Alfred G. Osterweil, Appellant,v.George R. Bartlett, III, Respondent.BriefN.Y.February 13, 2013Appeal No. CTQ-2013-00001 To be argued by: SIMON HELLER 10 minutes requested On Certification from the U.S. Court of Appeals for the Second Circuit State of New York Court of Appeals ALFRED G. OSTERWEIL, Appellant, -against- GEORGE R. BARTLETT, III, &c, Respondent. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General RICHARD DEARING Deputy Solicitor General SIMON HELLER Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent 120 Broadway New York, New York 10271 (212) 416-8025 (212) 416-8962 (facsimile) Dated: June 6, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES.............................................................iii PRELIMINARY STATEMENT ........................................................ 1 QUESTION PRESENTED................................................................ 4 STATEMENT OF THE CASE .......................................................... 4 A. New York’s Handgun Licensing Statute ....................... 4 B. Statement of Facts .......................................................... 8 1. Osterweil’s Application for a Handgun License ..................................................................... 9 2. The Denial of Osterweil’s License Application .... 11 C. The Federal Court Proceeding ..................................... 13 1. The District Court’s Grant of Summary Judgment to Bartlett............................................. 13 2. Osterweil’s Appeal to the Second Circuit ............. 15 ARGUMENT THE RESIDENCY LANGUAGE OF THE HANDGUN LICENSING STATUTE SHOULD NOT BE CONSTRUED TO IMPOSE A DOMICILE REQUIREMENT ......................................................................18 A. The Context, Structure, and History of the Statute Support a Requirement of Residency and Not Domicile.................................................................. 21 ii TABLE OF CONTENTS (cont’d) Page B. The Canon of Constitutional Avoidance Further Supports the Construction of the Statute To Require Residence, Not Domicile. ................................25 CONCLUSION ................................................................................30 iii TABLE OF AUTHORITIES Cases Page Antone v. Gen. Motors Corp., 64 N.Y.2d 20 (1984) ....................................................... 18, 19, 20 Ashwander v. TVA, 297 U.S. 288 (1936) ................................................................... 26 Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) ......................................................... 28 District of Columbia v. Heller, 554 U.S. 570 (2008)................................................................ 3, 28 Engel v. CBS, Inc., 93 N.Y.2d 195 (1999) ................................................................. 27 Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).................................................................... 26 Matter of Dalton v. Drago, 72 A.D.3d 1243 (3d Dep’t 2010)................................................. 12 Matter of Hosley v. Curry, 85 N.Y.2d 447 (1995) ................................................................. 20 Matter of Mahoney v. Lewis, 199 A.D.2d 734 (3d Dep’t 1993)............................................. 2, 11 Matter of O’Connor v. Scarpino, 83 N.Y.2d 919 (1994) ................................................................... 6 Matter of Wrigley, 8 Wend. 134 (1831) .................................................................... 20 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)............................................................ 2, 28 iv TABLE OF AUTHORITIES (cont’d) Cases Page(s) Overstock.com, Inc. v. N.Y. State Dep’t of Taxation & Fin., 20 N.Y.3d 586 (2013).................................................................. 25 People ex rel. Simpson v. Wells, 181 N.Y. 252 (1905).................................................................... 25 People v. Felix, 58 N.Y.2d 156, appeal dismissed for want of substantial federal question, 464 U.S. 802 (1983)........................................ 26 People v. Finkelstein, 9 N.Y.2d 342 (1961).................................................................... 26 Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2012).................................................. 28 Rawstorne v. Maguire, 265 N.Y. 204 (1934).................................................................... 20 Rooney v. Tyson, 91 N.Y.2d 685 (1998).................................................................. 27 United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), cert. denied, 133 S. Ct. 838 (2013) .......................................................................................... 29 Constitution N.Y. Const. art. VI, § 3(b)(9) .......................................................... 