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sholling
03-19-2013, 7:52 PM
This MP3 of the argument before the court of appeals. The plaintiff argues that $340 every three years is too high for a permit to keep a handgun in the home. Credit for the recording goes to The Firing Line member "esqappellate".

Edit: The Kwong argument starts at 1:37.

https://www.dropbox.com/s/gpcq56yfskv35cs/kwongFebruary%201%2C%202013.mp3

Original post:
http://thefiringline.com/forums/showpost.php?p=5459893&postcount=37

cr1ms0njyhad
03-19-2013, 8:00 PM
Needing a permit in the first place strikes me as a gross infringement on his rights. That it costs money is just icing on the cake of absurdity.

phamkl
03-19-2013, 8:20 PM
What, do these people not even care about poll taxes anymore?

Paladin
03-19-2013, 10:25 PM
What, do these people not even care about poll taxes anymore?
This is worse: voting is a privilege (of citizenship) whereas the RKBA protected by the 2nd A of the BoR is a right that shall not be infringed!

Apocalypsenerd
03-19-2013, 10:31 PM
After Heller, I can't imagine this going to the SCOTUS and the fees standing.

IVC
03-19-2013, 11:51 PM
It's going to be very, very interesting how the "taxation of a right" develops in courts. I would imagine that the bar is set pretty low, where the left has claimed that even a free government ID required for voting is not acceptable due to the inability of "the poor" to travel and get it. What's good for the goose...

huntercf
03-20-2013, 12:12 AM
After Heller, I can't imagine this going to the SCOTUS and the fees standing.

After 0bamacare scraping by as a tax when they said it wasn't a tax but then roberts says it is, I'm betting SCOTUS will say it is a tax and it is ok.

safewaysecurity
03-20-2013, 1:31 AM
Hunter thats not how it works. When they said Obamacare is a tax they were simply sayong that's where the government gets it's authority in the constitution to do that. If it infringes on a fundamental right it doesn't matter where the authority comes from.

Al Norris
03-20-2013, 7:01 AM
Esqappellate had to order the "tape" from the CA2. Unlike some of the other circuit courts, the CA2 doesn't post the orals. The court sent him the entire days worth of audio. TFL member Luger_Carbine extracted just the Kwong orals and posted it here: https://www.dropbox.com/s/4xphyeik9pxsecw/Kwong%20v%20Bloomberg%20Orals%2C%202013.mp3

It pretty much sounds like only two of the three judges were asking all the questions. One judge was highly skeptical of the States burden argument and another was searching for an answer to the EP argument. I think this will turn on what the third (unheard) judge thinks about the whole mess.

While it is almost always foolhardy to guess at any outcome when listening to orals, I've come away with a good feeling about this. I hope I'm correct.....

voiceofreason
03-20-2013, 7:25 AM
Liberals believe that you don't need an ID to confirm your identity to vote and that poll taxes are illegal.

Yet $340 to exercise your other rights every 3 years and numerous hoops to jump through are.

M. D. Van Norman
03-20-2013, 8:04 AM
Well, the minimum registration fees in post-Heller D.C. appear to be $48.

huntercf
03-20-2013, 9:52 AM
Hunter thats not how it works. When they said Obamacare is a tax they were simply sayong that's where the government gets it's authority in the constitution to do that. If it infringes on a fundamental right it doesn't matter where the authority comes from.

I hope you are correct (and you should be) but in today's world with 0bama out of control and the libs on a fundamental right feeding frenzy I'm not so sure.

sholling
03-20-2013, 11:57 AM
The thing that struck me is that it seemed to me as a layman that the Kwong's attorney hinged his case and argument on equal protection and the differences in fees between NYC and the rest of the state. To me the far stronger case would have been that licensing for the home is unconstitutional and that even if it is constitutional that anything above a nominal fee for a NICs is unconstitutional. The cost of parade permits is not germane to the case because we are discussing the home and not carry and you can't require a license and $340 fee before a husband and wife discuss politics in their bedroom and you cannot require a $340 license fee and sanity test before having an abortion. In other words the the license to exorcise a right at home is a substantial burden on an enumerated right. I think Kwong will lose just because he picked the wrong argument and that even if he does win the state will just repeal fee caps and NYC residents will continue to have to pay $340 every 3 years and residents of other counties will see their fees rise. In other words the argument was a waste of time and money.

odysseus
03-20-2013, 12:10 PM
Needing a permit in the first place strikes me as a gross infringement on his rights. That it costs money is just icing on the cake of absurdity.

It is. Any permit required to maintain what is a civil right is not Constitutional. One can argue for one time registrations fees, but a permit needing constant renewal to practice your 2A rights seems pretty clear as infringment.

fonso
03-20-2013, 12:23 PM
Does anyone have a link to the appellate court docket for this case?

If so, please post it. TIA.

Kukuforguns
03-20-2013, 2:29 PM
The thing that struck me is that it seemed to me as a layman that the Kwong's attorney hinged his case and argument on equal protection and the differences in fees between NYC and the rest of the state. To me the far stronger case would have been that licensing for the home is unconstitutional and that even if it is constitutional that anything above a nominal fee for a NICs is unconstitutional. The cost of parade permits is not germane to the case because we are discussing the home and not carry and you can't require a license and $340 fee before a husband and wife discuss politics in their bedroom and you cannot require a $340 license fee and sanity test before having an abortion. In other words the the license to exorcise a right at home is a substantial burden on an enumerated right. I think Kwong will lose just because he picked the wrong argument and that even if he does win the state will just repeal fee caps and NYC residents will continue to have to pay $340 every 3 years and residents of other counties will see their fees rise. In other words the argument was a waste of time and money.
Plaintiffs introduced no evidence at the trial court level that the fees would impose any burden. This decreases the likelihood that an appellate court would conclude that the fees impose a substantial burden. I get the sense that plaintiffs' counsel intentionally avoided the argument that the fees imposed a substantial burden.

press1280
03-20-2013, 2:59 PM
Plaintiffs introduced no evidence at the trial court level that the fees would impose any burden. This decreases the likelihood that an appellate court would conclude that the fees impose a substantial burden. I get the sense that plaintiffs' counsel intentionally avoided the argument that the fees imposed a substantial burden.

These plaintiffs were everyday folk. The problem is if you have a really really poor person who can't afford the fee, then the court will say you don't have standing because you didn't pay the fee :(

sholling
03-20-2013, 3:57 PM
Plaintiffs introduced no evidence at the trial court level that the fees would impose any burden. This decreases the likelihood that an appellate court would conclude that the fees impose a substantial burden. I get the sense that plaintiffs' counsel intentionally avoided the argument that the fees imposed a substantial burden.

In my opinion it's a pretty weak case. With all of the noise about voter ID creating too much of a burden it would seem substantial burden was a far better argument as well as licensing for the home being legislative overreach. You can impose instant background checks but not licensing for a fundamental right in the home.

MindBuilder
03-20-2013, 4:50 PM
Apparently our side didn't even challenge that a fee can be charged. It's like our side said that a poll tax was OK, as long as it wasn't too big.

