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  • kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    You cannot say that the party of the judge is not the causation either. All that we do know from the data is that there is a correlation between political party and the vote on 2A issues. It may be true that political party does cause the judge to vote the way they do on 2A issue, but that conclusion cannot be supported by just the correlative data supplied.

    Did you even read the study? Did you understand it? Do you understand what the p values it talks about represent?

    Is there some variable you're going to claim they didn't control for? Because that's the only way the correlation they show cannot be causation, given the p values they obtained.

    If the argument is the issue, then there could be several possible reasons

    If the argument were the sole issue then there would not be a near-100% probability of a difference in outcome on the basis of nominating party!

    Put another way, you have to answer why the arguments being made by plaintiffs are substantially more likely to sway a Republican-nominated judge than a Democrat-nominated judge. You can claim all you want that the judge's political stance is not the cause of the difference, but if you insist upon that then you have to provide alternative reasons that explain the probability difference, i.e. some difference in the judges themselves that explains the difference and that is not party. Your claim about the argument doesn't work here because the argument is being supplied equally to all of the judges in question, and is therefore a constant. Whatever the reason for the difference in outcome, it is a variable, not a constant.


    I happen to believe there are two additions that need to be added. You need to make the court understand that the government is really presenting correlations that do not demonstrate causation. You also need to make the court understand that the 2A is really about who provides public safety. The government cannot protect us and that the people themselves need to retain the ability to protect themselves.

    It is only speculative that doing that will work, particularly in light of the apparent fact that causation is not a precedential requirement for intermediate scrutiny, per our prior discussion here.

    I'll reiterate my question here: in light of the absence of precedent that demands that causation be shown, why should we believe that an argument that the government's data does not show causation will succeed where an argument that says that the government's data is invalid has not?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Did you even read the study? Did you understand it? Do you understand what the p values it talks about represent?

    Is there some variable you're going to claim they didn't control for? Because that's the only way the correlation they show cannot be causation, given the p values they obtained.



    If the argument were the sole issue then there would not be a near-100% probability of a difference in outcome on the basis of nominating party!

    Put another way, you have to answer why the arguments being made by plaintiffs are substantially more likely to sway a Republican-nominated judge than a Democrat-nominated judge. You can claim all you want that the judge's political stance is not the cause of the difference, but if you insist upon that then you have to provide alternative reasons that explain the probability difference, i.e. some difference in the judges themselves that explains the difference and that is not party. Your claim about the argument doesn't work here because the argument is being supplied equally to all of the judges in question, and is therefore a constant. Whatever the reason for the difference in outcome, it is a variable, not a constant.




    It is only speculative that doing that will work, particularly in light of the apparent fact that causation is not a precedential requirement for intermediate scrutiny, per our prior discussion here.

    I'll reiterate my question here: in light of the absence of precedent that demands that causation be shown, why should we believe that an argument that the government's data does not show causation will succeed where an argument that says that the government's data is invalid has not?

    I did read the study. I believe I understand it. The p value is a test of statistical significance to the null hypothesis. It is simply asking about the probability that the result is due to randomness. Statistically significant simply means it is highly unlikely that the result is due to randomness.

    https://en.wikipedia.org/wiki/P-value

    It certainly does not demonstrate causation. It simply means there is some kind of relationship, but not necessarily a causal relationship. Causation cannot be determined just from a p value.

    https://www.jmp.com/en_au/statistic...-is-correlation/correlation-vs-causation.html

    I don't believe I have ever said that the argument is the sole issue. It is the only issue that can be controlled. You cannot choose the political affiliation of the judge. You need to present arguments that address things in a way that steers the argument away from political arguments.

    I think you are misunderstanding what I have said about the precedential requirements for intermediate scrutiny. It certainly does establish a minimum standard which separates it from rational basis.

    I think the courts have done exactly what you have done. Looked at the evidence before it. They see the government presents evidence where they state it is statistically significant. They mistake correlation for causation, just like you did and conclude that the government met its requirement to demonstrate something above speculative evidence. I see the difference between the two as the difference between correlation and causation. Correlation is really speculation since you cannot definitively conclude that it is a cause.

    Guns are present in lots of criminal activity. You will find that guns are statistically significant with respect to crime. Does that mean guns cause crime or is it that criminals cause crime and they happen to use guns to accomplish the crime?

