We have one judge openly skeptic about the State's burden argument. One judge openly in favor of the state's burden argument but searching for an answer on the EP claim and troubled by the disparity. Will turn on the 3d judge and on which theory will claim a majority. I could see a win on the burden point and a concurring opinion on EP, or vice versa. I don't see the judge who was skeptical of the state on burden as going along with affirmance So we have one judge.
Jensen did ok, btw. I would have done it a bit differently and said things he did not, but second guessing is easy after argument. The big distinction between this case and Forsyth is that in that case there were reasonable alternatives to the 1st amendment activity to communicate. Here NY bans possession in the home without the permit. And there is no core 1st amendment right to have a parade on city streets. All the 1st caselaw is trending away from allowing taxing rights in cases other than parades. If we lose, this has SCT written all over it.
Last edited by esqappellate; March 17, 2013 at 11:58 AM.