If there is a need to distinguish the parade permit cases and such, I would suggest pointing out that parades may create non-criminal and sometimes inevitable costs such as special traffic management. But lawful possession of a firearm creates no extra costs to the rest of the population.

The background check does cost something, but the need for the background check is not the result of the inevitable costs of gun ownership or the actions of the lawful gun owner, but rather, the need for background checks is the result of the actions of criminals. If lawful gun owners should be collectively responsible for the actions of criminals, then we should be collectively credited for the anti-crime benefits of private gun ownership. We should get credit for every burgular who decides not to try it because he is affraid the home owner might be armed. A study of criminals in prison found that criminals are more deterred by the possibility of a home owner with a gun than by the possibility of getting arrested by the cops.

And we should get credit for every time a tyrant decides not to try or fails to enslave the country because the people are armed. The Japanese Admiral Yamamoto said that you could not invade the US because there would be a rifle behind every blade of grass. Since the Constitution declares gun ownership a good thing, we can conclude that the balance of the costs has been weighed by the constitution and that private gun owners are more justly owed subsidies rather than special fees and taxes. They should PAY US for our militia and law enforcement duty just for having a gun.

mcmikel61
03-20-2013, 6:48 PM
To me, the words of the Second Amendment answer the question: the right of the people to keep and bear arms shall not be infringed.
This is an infringement. It should not be tolerated.

Al Norris
03-21-2013, 8:53 AM
Does anyone have a link to the appellate court docket for this case?

If so, please post it. TIA.

If you mosey over to TFL and open this thread in the Law & Civil Rights subforum: Law suit against NYC fee (http://thefiringline.com/forums/showthread.php?t=447132), you will be able to access the filings at the CA2. The docket at the district court is here: Internet Archive (http://www.archive.org/download/gov.uscourts.nysd.377535/gov.uscourts.nysd.377535.docket.html)

fonso
03-21-2013, 11:40 AM
If you mosey over to TFL and open this thread in the Law & Civil Rights subforum: Law suit against NYC fee (http://thefiringline.com/forums/showthread.php?t=447132), you will be able to access the filings at the CA2. The docket at the district court is here: Internet Archive (http://www.archive.org/download/gov.uscourts.nysd.377535/gov.uscourts.nysd.377535.docket.html)

Thank you, Al. I'm now moseying to both links!

EDIT: Al, I already have all the available District Court pleadings from Internet Archive (http://www.archive.org/download/gov.uscourts.nysd.377535/gov.uscourts.nysd.377535.docket.html). The firingline.com site won't let me d/l the files because I am not a registered member thereof.

Therefore, I again ask if anyone can post the Court of Appeals docket link for this case. I'd really like to read ALL of the case pleadings.

Kukuforguns
03-21-2013, 2:15 PM
217214

217218

217215

217216

Wherryj
03-21-2013, 6:19 PM
After 0bamacare scraping by as a tax when they said it wasn't a tax but then roberts says it is, I'm betting SCOTUS will say it is a tax and it is ok.

There was once a tax that started a Revolution. The tax on tea (etc.) led to rebellion, but the attempt to confiscate arms led to active shooting. It is too bad that our politicians don't remember history. May we not be doomed to repeat it...

Wherryj
03-21-2013, 6:23 PM
Plaintiffs introduced no evidence at the trial court level that the fees would impose any burden. This decreases the likelihood that an appellate court would conclude that the fees impose a substantial burden. I get the sense that plaintiffs' counsel intentionally avoided the argument that the fees imposed a substantial burden.

Well, certainly if that imposes no burden, instituting the same tax for voting wouldn't impose a burden, right? Oh, wait...

Full Clip
03-21-2013, 6:24 PM
What, do these people not even care about poll taxes anymore?

Exactly my thinking.
So self-defense should only be possible for the rich?

fonso
03-22-2013, 9:43 AM
217214

217218

217215

217216

Thank you, kuku!!!

Now to see what else I can find.

Paladin
12-16-2013, 11:38 AM
IIRC, the cutoff for asking cert. in Kwong is before the end of the month (may even be this Friday).

Anyone know what's the latest w/this case?

Wiz-of-Awd
12-16-2013, 12:00 PM
What's good for the goose...

...Shall be ignored by the Gander unless it serves his benefit.

A.W.D.

Al Norris
12-17-2013, 7:12 PM
I checked and the docket which shows the following entry:

12/09/2013 105 U.S. SUPREME COURT NOTICE, granting Appellant Nunzio Calce, Timothy S. Furey, Daniela Greco, Shui W. Kwong, Nick Lidakis, New York State Rifle & Pistol Association, Incorporated and Second Amendment Foundation, Inc. extension to file Writ of Certiorari, FILED.[1114959] [12-1578]

Document #105 reads, in part:

The application for an extension of time within which to file a petition for a writ of certiorari in the above-entitled case has been presented to Justice Ginsburg, who on December 4, 2013 extended the time to and including February 3, 2014.

glockman19
12-17-2013, 7:21 PM
It is. Any permit required to maintain what is a civil right is not Constitutional. One can argue for one time registrations fees, but a permit needing constant renewal to practice your 2A rights seems pretty clear as infringement.

If only the CA courts felt this way we wouldn't have to renew an spay for a Handgun safety card, that will soon be required for a long gun purchase too.

Paladin
12-17-2013, 7:25 PM
I checked and the docket which shows the following entry:



Document #105 reads, in part:Thx, Al, for all your excellent work!

JDay
12-21-2013, 1:18 AM
Hunter thats not how it works. When they said Obamacare is a tax they were simply sayong that's where the government gets it's authority in the constitution to do that. If it infringes on a fundamental right it doesn't matter where the authority comes from.

Roberts was also opening it up to another lawsuit since Congress didn't vote on it as a tax. That challenge would likely kill it.

Sent from my SGH-T999 using Tapatalk

Paladin
01-06-2014, 4:46 PM
Gura has less than a month to ask for cert. (or not).

Dreaded Claymore
01-07-2014, 9:57 PM
Hah, listen to that taffer stammer when he's asked, "All I need is one, give me one reason why NYC and Nassau County charge 34 times what the rest of the state does."

press1280
01-08-2014, 1:19 AM
Hah, listen to that taffer stammer when he's asked, "All I need is one, give me one reason why NYC and Nassau County charge 34 times what the rest of the state does."

What NYC was claiming was that the rest of the state's 10$ fee was more or less because the true cost of maintaining the whole licensing system would be more than 10$ per license, and the rest of the state chooses to essentially subsidize it while the city doesn't. It's BS but apparently CA2 thinks it's just fine because of "public safety".

Paladin
01-28-2014, 3:25 PM
Gura has less than a month to ask for cert. (or not).
Gura has less than a week to ask for cert. (or not).

press1280
01-28-2014, 4:23 PM
Gura has less than a week to ask for cert. (or not).

I wonder if SCOTUS does grant cert, if Gura will indeed argue considering he hasn't in this case.
SCOTUS' docket will be quite crowded with many legitimate 2A cases over the next few months. Hopefully at least ONE will get through the cert denial gauntlet.