27 Statutes Penal Law § 265.00..................................................................................... 5, 6 § 265.01......................................................................................... 4 § 265.03......................................................................................... 4 § 265.20......................................................................................... 5 § 400.00............................................................................... passim v TABLE OF AUTHORITIES (cont’d) Miscellaneous Authorities Page(s) Letter from Edward P. Mulrooney, N.Y. City Police Comm’r, to Governor Franklin D. Roosevelt (Aug. 29, 1931), reprinted in Public Papers of Governor Franklin D. Roosevelt, 1931 (1937) ........................................................... 7, 23 Message to the Legislature (Sept. 1, 1931), reprinted in Public Papers of Governor Franklin D. Roosevelt, 1931 (1937)...................................................................................... 7, 23 PRELIMINARY STATEMENT In a federal action challenging a provision in New York’s handgun licensing statute, Penal Law § 400.00(3)(a), under the Second Amendment to the United States Constitution, the United States Court of Appeals for the Second Circuit has certified to this Court the following question of New York law: 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? This question arises because Alfred Osterweil's application for a handgun license was denied by Judge George Bartlett, the Schoharie County firearms licensing officer, on the ground that Osterweil was not domiciled in New York. Osterweil has challenged that denial on Second Amendment grounds in federal court. Because the proper interpretation of the relevant statute is in question, the Second Circuit has asked for an authoritative construction of the statute before considering the constitutional challenge to it. 2 New York’s firearms licensing statute provides that an application for a handgun license must “be made and renewed . . . to the licensing officer in the city or county . . . where the applicant resides, is principally employed, or has his principal place of business as merchant or storekeeper.” Penal Law § 400.00(3). Judge Bartlett denied the application at issue here in reliance on a 1993 decision of the Appellate Division, Third Department, construing the term “resides” in that statute to mean “is domiciled.” Matter of Mahoney v. Lewis, 199 A.D.2d 734, 735 (3d Dep’t 1993). Both parties to this action now urge this Court to answer the certified question by rejecting that holding, and instead construing the statute to authorize the issuance of a handgun license to a New York resident who is not domiciled in New York. Mahoney’s interpretation of the statute should be rejected for several reasons. First, the Third Department based its decision in part on the view that possession of a handgun is a privilege, not a right, id. at 735. But the United States Supreme Court has now squarely rejected that view in McDonald v. City of Chicago, 130 S. 3 Ct. 3020 (2010). Thus, one of the fundamental underpinnings of Mahoney has been removed, and for that reason alone the continuing vitality of the decision is doubtful. Second, a domicile requirement would raise serious constitutional questions under District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald, and this Court should construe the statute to avoid such questions. And third, apart from constitutional considerations, the text, purpose, and history of the statute strongly support a construction of the statute that makes residents who are not domiciled in New York eligible for handgun licenses. Osterweil urges this Court to hold expressly that a domicile requirement would violate the Second Amendment (see Br. for Appellant at 13-31) but that question is not properly before this Court. The Court’s precedents make clear that acceptance of a certified question brings to this Court only the certified question of state law, and not the federal constitutional claims that may depend on the answer to that question. Moreover, the doctrine of constitutional avoidance counsels a court to avoid constitutional questions, and not to decide them unnecessarily. 4 QUESTION PRESENTED 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? STATEMENT OF THE CASE A. New York’s Handgun Licensing Statute New York law makes it a misdemeanor to possess an unlicensed handgun (or other designated firearm), loaded or unloaded, in any location, Penal Law § 265.01, and makes it a class C felony to possess an unlicensed loaded handgun (or other designated firearm) outside the home, id. § 265.03(3).1 Long guns, including most rifles and shotguns, are excluded from these prohibitions. So the possession and carrying of long guns— 1 Unless otherwise indicated, all Penal Law citations refer to the law prior to enactment of the N.Y. SAFE Act, ch. 1 (2013). 