Alfred G. Osterweil, Appellant,v.George R. Bartlett, III, Respondent.BriefN.Y.February 13, 2013To be Argued by: DANIEL L. SCHMUTTER (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 REPLY 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: June 24, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1 ARGUMENT ............................................................................................................. 3 I. The Ongoing Violation Of Mr. Osterweil’s Second Amendment Right To Possess A Handgun In His Part-Time Residence Must Come To An End. ............................................................................................ 3 II. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Second Amendment. ................................................. 6 A. A Ban On Home Handgun Possession By Part-Time State Residents Categorically Prohibits The Exercise Of The Core Second Amendment Right Identified In Heller. ................................... 6 B. A Ban On Home Handgun Possession By Part-Time State Residents Fails Under Any Arguably Applicable Standard Of Scrutiny. ......................................................................................... 10 III. This Court Should Construe New York Law Governing Home Handgun Possession As Not Requiring Domicile. ........................................ 15 CONCLUSION ........................................................................................................ 20 ADDENDUM ................................................................................................... Add-1 ii TABLE OF AUTHORITIES Cases Alliance of Am. Insurers v. Chu, 77 N.Y.2d 573 (Ct. App. 1991) .....................................................................16 Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) ............................................................................14 Burdick v. Takushi, 504 U.S. 428 (1992).......................................................................................12 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).......................................................................................14 District of Columbia v. Heller, 554 U.S. 570 (2008)............................................................................... passim Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988).......................................................................................19 In re Mahoney v. Lewis, 605 N.Y.S.2d 168 (App. Div., 3d Dep’t 1993) ............................................... 1 Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 N.Y.3d 385 (Ct. App. 2004) .......................................................................16 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ........................................................................... passim NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).......................................................................................18 People ex rel. Simpson v. Wells, 181 N.Y. 252 (1905) ......................................................................................17 Thompson v. Western States Med. Ctr., 535 U.S. 357 (2002).......................................................................................12 Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180 (1997).......................................................................................12 iii Constitutional Provisions U.S. Const. amend. II ....................................................................................... passim U.S. Const. amend. XIV ..........................................................................................15 N.Y. Const. art. VI, § 3(b)(9) ...................................................................................17 Statutes & Regulation N.Y. Penal Law § 400.00(3) ............................................................................ passim N.Y. Penal Law § 400.00(11) ..................................................................................14 N.Y. Stat. Law § 150 (McKinney) ...........................................................................17 N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(f) ..................................................18 Other Authorities Advisory Grp. to N.Y. State & Fed. Judicial Council, Practice Handbook on Certification of State Law Questions by the U.S. Court of Appeals for the Second Circuit to the N.Y. State Court of Appeals (2d ed. 2006) .................................................................................................... 5 Brief for the United States as Amicus Curiae, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290), 2008 WL 157201 ......................12 INTRODUCTION AND SUMMARY OF ARGUMENT The State’s approach to this case is a study in contradiction. In federal district court—where Mr. Osterweil litigated pro se—the State insisted that New York law contains a domicile requirement. The State now belatedly contends only residence is required. The State once championed In re Mahoney v. Lewis, 605 N.Y.S.2d 168 (App. Div., 3d Dep’t 1993), as reflecting a “long-standing” requirement of New York Law, A220, but now belatedly argues that “Mahoney was wrongly decided” and “provides no persuasive reason” for requiring domicile, State Br. 24-25. The State argued in the U.S. Court of Appeals for the Second Circuit that District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), marked a “dramatic shift in Second Amendment jurisprudence” that may render a domicile requirement unconstitutional. A251. The State now contends that Heller and McDonald are, in fact, distinguishable from the law as applied to Mr. Osterweil, and yet this Court should nonetheless abandon the “long-standing” rule of Mahoney. The State argues that the Court should construe N.Y. Penal Law § 400.00(3) as not requiring domicile in order to avoid Second Amendment problems, but then asserts that a domicile requirement can survive intermediate scrutiny because it serves the State’s interest in monitoring its licensees. 