CCWFacts
01-28-2014, 4:46 PM
I wonder if SCOTUS does grant cert, if Gura will indeed argue considering he hasn't in this case.
SCOTUS' docket will be quite crowded with many legitimate 2A cases over the next few months. Hopefully at least ONE will get through the cert denial gauntlet.

My worry is that they will grant cert to some inconsequential cases. We want some answer on "outside the home". My feeling is that SOCTUS (and also the judge in Palmer) doesn't want to be the ones to force LTC issuance in NYC, DC and California, but at the same time, no one with any honesty can say that the "right to carry a firearm" (modern language for "right to bear arms") doesn't extend outside the home. Easier to just not answer that uncomfortable question.

North86
01-28-2014, 5:09 PM
My worry is that they will grant cert to some inconsequential cases. We want some answer on "outside the home". My feeling is that SOCTUS (and also the judge in Palmer) doesn't want to be the ones to force LTC issuance in NYC, DC and California, but at the same time, no one with any honesty can say that the "right to carry a firearm" (modern language for "right to bear arms") doesn't extend outside the home. Easier to just not answer that uncomfortable question.

My "self" isn't always in my home. Sometimes, my "self" is other places. How am I supposed to defend my "self" when my "self" is not at home?

I know it's been said before, but I figured I'd pile it on :D

Paladin
01-28-2014, 5:59 PM
My worry is that they will grant cert to some inconsequential cases. We want some answer on "outside the home".

And also scrutiny, which is why I've got Jackson and this case on my list of CCW related cases. Scrutiny is central to both cases (and a 3rd case I can't remember, IIRC).

http://www.calguns.net/calgunforum/showthread.php?t=812950

Scrutiny and "Bear" IMHO, are the two big issues we need to win ASAP.

press1280
01-30-2014, 1:40 AM
Kwong has asked for another 2 weeks extension from Justice Ginsburg until the 17th of Feb. I have yet to see SCOTUS deny any kind of extension.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13a567.htm

OleCuss
01-30-2014, 5:34 AM
And, of course, consider the state of the truly homeless folk?

If the RKBA is limited to the home and you have no home, then you have no RKBA and the 2A does not apply to you?

Fascinating. This also just goes to reinforce the fact that the elitists are on the Left.

Paladin
02-11-2014, 1:56 PM
Kwong has asked for another 2 weeks extension from Justice Ginsburg until the 17th of Feb. I have yet to see SCOTUS deny any kind of extension.

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13a567.htm

From your linked page: Application (13A567) granted by Justice Ginsburg extending the time to file until February 17, 2014. (emphasis added)

Monday, the 17th is a holiday (Presidents' Day). So what is the last day for them to ask for cert., this Friday, the 14th?

press1280
02-12-2014, 3:14 AM
Good question, usually the court would take this into account and ask for the due date on a working day. Guess we'll see most likely next week in either case.

Al Norris
02-12-2014, 6:19 AM
Rolls over to the next valid working day. In this case, Tues. the 18th.

Paladin
02-12-2014, 9:19 AM
Rolls over to the next valid working day. In this case, Tues. the 18th.Al, so the cutoff is 5:00 pm (EST), Tues, the 18th?

Al Norris
02-13-2014, 7:36 PM
I believe that is correct as I don't believe that you can file electronically at the SCOTUS.

scrubb
02-13-2014, 7:38 PM
Needing a permit in the first place strikes me as a gross infringement on his rights. That it costs money is just icing on the cake of absurdity.

This

Virginian
02-13-2014, 8:02 PM
"No State shall convert a liberty into a privilege, license it, and charge a fee therefore.” (Murdock v. Pennsylvania)
I don't know why this even goes to Court. It has already been decided.

Paladin
02-17-2014, 6:59 PM
I believe that is correct as I don't believe that you can file electronically at the SCOTUS.
Gura has less than a day to ask for cert. (or not).

yellowfin
02-17-2014, 7:08 PM
"No State shall convert a liberty into a privilege, license it, and charge a fee therefore.” (Murdock v. Pennsylvania)
I don't know why this even goes to Court. It has already been decided.Because NYC is used to doing whatever it wants with the NY state court system and 2nd Circuit being their personal lapdog.

Armando de la Guerra
02-17-2014, 7:11 PM
I got yer fee right here.

Kharn
02-17-2014, 7:21 PM
Gura has less than a day to ask for cert. (or not).
Unless someone does a press release about it, it may be 3-4 days for the clerk to update the docket website before we find out.

Paladin
02-17-2014, 7:27 PM
Unless someone does a press release about it, it may be 3-4 days for the clerk to update the docket website before we find out.

SAF did it the same day w/Drake: http://saf.org/?p=2769

Calplinker
02-17-2014, 7:48 PM
SAF did it the same day w/Drake: http://saf.org/?p=2769

Good job SAF. Let's hope this gets some traction. It is simply insane that they can attempt to create a scheme where a fundamental right can only be practiced with a license, fees, etc.

CCWFacts
02-17-2014, 8:02 PM
Gura has less than a day to ask for cert. (or not).

It seems like they file on the last possible day as a rule. In this case he may have wanted to integrate some parts of Peruta into a request for cert.

Btw, it's pretty annoying that we have to go through all this madness to get our gun rights here in California but I do feel that I and many others on this forum and becoming quite "educated amateurs" about how our legal system works.

Paladin
02-18-2014, 9:07 PM
SAF did it the same day w/Drake: http://saf.org/?p=2769
Well, still nothing re. Kwong asking for cert. today on SAF's website....
I wonder if their web person was sick/vacation today.

Paladin
02-19-2014, 8:50 AM
Gura has less than a month to ask for cert. (or not).

SAF did it the same day w/Drake: http://saf.org/?p=2769

Looks like I was wrong: Kwong is not a Gura-SAF case. (#40 on Al Norris' big list of RKBA cases at:
http://thefiringline.com/forums/showthread.php?t=416973)

So, unless someone knows otherwise, we're left waiting to find out if cert. was requested by monitoring SCOTUS' docket:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13a567.htm

jar
02-19-2014, 1:25 PM
Looks like I was wrong: Kwong is not a Gura-SAF case. (#40 on Al Norris' big list of RKBA cases at:
http://thefiringline.com/forums/showthread.php?t=416973)

So, unless someone knows otherwise, we're left waiting to find out if cert. was requested by monitoring SCOTUS' docket:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13a567.htm

Kwong is a SAF case, but the plaintiffs are represented by David Jensen.

North86
02-19-2014, 1:28 PM
Would calling Jensen's office to ask be out of line?

Paladin
02-19-2014, 4:44 PM
Kwong is a SAF case, but the plaintiffs are represented by David Jensen.
That makes me wonder why they still haven't posted anything re. cert. in this case. http://saf.org

With Drake, they posted that they were asking for cert. the same day they filed.

North86
02-20-2014, 1:26 PM
Any news on this? I can't seem to find anything.

