SAF Sues New York City over Handgun Fees!

[Inigoes]

The NRA still does an extreme amount of lobbying and still fights cases in court at a consistant pace. It just seems right now that the most important cases are strategically being played out by SAF.

Maybe the SAF called the NRA and said hey stop slamming guns guns guns down the legislatures throats. We are gonna sneak in the back way do a frontal assault the constitutional way.

Fixed it for ya

 

[yellowfin]

Is it me or is SAF really taking the reigns and leaving the NRA in the dust?

They're working in parallel, w/ NRA offering bad states the opportunity to voluntarily adopt legislation to improve while SAF brings it in court mandating it in court. It's a dual front attack making it a choice of either voluntarily start respecting gun rights or we make them do it anyway.

 

[Hopalong]

The arguments in the last three posts are all going to sound eerily prescient in the next year or so...

Yup. Once the Second gets treated like the First, it'll be a whole new ballgame.

 

[krucam]

Just a little bit of activity in Kwong last week...13 new entries entered on 7/28, including:

1) Cross-MSJ by Defendants (NYC)

2) Cross-MSJ by Defendants (State Atty General).

Reminder that a MSJ was filed by Pltf's on 6/23/2011.

Docket.

The two C-MSJ's are 40 pgs each so I haven't had a chance to read, and...supper needs a fixin'....

 

[Patrick]

No time to scan them both, so I went with Bloomy's response. The state will come later.

NYC Argument: All dicta from Heller regarding permits and 'in the home' herein incorporated as common drivel. So we ignore them here.

Novelties: NYC claims the fees are purely used to defray administrative costs because the license division costs $6 Million a year to run and only processes 40K applications. They claim that "nominal cost" is anything they can claim as administrative. They also claim that the core exercise of a fundamental right can be subject to fees.


Quick analysis: The SAF is going to cream them on this, and any court should be able to see right through it.

Administrative fees - if allowed - cannot be whatever the city wishes to spend to make them expensive. They could provide all license division employees with limousines and call it nominal. Whatever they do for $6 Million of cost, it is too much. The simple analysis here is not whether the city can creatively come up with a big number, but whether that number results in a restriction on the right. A $340 permit fee on a $400 gun is a damn big restriction.

Which leads to the idea of permit fees in the first place. The city is over the head here. Every case they cite appears to be one where the challenged fee was upheld based on "secondary effects". When you hear secondary effects, think traffic control during protests and the like. The city's "secondary effect" the get to regulate...(wait for it)...public safety! Background checks are expensive because the city has a role in determining who gets guns. No amount of money will save them from the horde.

Not one of the cited cases upheld a fee charges to exercise a fundamental right. That is akin to a poll tax. And the 'public safety as secondary effect' was a dumb one to make. They just lined themselves up for a counter-argument using Heller's proscription that public policy/safety is not allowed for regulating RKBA. The only thing they can do is claim you are not a lawful person (with certain limits to that claim, even). That is all.

I am surely missing details in here given the fast read. I'm sure others will be along shortly to fill in the gaps and tell me where I screwed up. Still, I think they know their argument is weak, considering the amount of time the spend explaining their costs and the short amount of time they spend talking about jurisprudence. Weak.


This is turning into a full frontal assault on permits, for those distracted by the carry cases. This is the big SCOTUS case for 2013.

 

[Storm40]

The fee being challenged is for a Premises License in the City of NY. NY concedes that Heller acknowledges the right to possess a handgun in defense of Hearth and Home (page 15 of the pdf, page 2 of the document, first link). Whether the fee is reasonable or not has nothing to do with whether there ought to be a license for this at all. It costs the City NOTHING to regulate a gun kept in one's own home. Rather, it SHOULD cost the city nothing. They choose to involve themselves in licensing a core constitutional right which they themselves acknowledge. Why should citizens have to pay for that? It is our RIGHT. Will they then choose to license 1A activities and charge nominal fees whilst in your own home?

This has probably been brought up before, I realize. Hopefully I didn't make myself look too foolish in the process.

Which leads to the idea of permit fees in the first place.

I see Patrick basically beat me to it. Should have read that post more carefully. I guess maybe I just took it a half-step farther.

 

[Kharn]

Wow, the state's attitude is "We'll make all permits $250 if you want everyone to be equal..."

A law does not unconstitutionally burden a constitutional right "simply because it makes that right more expensive or difficult to exercise" or because it declines to use government funds to "facilitate the exercise ofthatright".

Although some states, such as New Jersey, allow handgun possession in the home without a permit to carry, it is not clear how one would come to possess the handgun without "acquiring" it first -and acquiring the handgun requires a permit.

I really think the AG did not intend to go there...

For example, on average, the City processes 2,612 new handgun license applications and 9,522 renewal applications per year.

For a population of 8 million people, that is a ridiculously low rate of applications and renewals, ownership on the order of a tenth of a percent?

 

[yellowfin]

So that makes our case with regard to chilling effects as seen with 1st Amendment obstruction.

 

[mikec]

For example, on average, the City processes 2,612 new handgun license applications and 9,522 renewal applications per year.

For a population of 8 million people, that is a ridiculously low rate of applications and renewals, ownership on the order of a tenth of a percent?

There is a good reason for that, I doubt most NYPD will tell the average Joe that a home permit is legal and available.

BTW, what is the percentage of MD residents who get a carry permit?

 

[MDFF2008]

There is a good reason for that, I doubt most NYPD will tell the average Joe that a home permit is legal and available.