2 Mr. Osterweil and the State thus agree that the certified question should be answered in the affirmative, but little more. The State’s attempt to dodge the blame for the ongoing denial of Mr. Osterweil’s constitutional rights blinks reality. It is the State that opposed Mr. Osterweil’s attempt to vindicate his rights in federal court, while he litigated pro se, and the State that then dragged its feet once it decided to change course after Mr. Osterweil obtained counsel. The State’s argument that a ban on home handgun possession by part-time residents might be permissible under the Second Amendment—either because it is distinguishable from the bans at issue in Heller and McDonald or because it can survive intermediate scrutiny—amounts to a refusal to acknowledge the holdings of Heller and McDonald and the fundamental nature of Second Amendment rights. And the State’s contention that this Court should avoid Second Amendment issues altogether even while recognizing that “[c]onstitutional concerns loom large in this litigation,” State Br. 18, is as inexplicable as it is unexplained. Denying an in-home handgun license to a part-time resident is incompatible with the Second Amendment and the Supreme Court’s decisions in Heller and McDonald. As those cases make clear, 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 held that a law that categorically bans the possession of 3 handguns in the home is unconstitutional. When it comes to part-time residents, that is exactly what a domicile requirement does. As a result, this Court should answer the certified question in the affirmative and hold that, consistent with the Second Amendment, § 400.00(3) requires residence and not domicile. ARGUMENT I. The Ongoing Violation Of Mr. Osterweil’s Second Amendment Right To Possess A Handgun In His Part-Time Residence Must Come To An End. The violation of Mr. Osterweil’s constitutional right to possess a handgun in defense of his home is longstanding and remains ongoing; he applied for a license to keep a handgun in his New York home more than five years ago, and he has been continuously denied that license. There is nothing obscure or fairly debatable about the responsibility for this denial of fundamental constitutional rights. It was a state official who denied Mr. Osterweil’s license application and the State was perfectly happy to give a full-throated defense to that denial while Mr. Osterweil litigated pro se in District Court. Accordingly, the State adds insult to constitutional injury by insinuating that it is really Mr. Osterweil’s fault that his Second Amendment rights have been continuously denied for half a decade. The State’s efforts to avoid the blame for the continuing denial of Mr. Osterweil’s constitutional rights are wholly unavailing. The State faults Mr. Osterweil for attempting to vindicate his federal constitutional rights in federal 4 court, and suggests that had Mr. Osterweil instead pursued administrative review of his license denial through a state court proceeding, this case might have been over years ago. See State Br. 13-14. One of the many problems with that argument is that the State only changed its view of the law after Mr. Osterweil hired counsel on appeal in the Second Circuit. There is no reason to believe that the State would have taken a different position on the meaning of § 400.00(3) in state court than it did in the federal district court. The State nowhere suggested in its district court papers that its argument was somehow forum dependent. Relatedly, the State suggests that the delay in vindicating Mr. Osterweil’s constitutional rights is explicable, at least in part, by the unavailability of certification until Mr. Osterweil appealed his case to the Second Circuit. But the State’s endorsement of Mahoney and a domicile requirement in the federal district court was unqualified, and was in no way labeled a stop-gap measure until certification could be sought. Not once did the State inform the federal district court or Mr. Osterweil—then litigating pro se—that it thought Mahoney misread § 400.00(3), or that a correction of Mahoney would be promptly sought via certification. And, of course, certification was not promptly sought once it became available. The State’s attempt to claim it is a victim of circumstance is critically undermined by the reality that it waited almost a year to seek certification once it 5 became a viable option. Mr. Osterweil filed his notice of appeal to the Second Circuit on June 13, 2011. See A6. The State could have filed a motion to certify a question to this Court that same day. See Advisory Grp. to N.Y. State & Fed. Judicial Council, Practice Handbook on Certification of State Law Questions by the U.S. Court of Appeals for the Second Circuit to the N.Y. State Court of Appeals 3 (2d ed. 2006) (“Motions to certify questions of state law may be filed with the Clerk of Court any time after the notice of appeal has been filed . . . .”). Instead, the State waited until April 18, 2012, to seek certification—a full 10 months after it could have filed a certification motion, 83 days after Mr. Osterweil’s attorneys filed their opening brief, and eight days before the State’s brief was due. The blame for the ongoing denial of Mr. Osterweil’s constitutional rights rests with the State and the State alone. The State may have already foreshadowed its next delay tactic. The State’s brief to this Court notes that Mr. Osterweil owns two homes in Summit, New York, but then states that the “record contains little information as to the amount of time Osterweil spends annually in New York.” State Br. 9. Later, in a footnote, the State mentions that “[w]hile Osterweil asserts that he is a part-year resident, the record here does not establish the length of time each year that Osterweil lives in the house or houses he owns in New York” and whether he “continues to reside in his New York house or houses on a part-time basis” will need to be determined. 