Kharn
02-20-2014, 4:06 PM
Supreme Court docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-993.htm)
Feb 17 2014 Petition for a writ of certiorari filed. (Response due March 24, 2014)
Now to find a copy of the petition...

Paladin
02-20-2014, 4:20 PM
Supreme Court docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-993.htm)

Now to find a copy of the petition...Thx for the update.

Still nothing about it on SAF's homepage: http://saf.org/

Funny how it says cert. was requested on the 17th, which was Presidents' Day, a federal holiday.... :confused:

North86
02-20-2014, 5:29 PM
Thx for the update.

Still nothing about it on SAF's homepage: http://saf.org/

Funny how it says cert. was requested on the 17th, which was Presidents' Day, a federal holiday.... :confused:

Just glad that they did it. Was a little worried there for a moment......

solanoslough
02-20-2014, 5:35 PM
If the due date of response is on a weekend or holiday the next day becomes the due date. If mailed by us mail first class a postmark is accepted as the date of filing.

Paladin
02-20-2014, 5:45 PM
If the due date of response is on a weekend or holiday the next day becomes the due date. So it was due the 18th. Okay. So why is it recorded as being filed on the 17th, when SCOTUS was closed for a federal holiday?

If mailed by us mail first class a postmark is accepted as the date of filing.Okay, but the USPS was also closed on the 17th due to the federal holiday....

Kharn
02-20-2014, 6:11 PM
Paladin,
As long as the clerk receives the submission on the next day that the Court is open (for couriered submissions), it counts as being delivered on the stated due date. Given the quantity of briefs that must be submitted and their length, many lawyers make use of specialty printing companies in the DC area who also deliver them.

Gray Peterson
02-20-2014, 6:50 PM
I spoke with a staffer at SAF. The Kwong petition has been filed and was filed on time on 2/18/2014. They will get it up as quickly as they can because of the recent Peruta news plus Lane v. Holder and other cases folding it's way up there.

Paladin
03-21-2014, 6:58 PM
Mar 19 2014 Order extending time to file response to petition to and including April 23, 2014, for all respondents. (emphasis added)

gobler
03-21-2014, 7:16 PM
I believe the fuse has been lit. My question is where is the powder keg? Is in CT, NY or CA? Or is it some place we may not expect?
"No State shall convert a liberty into a privilege, license it, and charge a fee therefore.” (Murdock v. Pennsylvania)
This right here, if spread, may be the battle cry. I must look int this ruling...

Tarn_Helm
03-21-2014, 7:59 PM
I believe the fuse has been lit. My question is where is the powder keg? Is in CT, NY or CA? Or is it some place we may not expect?

This right here, if spread, may be the battle cry. I must look int this ruling...

Yes, let's hope the government--including the court--gets the hint: "Governments on all levels should take the hint: Stop wasting their time, and our money, trying to defend these pointless provisions in court (http://reason.com/archives/2014/03/18/five-gun-rights-cases-to-watch)."

North86
03-21-2014, 9:55 PM
Yes, let's hope the government--including the court--gets the hint: "Governments on all levels should take the hint: Stop wasting their time, and our money, trying to defend these pointless provisions in court (http://reason.com/archives/2014/03/18/five-gun-rights-cases-to-watch)."

They're in panic mode now, the wicked old witch of the west thinks the sky is falling. They will not go gentle into that good night. They will fight this until the bitter end.

press1280
03-22-2014, 5:01 AM
Yes, let's hope the government--including the court--gets the hint: "Governments on all levels should take the hint: Stop wasting their time, and our money, trying to defend these pointless provisions in court (http://reason.com/archives/2014/03/18/five-gun-rights-cases-to-watch)."

That sets a somewhat dangerous precedent (when a government official just decides to stop defending a law). The pointless laws should simply be repealed, and remaining laws enforced.
What we have now is so many laws on the books that really can't be enforced so the government selectively enforces them. Not what we want.

gobler
03-22-2014, 12:50 PM
So after skimming through Murdock v. Pennsylvania I can see where this "could" apply. However it was on a 1st A issue and you know the courts like to keep things as narrow as they can on issues like ours. But yeah, I will most certainly print this out and carry it when I leave the house... :thumbsup:

Still think the fuse is lit though...

Paladin
05-01-2014, 9:44 PM
Update.

From:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-993.htm

Feb 17 2014 Petition for a writ of certiorari filed. (Response due March 24, 2014)

Mar 19 2014 Order extending time to file response to petition to and including April 23, 2014, for all respondents.

Apr 23 2014 Brief of respondent Attorney General of New York in opposition filed.

Apr 23 2014 Brief of respondents Bill de Blasio, Mayor of the City of New York, et al. in opposition filed.

krucam
05-09-2014, 11:10 AM
Attached are:
Response from NY State AG in Opposition to Cert
Response from NY City in Opposition to Cert
Reply Brief from SAF/Kwong, filed yesterday.

Maestro Pistolero
05-09-2014, 1:02 PM
Thanks Mark. The reply brief is not exactly the free flowing briefs we've become accustomed to reading from Alan Gura. It seems that the precedent for their arguments is rather murky or ambiguous (not their fault, of course). Perhaps that is the reason.

ryan_j
05-09-2014, 5:58 PM
Jensen is a talented attorney but the odds are always against us. I hope they at least seriously consider the case.

krucam
05-09-2014, 6:19 PM
^^^Correct and reminder this was NOT a Gura authored Reply to the best of my knowledge. Dave Jensen is the Atty of Record here and is a highly approachable individual.

The Reply relies heavily on the 1992 Forsythe County v Nationalist Movement SC case. He is doing this to draw current/existing 1A dicta in line with the 2A. Ironic is that Forsythe was a 5-4 decision, the Liberal side of the Court taking the day.
http://supreme-court-cases.findthebest.com/l/6627/Forsyth-County-Georgia-v-The-Nationalist-Movement

We have been trying to draw 1A parallels to the 2A for a couple years now.

I, for one, appreciate this newer approach towards that end...

press1280
05-10-2014, 3:31 AM
^^^Correct and reminder this was NOT a Gura authored Reply to the best of my knowledge. Dave Jensen is the Atty of Record here and is a highly approachable individual.

The Reply relies heavily on the 1992 Forsythe County v Nationalist Movement SC case. He is doing this to draw current/existing 1A dicta in line with the 2A. Ironic is that Forsythe was a 5-4 decision, the Liberal side of the Court taking the day.
http://supreme-court-cases.findthebest.com/l/6627/Forsyth-County-Georgia-v-The-Nationalist-Movement

We have been trying to draw 1A parallels to the 2A for a couple years now.

I, for one, appreciate this newer approach towards that end...

Definitely a different approach, and why not. I think most would agree there's probably a wobbly justice (or more) who is reluctant about taking carry cases, which would affect the laws of several states. This case is so narrow it only affects those w/high license(possession only) fees-probably only NYC, maybe Nassau county. The other places where a license is required for possession usually charge a "nominal" fee, like 10-20 dollars.
The difficulty is how to nail down what's nominal and what isn't. Perhaps the court could take the equal protection argument and rule those in NYC and Nassau must be allowed to only pay the same 10 dollar fee charged in the rest of the state?

