LOSS at CA2: Law suit against NYC fee

I hear only two judges talking -- someone with better ears can probably do better. I hear one judge rejecting Forsyth (the judge with the halting speech) and I hear one judge buying into Forsyth completely but very troubled by the disparity between 10 and 340, which is the Ep argument. Did anyone hear a third judge?
 
Who invented the term "near-intermediate scrutiny" ?

I don't see that Judge David Hamilton uses that term in the Moore dissent.

It seems the term was just invented in Kwong.
 
What I did come away with was that neither the State or the City counsel were prepared for the questions that the Judges asked them.

First time I've heard Jensen. While I don't know how many other orals he's done, he did appear much like Gura in his early orals with the Parker case.

Esqappellate, I also only heard 2 judges.

I wonder how this will turn out, with the Kachalsky decision hanging out there.
 
We have one judge openly skeptic about the State's burden argument. One judge openly in favor of the state's burden argument but searching for an answer on the EP claim and troubled by the disparity. Will turn on the 3d judge and on which theory will claim a majority. I could see a win on the burden point and a concurring opinion on EP, or vice versa. I don't see the judge who was skeptical of the state on burden as going along with affirmance So we have one judge.

Jensen did ok, btw. I would have done it a bit differently and said things he did not, but second guessing is easy after argument. The big distinction between this case and Forsyth is that in that case there were reasonable alternatives to the 1st amendment activity to communicate. Here NY bans possession in the home without the permit. And there is no core 1st amendment right to have a parade on city streets. All the 1st caselaw is trending away from allowing taxing rights in cases other than parades. If we lose, this has SCT written all over it.
 
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A note on what I meant with my quip on David Jensen.

I have watched and listened to Alan Gura, as he has gained in composure, competence and authority when speaking to the higher courts. I am seeing this same thing with David Jensen.

Public speaking, in any form, is a learned experience. Few have the immediate ease to speak in front of their peers, let alone their supposed superiors.

While I know it is foolhardy to extrapolate the outcome from oral arguments, this one does give some hope.
 
BTW, the Judges here in Kwong are Judges: Jose A. Cabranes (appt. 94), Ralph Winter (appt 81) and John Walker (appt 94). Cabranes and Winter are both on senior status, Walker is still active and thus presided. These are all very reputable judges.

02/01/2013 81 CASE, before JAC*, JMW, RCW, C.JJ., HEARD.[833908] [12-1578]
 
Didn't listen to the tapes but can someone tell me what was the outcome of the hearing? I'm very curious since we have to pay $400 iirc every 3 years for me, another fee for my wife and one for my long guns. It'd be nice not to pay that going forward. Thanks in advance!
 
Just as in the NJ CCW case, the judges are asking if the logic behind the law was nothing more than an attempt at restricting the right, and in this case keeping the poor from owning firearms. A statement from the law that passed in 1947(from the bill's sponsor): Another reason for the institution of this bill is the feeling that a
higher fee, if the City Council considers it wise to impose same, will tend to
discourage a great number of possible applicants who are better off, both as
concerns themselves and the welfare of this City as a whole, without the
possession of fire-arms. In this way the additional fee as well as covering the
costs of investigation, thereby insuring their continued high caliber, would, of
itself, eliminate a certain percentage of applications, principally in that class
where the possession of fire-arms is desired for reasons of bravado and like
dangerous reasons.
 
In other news today, the CA2 has upheld the district court and says that the licensing scheme of NYC does not burden the 2A and that the City is allowed to recoup all costs of administering its licensing scheme.

The majority opinion used rational basis while the concurring opinion used "intermediate scrutiny."

The implications of this opinion are outrageous... Apply this to a scheme of voter licensing and registration.
 

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This opinion is an absolute disgrace. They almost seemed as if any fee would be acceptable as long as the plaintiffs paid it. Of course, you can be sure these same judges would also say someone who couldn't pay it wouldn't have standing to sue. The Federal courts, save CA7, are actively engaged in trying to smother the 2A.
 
They keep repeating that the $340 fee doesn't exceed NYC's administration costs - but never ask the question why the NYC administration costs are 100 times higher than other parts of New York state.
 
Yesterday, 23 July, David Jensen filed a petition for rehearing and en banc hearing. The petition is very good, but don't expect the petition to be granted. This is preparatory to filing a petition for a grant of cert at the SCOTUS.

The petition includes the panel decision, only the first 19 PDF pages are the actual petition.
 

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