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Old August 5, 2012, 09:21 PM   #22
graystar
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Join Date: February 12, 2002
Posts: 92
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Why does the plaintiff have to prove that the fees are excessive?
Because that's what he's claiming.

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Under a heightened standard of review it is the government that must justify its actions.
And they have...that's the problem. There's no argument against NYC's claims that the fees are used to offset costs.

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The government must show what the government interest is and how the interest is furthered. (This is just generally, I know it's a little more complicated than that.
That's only if they're restricting a right. That's the second problem, is that the argument is framed as an equal-protection argument. Governments have long been able to charge different fees based on location. Taxes in NYC are higher than anywhere else in NY, but that's constitutional because a person chooses to live there. The same argument applies to the firearm fee. So the equal-protection claim is DOA in my opinion.

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Assuming that the court would apply intermediate scrutiny using 1st amendment time, place, and manner decisions as a guide.

What is the important interest that NYC is asserting to justify the fee?

How does the fee substantially further that interest?
None of that matters because the existence of the fee was never challenged...only the fact that it was different between residents of NY and of NYC. THAT was the fatal flaw that I pointed out to Jensen from the very beginning.

And he STILL doesn't challenge the fee! He tries to do so as a second issue, but does so very poorly. He challenges the existence of a 340 reoccurring fee on the core 2nd Amendment right. But what the hell does THAT mean? Would a one-time fee be acceptable? Would a 10-dollar reoccurring fee be acceptable? Here's what he says...

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Because a “residence premises” handgun license is a prerequisite to exercising the “core” of one’s SecondAmendment rights, the City many not charge anything more than a nominal fee as a condition of issuing this license.
He's basically paving the way to have fees collected for doing nothing more than having a gun at home, when he should be challenging the very existence of a fee just to have a gun at home. That's why he's going to lose. And his loss is going to make it harder to have the fees eliminated.
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