5 commonly used for hunting—are not generally prohibited or subject to licensing in New York.2 Licensed handguns are exempted from the Penal Law’s prohibitions on possession of firearms. Id. § 265.20(a)(3).3 Penal Law § 400.00(2) lists the types of licenses that authorize possession of a pistol or revolver, which include: (1) a license to “have and possess in his dwelling by a householder”; (2) a license to “have and possess in his place of business by a merchant or storekeeper”; (3) a license to “have and carry concealed while so employed by a messenger employed by a banking institution or express company”; and (4) a license to “have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.” Id. 2 Penal Law § 265.00(3) defines “firearm” to include pistols and revolvers; shotguns with barrels less than eighteen inches in length; rifles with barrels less than sixteen inches in length; “any weapon made from a shotgun or rifle” with an overall length of less than twenty-six inches; and assault weapons. 3 Other exemptions from the prohibition also exist, inter alia, for persons in state and federal military service, and for peace and police officers. Penal Law § 265.20(a)(1). 6 § 400.00(2)(a)-(c) & (f).4 A “carry concealed” license may be restricted to specific purposes set forth in the license application, such as use in target practice or hunting. Matter of O’Connor v. Scarpino, 83 N.Y.2d 919, 921 (1994). Penal Law § 400.00(3) governs the application process for licenses, and contains the provision whose construction is at issue here. In most counties, licensing officers are judges; in New York City, and in Nassau and Suffolk counties, police officials act as licensing officers. Penal Law § 265.00(10). As part of a detailed paragraph prescribing the method of applying for a handgun license, § 400.00(3) states that an application for a handgun license must be made in the city or county “where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The legislative history shows that the precursor to this provision was added to the statute to prevent New York City residents from forum-shopping 4 The remaining categories include licenses for certain state judges, certain state and local prison employees, and possessors and carriers of certain antique pistols. Penal Law § 400.00(2)(d), (e) & (g). 7 by obtaining pistol permits from judges in counties outside the City where, at the time, “little or no investigation” of the applicant preceded issuance of a license. Letter from Edward P. Mulrooney, N.Y. City Police Comm’r, to Governor Franklin D. Roosevelt (Aug. 29, 1931), reprinted in Public Papers of Governor Franklin D. Roosevelt, 1931, at 184 (1937); see also Message to the Legislature (Sept. 1, 1931), reprinted in Public Papers, supra, at 182, 183 (recommending that Legislature adopt proposals in the Mulrooney letter). Penal Law § 400.00(1) lists the eligibility requirements for a handgun license. Generally, an applicant must: (1) be twenty-one years of age or older; (2) have good moral character; (3) have no convictions for felonies or serious offenses; (4) state whether he or she has ever suffered a mental illness or been confined to a health- care facility because of mental illness; and (5) have no prior revocation of a license or current judicial order of protection. In 8 addition, there must not be “good cause” to deny a license. Penal Law § 400.00(1)(a)-(e), (g).5 Domicile is not listed as a precondition to eligibility for a handgun license. To the contrary, a separate provision specifically contemplates issuance of licenses to persons not usually resident in New York. Penal Law § 400.00(7) instructs that when a license “is issued to an alien, or to a person not a citizen of and usually a resident in the state, the licensing officer shall state in the license the particular reason for the issuance and the names of the persons certifying to the good character of the applicant.” Id. § 400.00(7). B. Statement of Facts As of March 2009, Alfred Osterweil owned four houses—two in Summit, New York, and two in Many, Louisiana—all of which he considered his “home” (A. 18). Sometime between May 21, 5 Persons honorably discharged from the United States armed forces or the New York national guard are exempt from the age restriction. Penal Law § 400.00(1)(a). Westchester county applicants, except such honorably discharged service members, must also pass a firearms safety course. Id. § 400.00(1)(f). 