    This is what is happening. The way to stop it is to raise the issue of causation. Maybe you have a better proposal.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I did read the study. I believe I understand it. The p value is a test of statistical significance to the null hypothesis. It is simply asking about the probability that the result is due to randomness. Statistically significant simply means it is highly unlikely that the result is due to randomness.

    https://en.wikipedia.org/wiki/P-value

    It certainly does not demonstrate causation. It simply means there is some kind of relationship, but not necessarily a causal relationship. Causation cannot be determined just from a p value.

    That's true, but causation can be determined, at least to the degree that anything can be shown via any statistical analysis, from a p value combined with the absence of any variables which have not been controlled for.

    But whether there's true causation or mere correlation, the degree of correlation here is so high as to make the party affiliation highly dependable as a predictive mechanism, and that's all that really matters for the way most of us use it.

    In fact, the predictive power here is really the main point, and has been all this time: political party affiliation is a strong predictor of the outcome, much more so than the arguments themselves. Whether that affiliation causes the outcome isn't relevant.


    I don't believe I have ever said that the argument is the sole issue. It is the only issue that can be controlled. You cannot choose the political affiliation of the judge. You need to present arguments that address things in a way that steers the argument away from political arguments.

    Now that is absolutely correct.

    But it is not the litigants that decide which arguments are "political" and which arguments aren't. The judges do that. If a judge is biased, as the correlative data resoundingly suggests, how is one to overcome that bias with an argument when said judge has every reason to treat all arguments raised by plaintiffs as "political", and no reason not to?


    I think you are misunderstanding what I have said about the precedential requirements for intermediate scrutiny. It certainly does establish a minimum standard which separates it from rational basis.

    Yes it does, but that standard does not encode a demonstration of causation as a requirement, and neither does precedent. And that plainly means that there is no reason for a judge to demand a showing of causation when performing an intermediate scrutiny analysis, even when a litigant insists upon it.

    Most certainly, a showing of causation makes the intermediate scrutiny analysis stronger. But that's not the question here -- the question is whether or not such a showing is required for the law to pass such scrutiny. The absence of precedent clearly means it's not. And because it's not, there is nothing preventing a judge from declaring that a law passes intermediate scrutiny even when causation has not been shown and even when a litigant has raised the point that causation has not been shown.


    I think the courts have done exactly what you have done. Looked at the evidence before it. They see the government presents evidence where they state it is statistically significant. They mistake correlation for causation, just like you did and conclude that the government met its requirement to demonstrate something above speculative evidence. I see the difference between the two as the difference between correlation and causation. Correlation is really speculation since you cannot definitively conclude that it is a cause.

    The difference, and this is where the alternate data comes into play and why it's important, is that the correlation that the government shows is with respect to a small subset of the relevant overall data. As you yourself have noted, the government data is examining the behavior of criminals and extending that to the rest of the population, when it is the rest of the population, and not the criminal subset alone, that is targeted by the laws in question.

    This is qualitatively different from what we're doing with respect to the conclusions drawn about party affiliation versus judicial outcome. There, the sample set is representative of the relevant set as a whole.


    This is what is happening. The way to stop it is to raise the issue of causation. Maybe you have a better proposal.

    I agree with you, absolutely, that it's an argument that must be made. I said as much before, and raise the question of why we should believe that counsel for plaintiffs are not incompetent in light of the fact that they haven't (and that they seem to raise the same arguments repeatedly even though those arguments have lost in prior cases).

    But that does nothing to answer my fundamental question, which is: why should we expect it to work where presentation of more relevant evidence fails?

    There's a difference between saying that something needs to be tried, and that said something is likely to work. I agree with you on the former. But I see nothing to make me believe the latter.
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    You cannot determine causation from p values for most real world situations because it is simply not practical to gather all the data necessary to eliminate all possible variables.

    The correlation on the judges only works because the arguments remain the same.

    The litigant does decide which arguments are political based on how they make the arguments. You should understand before you make the argument how the other side will respond and make a educated guess as to how weak or strong each sides argument is. The more even the argument, the more the implicit biases show up. Conversely, the less even the argument the less these implicit biases show up. The really good lawyers tailor the argument to the individual judge's biases. One of the keys is to stop arguing the cases as an individual right vs public safety. 2A cases are all about who provides public safety. There is lots of precedent that demonstrates governments don't protect individual citizens. That should not be an even argument since there is really nothing the government can say other than we agree on that issue.

    You keep wanting to turn a grey issue into a black and white one with respect to intermediate scrutiny. Causation is not definitively in or out.

    The problem with alternative data is that the Courts do their best to defer to the legislature over political issues. Data centric problems with no right or wrong answer appear as a political issue to the court. Deferring to the legislature means a loss since they created the law in the first place.