BTW, what is the percentage of MD residents who get a carry permit?

Apples and Oranges unfortunately. I understand the NYC permit is objectively issued, while the MD one is not and one is for ownership and one for carry.

Bloomberg is not like Chicago and DC. He is smart. He knew that an outright ban on ownership would never pass muster.

 

[Patrick]

The "objective" NY permit system is primarily one to own a handgun. The carry permit is subjective, though in practice some areas make it more objective and closer to shall-issue. I have family with LTCs in upstate NY and good friends in NYC who won't even bother applying.

 

[rglrguy]

I have family with LTCs in upstate NY and good friends in NYC who won't even bother applying.

My parents are also in upstate NY. My dad has his application in for his LTC. He turned it in 3 months ago and was told it would take about 8 months to process. His county is essentially shall issue for ownership and carry without restrictions.

 

[Baccusboy]

I tried to join the SAF at the $50 for 5 year membership level, but when you go to pay that via Credit Card, there is no option for it. Only a confusing $50 slot for a gift. I wrote and told them that there was a mistake on their payment page, but nobody wrote me back.

 

[krucam]

Defendants Bloomberg/NYC filed a Cross-Motion for Summary Judgment (C-MSJ) today in Kwong.

Saying that no matter what the level of Scrutiny, their fee structure is Constitutional. I'm still looking for that one in the document and in their cited sources.

Now that plaintiffs have run to the Court seeking summary judgment without taking discovery, plaintiffs ask that this Court not attach any weight to City defendants' undisputed facts

Read any sarcasm in the above??

Plaintiffs' strained reading of the Second Circuit's decision in National
Awareness Fdn. v, Abrams,....

How about now?? No Irony in that one?

They go on to say Plaintiffs haven't challenged Defendant's numbers, justifying the $340 fee to take a handgun home. Dunno....seems to me that is just a touch higher than even here in MD for a Regulated handgun/rifle.

$340 for an investigation for a person to possess in the home, not on the street but, in the home? C'mon man...

 

[krucam]

I guess I wasn't patient enough on 10/4 when NYC filed their response (C-MSJ).

A little later on 10/4, the NY Atty Generals Office filed their response, also a Cross-Motion for Summary Judgment

The NY AG office...WTF are they here for in a NYC Fee's case? Dunno...

- SAF lacks Standing (sound familiar?)
- Plaintiffs haven't proved that $340 fee for a home permit is beyond "nominal". This isn't a CCW/LTC fee, we're talking about bringing a gun home. IN THE HOME, huh?
- Strict Scrutiny isn't applicable...in this case about having the permit to have a handgun IN THE HOME. We're talking Bullseye/Holy Grail territory here, according to Heller...

The "Legislative Intent" angle, where Plaintiffs have a Legislator on record as saying the high fees "may curtail people from getting permits" is not introducable says the NY AG....

Its a fun read...the arguments seem to be getting weaker and more strained. Could just be me...

 

[MDFF2008]

The "Legislative Intent" angle, where Plaintiffs have a Legislator on record as saying the high fees "may curtail people from getting permits" is not introducable says the NY AG....

They actually got someone to testify under oath to that? AWESOME!

 

[Patrick]

The entire defense rests on the premise that the rights defined by the Second Amendment are not really worth insisting upon. The State agrees that the costs are not "nominal" but but never explains why it is acceptable to charge more than a nominal fee for a permit to exercise a constitutional right. Their only answer appears to be, "because we can if we want to."

Also, they mis-state plaintiff's argument. The plaintiffs do not acknowledge that requiring a permit in the home is constitutional - all they did was restrict their argument to one thing and on thing only: the price.

Of course, everyone knows we will go after permits in the home soon. The reason this case was filed this way was to build jurisprudence that permits - even when allowed - cannot be arbitrarily priced out of the hands of the people. While 'in the home' permit requirements are somewhat rare in the USA, fees for carry permits are not.

New York knows darn well what is afoot. They just wish to deny it.

Of course, as obvious as this might be to all where the Supreme Court would land on this topic, it is clear that the lower courts could care less. If I could hope for something with this case, it is that the lower courts find in favor on the city and state and we end up in the Supreme Court next year.

They got the "Two-Step"; we got "Lose Fast".

 

[yellowfin]

The entire defense rests on the premise that the rights defined by the Second Amendment are not really worth insisting upon. The State agrees that the costs are not "nominal" but but never explains why it is acceptable to charge more than a nominal fee for a permit to exercise a constitutional right. Their only answer appears to be, "because we can if we want to."

They're used to getting away with only having to say that, and entirely used to getting everything they want without exception. That's the biggest part of it. Look at how the district judge in Kachalsky ruled, citing pee wee state courts which basically amounts to "it's legal because we said so."

 

[Patrick]

Let them keep doing it (and winning). We are counting on some form of reckoning from SCOTUS that demonstrates it won't work. At that point, all they have built falls with on tug of that bottom card. This is why you see the SAF filing suits everywhere - it gets all the bad places on record.

They will go back and try again with a new deck of cards, but remember that right now this is the best they have. Their arguments only get more strained from here on out.

And if the Supreme Court does not intend to protect the right...we're at the same place anyway. Might as well let them keep winning these moments.

 

[BenL]

The reason this case was filed this way was to build jurisprudence that permits - even when allowed - cannot be arbitrarily priced out of the hands of the people.

Could this argument ever be used against tax stamps, or is that apples and oranges?