9 2008, and June 25, 2008, Osterweil changed his primary residence from New York to Louisiana (see A. 34, 46). Since then, he has continued to retain at least one house in Summit, New York for use as a “vacation home” (see A. 14). The record contains little information as to the amount of time Osterweil spends annually in New York. 1. Osterweil’s Application for a Handgun License In May 2008, when his primary residence was in Summit, New York, Osterweil submitted an application for a handgun license to the Sheriff’s Department in Schoharie County, where Summit is located (A. 9, 25). Osterweil checked the box on the application for a “premises” license—which is meant to designate an application for the statutory “householder” license—but he wrote in a space provided on the application that he sought the license for the purpose of “target practice and hunting” (A. 41). A few weeks later, the Sheriff informed Osterweil that he needed to “complete and/or correct” his application. The Sheriff explained that a premises license would be valid only “inside the residence” 10 for which he applied, and that Osterweil’s desire to use a handgun for “target practice and hunting” would require him to obtain a “carry concealed” license. (A. 44.) In June 2008, Osterweil told the Sheriff that he had purchased a home in Louisiana and intended to make Louisiana his primary residence. Osterweil inquired whether this change in his residency status would disqualify him from obtaining a permit, stating that if it would, he saw “no sense in correcting the application” to clarify whether he was seeking a concealed-carry license or a premises license. (A. 46.) Thereafter, Osterweil, the Sheriff, and Judge Bartlett exchanged several letters regarding Osterweil’s application. Osterweil was informed that his fingerprints had been determined to be unusable (due to low quality) by both the Federal Bureau of Investigation and the New York State Division of Criminal Justice Services (A. 35). See Penal Law § 400.00(4) (requiring officer investigating applicant for firearms license to take the applicant’s fingerprints and send one copy to the State Division of Criminal Justice Services and one to the Federal Bureau of Investigation 11 for criminal records searches). Judge Bartlett advised Osterweil that, in addition to the lack of fingerprint quality, his out-of-state domicile might pose an obstacle to licensure (A. 79-80). 2. The Denial of Osterweil’s License Application On May 29, 2009, Judge Bartlett issued a decision and order denying Osterweil’s application for a handgun license on the ground that Osterweil was not domiciled in New York (A. 144, 150; see A. 135-150). Judge Bartlett cited the Mahoney decision from the Third Department as controlling on the meaning of the residency provision in § 400.00(3)(a). In Mahoney, the court confirmed the denial of a concealed-carry license to a New Jersey domiciliary who also owned property in New York, holding that the residency language of § 400.00(3)(a) “is equivalent to domicile and requires something more than mere ownership of land.” 199 A.D.2d at 735. This holding was based on the court’s view that the residency language constituted a “qualification for a privilege,” and that the “possession and use of a pistol are not vested rights but privileges.” Id. (quotation marks omitted). Judge Bartlett’s 12 denial of Osterweil’s license was a direct application of Mahoney’s domicile requirement. The judge also rejected Osterweil’s claim that the statute’s residency language, as construed by Mahoney to require domicile, violated the Second Amendment under the Supreme Court’s decision in Heller (A. 143-150). Judge Bartlett did not decide whether the quality of Osterweil’s fingerprints would independently prevent him from obtaining a license or determine whether Osterweil had satisfied the other requirements for licensure under New York law (A. 150 n.3). Osterweil did not seek review of Judge Bartlett’s decision in a C.P.L.R. article 78 proceeding, as he could have done. See, e.g., Matter of Dalton v. Drago, 72 A.D.3d 1243 (3d Dep’t 2010). Thus, Osterweil did not ask the Appellate Division, Third Department to reconsider Mahoney’s interpretation of the residency language in Penal Law § 400.00(3)(a)—something Judge Bartlett did not have the authority to do. Nor did Osterweil ask this Court to provide an authoritative construction of the statute—something this Court has not previously been asked to do. 13 C. The Federal Court Proceeding Instead of pursuing state-court review of the denial of his license—review that could have resulted in a rejection of Mahoney’s domicile interpretation as early as 2009—Osterweil filed a complaint in the United States District Court for the Northern District of New York, asserting causes of action under the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as claims under “the New York Constitution and Civil Rights Laws” (A. 10-11), against Bartlett in his official capacity as licensing officer (see A. 8-11; see also A. 187). The complaint requests an order directing that the defendants “provide plaintiff with the type of permit originally applied for, for costs of suit and such other damages and relief as the Court deems reasonable and appropriate” (A. 11). 