On Tuesday, U.S. Court of Appeals for the Second Circuit—in a decision authored by former U.S. Supreme Court Justice Sandra Day O’Connor, sitting by designation—asked New York State’s highest court, the New York Court of Appeals, to issue a ruling in a case regarding the constitutionality of the state’s handgun law eligibility requirements.

The decision stems from a case initiated pro se in 2009 by Alfred Osterweil, after Mr. Osterweil was denied a firearms license by Schoharie County licensing authorities due to his non-residence in New York at the time that that the license application was reviewed.  When he initially applied for a handgun, Mr. Osterweil had his primary residence at Summit, New York, but while the application was pending, he moved to Louisiana, maintaining his house in Summit only as a vacation residence.  Mr. Osterweil then sent two separate letters inquiring whether the move would affect his application, and threatening that constitutional issues might arise if he wasn’t granted a license.

Despite Mr. Osterweil’s letters, when Mr. Osterweil’s application was reviewed, the county court judge in Schoharie County denied the application on the basis that New York Penal Law § 400.00—which prohibits a person from obtaining a state firearms license if they are a nonresident or are not employed in New York—restricts licenses on the basis of where someone is domiciled, or permanently resides.  Shortly thereafter, Mr. Osterweil filed a lawsuit in the United States District Court for the Northern District of New York against the Schoharie County judge who denied the application, contending that the domicile requirement violated the Second and Fourteenth Amendments.  The Northern District of New York upheld the domicile requirement and dismissed the lawsuit in May 2011.

But before the Second Circuit can rule on the constitutionality of the domicile requirement, it has asked the Court of Appeals to clarify whether or not the Penal Code’s mention of residence referred to the applicant’s domicile, which Justice O’Connor recognized in her decision as an issue that the state must decide.