unnecessary categorical ban. Indeed, New York licensing law contemplates that there are available and useful mechanisms for monitoring out-of- state behavior: N.Y. Penal Law § 400.00(11) provides that a handgun license can be suspended upon conviction for a felony or serious offense “anywhere.” A domicile requirement would fail intermediate scrutiny for much the same reasons. Under that test, a regulation “passes constitutional muster if it is substantially related to the achievement of an important governmental interest.” Kachalsky, 701 F.3d at 96. Back when Mr. Osterweil was proceeding pro se and New York was zealously advocating for a domicile requirement, at the State’s urging the District Court found a “substantial relationship between New York’s residency requirement and the government’s significant interest” primarily because 25 the “State is in a considerably better position to monitor its residents’ eligibility for firearm licenses as compared to nonresidents.” A170. But it is not at all clear that this is true, as Mr. Osterweil’s case demonstrates. Beyond some issues not unique to nondomiciliaries (i.e., issues with worn fingerprints) Mr. Osterweil would have easily qualified for a license under § 400.00. Nothing about his part-time resident status made it more cumbersome to ascertain his eligibility. And as already described, there is no relationship, let alone a substantial one, between a domicile requirement and the State’s general interests in public safety and crime prevention. Any contention that a domicile requirement is constitutionally permissible reduces to the contention that the right to keep and bear arms-which the Supreme Court has made clear is a fundamental right-is a lesser right. It is not. The Court has repeatedly stressed that it is improper to prefer certain enumerated constitutional rights while relegating others to a lower plane: No constitutional right is “less ‘fundamental’ than” another, and there is “no principled basis on which to create a hierarchy of constitutional values . . . .” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982); accord Ullman v. United States, 350 U.S. 422, 428-29 (1956) (“To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.”). Heller admonished that the “very enumeration of the” Second Amendment “right takes 26 out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon.” 554 U.S. at 634. And Heller explained that the “Second Amendment is no different” from the First Amendment in that it was the product of interest- balancing by the people themselves. Id. at 635. Courts would not tolerate for one second a regime that granted free speech or the freedom of association only to a State’s full-time residents. The Second Amendment is no different. As the Supreme Court recently reaffirmed, constitutional rights are nowhere more sacrosanct than in the home. See Florida v. Jardines, No. 11-564, slip op. at 4 (U.S. Mar. 26, 2013). At the end of the day, whether it be because it is fatally inconsistent with Heller or because it cannot survive strict scrutiny (or even intermediate scrutiny), a ban on home handgun possession by part-time residents like that applied to Mr. Osterweil violates the Second Amendment. II. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Equal Protection Clause. A ban on part-time resident home handgun possession suffers from a second fatal flaw: it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202, 212, 216 (1982). When “state laws 27 impinge on personal rights protected by the Constitution” in discriminatory fashion “strict scrutiny” applies, and such laws “will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985); see Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966) (“[W]here fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized.”). As already discussed, New York lacks a compelling interest in denying part- time residents the right to possess handguns in their home, and thus there is no justification for treating full-time residents and part-time residents differently. Mr. Osterweil has the same interest in protecting his family when staying at his home in Schoharie as do his domiciliary neighbors down the street. Again, if anything, his lack of year-round occupation may enhance the need for self-protection when he is in-residence. Moreover, any state policy for non-domiciliaries that was remotely consistent with the Equal Protection Clause would include deference to the state of domicile as an important component. The New York law as applied to Mr. Osterweil does nothing of the sort. It makes no difference whether a part-time resident is fully licensed in his state of domicile. No matter how many days they spend in their New York home, which is treated like all others for taxing and other 28 regulatory purposes, nondomiciliaries are barred from lawfully possessing a handgun for self-defense in that home. People v. Bounasri, 915 N.Y.S.2d 921 (Rochester City Ct., 2011), is instructive. The Bounasri Court held that N.Y. Penal Law § 261.01(5)-which makes it a crime for a non-citizen to “possess[] any dangerous or deadly weapon”-violated the constitutional right to equal protection. After considering possible justifications for the law, the court concluded that “[t]here is no conceivable reason that aliens should be distinguished from citizens to achieve the law’s otherwise legitimate public safety objectives.” 915 N.Y.S.2d at 923. The same is true of a law that baselessly distinguishes between part-time residents and domiciliaries. It would be strange indeed if lawful resident aliens, who happen to be residents of New York and may be aliens precisely because their true domicile is in a foreign nation, are entitled to greater rights under the Second Amendment than U.S. citizens who are also residents of New York, but for only part of the year. Given the fundamental nature of the Second Amendment right to possess handguns for defense of hearth and home, the only practical explanation for a policy limiting that right to domiciliaries is that non-domiciliaries do not vote in the state elections that ultimately produce state policies. But that suggests the presence-not the absence-of an equal protection violation. The Framers 29 enshrined certain rights to put them beyond policy debate and the Fourteenth Amendment ensured that such fundamental rights would be enjoyed throughout the Republic. Discriminating against part-time residents when it comes to such a fundamental right flies in the face of the constitutional rights we all enjoy equally by virtue of the Fourteenth Amendment. Mr. Osterweil has the same fundamental right to possess a gun in defense of his New York residence as his New York neighbors. The contrary policy applied to Mr. Osterweil is clearly a violation of the Equal Protection Clause. III. This Court Should Construe New York Law Governing Home Handgun Possession As Not Requiring Domicile. As relevant here, N.Y. Penal Law § 400.00(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. (emphasis added). Despite the fact that Mr. Osterweil “resides” part-time in his New York home, this provision was construed by state authorities to require domicile and applied to deny Mr. Osterweil the license he requested. But the statute does not obviously require domicile and any doubt should be resolved against a domicile requirement given the grave constitutional concerns that such a requirement would raise. 30 First, and most obviously, the word domicile does not appear in § 400.00(3)(a). The statute merely requires that an applicant apply for a license to possess a handgun “in the city or the county where . . . the applicant resides.” Id. Mr. Osterweil plainly resides in the county in which he applied for the license, just not all-year-long. Second, while New York courts frequently construe the terms “reside” and “residence” as used in New York law to mean “domicile,” see, e.g., Longwood Central School District v. Springs Union Free School District, 1 N.Y.3d 385, 388 (Ct. App. 2004), that is not always the case. As Justice O’Connor noted, New York courts have recognized that “‘the term “reside” (or “residence”) is not one that can be given uniform definition wherever it appears in legislation, but must be construed in relationship to the particular statute involved.’” A190 n.3 (quoting Matter of Contento v. Kohinke, 42 A.D.2d 1025, 1025 (App. Div., 3d Dep’t 1973)). Sometimes “resides” just means “resides”-domicile is not required. This is clearly one of those times, especially given the constitutional problems a domicile requirement would pose. This Court’s precedents require it “to avoid interpreting a statute in a way that would render it unconstitutional if such a construction can be avoided . . . .” Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573, 585 (Ct. App. 1991). Tying whether an individual can possess a handgun in his home to that individual’s status as a domiciliary is flatly