Maestro Pistolero
05-10-2014, 4:10 AM
^^^Correct and reminder this was NOT a Gura authored Reply to the best of my knowledge.I understood that but my post was a little ambiguously written. Thanks for clarifying.

Paladin
05-29-2014, 9:15 AM
Looks like the conference has been scheduled for today. While we may hear today if SCOTUS takes it, the odds are we'll have to wait until Monday, June 2nd, at 6:30am (PST)/9:30am (EST).

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-993.htm

http://www.scotusblog.com/events/2014-05/

LoneYote
05-29-2014, 4:44 PM
Looks like the conference has been scheduled for today. While we may hear today if SCOTUS takes it, the odds are we'll have to wait until Monday, June 2nd, at 6:30am (PST)/9:30am (EST).

http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-993.htm

http://www.scotusblog.com/events/2014-05/

I don't see it on scotusblog...

Paladin
05-29-2014, 8:22 PM
I don't see it on scotusblog...This morning I went thru the petitions SCOTUSblog were following but it wasn't listed. I assume it was discussed today since it is listed on that SCOTUS link. I guess we'll just have to wait for the orders on Monday (6:30am our time), to look thru them to see if it is there.

Of course, someone may post something about it on another forum/blog/etc. But I'm not going to search for it. I'll just wait for Monday....

Victor Cachat
05-29-2014, 8:48 PM
It's another regressive tax aimed at harming AND disarming the poor.

Remember, when the SHTF, the takers will look for someone to take it out on.
If they are relatively well armed, they might actually go after the people that finally had to tell them the cupboard is empty.

Paladin
06-02-2014, 1:23 AM
This morning I went thru the petitions SCOTUSblog were following but it wasn't listed. I assume it was discussed today since it is listed on that SCOTUS link. I guess we'll just have to wait for the orders on Monday (6:30am our time), to look thru them to see if it is there.

Of course, someone may post something about it on another forum/blog/etc. But I'm not going to search for it. I'll just wait for Monday.... (emphasis added)

We should know in about 5 more hours if Kwong was discussed and, if so, whether it was granted cert.

ryan_j
06-02-2014, 6:59 AM
Cert denied.

Paladin
06-02-2014, 9:58 AM
Cert denied.

:censored:

IVC
06-02-2014, 10:30 AM
This is disappointing, but it points to SCOTUS wanting to hear from more circuits and tread very carefully on dismantling the erroneous gun laws.

From what we've seen thus far, SCOTUS has addressed "keep" in Heller and McDonald, and we might be getting "bear" soon. After that we need SCOTUS to address "arms" (AWB, magazine limits) and only then would be the time to look into finer details of various schemes. In a way, laws are not ready for fine tuning when the whole landscape is missing.

That's just my 2C, but in general opinions are like @$$holes - everyone's got one.

ccmc
06-02-2014, 12:44 PM
This is disappointing, but it points to SCOTUS wanting to hear from more circuits and thread very carefully on dismantling the erroneous gun laws.

From what we've seen thus far, SCOTUS has addressed "keep" in Heller and McDonald, and we might be getting "bear" soon. After that we need SCOTUS to address "arms" (AWB, magazine limits) and only then would be the time to look into finer details of various schemes. In a way, laws are not ready for fine tuning when the whole landscape is missing.

That's just my 2C, but in general opinions are like @$$holes - everyone's got one.

Nothing wrong with being a "glass half full" kinda guy :)

IVC
06-02-2014, 1:14 PM
Nothing wrong with being a "glass half full" kinda guy :)

It's more of a "let's see where this is all going."

The real test for me is SCOTUS taking a case and ruling against us - if that happens, then I've been wrong all along. Until then we don't really know...

ddestruel
06-02-2014, 2:51 PM
Again a reminder that something legislatively needs to be done or needs to be come a campaign battle cry to protect / modify the FOPA to address what scrutiny level should apply to law abiding citizens, the analysis that congress expects out of the courts as well clean up some of that the CA gutted way back when.

ryan_j
06-02-2014, 8:37 PM
Attach a pro 2A bill to a damn spending bill and pass it.

"We need to pass it to see what's in it."

The antis passed HR4460 which put extra funds for NICS this way and many in the house didn't have a clue what they were voting for... They figured it was just more money for NASA and stuff.

kcbrown
06-02-2014, 9:59 PM
It's more of a "let's see where this is all going."

The real test for me is SCOTUS taking a case and ruling against us - if that happens, then I've been wrong all along. Until then we don't really know...

Certainly that would clarify the situation...

But since the effect of refusing all cases has thus far been nearly identical to deciding against us (with the exception that an actual decision would affect more than the area of the country covered by the circuit in question), how would you really tell the difference?

Still sounds like a "glass half full" approach to me, since you're willing to ignore the practical effects of SCOTUS refusing to take cases.


In essence, it sounds like you would die of old age before you would admit that SCOTUS is done with the 2nd Amendment, absent a direct ruling against us. That's about as close to a "glass half full" approach as it gets under those circumstances.

kcbrown
06-02-2014, 10:05 PM
This is disappointing, but it points to SCOTUS wanting to hear from more circuits and tread very carefully on dismantling the erroneous gun laws.


Except that in this case, the question was more about the treatment of an already recognized fundamental right. As you note, "keep" has already been addressed in Heller and McDonald, and it is precisely that right which is implicated here.

If it is acceptable to treat "keep" in the way it is being treated in this instance, then it follows that it must be acceptable to treat the right to speech, or the right to counsel, or the right to a trial by jury, etc., in exactly the same way, right?

To insist otherwise is to insist that the right to keep arms is fundamentally different than all other Constitutionally-protected fundamental rights.

And SCOTUS couldn't bother to lift a finger to ensure that, at least, the right they themselves recognized is treated with the same respect as other Constitutionally-protected rights.


For this reason, that SCOTUS denied cert here (most especially when combined with their denial of BATFE) is a very strong signal to me that SCOTUS really is done with the 2nd Amendment, and has no intention of actually upholding it from this point forward (absent someone convincing the fencesitter(s) among the Heller 5 that it's time to take a stand on the issue).

IVC
06-02-2014, 11:03 PM
Except that in this case, the question was more about the treatment of an already recognized fundamental right. As you note, "keep" has already been addressed in Heller and McDonald, and it is precisely that right which is implicated here.

So, what would be an acceptable amount to you for registration?

Note: it's a trick question. You should research what pro-gun states charge. While it's most likely "excessive" in NYC, it's clearly not an exception, even if we believe that on principle it's wrong and should go away.

Not too black and white to me.

kcbrown
06-03-2014, 12:19 AM
So, what would be an acceptable amount to you for registration?

Note: it's a trick question. You should research what pro-gun states charge. While it's most likely "excessive" in NYC, it's clearly not an exception, even if we believe that on principle it's wrong and should go away.


Not an exception?