    I see correlation vs causation as the equivalent of rational basis (correlative/speculative) vs intermediate scrutiny (causation). It makes the issue a legal one rather than a political one.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    You cannot determine causation from p values for most real world situations because it is simply not practical to gather all the data necessary to eliminate all possible variables.

    Fair enough, but as I said, what really matters is the predictive power of the model. Here, the statistical model involving judge party affiliation, whether or not it shows causation, yields accurate predictions better than any other that I've seen applied to the question.

    So what separates that from the question of predicting the behavior of those governed by the law? Simple. In the case of the judges, the people whose actions are being predicted are the judges, and the sample set is representative of the judges. But in the case of those governed by the law, the people whose actions are being predicted are the citizens while the data used for that is from criminals -- the latter is not a representative subset of the former, and that is what makes the use of the data invalid in that case.


    The correlation on the judges only works because the arguments remain the same.

    If you mean that the same arguments are used throughout all of the cases in question, as I said, I'm quite skeptical of that, given the sheer variety of cases involved.

    Maybe it's more accurate to say that it works only because a particular set of arguments have not been raised in any of them.

    Well, with respect to Duncan, I guess we're going to get to see on that, presuming the judges pay any attention to your quite excellent amicus brief.


    The litigant does decide which arguments are political based on how they make the arguments. You should understand before you make the argument how the other side will respond and make a educated guess as to how weak or strong each sides argument is.

    That only works if the judge in question is receptive to any arguments made by the side his political beliefs oppose with respect to the issue. But the problem here is this: the issue itself is political. That much is clear just based on the stances of the political parties. When the issue itself is political, how can you formulate any kind of argument at all that won't be regarded as "political" by a judge who is inherently opposed to the very thing you're arguing in favor of?


    The more even the argument, the more the implicit biases show up. Conversely, the less even the argument the less these implicit biases show up. The really good lawyers tailor the argument to the individual judge's biases.

    That's fair as far as it goes, but how do you tailor an argument to an individual judge's biases when those biases are against the very thing you're arguing for?


    One of the keys is to stop arguing the cases as an individual right vs public safety. 2A cases are all about who provides public safety. There is lots of precedent that demonstrates governments don't protect individual citizens. That should not be an even argument since there is really nothing the government can say other than we agree on that issue.

    I completely agree.


    You keep wanting to turn a grey issue into a black and white one with respect to intermediate scrutiny. Causation is not definitively in or out.

    But that's my point. It's not definitively in or out which makes it the judge's choice. And seeing how it's the judge's choice, why should the judge go against his own inherent bias when deciding whether or not causation should be a necessary precondition for deciding the issue in favor of the government by way of intermediate scrutiny?


    The problem with alternative data is that the Courts do their best to defer to the legislature over political issues. Data centric problems with no right or wrong answer appear as a political issue to the court. Deferring to the legislature means a loss since they created the law in the first place.

    That's true, but think it through. The legislature doesn't just decide on the data to use, it decides on the standards that their use of the data needs to adhere to as well. Put another way, it's not just the set of data that is political, it's whether or not causation needs to be shown by the data as well, precisely because the government went ahead with the legislation despite the data not showing causation.

    Indeed, I think one can successfully argue that all decisions, both implicit and explicit, behind the passage of a law are political. And how can it be otherwise, seeing how it is politicians, and not the practitioners in other fields, that make the decisions about what laws to pass in the first place? Seen through that lens, every challenge to a law is political as well -- it just happens through a different system (the legal system). Given that, why would a judge view any argument that is used for the purpose of promoting a position that conflicts with his own political views as anything other than political, irrespective of the argument itself?


    I see correlation vs causation as the equivalent of rational basis (correlative/speculative) vs intermediate scrutiny (causation). It makes the issue a legal one rather than a political one.

    How is it legal versus political, and not just political, when both the data and the standard are selected by the legislature when deciding what legislation to craft?
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I believe that most judges are receptive to reasonable argument. You should not used the legal system if you don't believe this. As you appeal the case there are more judges involved, which minimizes the chance that any one judge is not receptive to reasonable arguments.

    The issue is not really political. It seems political because everyone keeps insisting that the issue is purely about an individual right and that public safety should always defer to the right (what part of shall not infringe do you not understand?). This is why I believe it is important to frame the issue around public safety. You need to include the self defense of the public as part of the public safety issue. This contribution is ignored if you frame the issue as a purely individual right. There is no apparent downside to taking away the individual right because you have failed to argued the contribution of individuals is important to public safety. The other side favors public safety. Why do you want to ignore the very issue that these judges value?

