mauserme Posted July 13, 2011 at 12:59 AM Share Posted July 13, 2011 at 12:59 AM Excerpted from the motion: New York City's $340 fee for a 3-year "Residence Premises" handgun license far exceedsthe fee charged by any other U.S. jurisdiction for comparable licensure. Even within the State ofNew York, most other residents pay no more than $10 for a handgun license – but State lawexempts residents of New York City from this protection, instead authorizing the City to imposefees without limit. The only apparent purpose for this disparate State-law treatment is to permit theCity to use prohibitive license fees to discourage people from exercising their constitutional right tokeep and bear arms. However, the purpose of suppressing the exercise of a constitutional right is nolegitimate purpose at all. New York City's $340 fee is unconstitutionally excessive in its own right,and the New York State law that exempts City residents from its protection against prohibitive feesviolates the Equal Protection Clause. .Point I explains that the right to keep a handgun in the home for self-defense is part of the"core" of the Second Amendment's protections – and one that the Amendment "elevates above allother interests." District of Columbia v. Heller, 554 U.S. 570, 635 (2008). In addition, the right toarms is a "fundamental" right that "is fully applicable against the States." McDonald v. Chicago,561 U.S. ___, 130 S. Ct. 3020, 3042, 3026 (2010). Simply put, the Supreme Court's decisions inHeller and McDonald subject New York's handgun licensing laws to a much more rigorousstandard of scrutiny than they have faced in the past..Point II shows that the $340 fee, N.Y.C. Admin. Code § 10-131(a)(2), is impermissiblestanding on its own. The recurring $340 fee is not nominal when viewed in its personal and noncommercialcontext. Moreover, even if the fee amount were nominal, the City set the fee withoutregard to administrative costs – and plainly, the fee is not calculated to defray them..Point III explains that the provision of State law that authorizes the City to impose itsprohibitive fee, N.Y. Penal Law § 400.00(14), violates the Equal Protection Clause to the extent itauthorizes the City to set a fee higher than $10. This classification triggers strict scrutiny because itsubstantially burdens the ability to keep a handgun in one's home – which is a recognized "core" ofthe Second Amendment's protection – and also because it reflects the impermissible legislativepurpose of discouraging lawful gun ownership. There is no compelling interest that could justifythe decision to protect most State residents with a $10 fee limit, while providing no protection at allto residents of New York City. And even if there were, the very existence of less-restrictiveapproaches shows that the disparate burden is not narrowly tailored. Edited to attach the complaint.Kwong v Bloomberg Motion for Summary Judgement.pdfKwong v Bloomberg Complaint.pdf Link to comment Share on other sites More sharing options...
C0untZer0 Posted January 30, 2013 at 01:31 PM Share Posted January 30, 2013 at 01:31 PM Orals for Kwong are coming up on Friday. It's a very important case, I don't really think it's going our way, Jensen didn't challenge the very existence of a fee - just that the fee doesn't withstand strict scrutiny, and then he threw in an eqaul protection argument at the end there. If it doesn't go our way, it opens the door for gun control via exorbitant fees. Illinois has led the way with McDonald, Shepard/Moore, Ezell, Gowder and other cases, we may see a Kwong redux coming from Illinois and this time chalenge the very existence of the program behind the fee - the program which creates the fees (for example), as unconstitutional, and have the EP argument as primary right from the start. Link to comment Share on other sites More sharing options...
Gray Peterson Posted January 30, 2013 at 11:36 PM Share Posted January 30, 2013 at 11:36 PM Some things are meant for SCOTUS. Link to comment Share on other sites More sharing options...
lockman Posted January 31, 2013 at 12:08 AM Share Posted January 31, 2013 at 12:08 AM Orals for Kwong are coming up on Friday. It's a very important case, I don't really think it's going our way, Jensen didn't challenge the very existence of a fee - just that the fee doesn't withstand strict scrutiny, and then he threw in an eqaul protection argument at the end there. If it doesn't go our way, it opens the door for gun control via exorbitant fees. Illinois has led the way with McDonald, Shepard/Moore, Ezell, Gowder and other cases, we may see a Kwong redux coming from Illinois and this time chalenge the very existence of the program behind the fee - the program which creates the fees (for example), as unconstitutional, and have the EP argument as primary right from the start. If SCOTUS allows it then the door is open to re-institute the poll tax. Link to comment Share on other sites More sharing options...
