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Old March 28, 2012, 08:36 AM   #13
Spats McGee
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Join Date: July 28, 2010
Location: Arkansas
Posts: 5,085
ltc444 asked about the poll tax issue, and it got me to thinking. Actually, I've been pondering that issue for a while. Unfortunately, I haven't really had the chance to go back and re-read the briefs to see exactly how this was argued below, but I do have a shooting-from-the-hip response.

First, I think there's a solid argument to be made there, but I'm not sure it's really been made. It looks like the judge in this NY fees case did some pretty serious mental contortions to reach the decision that he did. For example, he cited one of the Heller decisions for one of his points of law, but he did not cite the final Heller decision, at least for one of his points. I'll run his citations later to see exactly where it was, but it caught my eye yesterday. Anyway the judge cited one of the earlier Heller opinions that was vacated "on different grounds" than the proposition for which he cited the case. I have not had the chance to pinpoint whether or not the "on different grounds" issue is accurate, but when a judge does something like that, it begins to look like he cherry-picked the Heller decision that he wanted to use.

Second, I can't tell from reading the decision exactly what arguments were made below, and I haven't had time to go back and read the MSJ briefs. Now, bear in mind that some courts have rejected a First Amendment analysis in relation to a Second Amendment case, but I do think that there's a way to bootstrap a similar analysis to RKBA cases. The argument was clearly made in the NY fees case that the fees were excessive, but I can't tell if there's more to it than that. If the case is appealed (& I suspect it wil be), we'll know more when the appellate briefs come out. The judge looked at the argument and basically said, "Fees from 'nominal' up to $300 have been held constitutional for parade permits, so that didn't affect the First Amendment rights." Where I think the judge missed the boat was this:

1) In the parade cases, the permit fees only burdened one possible method of exercising the First Amendment right to free speech. No parade permit is required to vote, or to write to a member of Congress, for example. They're only for parades.
2) The permit fees were (probably) used to do things like: (a) pay officers overtime to stand by & maintain order; (b) clean up litter after the parade.
3) In the NY fees case, it looks like the fees are charged in relation to every possible exercise of the RKBA. I don't know anything about NY laws on long guns, so I can't tell you if you have to pay a fee in NYC to own a long gun. Given their overal statutory scheme, I'll bet that you do. (Edited to add: According to http://www.nyc.gov/html/nypd/html/pe...DoIGetRifleApp, there is a process for getting a rifle or shotgun permit)
4) The fees used to go to the police pension fund, and now go to the general fund. Those are used for everything from administering pistol permits to street sweepers to paying the city clerks. Using the $$ to administer pistol permit stuff may be related to the fee charged, but I have a hard time seeing how (for example) paying a CI to do an underage liquor purchase is related to regulating the RKBA. Where the funds go may or may not be of particular relevance.

So, based on those 4, there are some clear distinctions between the parade permits which the judge pointed out, and the RKBA argument. One of the problems is that I haven't sorted out what was argued below. If you don't argue it, the judge own't rule on it, and the appellate court won't consider it.
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Last edited by Spats McGee; March 28, 2012 at 08:43 AM.
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