    Legislatures certainly do not have to meet any level of scrutiny when making laws. Judges do have to uphold a certain level of scrutiny when they review the laws in question. They have routinely struck down those laws that do not meet the appropriate level of scrutiny. The determination of which level of scrutiny is a legal issue that is based on constitutional issues. Rejecting unconstitutional laws is one of the checks and balances incorporated into our system. Judges do not see judicial review as a political process, it is a legal one. They do not want to make political decisions because these functions are vested in the legislature. It is a separation of powers issue.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The attorney also cited 30 states that had restrictions on openly carrying firearms in the early 20th century to support Hawaii’s argument that these laws are longstanding, a factor the Supreme Court in Heller said should be considered when determining the constitutionality of gun restrictions.

    I'm curious what 30 states he's referring to and what exactly he means by "restrictions"; is he saying open carry was banned, required a license, or merely you couldn't open carry in every place at every time?

    I find it likely it's the latter which is extremely misleading to the court. It's the typical strawman argument the antis use time and time again. They'll say (as in this case) that plaintiff wants to open carry in public with zero time and place and manner restrictions which is simply false. I believe Hawaii still has off limits places and restrictions even if someone has the "theoretical" permit in hand.

    Here's one complete misleading by Hawaii's counsel on their briefing referring to an 1843 NC case:In 1843, the
    North Carolina Supreme Court explained that “[a] gun is an ‘unusual weapon’ ” at
    common law, because “[n]o man . . . carries it about with him, as one of his every
    day accoutrements.” Huntly, 25 N.C. at 422. Furthermore, it explained that
    firearms were deemed to cause a terror whenever they were carried without “any
    lawful purpose.”


    But let's look at the whole paragraph in full context:

    It has been remarked that a double-barrel gun, or any other gun, cannot in this country come under the description of "unusual weapons," for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an "unusual weapon," wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements--as a part of his dress--and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State, as an appendage of manly equipment. But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun, per se, constitutes no (p.423)offence. For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.


    In addition the NC Supreme Court almost 80 years later in State v. Kerner (1921): https://guncite.com/court/state/107se222.html
    This is, I think, the correct principle, and it appears to me the constitutional privilege is infringed by the act under which the defendant is indicted, as it makes one guilty of a violation of law who carries a pistol off his own premises openly and for a lawful purpose without a permit, and he is required to pay $5 and to give a bond in the sum of $500 before the permit can issue.
     

    G O B

    Ultimate Member
    Nov 17, 2007
    1,940
    Cen TX
    I cannot understand why "preexisting right" is not our first argument.The whole Magna Carta thing. Wasn't English common law and those rights, generally accepted as preexisting rights by the framers?
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    I cannot understand why "preexisting right" is not our first argument.The whole Magna Carta thing. Wasn't English common law and those rights, generally accepted as preexisting rights by the framers?

    That's why the anti states always include an out of context misinterpretation of the Statute of Northampton as part of their arguments.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I believe that most judges are receptive to reasonable argument. You should not used the legal system if you don't believe this. As you appeal the case there are more judges involved, which minimizes the chance that any one judge is not receptive to reasonable arguments.

    Save for getting the legislature to reverse itself, the legal system is the only mechanism available for overturning laws. Even in the face of a hostile judiciary, the probability of overturning a law through the legal system is well beyond the probability of having it repealed at the legislative level. But even if it weren't, the probabilities are additive, which means the proper game theoretical move is to attempt to get it repealed through the legal system even if one is likely to fail in doing so.

    As such, what one believes about the judges involved is irrelevant to whether or not one should use the legal system to attempt to overturn a law.


    The issue is not really political. It seems political because everyone keeps insisting that the issue is purely about an individual right and that public safety should always defer to the right (what part of shall not infringe do you not understand?). This is why I believe it is important to frame the issue around public safety. You need to include the self defense of the public as part of the public safety issue. This contribution is ignored if you frame the issue as a purely individual right. There is no apparent downside to taking away the individual right because you have failed to argued the contribution of individuals is important to public safety. The other side favors public safety. Why do you want to ignore the very issue that these judges value?

    What makes you believe the judges actually value real-world public safety, in light of the fact that the judiciary has repeatedly said that the government has no duty to protect individuals? If the judiciary really valued public safety and really believed that public safety wasn't just some nebulous conceptual construct, it would have very clearly insisted that the government must protect individuals in order to protect the public at large.

    But it didn't. Instead, it seemingly insists that public safety is some nebulous thing that is completely separate from individual safety.