C0untZer0 Posted January 31, 2013 at 12:38 AM Share Posted January 31, 2013 at 12:38 AM So Gray are you saying SCOTUS may except Kwong and strike NYC's fee based on EP, even though Jensen didn't have it at the core of his case? Link to comment Share on other sites More sharing options...
Gray Peterson Posted January 31, 2013 at 01:07 AM Share Posted January 31, 2013 at 01:07 AM So Gray are you saying SCOTUS may except Kwong and strike NYC's fee based on EP, even though Jensen didn't have it at the core of his case? It doesn't matter if it's core to the case. SCOTUS can resolve on any ground, including EP. Link to comment Share on other sites More sharing options...
C0untZer0 Posted January 31, 2013 at 01:16 AM Share Posted January 31, 2013 at 01:16 AM Accept not except Link to comment Share on other sites More sharing options...
Rail Posted January 31, 2013 at 09:53 AM Share Posted January 31, 2013 at 09:53 AM (edited) Orals for Kwong are coming up on Friday. It's a very important case, I don't really think it's going our way, Jensen didn't challenge the very existence of a fee - just that the fee doesn't withstand strict scrutiny, and then he threw in an eqaul protection argument at the end there. If it doesn't go our way, it opens the door for gun control via exorbitant fees. Illinois has led the way with McDonald, Shepard/Moore, Ezell, Gowder and other cases, we may see a Kwong redux coming from Illinois and this time chalenge the very existence of the program behind the fee - the program which creates the fees (for example), as unconstitutional, and have the EP argument as primary right from the start. If SCOTUS allows it then the door is open to re-institute the poll tax. Poll tax is not the same thing. The 24th Amendment to the Constitution explicitly prohibits poll taxes, clear, cut, and dry. This case has to do with whether or not a nominal fee for owning a handgun passes whatever scrutiny is appropriate via the 2nd Amendment. I agree that in the long run, it's better to challenge the whole concept of user fees rather than simply unreasonable fees, but the two most important things right now in securing the core of the RKBA is getting "bear" to mean indiscriminate carry outside the home (shall-issue) and features-based self-loading rifle bans in various states tossed under the "common use" interpretation from Heller. IANAL Edited January 31, 2013 at 09:53 AM by Rail Link to comment Share on other sites More sharing options...
gangrel Posted January 31, 2013 at 01:06 PM Share Posted January 31, 2013 at 01:06 PM Accept not except Well, you never know...they might except it... Link to comment Share on other sites More sharing options...
lockman Posted January 31, 2013 at 01:09 PM Share Posted January 31, 2013 at 01:09 PM The 24th amendment is a symptom of our current way of thinking. Just pass something to correct a problem that the solution is already available but ignored. In principle a poll tax is a prior restraint if not a operational ban on the free exercise of a right, just like license fees to keep or bear arms. Link to comment Share on other sites More sharing options...
C0untZer0 Posted January 31, 2013 at 02:20 PM Share Posted January 31, 2013 at 02:20 PM (edited) The definition of an unreasonable fee seems to be determined by looking at the cost of a regulatory program and making a judgment about whether the fees basically cover the cost of the program. At least that appears to be what has taken place in Kwong so far. That creates a catch 22 which I am sure anti-gun politicians are well aware of. The catch is, if any government body can create an administrative organization to run a program with regard to firearms, and the fees can only be challenged based on if they generally cover the cost of the program or not, it’s very easy for politicians to put up obstacles to gun ownership by creating bloated and expensive bureaucracies to administer things like FOID and gun permits. There simply is no upper limit to how costly and inefficient government programs can be; living in Illinois should have taught us that. Edited January 31, 2013 at 02:22 PM by C0untZer0 Link to comment Share on other sites More sharing options...