What jurisdictions, save for those that have demonstrated (via other actions, not ones such as this) that they intend to infringe upon the right, charge anything like what NYC charges?

What is the difference between "excessive" and infringement when it comes to burdening a Constitutionally-protected fundamental right?


Again, if we would not accept as Constitutional the same treatment as regards other fundamental Constitutional rights, then this treatment must be regarded as infringement unless you wish to argue that this right is somehow fundamentally different than all the others such that it should be selected for "special treatment". Would the courts uphold a law imposing a $400 fee for a permit to purchase "dangerous books"?

EchoFourTango
06-03-2014, 2:36 AM
Such a pain.

ccmc
06-03-2014, 6:41 AM
So, what would be an acceptable amount to you for registration?

Note: it's a trick question. You should research what pro-gun states charge. While it's most likely "excessive" in NYC, it's clearly not an exception, even if we believe that on principle it's wrong and should go away.

Not too black and white to me.

Trick question indeed. Florida has no registration, charges five dollars for a background check, no wait for those with CWFL, otherwise three day wait, no one in thirty nonsense, etc.

ryan_j
06-03-2014, 7:00 AM
The biggest thing against the fee is that rifles and shotguns are only $140 to get a permit, whereas handguns are $340. I don't see how they are covering only actual costs if it's $200 more to get a handgun permit. The fee is clearly a means to discourage people, and I would argue it is really to discourage poor people from owning guns. If you look at who has CCWs in NYC, apart from retired police it's the rich people - people like Donald Trump.

LostInSpace
06-03-2014, 7:14 AM
While it's most likely "excessive" in NYC, it's clearly not an exception, even if we believe that on principle it's wrong and should go away.

If this fee is for a carry permit, there may be some States that charge over $100 for a carry permit (Texas?). If the same fee, however, applies to the residential handgun permit (the right to keep the gun at home and take to the only NYC range, but not outside city limits, for practice), then it would appear to be very high.

El Toro
06-03-2014, 8:50 AM
Sholling called this one correctly (http://www.calguns.net/calgunforum/showpost.php?p=10863121&postcount=13). Defendant wasted our time and his money. Another case is needed on the substantial burden aspect to forever eliminate this "pole tax" on the 2A

IVC
06-03-2014, 10:12 AM
What is the difference between "excessive" and infringement when it comes to burdening a Constitutionally-protected fundamental right?

That's what I was asking you.

If you believe that this issue is ready for SCOTUS, you should be able to give a specific number that represents the boundary between "acceptable" and "excessive." That number can be "0" to signal that no amount can be charged.

Note that charging a fee for "keep" is very similar to charging a fee for "bear" as both are equally protected under 2A (although not yet equally sorted out in courts.) Being principled at "0" makes for some interesting discussion on *any* fee in *any* state (and, it's not sufficient to say "FL does it" as it's only one state.)

kcbrown
06-03-2014, 3:50 PM
That's what I was asking you.

If you believe that this issue is ready for SCOTUS, you should be able to give a specific number that represents the boundary between "acceptable" and "excessive." That number can be "0" to signal that no amount can be charged.


Well, what's the answer to that as regards a permit to buy "dangerous books", or a law imposing a fee upon someone who wishes to purchase a "dangerous book"?

If that First Amendment question is ready for SCOTUS now, or has already been answered by SCOTUS, then this case must also be ready for SCOTUS.



Note that charging a fee for "keep" is very similar to charging a fee for "bear" as both are equally protected under 2A (although not yet equally sorted out in courts.) Being principled at "0" makes for some interesting discussion on *any* fee in *any* state (and, it's not sufficient to say "FL does it" as it's only one state.)

Oh, I completely agree with that. But if NYC is charging a substantially different rate for that than other locations, then Constitutionality clearly must be questioned, since arbitrary imposition upon the right through fees is impermissible.

IVC
06-03-2014, 4:48 PM
Well, what's the answer to that ...

I read your response several times, but couldn't find any numbers. So, what's the number that you'd like SCOTUS to affirm? :)

kcbrown
06-03-2014, 5:41 PM
I read your response several times, but couldn't find any numbers. So, what's the number that you'd like SCOTUS to affirm? :)

I'd like them to affirm whatever numbers they've already affirmed for the First Amendment equivalent.

If they've protected "dangerous books" from the imposition of acquisition fees, permit fees, taxes, etc., while not requiring such a number, then no number is required here, right?

IVC
06-03-2014, 8:58 PM
I'd like them to affirm whatever numbers they've already affirmed for the First Amendment equivalent.

And that number is...?

I'm not that bright and intuitive...

kcbrown
06-04-2014, 1:07 AM
And that number is...?


Why do you presume the number even exists?

I've not seen one. In fact, what I've seen indicates that SCOTUS does not uphold even an exception for a tax exemption when the basis of the exception is "dangerous speech", on the basis that said exception is the equivalent of an imposition of a tax upon speech. See, e.g., Speiser v Randall (however, see also Regan v Taxation With Representation of Wash., in which the Court avoids Speiser under what amounts to essentially identical circumstances, by cleverly playing with the terms and definitions involved. And people wonder why I call the courts "arbitrary and capricious").

It seems that if the government may charge a fee for the purpose of regulating speech, it must at least not impair the liberty in question:


The suggestion that a flat fee should have been charged fails to take account of the difficulty of framing a fair schedule to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought.


(emphasis mine)

Note that Cox was about the fee and permit requirements for a license for a parade or procession on or adjacent to public streets. I've not yet found a case involving a direct fee assessment against transactions involving publications.

IVC
06-04-2014, 9:05 AM
My point is that the issue of fees is down the road for SCOTUS given that we don't even have a definition of what an "arm" is (AWB, magazine limits, rosters) or what "bear" means (carry in public, a furry mammal.)

kcbrown
06-04-2014, 10:30 AM
My point is that the issue of fees is down the road for SCOTUS given that we don't even have a definition of what an "arm" is (AWB, magazine limits, rosters) or what "bear" means (carry in public, a furry mammal.)

But Kwong was about keep of handguns, and in the home at that. Which is to say, it was specifically about the very same circumstances covered by Heller and McDonald.

If that is "down the road" for SCOTUS, then it must follow that there is literally nothing that isn't, save perhaps for cases that are identical to Heller and/or McDonald, for it means that SCOTUS is not in a position to issue decisions involving unanswered questions about otherwise essentially identical circumstances.

IVC
06-04-2014, 11:22 AM
But Kwong was about keep of handguns, and in the home at that.

It was about a fee and even you didn't come up with a specific number that would make you happy. If you were in charge of writing the majority opinion at SCOTUS, what would you say and why (given that you're not sure about the correct number at all)?

meaty-btz
06-04-2014, 1:38 PM
It was about a fee and even you didn't come up with a specific number that would make you happy. If you were in charge of writing the majority opinion at SCOTUS, what would you say and why (given that you're not sure about the correct number at all)?

I don't think you get it. The issue was ownership, as covered already by SCOTUS.

In NYC if you do not pay the fee every three years you CANNOT KEEP. That is if you failed to pay the fee you have no right to keep arms in your home (covered by scotus already).

