Two of a three-member panel of U.S. circuit judges express openness to reviewing constitutionality of NYS pistol permit regime, given SCOTUS intent to review NYSRPA v. NYC

February 20, 2019 | WGRZ News | MANHATTAN, N.Y. –  Buffalo-based lawyer argues gun lawsuit before federal appeals court in New York City. Suit claims NY state pistol permit requirement is arbitrary, unconstitutional.

A Western New York lawyer on Wednesday made his case before a federal appeals court to overturn the state’s requirement that hand gun owners obtain a pistol permit.

“This could change the standard for evaluating gun laws,” said attorney James Ostrowski, following his argument before justices of the 2nd Circuit Court of Appeals in Manhattan.

The case, entitled Libertarian Party of Erie County vs. Cuomo, seeks to upend New York’s more than century old pistol permit requirement.

Currently, once a permit applicant passes a police background check, it is then left to the sole discretion of a judge to decide if they get their permit.

The judge must find, among other things, that the applicant is of “good moral character” and in their view (and only their view) has a good reason to own a pistol.

Ostrowski argues the determination is thus not only open ended, but overly subjective. And because the standard being applied may be inconsistent from county to county, he also labels it as arbitrary.


“In New York the pistol permit is considered to be a privilege granted by the state,” Ostrowski said. “In the Supreme Court the right to bear arms is a fundamental right, so there’s a huge conflict, and we’re asking the court to resolve that conflict in favor of the right to bear arms.”

The overreaching aim of the suit, however, is to target other gun control measures such as the NY SAFE Act, which could potentially be expunged should the plaintiffs win. It could also head off even more onerous proposals, such as one that has been floated, requiring permit seekers to open up their social media accounts for decision makers to review before permits are granted.

“That is totalitarian nonsense, and we oppose all of that,” said Ostrowski, who also argues that gun control measures tend to keep guns away from law abiding citizens while doing nothing to prevent criminals, who wouldn’t abide by them in the first place, from having guns.

“We seek to roll back New York’s laws to what other states have … which in many cases have lower crime rates,” he said.

At the same time, however, Ostrowski does not advocate that anyone be allowed to own a gun.

“If you’re a felon you shouldn’t be allowed to get a gun, or if you have been adjudicated mentally ill, or any anything of that nature of severity,” he said.

Having reached the 2nd Circuit Court of Appeals, the case is now just one step away from the U.S. Supreme Court.

The high court, however, would have to grant leave for it to be considered, meaning four of the nine justices would have to agree to hear it.


To learn more about any of the above, please contact Steve Felano at (518) 852-1863 or

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