    In light of all of the questions of public safety that have been raised to the court, I'm quite skeptical that nobody has ever raised the argument that public safety has the aggregate of individual safety as a major component. It's possible, of course, but I remain skeptical anyway.

    And actually, this makes me wonder if the courts have ruled that the government has a duty to public safety at all. It's one thing to claim that a law is necessary to improve public safety, and that the government has an interest in public safety. It's quite another to claim that the government has a duty to public safety. If the courts have claimed that the government has a duty to public safety, which cases make that claim?


    Legislatures certainly do not have to meet any level of scrutiny when making laws. Judges do have to uphold a certain level of scrutiny when they review the laws in question.

    That's not the point. The point is that the specific requirements for the use of evidence is something that is itself a political decision, just as you say the selection of evidence is. You can't have it both ways. Either both are political as a result of the fact that the legislature made decisions involving them, or neither are. You've used the claim that the selection of evidence by the legislature makes the selection of evidence a political decision in order to bolster the notion that the judiciary views the presentation of alternative conflicting evidence as a political argument. I'm merely showing that the very same is true of how that evidence is used.


    They have routinely struck down those laws that do not meet the appropriate level of scrutiny. The determination of which level of scrutiny is a legal issue that is based on constitutional issues. Rejecting unconstitutional laws is one of the checks and balances incorporated into our system. Judges do not see judicial review as a political process, it is a legal one. They do not want to make political decisions because these functions are vested in the legislature. It is a separation of powers issue.

    True as that may be, that misses the point entirely with respect to the specific requirements of scrutiny. Yes, the judges use a method of scrutiny to determine whether or not the law survives, but it's not just that they use a method of scrutiny that matters, it's how they use it as well that determines the outcome. Here, we're talking about how it's used. Your claim is that part of how it's used (the decision of what evidence is valid for the determination) is deemed by the judiciary as a political decision, and my point is that the methods applied to the selected evidence are as much of a political decision as the selection of evidence is -- and for the very same reasons. And in light of that, there's no reason to believe that an argument over the interpretation of the evidence will be viewed as any less political than an argument over the applicability of the evidence.
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    You are failing to account for precedent in your game theory. It represents a large negative reason because the next case is not going to be looked at objectively anymore. You now need to distinguish how that loss is somehow different from the case you are bringing otherwise the court will automatically rule against the new case for no other reason that it is now settled law.

    Judges value precedent. It is precedent that the government has no duty to protect individuals. Therefore judges value that precedent. As I keep saying, judges evaluate the arguments presented. I have not found any 2A case that raised this issue. All the cases I have read (numerous) briefs/opinions that have the plaintiffs conceding that public safety is an important or compelling government interest. I have never seen this interest articulated as a duty however.

    There is a difference between how a legislature operates and how a judiciary operates. The legislature is inherently political. That is the legislature's job. The judiciary try and stay out of political decisions as much as possible. The judiciary base their decision on legal reasoning and supply a written opinion that can be critiqued.
     

    CrueChief

    Cocker Dad/RIP Bella
    Apr 3, 2009
    2,999
    Napolis-ish
    So I guess from a layman's perspective, why are all the recent 2A cases argued the same way if the ones before have failed? It would seem logical to me to take a different approach if I wanted a different outcome, right? Could be that our side needs to get organized like the antis' are that might help us get a few more wins. After all the anti's all use the same BS talking points and we can never seem to get an organized push back of them no matter how weak the talking points are.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Probably futile to point out the obvious . . . anyhow for grins and giggles:

    The 2A seems complicated only to those who assign credibility to the emotion driven opinions of those Democrat Judges/Justices who feel the 2A ought to mean what they feel it ought to mean. Ostensible deference to a legislative body, purported precedent, cherry – picked facts, and superficial reasoning are no more than camouflage for emotionally influenced interest- balancing (safety v 2A) opinions supporting gun control. If you don’t agree . . . look at the definitions of “balancing test “ and “subjective” below . . . then think about the ramifications.