6 State Br. 19 n.8. Reading between the lines it will be unsurprising if the next step in the State’s resistance to the clear implications of Heller and McDonald will be to contend that Mr. Osterweil does not spend enough time “residing” in New York to qualify for a premises possession permit under New York law. While that position would be flatly inconsistent with the State’s representations to the Second Circuit, see Add-4 (Tr. of Oral Arg. 22) (a ruling in Mr. Osterweil’s favor “would remove the bar that he’s challenging in this case”); Add-8 (“if the statute authorizes issuance of licenses to part-time residents . . . then there would be no bar on that ground to Mr. Osterweil’s license”); Add-9 (“I see no reason to think that [the state official] would find other means to further deny a license”), consistency has not been the hallmark of the State’s litigation strategy in this case. The more than five-year denial of Mr. Osterweil’s constitutional rights must come to an end. In addition to answering the certified question in the affirmative, this Court should take steps to ensure that the State can no longer put off the vindication of Mr. Osterweil’s Second Amendment rights. II. A Ban On Home Handgun Possession By Part-Time State Residents Violates The Second Amendment. A. A Ban On Home Handgun Possession By Part-Time State Residents Categorically Prohibits The Exercise Of The Core Second Amendment Right Identified In Heller. As described in Mr. Osterweil’s opening brief, Heller and McDonald make plain that a complete ban on home handgun possession by part-time New York 7 residents is unconstitutional. See Osterweil Br. 14-17. While the State appears to acknowledge as much at one point, State Br. 3, it nonetheless contends that a domicile requirement like that imposed on Mr. Osterweil is not the same as the bans struck down in Heller and McDonald. The State contends that “a New York domicile requirement would not be an absolute ban” like those addressed by the Supreme Court because (1) Mr. Osterweil could make his domicile in New York and be eligible for a handgun premises possession permit and (2) a New York domicile requirement does “not limit [Mr.] Osterweil’s ability to possess a handgun in his Louisiana homes.” State Br. 28. Little ink need be wasted on the State’s efforts to undermine the dispositive nature of Heller and McDonald. The State’s contention that a domicile requirement does not amount to a categorical ban because Mr. Osterweil can change his domicile only underscores how little the State values Second Amendment rights. Presumably even the State would recognize that a ban on free speech or free exercise is no less categorical because those denied their fundamental rights could always move elsewhere. And, of course, Messrs. Heller and McDonald could have equally avoided the categorical bans at issue by moving elsewhere. In all events, as Justice O’Connor recognized in her opinion certifying the question to this Court, “a domicile requirement will operate much like the bans 8 struck down in Heller and McDonald . . . for part-time New York residents whose permanent homes are elsewhere.” A194. Given the reality that Mr. Osterweil is a part-year resident, the question is whether the Second Amendment permits the State to deny him any ability to obtain a handgun for self-defense in his part-time residence. The answer clearly supplied by McDonald and Heller is no. And the State’s suggestion that Mr. Osterweil could always move and re-establish his New York domicile is reminiscent of the law student who wants to change the hypothetical. But there is nothing hypothetical about the denial of Mr. Osterweil’s Second Amendment rights. He is, in fact, a part-time resident of New York, and Heller and McDonald entitle him to relief. There is certainly no hint in either Heller or McDonald that part-time and full-time residents should be treated differently for Second Amendment purposes. The Second Amendment guarantees the right of “law-abiding, responsible citizens to use arms in defense of hearth and home” where the need for self-defense “is most acute.” Heller, 554 U.S. at 592, 628, 635. 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. As far as the Second Amendment is concerned, part-time and full-time residents and residences are identical. The State’s argument that a domicile requirement does not amount to a categorical ban because non-domiciliaries can possess handguns in the state where 9 they are domiciled fares no better. That Heller might have been able to possess a handgun in a home outside of Washington, D.C., did not impact the Supreme Court’s analysis. The same should be true here. “[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.” Id. at 636. It does not matter whether the home is a part-time or full-time residence. The State also argues that “[a] court could find that Osterweil’s needs for home self-defense . . . during limited periods of residency in New York are met by possession of a long gun, which under New York law does not require a license.” State Br. 29. In the pantheon of arguments squarely foreclosed by Heller, the argument that long guns suffice has to rank very near the top. Defenders of the District of Columbia handgun ban argued this point at length and to no avail. The State may disagree with Heller, but Heller is the law: “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” 554 U.S. at 629. Accordingly, the State’s contention that the constitutional harms done by a categorical part-time resident 10 home handgun ban are somehow ameliorated by the availability of long guns is a constitutional nonstarter. 