1. The District Court’s Grant of Summary Judgment to Bartlett By suing in federal court, Osterweil delayed for several years any possibility of obtaining a New York appellate court decision re-examining § 400.00(3). Because this Court does not accept 14 certification of questions of New York law from federal district courts, certification to this Court became possible only after federal district court proceedings were concluded and Osterweil’s federal litigation was on appeal. Osterweil’s choice to launch federal litigation against Bartlett rather than seek state-court review of Bartlett’s decision meant that the parties litigated this case in the federal district court within the framework of Mahoney. The district court granted summary judgment to Judge Bartlett on all claims. Citing Mahoney, the court assumed that the statutory residency requirement operated as a domicile requirement (A. 159-160). The court held that intermediate scrutiny was the appropriate legal standard for analyzing Osterweil’s Second Amendment claim (A. 168-169), and held that the statute satisfied intermediate scrutiny because “there is a substantial relationship between New York’s residency requirement and the government’s significant interest” in monitoring eligibility for firearms licenses (A. 170). The district court then rejected Osterweil’s equal protection claim, finding that “New York state residents and nonresidents are not similarly 15 situated in terms of the state’s ability to obtain information about and monitor the potential licensee’s eligibility or continued eligibility for a firearms license” (A. 172).6 2. Osterweil’s Appeal to the Second Circuit Osterweil filed a notice of appeal. In April 2012, after Osterweil submitted his brief, Bartlett filed a motion asking the Second Circuit to certify to this Court the following dispositive legal question: “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?” Osterweil opposed this motion. (Opp’n to Mot., ECF No. 72.) The motion was referred to the Second Circuit merits panel. (Mot. Order, ECF No. 77.) Bartlett repeated the request for certification 6 The district court construed other federal claims by Osterweil, couched by him as equal protection claims, as claims that denial of his license application violated his right to travel under the Privileges and Immunities Clause and his right to substantive and procedural due process, and rejected each claim (A. 172 n.11). The district court declined to exercise supplemental jurisdiction over Osterweil’s state-law claims (A. 178). He abandoned all these arguments in his federal appeal. 16 in his brief on the merits and described some of the reasons that the residence language in the statute would best be read to require only residence (A. 280-288). In his reply brief and at oral argument, Osterweil again opposed certification (A. 312-319). After oral argument on the merits of Osterweil’s appeal, the Second Circuit, in an opinion by Justice O’Connor, certified to this Court the question of the proper construction of the residence phrase in Penal Law § 400.00(3)(a) (A. 184-197). The court found that each of the factors it examines in deciding whether to certify a question of law favored certification. First, the court observed that this Court has never construed the residency language of § 400.00(3)(a), and that “[r]ecourse to [the] Court’s broader opinions regarding residence requirements makes the water murkier, not clearer” (A. 189). The Second Circuit also rejected the option of construing the statute itself by predicting how this Court would construe it because doing so would “put state officials like Judge Bartlett in a particularly hard spot in the next case, uncertain whether to follow the binding decision . . . in Mahoney or the all-fours decision of a federal circuit court” (A. 191). Second, 17 the Second Circuit found that the construction of the statute was an issue of great importance to the State because “regulation of firearms is a paramount issue of public safety” (A. 192). Third, the court found that the certified question would be dispositive, noting that if this Court construed the statute to require only residence and not domicile, that construction would resolve the controversy in this case, and even if this Court adopted a domicile construction, the federal court would still benefit from the precise construction placed on the statute by this Court (A. 193)/ Finally, the Second Circuit rejected Osterweil’s argument that the Circuit should address the constitutionality of a domicile requirement without certification, in order to avoid delay and the risk that both this Court and the Second Circuit would “opine on a constitutional question in the same case.” (A. 193.) This Court accepted certification on February 19, 2013 (A. 198). 