    Note that balancing (by definition) is a subjective undertaking where “personal feelings” play an integral role in the process. The record shows that for the last decade those Democrat judges who wished to turn their personal opinions about the 2A into Law have missed no opportunity to use interest-balancing (in defiance of Heller/McDonald) to do so. The Republican Justices (excepting Kennedy/Roberts) have all dissented to a 2A cert denial and/or the mooting of the NY case. The ongoing open 2A rebellion of almost all lower court Democrat Judges who feel the 2A is dangerous was enabled by the Kennedy/Roberts wimp out.*

    The fact that the govt. is not responsible for each individual’s safety, nor what statistics show, nor failure to show a causal connection between gun control laws and public safety, will outweigh the government’s alleged public safety reasons for restrictive 2A legislation in the minds of those Judges who feel gun control is a good idea. Put another way, in a 2A case: (a) What the evidence (beyond any reasonable doubt) shows. (b) Nor any controlling precedent. (b) Nor any supporting argument (no matter how persuasive) will change the 2A feelings of Democrat Judicial appointees.**

    Stripped of decoration and reduced to essential fundamentals . . . the respective basic, core, approaches are outlined below:

    (1) Trump appointees & most Republican judges/justices: ***
    (A) Text? “hall not be infringed.”
    (B) History? What does the record show?
    (C) Tradition? What does the record (including “longstanding prohibitions”) show?

    (2) Democrat appointees & a few Republican judges: ****
    (A) Interest-balancing Safety v. the 2A. - concede to the legislature.
    (1) Scrutiny (all three levels) How do I feel about gun control?
    (a) Safety, (public & personal) Do I feel guns are dangerous?

    Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (b) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (c) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent. *****

    Regards
    Jack

    *Where is the literature supporting the theory the SC is waiting for a properly postured (“argued”) 2A case ? - The below articles show the exact opposite, i.e., the four Republican Justices who support Heller/McDonald have (because of the Kennedy/Roberts block) been unable to muster five votes:

    The Court Is Not the Ally Gun-Rights Advocates Wanted It to Be
    https://www.theatlantic.com/ideas/a...lly-gun-rights-advocates-wanted-it-be/613105/
    Roberts has gone full Anthony Kennedy
    https://www.washingtonpost.com/opin...40fd6a-bbdd-11ea-bdaf-a129f921026f_story.html
    The Supreme Court and its big Second Amendment problem
    https://thehill.com/opinion/judiciary/376284-the-supreme-court-and-its-big-second-amendment-problem
    Justice Breyer's Triumph
    https://heinonline.org/HOL/LandingPage?handle=hein.journals/gwlr80&div=22&id=&page
    Partial Win For Gun Regulation
    https://www.npr.org/2020/04/27/8465...ulation-at-supreme-court-could-be-short-lived
    Supreme Court justices who favor gun rights fear . . .
    https://theindependent.com/opinion/...cle_5bc3d6e2-b0d0-11ea-b450-bbd973e3cc33.html

    ** kcBrown pointed out the basic problem 5 years ago: “I looked at 18 appellate-level 2nd Amendment cases back in 2015 and found that Democrat-appointed judges sided against the right 100% of the time (and that was in 2015, when things were less polarized than they are today.)”
    https://www.calguns.net/calgunforum/showthread.php?t=1335810&page=80 post 3176

    ***
    “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Judge (now Justice) Kavanagh dissenting in Heller 11. 670 F 3d 1211 at 1271, or see
    https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf at pages 5, 24, 25 of the Kavanagh dissent.

    “[T]he widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald.” See pages 30 thru 32 of Judge Matey’s dissent in Ass’n of N.J. Rifle & Pistol Clubs, Inc. https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions . . . .” (54) “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach.” (62 63) Heller - quotes from the majority.
    https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/

    “Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications. We likewise reject municipal . . . .” https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf McDonald, Opinion of the Court, page 36 paragraphs 2 and 3.

    ****
    Balancing test: “A subjective test with which a court weighs competing interests . . . to decide which interest prevails.”
    https://www.law.cornell.edu/wex/balancing_test

    Subjective: “Influenced or based on personal feelings rather than facts.”
    https://dictionary.cambridge.org/us/dictionary/english/subjective

    A “subjective” example (while supposedly not “balancing”): “If a ban on . . . large capacity magazines makes the public feel safer . . . that is a substantial benefit.” Judge Easterbrook (Regan appointee) in Friedman v. Highland Park.
    https://www.scotusblog.com/wp-content/uploads/2015/10/Highland-park-op-below.pdf at page 11.

    *****
    Article III | U.S. Constitution:
    “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
    https://www.law.cornell.edu/constitution/articleiii
     
    Last edited:

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    You are failing to account for precedent in your game theory.

    No, I'm not. A law which is not challenged in the courts is one that automatically stands. In the absence of legislative relief, failure to challenge a law in the courts means a probability of zero of overturning the law.

    Now, you can obviously argue that the probability of success in the courts would be maximized by carefully choosing which laws to challenge, or the sequencing of those challenges, but that's an optimization function. It does not affect the game theoretical question overall as to whether to challenge the law.