1 Heller and McDonald control here—a categorical ban on home handgun possession by part-time residents is unconstitutional. B. A Ban On Home Handgun Possession By Part-Time State Residents Fails Under Any Arguably Applicable Standard Of Scrutiny. After its failed attempt to distinguish a part-time resident handgun ban from the prohibitions at issue in Heller and McDonald, the State asserts that such a ban could “survive[] intermediate scrutiny” because “the exclusion of a non-resident from licensure serves important state interests in monitoring the conduct of licensees.” State Br. 28. Not so. Setting aside the obvious and inherent conflict between the State’s argument in favor of constitutional avoidance and its contention that a domicile requirement is not unconstitutional, the State makes two mistakes. First, to the extent that levels-of-scrutiny analysis is necessary to decide whether a part-time resident 1 The State also notes that “Heller and McDonald plainly leave room for reasonable regulation of handgun possession,” State Br. 28, citing the portions of those decisions discussing 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,” Heller, 554 U.S. at 626-27. The precise meaning of this language in Heller has been the subject of considerable debate. But one thing is beyond debate: a ban on possession of handguns in the home is not a “reasonable regulation of handgun possession.” That is the unequivocal holding of Heller, and it is dispositive here. 11 handgun ban is constitutional, the scrutiny must be strict. 2 As Mr. Osterweil explained in his opening brief, the Second Amendment right to possess and carry firearms is a fundamental right and laws abrogating fundamental rights are subject to strict scrutiny. Osterweil Br. 18-20. The State’s argument that intermediate scrutiny applies to categorical bans on home handgun possession like that at issue in Heller was rejected by Heller itself. Heller explicitly and definitively rejected the “interest-balancing” approach endorsed by Justice Breyer—which is intermediate scrutiny by another name. Heller, 554 U.S. at 634; McDonald, 130 S. Ct. at 3050 (plurality op.) (“while [Justice Breyer’s] opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion”). Justice Breyer called his approach “interest-balancing” because of his view that the government’s interest in regulating firearms—some version of protecting public safety—would always be important or compelling. Thus, in his view, whether the level of scrutiny applied was strict (requiring a compelling government interest) or intermediate (requiring only an important interest), the government interest would always qualify, and the analysis would really turn on a search for the appropriate degree of fit, which 2 This Court could of course “follow Heller’s lead and find the policy 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.” Osterweil Br. 17-18. 12 Justice Breyer described as interest-balancing. See Heller, 554 U.S. at 689-90 (Breyer, J., dissenting). Semantics aside, Justice Breyer’s approach in substance was simply intermediate scrutiny. Justice Breyer relied (see id. at 690) on cases such as Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997), and Thompson v. Western States Medical Center, 535 U.S. 357 (2002), which explicitly apply intermediate scrutiny. Even more tellingly, Justice Breyer invoked Burdick v. Takushi, 504 U.S. 428 (1992), the case on which the United States principally relied in advocating that the Court adopt intermediate scrutiny. See Brief for the United States as Amicus Curiae 8, 24, 28, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290), 2008 WL 157201. Justice Breyer’s interest-balancing was simply intermediate scrutiny by another name, and the Court rejected it (and reaffirmed that rejection in McDonald). See Add-6 (observing that the State’s argument that something other than strict scrutiny applies to a domicile requirement is “essentially [the] position . . . that Justice Breyer took in . . . and was rejected by the Supreme Court by the majority” in Heller (Walker, J.)). In all events, a ban on part-time resident home handgun possession fails under both strict and intermediate scrutiny. 3 The State effectively concedes that a 3 Not even the State is so bold as to argue that something less than intermediate scrutiny applies. Any argument to that effect is foreclosed by Heller. See 554 U.S. at 628 n.27 (“If all that was required to overcome the right to keep and bear arms 13 part-time resident handgun ban fails strict scrutiny by not even attempting to address strict scrutiny in its brief. See State Br. 28. And the “important state interest[] in monitoring the conduct of licensees” that the State cites is not a compelling interest that can justify the ban under strict scrutiny. State Br. 28. Monitoring licensees might play a part in achieving some other compelling end, but it cannot be an end in itself. What is more, any claim to a compelling interest in monitoring licensees rings hollow in light of the fact that domiciliaries who may spend little-to-no time in New York are eligible for premises possession permits. There is no time limit linked to the domicile requirement as enforced against Mr. Osterweil. As a result, a New York domiciliary can have a license to have a handgun in his home spending nearly no time there, and a non-domiciliary who spends substantially more time in New York cannot. That mismatch makes any claim that some compelling interest related to monitoring licensees is served in a tailored way by a part-time resident handgun ban untenable. For much the same reasons, an asserted interest in monitoring licensees cannot support a ban on home handgun possession by part-time residents under intermediate scrutiny. The State has never provided or cited to any evidence— which is clearly the State’s burden under any form of heightened scrutiny, see City was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”). 14 of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-40 (2002)—that a ban on home handgun possession by part-time residents actually promotes its claimed interest in monitoring (or any other interest for that matter). That may be because there is no evidence to support the claim. New York licensing law already 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.” Moreover, as noted in Mr. Osterweil’s opening brief, the answer to any concerns with effectively monitoring those domiciled elsewhere would be deference to the licensing decision of the state of domicile, not a categorical ban that is flatly inconsistent with Heller. 