NY Court of Appeals Rules Part-Time Residents Cannot be Denied Their Right to Keep and Bear Arms

October 17, 2013: The New York Court of Appeals ruled by a 7-0 vote Tuesday that part-time residents of a county or city in New York are eligible for gun permits (see Osterweil v. Bartlett decision).

A panel led by Judge Eugene Pigott Jr. clarified the State’s pistol and revolver license statute in the decision, determining primary residence is not necessary for a gun permit under New York Law.

Penal Law §400 (passed in 1963), originally directed applicants for licenses to carry a pistol or revolver to the local licensing officer “where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.

In the decision, Judge Pigott Jr. opined that Penal Law §400 was created to prevent New York City residents from “forum shopping” (obtaining permits in counties where investigations of applicants were less thorough), rather than to exclude certain applicants from qualifying at all.

The case came about when plaintiff Alfred G. Osterweil, an attorney, planned on moving from Summit, New York to Louisiana, but still wished to live part time in his Summit home following the move.

This decision effectively abrogates the Appellate Division ruling in Mahoney v. Lewis, 199 AD2d 734 (1993), which held that under Penal Law §400 “the term residence is equivalent to domicile.”