LOSS at CA2: Law suit against NYC fee

Why does the plaintiff have to prove that the fees are excessive?

Under a heightened standard of review it is the government that must justify its actions.

The government must show what the government interest is and how the interest is furthered. (This is just generally, I know it's a little more complicated than that.

Assuming that the court would apply intermediate scrutiny using 1st amendment time, place, and manner decisions as a guide.

What is the important interest that NYC is asserting to justify the fee?

How does the fee substantially further that interest?
 
Why does the plaintiff have to prove that the fees are excessive?
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Because that's what he's claiming.

Under a heightened standard of review it is the government that must justify its actions.
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And they have...that's the problem. There's no argument against NYC's claims that the fees are used to offset costs.

The government must show what the government interest is and how the interest is furthered. (This is just generally, I know it's a little more complicated than that.
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That's only if they're restricting a right. That's the second problem, is that the argument is framed as an equal-protection argument. Governments have long been able to charge different fees based on location. Taxes in NYC are higher than anywhere else in NY, but that's constitutional because a person chooses to live there. The same argument applies to the firearm fee. So the equal-protection claim is DOA in my opinion.

Assuming that the court would apply intermediate scrutiny using 1st amendment time, place, and manner decisions as a guide.

What is the important interest that NYC is asserting to justify the fee?

How does the fee substantially further that interest?
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None of that matters because the existence of the fee was never challenged...only the fact that it was different between residents of NY and of NYC. THAT was the fatal flaw that I pointed out to Jensen from the very beginning.

And he STILL doesn't challenge the fee! He tries to do so as a second issue, but does so very poorly. He challenges the existence of a 340 reoccurring fee on the core 2nd Amendment right. But what the hell does THAT mean? Would a one-time fee be acceptable? Would a 10-dollar reoccurring fee be acceptable? Here's what he says...

Because a “residence premises” handgun license is a prerequisite to exercising the “core” of one’s SecondAmendment rights, the City many not charge anything more than a nominal fee as a condition of issuing this license.
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He's basically paving the way to have fees collected for doing nothing more than having a gun at home, when he should be challenging the very existence of a fee just to have a gun at home. That's why he's going to lose. And his loss is going to make it harder to have the fees eliminated.
 
It makes no sense to me not to challenge the fee as a violation of the 2nd amend, either in it's entirety or based on excessiveness.

I agree, an equal protection argument based on geography doesn't get very far.

I haven't read the brief and from the sound of it doing so would give me a headache. I have given myself enough of them this past week researching my law review comment topic that I have no desire for another.
 
While the Plaintiffs/Appellants gave their opening arguments back in late June, the Defendants/Appellees have finally filed their response.

Unless the appellants need more time, we should have the SAF reply on or about 10/12/2012.

The response essentially states that the licensing fees are not prohibitive and that the state statute does not set a ceiling for NYC and Nassau County, it merely removed the ceiling.

What is not addressed, by any of the parties, is that the construction of the licensing scheme itself, is what causes the fees to be excessive in the first place. It is the licensing scheme that is the primary cause of the cost (see "firearms friendly" Texas, as another example of a high licensing cost).

We have seen this in several other cases... Investigating the good moral character and/or good cause of the applicant(s), in lieu of a criminal background check, is precisely what causes such fees to be vastly greater than what would be normal in the majority of other States that license possession and/or carry (see Woollard).

Not being an attorney, I can only surmise that the Woollard case was an outlier in systematically attacking those aspects of the "scheme."
 

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I have more than one friend in NYC that owned handguns, but sold them due to the fees involved with keeping the license valid. They make a good living, but the fees are completely outrageous. :mad:
 
On Oct. 2nd, the City of New York requested oral argument time. The State filed their request for oral argument time on Oct. 5th.

Yesterday, Oct. 12th, David Jensen filed the reply brief, thus concluding the Merits Arguments phase of the appeals.

In this brief, Mr. Jensen does attack the process, if only indirectly, by referencing the circular arguments both the City and State use to justify the disparity of the fee.
 

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That's correct.

11/20/2012 70 CASE CALENDARING, for the week of 01/28/2013, PROPOSED.[773921] [12-1578]
12/04/2012 71 CASE CALENDARING, for argument on 01/30/2013, SET.[785534] [12-1578]
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Here's an interesting tidbit for you.

In the Kachalsky case, the Court ruled that while the licensing of public carry had a substantial effect in prohibiting the right to carry (which that panel acknowledges, exists), nevertheless, they used Intermediate Scrutiny in deciding in favor of the State.

As David Jensen writes, "Th[e] Court reasoned that there was "a critical difference" between laws that burden the ability to keep guns at home and laws that burden the ability to carry them in public. Thus inferring that because the City of New York has placed a substantial burden on the right to keep at home, by its extremely high fees. Therefore by the courts own admission (in Kachalsky) Strict Scrutiny now applies.

Yesterday, Jensen filed a 28J supplement in his Kwong case. This case is scheduled for oral arguments on Friday, Feb. 1.

We will get to see if (and how) the CA2 tries to squirm out of this corner they painted themselves into.
 

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I'm trying to understand this,

Jensen is saying that in Kachalsky the court applied Intermediate Scrutiny to public carry, and if Intermediate Scrutiny is applied in Kwong, the court would have to find that NYC's fees are - what? A prior restraint on a constitutional right ?
 
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The orals for Moore v Madigan were on CA7's site... I guess every circuit does things differently?

Thanks for chasing down the orals for Kwong ...
 
The CA2 does not make the audio "tapes" of oral arguments freely available to the public. They have to be ordered and paid for. Our friend, esqappellate, has already said that he has the "tapes" on order and will share them when he gets them.

IIRC, it took about a month to get the orals for Kalchalsky.
 
Ugh... I thought a copy of the orals might pop up somewhere, aside from receiving tapes.

If I were president I'd make all the circuit courts tape and convert oral arguments into MP3 and post it in the case file - like CA7 does.

I can't wait to hear what they said.

IMO Kwong is a lot more important than most people think it is. If in the future we see anti-gun enclaves passing 3 and 4 hundred dollar permits just to possess a firearm, not even counting carry permit - and along with it surtaxes on purchasing a firearm and tax on ammo, people will see it for what it is. Whatever it may be called it will act as a restraint on the exercise of the Second Amendment.

Anyway thanks esqappellate. now that I know I have a 17 to 18 day wait, I'll sit quietly waiting for them to appear. Thanks for you efforts.
 
Thank you for that, esqappellate.

Did I understand the court correctly? They appeared to be much more interested in the equal protection aspect (a first, as far as I can determine), than in a burdensome fee on a fundamental right!
 
certainly one ljudge waa more interested in EP. The other demanded to know why 2A should be treated differently than votiing where no fee is permitted. That judge is skeptical of the state's reliance on cox and forsyth. Hard to call. Need to count heads and that's hard to do from just the tape
 
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