4 The notion that an interest in monitoring licensees justifies the severe restriction on Second Amendment rights enforced against Mr. Osterweil is fatally undermined by the State’s own arguments. The State urges this Court to hold that New York law “authorize[s] the issuance of a handgun license to a New York resident who is not domiciled in New York.” State Br. 2. As the State notes, “this Court has in some contexts construed ‘residence’ to mean ‘domicile,’” such as when “‘the nature of the subject-matter of the statute’” counsels in favor of “the 4 As explained in Mr. Osterweil’s opening brief, Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), cannot justify the State’s reliance on an asserted interest in monitoring its licensees. See Osterweil Br. 21; see also Add-1 (noting that Bach was decided “under a different regime” and “before Heller” (Walker, J.)). 15 more restrictive requirement of domicile.” State Br. 20. If the State’s interest in monitoring its licensees is as strong as it asserts—strong enough to justify burdening a fundamental constitutional right—one would think that the State would argue that this is one of the times that a statutory residence requirement actually requires domicile. That it is not critically undermines the State’s asserted interest. See Add-36 (noting that the State’s argument that § 400.00(3) does not require domicile is in conflict with its argument that a domicile requirement serves the State’s monitoring interest (Walker, J.)). A ban on home handgun possession by part-time residents like that applied to Mr. Osterweil is fatally inconsistent with Heller and can survive neither strict nor intermediate scrutiny. 5 III. This Court Should Construe New York Law Governing Home Handgun Possession As Not Requiring Domicile. This Court should interpret N.Y. Penal Law § 400.00(3) to allow individuals who—like Mr. Osterweil—“reside” in New York, but are not New York domiciliaries, to possess handguns in their homes. See Osterweil Br. 29-31. Tying an individual’s ability to possess a handgun in his home to that individual’s status as a domiciliary is flatly inconsistent with both the Second Amendment and the Equal Protection Clause. This Court’s precedents require it “to avoid interpreting a 5 A ban on part-time resident home handgun possession also violates the Equal Protection Clause of the Fourteenth Amendment. See Osterweil Br. 26-29. The State does not argue otherwise. 16 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), and a clearly unconstitutional construction can be avoided here. While New York courts often construe “residence” and “reside” to mean “domicile,” see, e.g., Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 N.Y.3d 385, 388 (Ct. App. 2004), that is not always the case. Accordingly, this court should construe § 400.00(3) to require only residency. Despite the State’s contention that a part-time resident home handgun ban would likely be permissible under the Second Amendment, the State also argues that this Court should interpret § 400.00(3) “to require only residence and not domicile under the principle that statutes should be construed so as to avoid serious constitutional questions.” State Br. 25. As explained, the state is only half right. But for the fact that applying the rule of Mahoney would flatly violate the Second Amendment, there would be no reason for this Court to move away from that long- established construction of New York law. The reason to abandon the rule of Mahoney is the Second Amendment as construed in Heller and McDonald. And no principle of sound judicial decisionmaking counsels in favor of the State’s suggestion, see State Br. 26, that this Court should obscure that the reason for it to construe the statute in Mr. Osterweil’s favor is the constitutional arguments that he has been making consistently throughout this litigation. 17 New York law does not compel the odd approach to constitutional avoidance that New York advocates. The relevant statutory provision provides that “[t]he courts should not strike down a statute as unconstitutional unless such statute clearly violates the Constitution.” N.Y. Stat. Law § 150 (McKinney). And the leading case cited by the State provides that “‘[n]o statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law.’” State Br. 25 (quoting People ex rel. Simpson v. Wells, 181 N.Y. 252, 257 (1905)). Neither the relevant statute nor relevant case law says that “when a case involves a constitutional issue that drives the statutory analysis courts should avoid acknowledging the constitutional issue.” The fact that this case comes to the Court on certification rather than direct appeal should not impact the Court’s approach to constitutional avoidance. Contrary to the State’s suggestion, see State Br. 27, nothing in the New York constitutional provision authorizing this Court to answer certified questions makes it somehow inappropriate to consider the Second Amendment implications of a domicile requirement. The relevant constitutional provision states that this Court may “answer questions of New York law”—it does not forbid this Court from considering constitutional issues in the course of answering those questions. N.Y. Const. art. VI, § 3(b)(9). Indeed, the New York statutory provision outlining certification procedures expressly contemplates that a certified question may 18 involve constitutional issues: “If the constitutionality of an act of the Legislature of this State is involved in a certification to which the State of New York or one of its agencies is not a party, the clerk of the court shall notify the Attorney General . . . .” N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(f). This provision is not at issue here because the State has been directly involved in this case for more than four years, but it makes clear that constitutional issues are not off limits on certification. Deciding whether the canon of constitutional avoidance should be applied necessarily requires consideration of the constitutional issues to be avoided. The Supreme Court’s approach to constitutional avoidance in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), is