    It represents a large negative reason because the next case is not going to be looked at objectively anymore.

    Then that is a failure of the judiciary. The judiciary is tasked with always looking at all cases objectively. Precedent must never under any circumstances override correctness. The Constitution, not precedent, is the supreme law of the land. If a prior case gets the Constitutional answer incorrect, or would cause the court to arrive at the wrong Constitutional answer, then that case is invalid precedent and that's that, precisely because no case can legitimately override the Constitution.


    Judges value precedent. It is precedent that the government has no duty to protect individuals. Therefore judges value that precedent.

    Whether it's precedent, or something else, that causes judges to fail to value true public safety is irrelevant. They fail to value true public safety all the same, and that's all that matters for my argument.


    As I keep saying, judges evaluate the arguments presented. I have not found any 2A case that raised this issue.

    And I do not doubt you on this. But it's not enough to say that there are no 2A cases that raise the issue, one has to say that there are no cases anywhere at all that raise the issue. And on that, I'm deeply skeptical. But not skeptical to the point of disbelief.


    All the cases I have read (numerous) briefs/opinions that have the plaintiffs conceding that public safety is an important or compelling government interest. I have never seen this interest articulated as a duty however.

    If the government does not have a duty to public safety, but has an "interest" in public safety, then it can make laws on the basis of public safety or not at its whim. Likewise, it can act on the basis of public safety, or not, at its whim.

    This does make me wonder whether this is something that might be used as an argument against the government's position.


    There is a difference between how a legislature operates and how a judiciary operates. The legislature is inherently political. That is the legislature's job. The judiciary try and stay out of political decisions as much as possible. The judiciary base their decision on legal reasoning and supply a written opinion that can be critiqued.

    But the question of whether or not causation must be shown is not a legal question. Anything that isn't a legal question, it seems, is automatically a political one as far as the judiciary is concerned. As such, the question of whether or not causation needs to be shown is a political one, since it's not a legal one.

    What would make it a legal question, and not a political question?
     
    Last edited:

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Probably futile to point out the obvious . . . anyhow for grins and giggles:

    The 2A seems complicated only to those who assign credibility to the emotion driven opinions of those Democrat Judges/Justices who feel the 2A ought to mean what they feel it ought to mean. Ostensible deference to a legislative body, purported precedent, cherry – picked facts, and superficial reasoning are no more than camouflage for emotionally influenced interest- balancing (safety v 2A) opinions supporting gun control. If you don’t agree . . . look at the definitions of “balancing test “ and “subjective” below . . . then think about the ramifications.

    Note that balancing (by definition) is a subjective undertaking where “personal feelings” play an integral role in the process. The record shows that for the last decade those Democrat judges who wished to turn their personal opinions about the 2A into Law have missed no opportunity to use interest-balancing (in defiance of Heller/McDonald) to do so. The Republican Justices (excepting Kennedy/Roberts) have all dissented to a 2A cert denial and/or the mooting of the NY case. The ongoing open 2A rebellion of almost all lower court Democrat Judges who feel the 2A is dangerous was enabled by the Kennedy/Roberts wimp out.*

    The fact that the govt. is not responsible for each individual’s safety, nor what statistics show, nor failure to show a causal connection between gun control laws and public safety, will outweigh the government’s alleged public safety reasons for restrictive 2A legislation in the minds of those Judges who feel gun control is a good idea. Put another way, in a 2A case: (a) What the evidence (beyond any reasonable doubt) shows. (b) Nor any controlling precedent. (b) Nor any supporting argument (no matter how persuasive) will change the 2A feelings of Democrat Judicial appointees.**

    Stripped of decoration and reduced to essential fundamentals . . . the respective basic, core, approaches are outlined below:

    (1) Trump appointees & most Republican judges/justices: ***
    (A) Text? “hall not be infringed.”
    (B) History? What does the record show?
    (C) Tradition? What does the record (including “longstanding prohibitions”) show?

    (2) Democrat appointees & a few Republican judges: ****
    (A) Interest-balancing Safety v. the 2A. - concede to the legislature.
    (1) Scrutiny (all three levels) How do I feel about gun control?
    (a) Safety, (public & personal) Do I feel guns are dangerous?

    Any credible rebuttal (a) cannot be based in math, or law, (b) cannot be other than safety driven, (b) can have no reference (or link) to squarely in point, controlling, language rebutting the Heller/McDonald rejection of safety v. 2A balancing, (c) and cannot concede that Heller (2008) and McDonald (2010) are binding precedent. *****

    Regards
    Jack


    Jack, You are wrong.