Therefor there can be no arbitrary permitting or fee at all on KEEPING arms. This was already covered ground. SCOTUS' denial is a clear message. There are no protections for KEEPING arms and said arms may be removed from your possession at will. Not for a crime, but for failure to obtain a permit to keep said arms.

This refusal is actually a contradiction to Heller where keep was also being infringed.

There is only one other state that even requires permitting for keeping of arms.. Illinois with it's FOID. This has no comparison to permitting for carrying or permitting for purchasing or even registration (on purchase or transfer). This is about requiring a fee to be paid every x time cycle of x amount or personal property becomes forfeit.

That would be akin to requiring you to pay a fee every x number of time in order to be able to vote or to use a "free speech" area or better in order to be protected by the 4th amendment you would need to pay a fee for a 4th amendment protection permit otherwise your person and property may be searched and seized at will by agents of the state for any reason at any time.

Is there any other fundamental BOR Right that allows this kind of permitting? Speech as exercised as a march or other organized parade is an apples to oranges comparison as the personal fundamental right remains intact without the permit.

kcbrown
06-04-2014, 2:25 PM
It was about a fee and even you didn't come up with a specific number that would make you happy.


It was about a fee forcibly attached to the most fundamental characteristics of the exercise of a fundamental Constitutional right: keep of the quintessential defensive arm in the home.



If you were in charge of writing the majority opinion at SCOTUS, what would you say and why (given that you're not sure about the correct number at all)?

If I were in charge of writing the majority opinion, the opinion would wind up overturning quite a lot of bad precedence.

In particular, because a primary purpose of the government set up by the founders is to protect and not discourage the exercise of the rights of the citizenry, it follows that any money required for administration of Constitutionally-protected rights must be assessed against the entirety of the citizenry under the control of the government in question. As such, fees charged directly against those who are specifically complying with the government's mandates regarding a Constitutionally-protected right are themselves forbidden, since such fees increase the actual cost of exercising the right in question, which by definition makes such exercise more difficult than it would be otherwise and is, therefore, contrary to the primary purpose of the regulation in question.

If a government insists on regulating a fundamental right, it must do so at the expense of all citizens under its charge, not merely those who wish to exercise that fundamental right. The decision I would pen would wind up striking fees for all government functions involving Constitutionally-protected rights, which of course includes the imposition and maintenance of permit schemes.


But that is probably not your real question, is it? :D

IVC
06-04-2014, 3:57 PM
I don't think you get it. The issue was ownership, as covered already by SCOTUS.

It was about a fee forcibly attached to the most fundamental characteristics of the exercise of a fundamental Constitutional right: keep of the quintessential defensive arm in the home.

You're both saying that it should be "0." I agree.

The problem is that even poll taxes and all other sorts of attacks on fundamental rights actually happened before they were challenged in courts. This case doesn't even argue that the fee should be *exactly 0*. And, the court didn't take the case and say "sure, you can have all the fees you want."

The time to worry is when the courts starts taking these cases ruling against us. Until then, every victory at the SCOTUS or circuit level erased many, many loses at the lower level.

LoneYote
06-04-2014, 4:11 PM
The time to worry is when the courts starts taking these cases ruling against us. Until then, every victory at the SCOTUS or circuit level erased many, many loses at the lower level.

However, during the challenge MANY MANY MANY MANY more losses were handed down at the lower level. Even if a SCOTUS ruling erased 50 previously bad lower court rulings it doesn't help that in the time the lower courts handed down 100.

1 step forward and 2 steps back does not make effective forward progress.

Also, no number needs to be argued. The issue is a FEE the government is charging for YOU to keep YOUR firearm in YOUR home. The very core of the second amendment as described by SCOTUS is the protection of an individuals right to keep arms in the home for self defense. A law that infringes on that right better have a DAMN GOOD reason behind it. This law does not. Struck Down!

IVC what as an acceptable FEE for the government to charge for a permit to allow sexual relations in the home between a married couple? How would that case progress do you think? Would it be headed for SCOTUS? Would there be public opposition?

e90bmw
06-04-2014, 4:33 PM
However, during the challenge MANY MANY MANY MANY more losses were handed down at the lower level. Even if a SCOTUS ruling erased 50 previously bad lower court rulings it doesn't help that in the time the lower courts handed down 100.

1 step forward and 2 steps back does not make effective forward progress.

Also, no number needs to be argued. The issue is a FEE the government is charging for YOU to keep YOUR firearm in YOUR home. The very core of the second amendment as described by SCOTUS is the protection of an individuals right to keep arms in the home for self defense. A law that infringes on that right better have a DAMN GOOD reason behind it. This law does not. Struck Down!

IVC what as an acceptable FEE for the government to charge for a permit to allow sexual relations in the home between a married couple? How would that case progress do you think? Would it be headed for SCOTUS? Would there be public opposition?

A "Poll Tax" is illegal.
A tax on speech won't fly.
How in the world does this fly?

IVC
06-04-2014, 4:53 PM
IVC what as an acceptable FEE for the government to charge for a permit to allow sexual relations in the home between a married couple? How would that case progress do you think? Would it be headed for SCOTUS? Would there be public opposition?

The court did not affirm the validity of the fee. Many here are arguing as if the court took the case and said "sure, charge the fee." That's playing straight into the antis' narrative.

Personally I believe that the fee is either outright unconstitutional, or that a nominal fee can be charged the way it's done in shall-issue states for carry permits. I really don't know which one the court will uphold, but I know that thus far court had said *absolutely nothing* about the validity of the fees.

The standard "silence is deafening" or "if it was a different case they would have acted, so their refusal is equivalent to affirming the fees" is just too much of a speculation that is incorrect when it comes to SCOTUS - they grant 1% or so of certs and are even as we speak resolving 1A, 4A and alike issues.

kcbrown
06-04-2014, 7:01 PM
The court did not affirm the validity of the fee. Many here are arguing as if the court took the case and said "sure, charge the fee." That's playing straight into the antis' narrative.

Personally I believe that the fee is either outright unconstitutional, or that a nominal fee can be charged the way it's done in shall-issue states for carry permits. I really don't know which one the court will uphold, but I know that thus far court had said *absolutely nothing* about the validity of the fees.

The standard "silence is deafening" or "if it was a different case they would have acted, so their refusal is equivalent to affirming the fees" is just too much of a speculation that is incorrect when it comes to SCOTUS - they grant 1% or so of certs and are even as we speak resolving 1A, 4A and alike issues.

So your opinion, then, is that SCOTUS will let the vast bulk of major 1st Amendment infringements stand because they haven't the bandwidth to take those cases (since, clearly, cases involving the intricacies of the tax code (http://www.americanbar.org/publications/preview_home/12-562.html), or cases involving the details of the burdens of some patent licensees (http://www.americanbar.org/publications/preview_home/12-1128.html), etc., are of much greater import than are infringements upon fundamental Constitutional rights...)?

yellowfin
06-05-2014, 9:25 AM
If this fee is for a carry permit, there may be some States that charge over $100 for a carry permit (Texas?). If the same fee, however, applies to the residential handgun permit (the right to keep the gun at home and take to the only NYC range, but not outside city limits, for practice), then it would appear to be very high.Only MA, NJ, DC,NYC, and IL (plus HI?) charge anything at all for a license for possession in residence and purchase (CA does for purchase but not preexisting ownership), and MA doesn't do so for long guns. So the concept almost doesn't exist at all, let alone whatever fees may be.

