View Single Post
Old August 14, 2011, 01:17 PM   #1
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,541
Osterweil v. Bartlett, NY State

Osterweil v. Bartlett is a case that I posted a couple of days ago (third post, item #57 in the Current 2A Cases thread). This is a peculiar case as it turns on a decidedly narrow interpretation of what a "home" is.

The case was filed pro se (meaning Mr. Osterweil represented himself). Here's the background:

It starts with a man who was at the time, a NY State resident who applied for a premises license to have a gun in his home. That was in May of 2008.

By late June of this process, Mr. Osterweil had purchased a home in another State and planned to use this as his primary residence. He kept his home in New York as a vacation or summer home.

After some problems and disputes, the permit was denied as he was no longer a State resident. Suit was filed in July of 2009. The suit was dismissed on defendants MSJ, on May 20, 2011.

Here's the telling reasoning of the court:

Second, the burden imposed by this law falls at least one level outside the core right recognized in Heller, i.e., the right of a law abiding individual to keep and carry a firearm for the purpose of self defense in the home. Although plaintiff still owns a house in New York, which he uses for vacation purposes, that house is no longer his "home."
Despite arguments to the contrary, the Judge in this case has defined "home" as a domicile. Domicile has a specific legal definition that is much narrower than a mere home.

While Heller did not make this distinction, this Judge did. The other reasons the Judge used to dismiss the complaints were the usual 2A two Step. Since the plaintiffs home was not his domicile and therefore not subject to the core of the right, intermediate scrutiny was applied (in this case, Justice Breyer's interest balancing, aka rational basis) and all complaints were dismissed.

What I didn't see in any of the briefs I read: Plaintiff was unaware of the significance of Baker v. Drozdoff (was Biaggi - 2nd post, item #21 in Current 2A Cases thread). In that case, a preliminary injunction was issued (agreed to by all parties) preventing the State of Nevada from enforcing any ban of firearms on State and Federal campgrounds in their Parks and Recreational Areas. The area of concern was that a tent in a campground was a "home," even if temporary, under Heller.

Herein lies the danger of most pro se litigants. Most simply do not have the necessary research capabilities to properly order and brief their case. If a temporary tent is a "home," even to non-residents, within the meaning of Heller, then a "vacation home" is also a "home," within that same context. The Judge could not have substituted domicile as the definition of home. That is the value of persuasive precedent.

To be sure, there are several other problems with the Judges interpretation in this decision. Hopefully, they can be overcome...

Plaintiff appealed to the 2nd Circuit on June 13th.

At this point, if I understand the NRA-ILA 2A Legal Update, the NRA will be handling the appeal. Currently, Mr. Osterweil is still listed on the 2nd Circuit Docket as pro se.
Al Norris is offline  
Page generated in 0.03427 seconds with 7 queries