instructive. In Catholic Bishop, the Court held that the National Labor Relations Act did not authorize the NLRB to exercise jurisdiction over lay faculty members at church-operated schools largely because holding otherwise might have required invalidating the statute on First Amendment grounds. The Court arrived at that decision only after an in-depth consideration of the contours of the constitutional rights at stake. See id. at 501-504; id. at 504 (“We see no escape from conflicts flowing from the Board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow” and thus must decide whether the Act can be read to avoid such problems.); see also Edward J. DeBartolo Corp. v. 19 Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575-76 (1988) (thoroughly exploring the relevant constitutional issues in the process of deciding whether those issues could be avoided). The Catholic Bishop Court did not adopt a particular interpretation of the statute at issue based on some amorphous fear that doing otherwise might violate the Constitution in an unspecified way. Instead, the court reviewed the relevant constitutional arguments, expressly acknowledged that one interpretive approach would be constitutionally problematic, and then adopted an interpretation consistent with the Constitution. That approach makes sense. The contention that a court must alter its interpretation of a statute merely because a litigant raises a constitutional issue, and without further review of the constitutional claim, is an invitation to litigants to raise frivolous constitutional arguments to obtain desired interpretive results and tantamount to an assertion that courts should abdicate their judicial responsibility to interpret statutes in cases involving constitutional claims. The former is ill- advised and the latter is plainly wrong. A court should allow its interpretation of a statute to be impacted by the Constitution only after determining whether a specific interpretation of that statute would run afoul of the Constitution. In this case, there is more than mere tension between the view of § 400.00(3) pressed by the State in federal district court and imposed by the state official to deny Mr. Osterweil’s license application—a domicile requirement and the Second 20 Amendment right to keep and bear arms in defense of hearth and home are incompatible. Accordingly, this Court should hold that, at least in this case, “resides” simply means “resides.” 6 CONCLUSION For the foregoing reasons, this Court should answer the certified question in the affirmative and hold that a ban on home handgun possession by part-time residents violates the Second Amendment and the Equal Protection Clause and that N.Y. Penal Law § 400.00(3) makes home handgun possession permits available to part-time New York residents. 6 The State also asserts that the Court need not resort to constitutional avoidance because “the context, structure and history” of § 400.00(3) “strongly support construing the statute as requiring only residency,” State Br. 21, 25, which begs the question why the State did not argue as much in federal district court, where Mr. Osterweil litigated this case pro se, or in the Second Circuit, where the State conceded that the federal appellate court had the power to decide the question of whether § 400.00(3) requires domicile to the extent the issue was “clear cut,” Add- 6. ADDENDUM 11-2420 cv In the United States Court of Appeals for the Second Circuit Alfred G. Osterweil, Plaintiff – Appellant, v. George R. Bartlett, III, In his official capacity as Licensing Officer in the County of Schoharie, Defendant – Appellee, David A. Paterson, in his official capacity as Governor of the State of New York; Andrew M. Cuomo, in his official capacity as Attorney General of the State of New York, Defendants. EXCERPTS FROM TRANSCRIPT OF ORAL ARGUMENT May 23, 2013 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 7 1 essentially the same, first of all, 2 constitutional question in the same case. 3 WALKER: Can we -- you know, you don't 4 have unlimited time here and I wondered if we 5 could move to the justification that the state 6 is offering here of this monitoring practice. 7 There was a decision by our court a number of 8 years ago that I think Judge Newman wrote the 9 opinion in which he addressed this question. 10 But that was under a different regime. That 11 was before Heller, correct? 12 MR. CLEMENT: That was both before Heller 13 and equally importantly in the context of a 14 nonresident. And so whatever the strength of 15 the argument is with somebody who has no 16 connection to the state of New York other than 17 the fact they wanna visit -- I think that case 18 involved somebody who wanted to visit family in 19 New York -- 20 WALKER: -- yeah. 21 MR. CLEMENT: -- I think it's a very 22 different situation when you have somebody who Add-1 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 8 1 has a part-time residence here. In this case 2 in particular, Mr. Osterweil -- this used to 3 be his full-time residence. So he continues to 4 maintain very significant ties to the 5 community. The ability to -- to monitor him, I 6 think it's actually far superior to somebody 7 who could be a technical domiciliary but 8 actually spend most of their time some place 9 else, but just they have their intention to 10 return to New York. I mean, you think about a 11 college student -- 12 WALKER: -- so I take it that your -- 13 your basic point that he -- he wants a gun to 14 keep in his home to protect his home and 15 family, which is at the heart of the second 16 amendment guarantee that has been expounded in 17 these two Supreme Court cases. But there was 18 some talk here about the possibility he might 19 want it for target practice or hunting as well. 20 And I wonder if that changes the -- the mix, it 21 changes the calculus. Are there core -- sort 22 of core issues, core uses of a gun that really Add-2 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 9 1 are protected by the right instead of less core 2 uses that might -- might -- might receive a 3 lesser degree of protection? 