IVC
06-05-2014, 9:46 AM
So your opinion, then, is that SCOTUS will let the vast bulk of major 1st Amendment infringements stand because they haven't the bandwidth to take those cases ...

It didn't happen instantaneously. There was a period of time before infringements were struck down.

With SCOTUS we have a three state finite-state machine: yes/no/don't know. We should keep the "don't know" as intended, i.e., "don't know" rather than trying to compress it into "no" using some logical crutch about the urgency of cases.

Let's be realistic. NYC has MUCH BIGGER problems with infringement than the fee for possession AND the court never said those fees were constitutional.

kcbrown
06-05-2014, 10:15 AM
It didn't happen instantaneously. There was a period of time before infringements were struck down.


But I'm talking about now, since it is now that the Supreme Court, per your hypothesis, lacks the bandwidth required to deal with the 2nd Amendment cases that have been coming up to it.



With SCOTUS we have a three state finite-state machine: yes/no/don't know. We should keep the "don't know" as intended, i.e., "don't know" rather than trying to compress it into "no" using some logical crutch about the urgency of cases.
It's not the urgency of cases that converts it into "no", it's the fact that every single case it has denied thus far has been a "no" at the prior level.

The state machine we have here isn't "yes/no/don't know", it's "yes/no/same", at least in practice. That's because SCOTUS' failure to take a case cements the prior decision.

When the practical effects differ from the theoretical outcome, the practical effects must win.



Let's be realistic. NYC has MUCH BIGGER problems with infringement than the fee for possession AND the court never said those fees were constitutional.What 2A topic do you expect SCOTUS to take a case on, then, and why, when it has demonstrated that it's not "ready" to answer additional questions about the very situation in which it recognized the fundamental right to arms?

IVC
06-05-2014, 11:47 AM
But I'm talking about now, since it is now that the Supreme Court, per your hypothesis, lacks the bandwidth required to deal with the 2nd Amendment cases that have been coming up to it.

It's not a bandwidth problem, but the lack of circuit rulings...

kcbrown
06-05-2014, 11:54 AM
It's not a bandwidth problem, but the lack of circuit rulings...

How many circuit rulings existed for Citizens United?

IVC
06-05-2014, 12:14 PM
How many circuit rulings existed for Citizens United?

Cherry picking doesn't help. Some cases are ripe for different reasons and at different times.

kcbrown
06-05-2014, 12:37 PM
Cherry picking doesn't help. Some cases are ripe for different reasons and at different times.

Then why was Citizens United ripe but Kwong wasn't?

Why was Drake not ripe?

What are the "rules of ripeness" that you're postulating here?

IVC
06-05-2014, 1:25 PM
What are the "rules of ripeness" that you're postulating here?

It's ripe when STOTUS takes a case. We win when STOTUS affirms a right (or strikes down an infringement). We lose when STOTUS rules against us.

In the meantime we wait.

kcbrown
06-05-2014, 2:00 PM
It's ripe when STOTUS takes a case. We win when STOTUS affirms a right (or strikes down an infringement). We lose when STOTUS rules against us.


That is not an answer to my question. You're postulating that SCOTUS operates under a set of rules that determine when a case is "ripe". My question is about those rules. Simply saying that a case is "ripe" when SCOTUS takes it is a non-answer.

But if that really is your answer and there are thus no "rules of ripeness" that SCOTUS operates on, then that effectively makes the "rules of ripeness" arbitrary. That would render your claim that Kwong was denied due to lack of circuit decisions on the subject without logical foundation. Nothing has a logical foundation when the litmus test is itself arbitrary.



In the meantime we wait.

...and lose at the lower levels.

Again, what's the practical difference between SCOTUS issuing a decision against us and SCOTUS remaining silent when the lower levels are (with very few, though notable, exceptions) consistently stuffing the right into the ground?

IVC
06-05-2014, 2:13 PM
But if that really is your answer and there are thus no "rules of ripeness" that SCOTUS operates on, then that effectively makes the "rules of ripeness" arbitrary.

Not knowing the rules and labeling them arbitrary are quite different.

We don't know which cases SCOTUS will take, but I wouldn't really say that they pick cases "arbitrarily."

That would render your claim that Kwong was denied due to lack of circuit decisions on the subject without logical foundation.

Misunderstanding. I was providing an alternative hypothesis (and the one I believe in this case, but have no proof,) not claiming causality.

Again, what's the practical difference between SCOTUS issuing a decision against us and SCOTUS remaining silent when the lower levels are (with very few, though notable, exceptions) consistently stuffing the right into the ground?

If enough time passes and this becomes the norm, then you are absolutely correct - we lost. If, on the other hand, the game has just started and we are in the middle of the first period, then the difference is the same as when the Rangers had a 2-0 lead over the Kings yesterday - a temporary score, anxious fans and a few elevated blood pressures.

kcbrown
06-05-2014, 3:42 PM
Not knowing the rules and labeling them arbitrary are quite different.


But if there really are rules, then it should be possible to detect them through observation and deduction (that is, after all, how we discover the rules under which the universe itself operates).



We don't know which cases SCOTUS will take, but I wouldn't really say that they pick cases "arbitrarily."


With over 200 years of SCOTUS history, wouldn't you agree there should be sufficient evidence upon which to derive the rules in use?

What evidence do you have that their approach to selecting cases is anything other than arbitrary? In the absence of an easily discernible pattern, isn't arbitrariness here the proper null hypothesis and, thus, the proper hypothesis to propose in the absence of such a pattern?



Misunderstanding. I was providing an alternative hypothesis (and the one I believe in this case, but have no proof,) not claiming causality.


But your alternative hypothesis must be consistent with all evidence to date and make testable predictions. Since your alternative hypothesis isn't consistent with all the evidence to date (e.g., Citizens United), it follows that the hypothesis as it stands is invalid.



If enough time passes and this becomes the norm, then you are absolutely correct - we lost. If, on the other hand, the game has just started and we are in the middle of the first period, then the difference is the same as when the Rangers had a 2-0 lead over the Kings yesterday - a temporary score, anxious fans and a few elevated blood pressures.

How much time is "enough time"? And what is your basis for deriving it?

My claim is that "enough time" has already passed, and my basis for that claim is the amount of time that has typically passed between the recognition of a right by the Supreme Court and the first subsequent case in which the Court upholds the right, combined with the fact that the Court has, for us, consistently denied cert to all 2A cases to date after having recognized the right it protects (whereas, for the other rights, I've not seen any evidence of any such denials prior to the first subsequent case it took for the purpose of upholding the right in question).