7 7 The State asked this Court to expedite the proceedings, consistent with representations made to the Second Circuit. (See A. 196.) Osterweil made a similar request. While this Court (continued on next page) 18 ARGUMENT THE RESIDENCY LANGUAGE OF THE HANDGUN LICENSING STATUTE SHOULD NOT BE CONSTRUED TO IMPOSE A DOMICILE REQUIREMENT Constitutional concerns loom large in this litigation, and we will address them in due course. But in fact a straightforward analysis of the statute answers the certified question independent of those constitutional questions. This Court has long observed that the terms “residence” and “domicile” are “not identical.” Antone v. Gen. Motors Corp., 64 N.Y.2d 20, 28 (1984). “[W]hile a person can have but one domicile, he can have more than one residence.” Id. A person is a “resident” if he or she has “a significant connection with some locality in the State as the result of living there for some length of time during the course of a year.” Id. at 30. Thus, a person who owns or rents an abode in a county or city accepted certification on February 19, 2013, within three weeks of the Second Circuit order, Osterweil did not file his brief until May 7, 2013—too late for the case to be calendared before the summer recess. 19 of the State and actually lives there “for some length of time during the course of a year” is a resident for that part of the year.8 On the other hand, “[e]stablishment of a domicile in a State generally requires a physical presence in the State and an intention to make the State a permanent home.” Id. at 28 (emphasis added). Thus, a person who is a New York domiciliary is necessarily a resident of the State, but a person may be a domiciliary of another State (or another nation) and nonetheless be a resident of New York. Finally, persons who are merely visiting the State or in transit through the State, and who thus lack “a fixed and permanent abode or dwelling-place for the time 8 While 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. If this Court construes the statute to require only residence and not domicile, thereby removing the only obstacle challenged by Osterweil in this federal lawsuit, his application for a permit will still require the licensing officer to resolve at least two questions not answered on the current record: whether in fact he continues to reside in his New York house or houses on a part-time basis, and whether he can produce readable fingerprints as required to enable the Division of Criminal Justice Services to conduct Osterweil’s criminal background check. See Penal Law § 400.00(4). 20 being,” are neither residents nor domiciliaries. Matter of Wrigley, 8 Wend. 134, 140 (1831). This Court has held that when a statute uses the term “resides,” rather than “is domiciled,” this choice of language presumptively demonstrates that the Legislature intended to impose a residency requirement, not a domicile requirement. See Antone, 64 N.Y.2d at 29. This presumption may be overcome in particular cases where “the nature of the subject-matter of the statute as well as the context in which the words are used,” Rawstorne v. Maguire, 265 N.Y. 204, 208 (1934), or where legislative history, Antone, 64 N.Y.2d at 29, establishes that the Legislature meant for statutory language phrased in terms of residency to impose the more restrictive requirement of domicile. Consequently, this Court has in some contexts construed “residence” to mean “domicile.” See, e.g., Matter of Hosley v. Curry, 85 N.Y.2d 447, 451 (1995). Here, the text of Penal Law § 400.00(3) uses the language of residence rather than domicile: it requires applications for handgun licenses not based on employment or operation of a 21 business to be filed “where the applicant resides.” The context, purpose, and history of the statutory language confirm, rather than rebut, the presumption that a residence requirement was intended. And if there were any doubt on the point, the principle that statutes should be construed in a manner that avoids constitutional questions would resolve it in favor of a residency requirement. A. The Context, Structure, and History of the Statute Support a Requirement of Residency and Not Domicile. In order to obtain a premises or concealed-carry license to possess a handgun, an applicant must file his or her application in the county or city where he or she “resides.” The statute’s use of residency language establishes a presumption against a domicile construction, and nothing in the structure of legislative history of the statute rebuts that presumption. Instead, the context, structure and history of the statute strongly support construing the statute as requiring only residency. The context of the language