4 MR. CLEMENT: Well, there -- there -- 5 certainly the core that was protected in Heller 6 and McDonald and then I think there's an open 7 question as to how far that extends. 8 WALKER: Uh-huh. 9 MR. CLEMENT: And the seventh circuit, for 10 example, in the Azoe (phonetic) case has 11 already held that something like target 12 practice is protected within the core of the 13 right, because, you know, the last thing you 14 want is a bunch of people with the right to 15 possess arms that don't know how to shoot. 16 WALKER: Hunting may be different. 17 MR. CLEMENT: Hunting I suppose could be 18 different. You know, I'd be happy to argue why 19 hunting is still protected. 20 WALKER: Right. 21 MR. CLEMENT: But the point is I do think 22 that that's an issue that is both forfeited and Add-3 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 22 1 wasn't required to submit an article 78. 2 MR. HELLER: I'm not suggesting that he 3 was required to -- 4 JACOBS: -- I mean, it's enough -- I 5 mean, how many litigations does he really have 6 to go through in order to get a license to have 7 a handgun? 8 MR. HELLER: I don't think he needs to go 9 through additional litigations regarding the 10 domicile requirements because this court can 11 now by certification obtain a -- the proper 12 reading of the statute which would remove the 13 bar that he's challenging in this case. And I 14 also wanna address the claim of delay. 15 O'CONNOR: Well, specifically, what do 16 you suggest this court do? 17 MR. HELLER: Specifically this court 18 should certify the meeting of the residence 19 language in subsection three. 20 WALKER: In which case the state will 21 take the position before the New York Court of 22 Appeals that there's no domiciliary Add-4 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 23 1 requirement, is that -- is that what you're 2 saying? 3 MR. HELLER: That's correct that that's 4 what the statute means. 5 WALKER: And there's nothing of course 6 that would compel us to certify. If the 7 question's open and shut we could just decide 8 the question ourselves, too. 9 MR. HELLER: The court could do that, of 10 course. And I think the -- the statute but for 11 the Mahoney decision, the statute on its face 12 would achieve that. 13 JACOBS: So between -- what you're 14 saying is we should certify it in order to ask 15 the New York Court of Appeals which end is up. 16 MR. HELLER: Well, I think -- 17 JACOBS: -- you're saying it's easy as 18 pie. Why would we need to bother them? 19 MR. HELLER: I think the reason to certify 20 is to put an end to any doubt. But this court 21 could, as we suggested in our brief and 22 footnote, decide the question itself if it Add-5 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 24 1 views the -- the question's clear cut, of 2 course. 3 WALKER: Moving -- moving to the 4 substance, leaving the certification out, 5 you're arguing here that there is no strict 6 scrutiny test -- that strict scrutiny is not 7 the appropriate test here, and that it's 8 some -- some lesser form of scrutiny. Is that 9 correct? 10 MR. HELLER: That's right. 11 WALKER: And you're taking essentially 12 a position, were you not, that Justice Breyer 13 took in -- in -- in and -- and was rejected by 14 the Supreme Court by the majority where he used 15 a balancing of interest? 16 MR. HELLER: I don't think we're taking 17 the position that puts specifically Justice 18 Breyer took. We're taking the position that the 19 majority, I think, of virtually every court of 20 appeals to address the appropriate standard of 21 review is taken, which is they've come down in 22 the end and found that intermediate scrutiny is Add-6 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 25 1 the appropriate standard. 2 WALKER: Well, I -- okay. So maybe 3 that's true but if there's -- how many cases -- 4 and you can correct me on this 'cuz you're more 5 aware of this than I am -- how many of these 6 cases involve possession of the gun in the home 7 for personal protection as opposed to other 8 uses? It seems to me that if Heller stands for 9 anything, it stands for the right of a person 10 to have a gun in their home, assuming all the 11 other qualifications are met, they're not 12 felons and so forth, and they appropriately get 13 an appropriate permit, to have a gun in their 14 home, for -- for defense purposes. That's the 15 core right here. And under those circumstances 16 have these cases applied intermediate or less 17 of scrutiny to that kind of context. 18 MR. HELLER: I don't think any of those 19 courts have looked at severe restrictions on 20 possession of handguns in the home other than 21 Heller and McDonald. 22 WALKER: Right. Add-7 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 32 1 part-time or fractional or some short period 2 of -- some fragment of the year, that -- that 3 there's no constitutional right to -- to 4 possess a firearm to protect that particular 5 home. 6 MR. HELLER: Well -- 7 JACOBS: -- which would seem to present 8 a constitutional question that the New York 9 Court of Appeals couldn't resolve. 10 MR. HELLER: If -- if the statute 11 authorizes issuance of licenses to part-time 12 residents, as we believe it does on its face, 13 then there would be no bar on that ground to 14 Mr. Osterweil's license. That may go beyond 15 what the constitution requires -- 16 JACOBS: -- I don't see Judge Bartlett 17 issuing the license. I mean, it's not like 18 he's pushing on an open door. I mean, you're 19 here. We're all here. It's because -- because 20 of -- the license will not issue. 21 MR. HELLER: I think the only -- Judge 22 Bartlett's only reason for stated reason for Add-8 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 33 1 denying this license was he felt bound by the 2 Mahoney decision. 3 O'CONNOR: What are you saying? I can't 4 hear you. 5 MR. HELLER: The only -- 6 O'CONNOR: -- the only reason -- 7 MR. HELLER: -- the only reason that Judge 8 Bartlett, the licensing officer, denied this 9 license is because he felt bound by the Mahoney 10 decision. I see no reason to think that he 11 would find other means to further deny a 12 license, assuming Mr. Osterweil pursues the 13 license application. There -- 14 (The recording was concluded.) 