C0untZer0 Posted February 2, 2013 at 12:17 AM Share Posted February 2, 2013 at 12:17 AM Does anyone have the orals for Kwong v Bloomberg ? Link to comment Share on other sites More sharing options...
Jfl0 Posted February 2, 2013 at 02:31 AM Share Posted February 2, 2013 at 02:31 AM To me, the issue is simple. No taxes for constitutional rights. PERIOD. Link to comment Share on other sites More sharing options...
BobPistol Posted February 28, 2013 at 02:18 PM Share Posted February 28, 2013 at 02:18 PM (edited) A poll tax has something in common with the Kwong case. You are being charged a tax, a fee, or some other way of getting money out of your pocket, for exercising a constitutional right. Imagine if we had to pay a license fee to make a speech in one's own back yard. The courts would strike that down in a heartbeat, wouldn't they? So the same argument goes for the 2nd amendment. Edited February 28, 2013 at 02:18 PM by BobPistol Link to comment Share on other sites More sharing options...
Professor Wheezy Posted February 28, 2013 at 02:28 PM Share Posted February 28, 2013 at 02:28 PM I belleve poll taxes and literacy tests for voting were done away with in the Civil Rigths Bills of the 60's. I find it hard to see the difference for any type of gun related license. The costs of running an election and providing people with the opportunity to vote is borne by the tax paying public. Why should the same public not cover the cost of an equal Constitutiional Right. Why hasn't this angle been worked even for the FOID card. i know $10 10 years is not a big deal BUT CCW permits are typically more. They aren't like driver's license. which is a privilege NOT a right. Link to comment Share on other sites More sharing options...
RandyWakeman Posted February 28, 2013 at 07:34 PM Share Posted February 28, 2013 at 07:34 PM (edited) http://ia700608.us.a...535.docket.html It was decided long ago. What am I missing? Edited February 28, 2013 at 07:36 PM by RandyWakeman Link to comment Share on other sites More sharing options...
Hatchet Posted February 28, 2013 at 08:11 PM Share Posted February 28, 2013 at 08:11 PM I think its being reheard at a higher level of court. Is that correct? Link to comment Share on other sites More sharing options...
C0untZer0 Posted March 3, 2013 at 08:24 PM Share Posted March 3, 2013 at 08:24 PM (edited) Oral arguments before CA2 were held on Feb 1. CA2 doesn't publish an MP3 of the arguments to their website the way CA7 does. Inerested parties have to send away for tapes. By chance did anyone here send away for the orals in Kwong? . Edited March 3, 2013 at 08:25 PM by C0untZer0 Link to comment Share on other sites More sharing options...
spyder1911 Posted March 4, 2013 at 05:38 PM Share Posted March 4, 2013 at 05:38 PM What would happen if the court sided with the plaintiff and then NY simply raised all fees to $340? I'm assuming a second lawsuit but that could ruin many gun owners when they get hit with a 34x increase in permit costs. Link to comment Share on other sites More sharing options...
C0untZer0 Posted March 4, 2013 at 06:10 PM Share Posted March 4, 2013 at 06:10 PM Gura files for cert and hopefully SCOTUS overturns on grounds either of EP or it being a prior restraint, better yet - both. Like Gray saidSome things are meant for SCOTUS. Link to comment Share on other sites More sharing options...
kevinmcc Posted March 9, 2013 at 07:27 AM Share Posted March 9, 2013 at 07:27 AM What would happen if the court sided with the plaintiff and then NY simply raised all fees to $340? I'm assuming a second lawsuit but that could ruin many gun owners when they get hit with a 34x increase in permit costs. From this case, "the City can charge a nominal fee to defraycosts", which is how other courts have ruled. Only fees can only be as much as to cover the cost of the program. Link to comment Share on other sites More sharing options...