concerning residency does not suggest that the Legislature meant the language to be read as 22 requiring domicile. As the Second Circuit observed, the statutory context shows that the phrase is simply “a procedural rule about where to file to get a license, not a limitation on who may get one” (A. 189 (emphasis in original)). The phrase is not located in the eligibility subsection of the statute, but rather in the subsection governing the procedural requirements for handgun license applications. The statute therefore imposes a venue requirement for license applications. This forum-selection purpose does not support reading “resides” as “is domiciled,” since persons may conveniently and appropriately apply for a handgun license in the city or county of their place of residence, whether or not they are domiciled there. The history of the statutory language confirms that a residency requirement, not a domicile requirement, is intended. For two decades after New York’s handgun licensing statute was passed in 1911, the statute contained no language regarding residency or domicile. Residency language was added to the statute in 1931 in order to address the problem of New York City residents obtaining licenses in counties outside the city where 23 there was less thorough investigation of applicants. Letter from Mulrooney, supra; see also Message to the Legislature, supra, (recommending that Legislature adopt proposals in the Mulrooney letter). The history of the 1931 amendment confirms that the residency language was designed as a venue provision—to prevent forum-shopping by applicants—not as a way to bar part-time residents of the State from obtaining licenses altogether in New York. Penal Law § 400.00(7) further refutes any contention that the Legislature meant to impose a domicile requirement for handgun licenses. Section 400.00(7) expressly contemplates that handgun licenses may be issued to “an alien, or to a person not a citizen of and usually a resident in the state” and directs the licensing officer, in such case, to state in the license “the particular reason for the issuance and the names of the persons certifying to the good character of the applicant.”9 9 If Osterweil otherwise qualifies for a handgun license (see n.8, supra), the requirement means that his license would include the names of the character references he provided on his (continued on next page) 24 The 1993 decision of the Third Department in Mahoney provides no persuasive reason to read the statutory language regarding residency as specifying a domicile requirement. Mahoney did not undertake an analysis of the structure of Penal Law § 400.00, and completely overlooked the language in § 400.00(7) expressly acknowledging that handgun licenses may be issued to aliens and to persons who are not citizens of and usually resident in the State. Mahoney also incorrectly assumed that the phrase “where the applicant resides” should be treated as a qualification for licensure, even though it does not appear in the subsection of the statute listing substantive eligibility requirements. And Mahoney construed the residency language of the statute to mean domicile based in part on the notion that possession of a handgun is a privilege rather than a right. That notion has now been squarely repudiated by the Supreme Court, application, and would state the reason for issuance of the license—presumably either self-defense in his New York home or target practice and hunting (see A. 41). This information is ordinarily furnished by all license applicants; the quoted provision requires only that they be listed on the license for an alien or “a person not a citizen of and usually a resident in the state.” 25 which in Heller recognized an individual’s right to possess a handgun in his home for purposes of self-defense, and in McDonald made clear that the right recognized in Heller is enforceable against the States. For all these reasons, Mahoney was wrongly decided, and should not be adopted by this Court as the law of New York. B. The Canon of Constitutional Avoidance Further Supports the Construction of the Statute To Require Residence, Not Domicile. Even if the text, structure, and history of Penal Law § 400.00 left room for doubt, which they do not, the statute should be construed to require only residence and not domicile under the principle that statutes should be construed so as to avoid serious constitutional questions. This Court has stressed 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.” People ex rel. Simpson v. Wells, 181 N.Y. 252, 257 (1905). See also, e.g., Overstock.com, Inc. v. N.Y. State Dep’t of Taxation & Fin., 20 N.Y.3d 586, 593 (2013). This canon of construction is dispositive here. 26 The Second Circuit’s opinion makes clear that a domicile requirement would present “a serious and very