Wednesday, January 30, 2013

Guns and Paul Clement in the Second Circuit

Yesterday, the Second Circuit threw another log onto the fire in the Second Amendment debate (well, sort of, since the Court will not render a final decision until it receives from the New York Court of Appeals an answer to its certified questions pertaining to New York law).  But, here's the nutshell summary: plaintiff is a gun-owner and lives in Louisiana.  He also maintains a vacation home in Summit, New York where he lives part of the year.  Plaintiff applied for a gun license in New York.  However, under New York law, the state may only provide licenses to those domiciled in New York, and as anyone who paid attention in Civ Pro understands, an individual can only have one domicile.  Plaintiff's application was rejected for his lack of New York domicile.  He sued, claiming a Second Amendment violation.  The District Court dismissed the complaint, and plaintiff appealed.  

The decision certainly caught my eye as a political nerd, but perhaps more so as an appellate advocate nerd when I noticed that Paul Clement is representing the plaintiff on appeal.  When I first noticed the decision, I was busy writing an article, and did not know much about the case other than that former Supreme Court Justice Sandra Day O'Connor had authored the decision, and that the litigation involved something to do with the right to bear arms.  This morning, however, I retrieved Paul Clement's brief, which you may read here.  As usual, Clement does not hide the ball:  

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Supreme Court of the United States made clear that the Second Amendment to the United States Constitution guarantees the fundamental right of an individual to possess a handgun in his home for the purpose of self-defense.  According to New York State, however, an individual can only have one such home.  Thus, according to New York, if you own a home in New York and live there with your family, but that home is not your primary residence, you have no right to possess a handgun for self-defense.  

Plaintiff-Appellant Alfred G. Osterweil ("Mr. Osterweil") owns a home in New York, but only lives in that home part of the year.  Because of that fact, he was denied a license to keep a handgun in his New York home.  This case requires the Court to decide:

1.  Whether the District Court erred by holding that New York's statutory scheme denying handgun permits to all individuals whose "primary residence" is in another State does not violate the fundamental Second Amendment right to keep and bear arms in defense of hearth and home.

2.  Whether in light of the recognition in Heller and McDonald of the fundamental nature of Second Amendment rights, the Equal Protection Clause permits New York to distinguish between domiciliary residents and nondomicialry residents when it comes to the right to keep and bear arms.  

Clement's statement of the issues is yet another example of highly persuasive appellate advocacy, for he leaves the Court with no room to guess the theory of his case.  By page two - that is, before the reader has even read the factual summary - the reader understands just exactly what is at stake in the matter.  Now, if only I could find the time to finish reading the brief and the actual decision. . .                                

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