C0untZer0 Posted March 9, 2013 at 02:25 PM Share Posted March 9, 2013 at 02:25 PM New York's fees don't cover just the cost of the program - they fund Police Pensions, but even if they did cover the cost of the program - it's easy to create a bloated, inefficient and very expensive program. I'm hoping that the argument that prevails is to compare the cost of any particular program to other programs and reduce the expensive ones to the average or something like that. Link to comment Share on other sites More sharing options...
THE KING Posted March 10, 2013 at 03:47 PM Share Posted March 10, 2013 at 03:47 PM I would rather see the costs go away totally. Why should I have to pay a fee to exercise a constitutional right ?? If you read the Heller written opinion. The SCOTUS asked Mr. Heller if he was OK with the permit process. Personally, I wish he would have said no and made the argument back then to do away with the permitting process totally. The Supreme Court was ready to deal with the issue at that time. Link to comment Share on other sites More sharing options...
TyGuy Posted March 10, 2013 at 03:49 PM Share Posted March 10, 2013 at 03:49 PM Or make the fee shared by everyone, like how we all pay the costs of elections. Link to comment Share on other sites More sharing options...
C0untZer0 Posted March 17, 2013 at 03:36 PM Share Posted March 17, 2013 at 03:36 PM (edited) Sincere thanks to esqappellate at The Firing Line, the entire oral arguments for the day: https://www.dropbox.com/s/gpcq56yfskv35cs/kwongFebruary%201%2C%202013.mp3 I'm not sure how well it works streaming it so I'll put the URL here in quotes: "https://www.dropbox.com/s/gpcq56yfskv35cs/kwongFebruary%201%2C%202013.mp3" Kwong argument is last and starts at 1:37 Edited March 17, 2013 at 03:48 PM by C0untZer0 Link to comment Share on other sites More sharing options...
C0untZer0 Posted March 18, 2013 at 02:03 PM Share Posted March 18, 2013 at 02:03 PM (edited) Someone put a shortened file out there - just the Kwong Orals: https://www.dropbox.com/s/4xphyeik9pxsecw/Kwong%20v%20Bloomberg%20Orals%2C%202013.mp3 http://thefiringline.com/forums/showpost.php?p=5461047&postcount=50 Edited March 18, 2013 at 02:06 PM by C0untZer0 Link to comment Share on other sites More sharing options...
skinnyb82 Posted August 14, 2013 at 06:46 PM Share Posted August 14, 2013 at 06:46 PM Well, this is fun. I'll save my analysis for later but here you go. The concurring opinion by Judge Walker is basically "Yeah I agree this is constitutional but for other reasons than in the Opinion." Jensen already filed for en banc. Majority (unanimous AFAIK)Opinion.DE89.pdf Judge Walker's ConcurrenceJudge.Walker.Concurring.Opinion.pdf Jensen's Petition for Rehearing En Banc (This is good stuff but either way it's going to SCOTUS...one big, fat, juicy case for them too)Petition.for.Rehearing.En.Banc.DE95.pdf Link to comment Share on other sites More sharing options...
BrowningHP Posted August 14, 2013 at 07:13 PM Share Posted August 14, 2013 at 07:13 PM NYC's counsel, paraphrased: "$340 is needed to defray the administrative costs of issuing a permit" ... right.. administrative costs like private jet rides to the hamptons? daily limo rides? Link to comment Share on other sites More sharing options...
C0untZer0 Posted August 14, 2013 at 07:27 PM Share Posted August 14, 2013 at 07:27 PM Its a violation of Equal Protection. It's sad what has happened to the judiciary. Link to comment Share on other sites More sharing options...
skinnyb82 Posted August 14, 2013 at 07:38 PM Share Posted August 14, 2013 at 07:38 PM CA2 is loaded with activist judges who ignore precedent and actual statutory law (as evidenced by the opinion) and rule however they want based on their "feelings." This case will have SCOTUS salivating, begging for a cert petition. Fees to exercise rights? Yeah you really need to deal with that, since fees to exercise the right to vote are unconstitutional. Link to comment Share on other sites More sharing options...
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