View Full Version : 2nd Circuit -- Osterweil vs. Bartlett
01-29-2013, 9:58 PM
Interesting case here
"Retired Supreme Court Justice Sandra Day O’Connor, sitting temporarily on a federal appeals court, suggested in an opinion on Tuesday that it might be unconstitutional for a state to deny handgun licenses to individuals who have only temporary homes in the state, when they want a gun to protect their home there. "
More details and links here
01-29-2013, 10:19 PM
With the 2nd Circuit responding exactly as it should: send the case back with a single, simple question to see if there is in fact a constitutional issue.
01-29-2013, 11:37 PM
For the legal beagles:
What occurred here was something called Pullman Abstention (http://en.wikipedia.org/wiki/Abstention_doctrine#Pullman_abstention)
Pullman abstention was the first "doctrine of abstention" to be announced by the Court, and is named for Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). Concisely, the doctrine holds that "the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them." This doctrine permits a federal court to stay a plaintiff's claim that a state law violates the Constitution until the state's judiciary has had an opportunity to apply the law to the plaintiff's particular case. The hope is to avoid a federal constitutional ruling by allowing the state courts to construct the law in a way that eliminates the constitutional problem or to rule it void under the state's own constitution.
For Pullman abstention to be invoked, three conditions must be apparent:
The case presents both state grounds and federal constitutional grounds for relief;
The proper resolution of the state ground for the decision is unclear; and
The disposition of the state ground could obviate the need for adjudication of the federal constitutional ground.
Under Pullman abstention, the federal court retains jurisdiction to hear the constitutional issues in the case if the state court's resolution is still constitutionally suspect. In Government and Civil Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364 (1957), the Supreme Court held that litigants must inform the state court that they are contending that the state law violates a federal constitutional provision, so that the state court may take that into consideration when interpreting the state statute. However, in England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), the Supreme Court noted that the litigants must not ask the state court to resolve the constitutional issue itself, or the federal court would be bound by res judicata to follow the decision of the state court. In such a case, the litigant seeking a judgment that the law is unconstitutional must usually appeal to the higher courts of the state, rather than seeking review in a federal court.
01-30-2013, 5:53 AM
Hopefully this ruling will make SCOTUS seriously consider granting cert to the carry cases for review(madigan/kachalsky/etc).
I have high hopes to see national reciprocity in my lifetime.
01-30-2013, 3:42 PM
Just saw this in my twitter feed, seemed relevant to this board, have not seen other threads on this specifically...
Retired Supreme Court Justice Sandra Day O’Connor, sitting temporarily on a federal appeals court, suggested in an opinion on Tuesday that it might be unconstitutional for a state to deny handgun licenses to individuals who have only temporary homes in the state, when they want a gun to protect their home there. And, in discussing the need for care about gun safety, the O’Connor opinion cited the Newtown school childrens’ massacre as a reason to keep guns out of the “wrong hands.”
Full opinion: http://www.ca2.uscourts.gov/decisions/isysquery/71341462-e513-4977-aff7-c7a24c8d4cd8/3/doc/11-2420_opn.pdf
01-30-2013, 4:29 PM
I wonder if this could overturn the federal regulations as well as they relate to selling to out of state buyers? Does Conressional power to regulate interstate commerce trump the 2nd ammendment right to buy when out of state? How about tempoarry residence? What about my hotel room? Very interesting
01-30-2013, 6:29 PM
Hmmm... Depending how this turns out, possible ramifications for Peruta?
01-30-2013, 10:45 PM
Osterweil has no effect on the almost all the carry cases. It's only effect could be on Gray's case against Colorado. However, this step is a strong signal by the federal court that the state court needs to change their interpretation to avoid having the law struck down.
M. D. Van Norman
12-23-2013, 1:14 PM
I didn’t see a more current thread to update, but here is the most recent decision.
The court sidestepped the constitutional issue, it appears.
12-26-2013, 2:48 PM
Hmmm. He can apply for the license, and does not need to show that he is a permanent resident of NY in order to qualify. So he waits months or years for the application to be processed, only to be denied on some other excuse?
We need to follow this case.
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