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Kwong v de Blasio (fka Kwong v Bloomberg)


mauserme
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Excerpted from the motion:

 

New York City's $340 fee for a 3-year "Residence Premises" handgun license far exceeds

the fee charged by any other U.S. jurisdiction for comparable licensure. Even within the State of

New York, most other residents pay no more than $10 for a handgun license – but State law

exempts residents of New York City from this protection, instead authorizing the City to impose

fees without limit. The only apparent purpose for this disparate State-law treatment is to permit the

City to use prohibitive license fees to discourage people from exercising their constitutional right to

keep and bear arms. However, the purpose of suppressing the exercise of a constitutional right is no

legitimate 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 fees

violates 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 all

other interests." District of Columbia v. Heller, 554 U.S. 570, 635 (2008). In addition, the right to

arms 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 in

Heller and McDonald subject New York's handgun licensing laws to a much more rigorous

standard 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 impermissible

standing on its own. The recurring $340 fee is not nominal when viewed in its personal and noncommercial

context. Moreover, even if the fee amount were nominal, the City set the fee without

regard 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 its

prohibitive fee, N.Y. Penal Law § 400.00(14), violates the Equal Protection Clause to the extent it

authorizes the City to set a fee higher than $10. This classification triggers strict scrutiny because it

substantially burdens the ability to keep a handgun in one's home – which is a recognized "core" of

the Second Amendment's protection – and also because it reflects the impermissible legislative

purpose of discouraging lawful gun ownership. There is no compelling interest that could justify

the decision to protect most State residents with a $10 fee limit, while providing no protection at all

to residents of New York City. And even if there were, the very existence of less-restrictive

approaches shows that the disparate burden is not narrowly tailored.

 

 

Edited to attach the complaint.

Kwong v Bloomberg Motion for Summary Judgement.pdf

Kwong v Bloomberg Complaint.pdf

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  • 1 year later...

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.

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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.

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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 by Rail
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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 by C0untZer0
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  • 4 weeks later...

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 by BobPistol
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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.
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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 defray

costs", which is how other courts have ruled.

 

Only fees can only be as much as to cover the cost of the program.

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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.

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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.

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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 by C0untZer0
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  • 4 months later...

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 Concurrence

Judge.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

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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.
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