New York’s highest court has been asked to decide whether the state’s handgun licensing scheme limits permits to full-time residents.

The U.S. Court of Appeals for the Second Circuit certified that question to the New York Court of Appeals yesterday, seeking guidance in the case of a man who has a part-time residence in New York but was denied a gun permit by local authorities.

Retired U.S. Supreme Court Justice Sandra Day O’Connor and circuit Judges Dennis Jacobs (See Profile) and John Walker Jr. (See Profile) said in Osterweil v. Bartlett, 11-2420-cv, they could not determine the constitutionality of certain aspects of the state’s scheme without getting an answer to the question on domiciliaries.

Writing for the panel, O’Connor referenced the Dec. 14 massacre of 20 schoolchildren and six staffers at the Sandy Hook Elementary School in Newtown, Conn.

She said the court, in certifying, must ask whether the question is important to the state and where it may require, in the words of the case law, “value judgments and public policy choices.”

“It certainly is, and it certainly does,” O’Connor said. “The regulation of firearms is a paramount issue of public safety, and recent events in this circuit are a sad reminder that firearms are dangerous in the wrong hands.”

The case involves a challenge by Alfred Osterweil, who applied for a handgun license in May 2008 at a time when his house in Summit, Schoharie County, was his primary residence.

During the application process, which, under New York Penal Law §400.00(3)(a) requires that people apply “in the city or county” where they reside, Osterweil moved to Louisiana but kept his Summit home as a part-time vacation residence.

Also during the process, the U.S. Supreme Court decided District of Columbia v. Heller, 544 U.S. 570 (2008), holding that the Second Amendment to the U.S. Constitution protects an individual’s right to bear arms and that the core of that right is the right to self-defense in one’s home.

After Heller, Osterweil sent a letter to Schoharie County licensing authorities intimating that a constitutional challenge would follow a rejection of his application that was based on his domicile.

Nonetheless, Schoharie County Court Judge George Bartlett III (See Profile) interpreted the language of §400.00(3)(a) as imposing a domicile requirement, and he cited the Appellate Division, Third Department, in Mahoney v. Lewis, 199 A.D.2d 734 (1993), which said “as used in this statute, the term residence is equivalent to domicile.”

Bartlett also said the licensing scheme would pass muster under Heller “so long as it is not enforced in an arbitrary and capricious manner.”

Osterweil filed suit in the Northern District, where Judge Mae D’Agostino (See Profile) found that intermediate scrutiny was the appropriate level of review and the licensing scheme passed that test because “the law allows the government to monitor its licensees more closely and better ensure the public safety.”

In granting summary judgment for New York state, D’Agostino also held that the scheme did not violate the equal protection clause or other aspects of the Fourteenth Amendment.

The Second Circuit heard oral arguments on Osterweil’s appeal on Oct. 26, 2012, with Assistant Solicitor General Simon Heller arguing for the state and former U.S. Solicitor General Paul Clement of Bancroft in Washington, D.C., speaking for Osterweil.

Heller, the state’s attorney, argued for certification, saying there is no domicile requirement under the scheme, that the state’s highest court has never held there was such a requirement, and that the statute addresses only “residence.”

O’Connor said the state’s attorney also argued that “the New York Court of Appeals would likely apply only a residence requirement as a matter of constitutional avoidance, and that if the statute is construed as requiring only residence, ‘this litigation would thereby be resolved.’”

In the event the Second Circuit elected not to certify the question, Heller urged the court to abstain from deciding the question.

But O’Connor said certification is appropriate because of the importance of the issue, the value judgments and public policy choices involved, the fact that the state Court of Appeals has not addressed the issue or left enough clues that would enable the circuit to predict how it would rule and, finally, the fact that resolution of the question would resolve Osterweil’s appeal.

“The New York Court of Appeals has not told us how to interpret this particular statute, and has clarified only that the question we face is one of judgment that involves interpreting the intent of the state legislature,” she said.

“Here, the language is plain, the State itself urges that 400.00(3)(a) imposes only a residence requirement, and a serious constitutional controversy results from any other view,” she said.

O’Connor said for the court to try and “adopt an anticipated construction” of the law in the “current constitutional landscape would put state officials like Judge Bartlett in a particularly hard spot in the next case, uncertain whether to follow the binding decision of the Third Department in Mahoney or the all-fours decision of a federal circuit court.”