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Old October 13, 2012, 08:35 AM   #26
Al Norris
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On Oct. 2nd, the City of New York requested oral argument time. The State filed their request for oral argument time on Oct. 5th.

Yesterday, Oct. 12th, David Jensen filed the reply brief, thus concluding the Merits Arguments phase of the appeals.

In this brief, Mr. Jensen does attack the process, if only indirectly, by referencing the circular arguments both the City and State use to justify the disparity of the fee.
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File Type: pdf CA2 Kwong Appellant Reply Brief.pdf (165.3 KB, 17 views)
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Old December 28, 2012, 10:43 AM   #27
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Are arguments before CA2 for this case set for 1/30/2013 ???
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Old December 28, 2012, 08:55 PM   #28
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That's correct.

Quote:
11/20/2012 70 CASE CALENDARING, for the week of 01/28/2013, PROPOSED.[773921] [12-1578]
12/04/2012 71 CASE CALENDARING, for argument on 01/30/2013, SET.[785534] [12-1578]
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Old January 8, 2013, 11:10 AM   #29
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The CA2 has been reset a date for oral arguments in Kwong: Feb. 1, 2013 at 9:30 am.
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Old January 18, 2013, 04:57 PM   #30
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Here's an interesting tidbit for you.

In the Kachalsky case, the Court ruled that while the licensing of public carry had a substantial effect in prohibiting the right to carry (which that panel acknowledges, exists), nevertheless, they used Intermediate Scrutiny in deciding in favor of the State.

As David Jensen writes, "Th[e] Court reasoned that there was "a critical difference" between laws that burden the ability to keep guns at home and laws that burden the ability to carry them in public. Thus inferring that because the City of New York has placed a substantial burden on the right to keep at home, by its extremely high fees. Therefore by the courts own admission (in Kachalsky) Strict Scrutiny now applies.

Yesterday, Jensen filed a 28J supplement in his Kwong case. This case is scheduled for oral arguments on Friday, Feb. 1.

We will get to see if (and how) the CA2 tries to squirm out of this corner they painted themselves into.
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Old February 1, 2013, 10:28 AM   #31
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I'm trying to understand this,

Jensen is saying that in Kachalsky the court applied Intermediate Scrutiny to public carry, and if Intermediate Scrutiny is applied in Kwong, the court would have to find that NYC's fees are - what? A prior restraint on a constitutional right ?

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Old February 1, 2013, 07:59 PM   #32
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I mailed a request for the Kwong oral argument tape today. I'll share when I get it.
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Old February 1, 2013, 11:22 PM   #33
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The orals for Moore v Madigan were on CA7's site... I guess every circuit does things differently?

Thanks for chasing down the orals for Kwong ...
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Old February 13, 2013, 09:58 AM   #34
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Has anyone been able to track down an MP3 of the oral arguments ?
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Old February 13, 2013, 10:39 AM   #35
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The CA2 does not make the audio "tapes" of oral arguments freely available to the public. They have to be ordered and paid for. Our friend, esqappellate, has already said that he has the "tapes" on order and will share them when he gets them.

IIRC, it took about a month to get the orals for Kalchalsky.
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Old February 13, 2013, 11:56 AM   #36
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Ugh... I thought a copy of the orals might pop up somewhere, aside from receiving tapes.

If I were president I'd make all the circuit courts tape and convert oral arguments into MP3 and post it in the case file - like CA7 does.

I can't wait to hear what they said.

IMO Kwong is a lot more important than most people think it is. If in the future we see anti-gun enclaves passing 3 and 4 hundred dollar permits just to possess a firearm, not even counting carry permit - and along with it surtaxes on purchasing a firearm and tax on ammo, people will see it for what it is. Whatever it may be called it will act as a restraint on the exercise of the Second Amendment.

Anyway thanks esqappellate. now that I know I have a 17 to 18 day wait, I'll sit quietly waiting for them to appear. Thanks for you efforts.
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Old March 16, 2013, 09:05 PM   #37
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Kwong oral argument tape

https://www.dropbox.com/s/gpcq56yfsk...%2C%202013.mp3

Please note that this link is for the entire day. Kwong argument is last and starts at 1:37

or try this link

https://dl.dropbox.com/u/18059404/Fe...%2C%202013.mp3

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Old March 16, 2013, 10:55 PM   #38
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Thank you for that, esqappellate.

Did I understand the court correctly? They appeared to be much more interested in the equal protection aspect (a first, as far as I can determine), than in a burdensome fee on a fundamental right!
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Old March 17, 2013, 10:07 AM   #39
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certainly one ljudge waa more interested in EP. The other demanded to know why 2A should be treated differently than votiing where no fee is permitted. That judge is skeptical of the state's reliance on cox and forsyth. Hard to call. Need to count heads and that's hard to do from just the tape
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Old March 17, 2013, 10:26 AM   #40
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Thanks so much !

I've been soooo looking forward to hearing this !
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Old March 17, 2013, 10:53 AM   #41
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I hear only two judges talking -- someone with better ears can probably do better. I hear one judge rejecting Forsyth (the judge with the halting speech) and I hear one judge buying into Forsyth completely but very troubled by the disparity between 10 and 340, which is the Ep argument. Did anyone hear a third judge?
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Old March 17, 2013, 11:17 AM   #42
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Can't tell if there's a 3rd judge -- the audio seems pretty poor.

Still, great to hear it -- thanks for the upload!
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Old March 17, 2013, 11:27 AM   #43
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Who invented the term "near-intermediate scrutiny" ?

I don't see that Judge David Hamilton uses that term in the Moore dissent.

It seems the term was just invented in Kwong.
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Old March 17, 2013, 11:41 AM   #44
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What I did come away with was that neither the State or the City counsel were prepared for the questions that the Judges asked them.

First time I've heard Jensen. While I don't know how many other orals he's done, he did appear much like Gura in his early orals with the Parker case.

Esqappellate, I also only heard 2 judges.

I wonder how this will turn out, with the Kachalsky decision hanging out there.
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Old March 17, 2013, 11:42 AM   #45
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7th circuit in ezell on range ban in chicago
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Old March 17, 2013, 11:48 AM   #46
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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.

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Old March 17, 2013, 12:19 PM   #47
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A note on what I meant with my quip on David Jensen.

I have watched and listened to Alan Gura, as he has gained in composure, competence and authority when speaking to the higher courts. I am seeing this same thing with David Jensen.

Public speaking, in any form, is a learned experience. Few have the immediate ease to speak in front of their peers, let alone their supposed superiors.

While I know it is foolhardy to extrapolate the outcome from oral arguments, this one does give some hope.
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Old March 17, 2013, 04:55 PM   #48
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I believe the term was near strict scrutiny, and the phrase was indeed coined in EZELL.
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Old March 17, 2013, 05:53 PM   #49
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Right,

Jensen says "...what the Seventh Circuit referred to as near strict scrutiny"
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Old March 17, 2013, 06:55 PM   #50
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I hope you don't mind esqappellate, I edited the MP3 and extracted only the Kwong orals:

https://www.dropbox.com/s/4xphyeik9p...%2C%202013.mp3
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