15 MR. HELLER: You know, he would clarify 16 whether it's for target practice and for 17 hunting or for -- for a use on his premises or 18 perhaps the overlap over both. And assuming he 19 can provide fingerprints, which he hadn't been 20 able to do, presumably the license would be 21 issued. 22 WALKER: Well, you seem to want Add-9 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 36 1 MR. HELLER: He -- I don't think 2 Mr. Osterweil, as far as I know, has made no 3 effort to try to get fingerprints taken again. 4 The judge -- 5 JACOBS: -- he tried it was two or 6 three times, based on my recollection. 7 MR. HELLER: I think it was -- I 8 believe -- it may have been three, but I think 9 it was perhaps two times. In any event, I do 10 think that there's no bar to Mr. Osterweil 11 making a renewed application at any time for a 12 license if he wants one if he wants it. Or -- 13 WALKER: -- so the other thing I wonder 14 is why -- because of the position that you're 15 taking, you're not -- it seems to me that 16 you're -- that it reflects upon the state's 17 view of the -- of the efficacy of the 18 monitoring regime rational. Apparently there's 19 no need to monitor Mr. Osterweil even though 20 he's a -- domiciled in Louisiana, because they 21 can -- they can -- if it's a part-time 22 resident, that's fine. And if a part-time Add-10 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 37 1 resident is here for two or three months we'll 2 give him the permit. Now, whatever happened to 3 the monitoring regime that you -- that you 4 press in your papers? 5 MR. HELLER: The monitoring interest, the 6 interest in monitoring that we press in our 7 papers justifies this if indeed it's a domicile 8 requirement, and that's because of course it's 9 the more -- the more time a person spends in 10 the state, the easier it is for the state to 11 monitor possible disqualifying activity -- 12 WALKER: -- but we know that 13 domiciliaries need not spend much time in the 14 state. Mr. Clement gave the example of a 15 student. There can be other examples. A 16 person who's a traveling sales man and so 17 forth. 18 MR. HELLER: That's right, but typically a 19 domiciliary has important ties to the state, 20 driver's license in the state, identifying 21 information linking him or her to the state, 22 paying taxes in the state. Add-11 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 38 1 WALKER: All I'm saying is you're gonna 2 monitor the domicile that comes to -- 3 domiciliary who comes here part-time, but 4 you're not gonna bother to -- to monitor and 5 you can't monitor effectively -- presumably 6 somebody who has a residence here is not 7 domiciled elsewhere, a little -- but he's only 8 in the residence for a couple of weeks a year. 9 It just -- it seems like -- like an ill-fitting 10 suit of clothes, the monitoring rational under 11 those circumstances. 12 MR. HELLER: I think the more -- again, 13 the more -- the more time a person spends in 14 the state, even if they're a part-time 15 resident, the greater the ability of the state 16 to monitor -- monitor their activities. 17 WALKER: Yeah. But you'll give a 18 permit to somebody who's not -- not here a lot, 19 as I understand it, under your -- under your 20 rational. 21 MR. HELLER: Well, I think the statute 22 authorizes issuance of licenses to someone who Add-12 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 39 1 is a resident of the state even if they're a 2 part-time resident. 3 JACOBS: But -- but the -- the more you 4 argue that, the question is how much time 5 someone -- 6 (The recording was concluded.) 7 JACOBS: -- spends in the state the 8 less important it becomes whether someone is a 9 domiciliary, because there are people who are 10 imprisoned for life in one state who are still 11 domiciled in the state that they were in before 12 they committed their crime. And there are 13 people who are living in Europe who sold their 14 American homes, they're -- 'cuz they're working 15 abroad for their employer, could be for four or 16 five years and they're still domiciled in 17 Illinois or Indiana or whatever. So your 18 argument is really coming down to part-time 19 presence rather than the -- the -- the question 20 we started with, which is the construal of a 21 statute, which is what the New York Court of 22 Appeals would be best situated to do. Add-13 ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 40 1 MR. HELLER: Again, I think the New York 2 Court of Appeals is likely to say that this 3 statute does not require domicile, New York 4 domicile, that someone who lives in a residence 5 for some portion of time in New York is 6 eligible to obtain a firearms license. That -- 7 that resolves the question that Mr. Osterweil 8 has posed in this case. 9 JACOBS: Yeah, but that -- yeah, but -- 10 MR. HELLER: -- and disposes of -- of this 11 litigation. 12 JACOBS: But presumably Judge Bartlett 13 has already arrived at this conclusion, you 14 have arrived at this conclusion, and he feels 15 bound -- that just means that the New York 16 Court of Appeals has to do some work in order 17 to satisfy Judge Bartlett, which I don't think 18 will be their point of view. 19 MR. HELLER: Well, it may be that they -- 20 that they of course can decline to -- to answer 21 -- 22 JACOBS: -- (inaudible). Add-14 ii{ i, i { l, W$1.rur, ORAL ARGUMENT 888.433.3767 | WWW.PLANETDEPOS.COM PLANET DEPOS 47 1 CERTIFICATE OF TRANSCRIBER 2 I, Jackie A. Scheer, do hereby certify 3 that the foregoing transcript is a true and 4 correct record of the recorded proceedings; 5 that said proceedings were transcribed to the 6 best of my ability from the audio recording as 7 provided; and that I am neither counsel for, 8 related to, nor employed by any of the parties 9 to this case and have no interest, financial or 10 otherwise in its outcome. 11 12 13 14 15 16 JACKIE A. SCHEER 17 18 19 20 21 22 Add-15