difficult question of federal constitutional law” (A. 194). Osterweil goes several steps further, arguing at length that a domicile requirement would clearly be unconstitutional, and even urging this Court actually to decide that federal constitutional question in this appeal. For purposes of this case, however, it suffices to conclude that a domicile requirement would present a serious constitutional question, and that the statute may reasonably be read as imposing only a residency requirement. See, e.g., People v. Finkelstein, 9 N.Y.2d 342, 345 (1961). It is not necessary to decide the constitutional question that would be presented by a different interpretation of the statute, and indeed to do so would violate the basic principle that courts should avoid the unnecessary decision of constitutional questions. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988); Ashwander v. TVA, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring); People v. Felix, 58 N.Y.2d 156, 161, appeal dismissed for want of substantial federal question, 464 U.S. 802 (1983). 27 Osterweil’s further contentions are not properly before the Court. This Court’s response to a question certified by the Second Circuit “should be dispositive of the precise law query as transmitted” to the Court. Rooney v. Tyson, 91 N.Y.2d 685, 690 (1998). This means that “[e]verything else—including especially the relevant application and actual decision of the case—is, of course, within the exclusive juridical competence of the Second Circuit Court of Appeals.” Id. (emphasis added). Indeed, because this Court’s authority to answer questions certified by a federal appeals court derives from a state constitutional provision limiting authorizing the court “to answer questions of New York law,” N.Y. Const. art. VI, § 3(b)(9), the Court’s “province is bounded by ‘questions of New York law . . . which may be determinative,’” Engel v. CBS, Inc., 93 N.Y.2d 195, 207 (1999) (emphasis added). Consequently, there is no basis for the Court to resolve questions of federal constitutional law in this appeal. If this Court were inclined to reach those questions, notwithstanding the weighty reasons not to do so, it would find that the issues are more complex and the questions more difficult 28 than suggested by Osterweil. In particular, Osterweil claims that a domicile requirement would be invalid under Heller and McDonald as an absolute ban on home possession of handguns. Br. at 14-17. But a New York domicile requirement would not be an absolute ban because, as the Second Circuit noted, “[i]t is open to Osterweil to make his domicile in New York” (A. 194), and because a New York domicile requirement would not limit Osterweil’s ability to possess a handgun in his Louisiana homes.10 Moreover, Heller and McDonald plainly leave room for reasonable regulation of handgun possession, see Heller, 554 U.S. at 626-27 & n.26; McDonald, 130 S. Ct. at 3047, and the exclusion of a non- resident from licensure serves important state interests in monitoring the conduct of licensees, and thus survives intermediate scrutiny. See Bach v. Pataki, 408 F.3d 75, 91-92 (2d Cir. 2005). Cf. Peterson v. Martinez, 707 F.3d 1197, 1223 (10th Cir. 2012) (Lucero, J., concurring) (citing Bach with approval). 10 Indeed, Osterweil states in his brief (at 4) that he keeps a revolver in his Louisiana home. 29 Under more recent Second Circuit precedent, moreover, no heightened scrutiny is given to statutes regulating firearms where “adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.” United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012), cert. denied, 133 S. Ct. 838 (2013). A court could find that Osterweil’s needs for home self-defense or hunting 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. Osterweil accordingly overstates the strength of the constitutional arguments against a domicile requirement. But this Court need not, should not, and indeed cannot answer any federal constitutional question in this appeal on certified questions of New York law. The issue of statutory construction presented here is definitively resolved under the principle that statutes should be interpreted to avoid serious constitutional questions, to any extent that the issue is not already resolved by the text, structure, and history of the statute showing that it imposes only a residency requirement, not a domicile requirement. 30 CONCLUSION For the foregoing reason, this Court should answer the certified question in the affirmative. Dated: New York, NY June 6, 2013 BARBARA D. UNDERWOOD Solicitor General RICHARD DEARING Deputy Solicitor General SIMON HELLER Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Judge Bartlett By: . /s/ Simon Heller . SIMON HELLER Assistant Solicitor General 120 Broadway New York, NY 10271 (212) 416-8025 Reproduced on Recycled Paper