    Scrutiny is not a balancing test because they do not balance anything. They are simply determining the relationship the law has with a government interest. The right plays no role in the process once a level of scrutiny is selected.

    The lower courts believe that they are applying intermediate scrutiny. Where do the denied cert petitions describe why the lower courts are misapplying intermediate scrutiny? The problem is that these cert petitions don't describe why the lower court is wrong, which is why the cert petitions are denied.

    Heller clearly states that the DC law would not meet intermediate scrutiny. The problem with Heller is that it can be read to say several different things.

    The real problem is that the plaintiffs are making it easy for the courts to reach the decisions they do by the arguments they make. They also do not explaining why the lower courts are getting things wrong.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    No, I'm not. A law which is not challenged in the courts is one that automatically stands. In the absence of legislative relief, failure to challenge a law in the courts means a probability of zero of overturning the law.

    Now, you can obviously argue that the probability of success in the courts would be maximized by carefully choosing which laws to challenge, or the sequencing of those challenges, but that's an optimization function. It does not affect the game theoretical question overall as to whether to challenge the law.

    If you challenge the law incorrectly there is zero chance of overturning the law also. Subsequent challenges may be close to zero because of the previous challenge.

    Then that is a failure of the judiciary. The judiciary is tasked with always looking at all cases objectively. Precedent must never under any circumstances override correctness. The Constitution, not precedent, is the supreme law of the land. If a prior case gets the Constitutional answer incorrect, or would cause the court to arrive at the wrong Constitutional answer, then that case is invalid precedent and that's that, precisely because no case can legitimately override the Constitution.

    It is not a failure of the judiciary. It is part of our common law the legal system. It is more important that law be settled than it be settled correctly.

    Whether it's precedent, or something else, that causes judges to fail to value true public safety is irrelevant. They fail to value true public safety all the same, and that's all that matters for my argument.

    And I do not doubt you on this. But it's not enough to say that there are no 2A cases that raise the issue, one has to say that there are no cases anywhere at all that raise the issue. And on that, I'm deeply skeptical. But not skeptical to the point of disbelief.

    Failure to make the argument is why judges fail to value true public safety. You are more than welcome to point to a case that does make that argument. I have read lot of them, but have not read every single one.


    If the government does not have a duty to public safety, but has an "interest" in public safety, then it can make laws on the basis of public safety or not at its whim. Likewise, it can act on the basis of public safety, or not, at its whim.

    This does make me wonder whether this is something that might be used as an argument against the government's position.

    That is the prerogative of the legislature. They can choose to make a law on the subject or not.

    But the question of whether or not causation must be shown is not a legal question. Anything that isn't a legal question, it seems, is automatically a political one as far as the judiciary is concerned. As such, the question of whether or not causation needs to be shown is a political one, since it's not a legal one.

    What would make it a legal question, and not a political question?

    Figuring out if there is a substantial relationship between the law and public safety is the legal question. There are lots of ways to prove and disprove this. Causation is one way. This does not mean that causation is not part of this legal question. It certainly is part of that legal question if is part of how to prove or disprove the relationship.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    If you challenge the law incorrectly there is zero chance of overturning the law also. Subsequent challenges may be close to zero because of the previous challenge.

    That's true, but because there's no way to know in advance whether or not a given challenge will be done so correctly (in large part because such correctness cannot be determined in advance in part because it is a function of the fit between the argument and the sentiments of the judge(s) hearing it, and the latter cannot be known in advance of the decision to raise the challenge), and thus the question of success or failure is itself probabilistic, the overall probability is nonzero when a challenge is raised while the overall probability is zero if it is not raised.


    It is not a failure of the judiciary. It is part of our common law the legal system. It is more important that law be settled than it be settled correctly.

    That is no excuse. It may be reasonable to use precedent to make a decision in the absence of any ability to otherwise decide the case correctly, but here precedent is overriding correctness, not merely filling in when correctness is unavailable. It's better to decide cases on a coin toss than to decide them on the basis of incorrect precedent, because at least the former gets you a 50% chance of getting it right, whilst the latter gets you a 0% chance of getting it right.

    And common law or not, the Constitution, not common law, is the supreme law of the land. It doesn't matter that common law places higher priority on the settlement of cases than on the correct settlement of cases, settlement of cases in such a way that they get the Constitutional answer incorrect is plainly unauthorized, for to do so is to allow a violation of the supreme law of the land, something the judiciary is not authorized to do.


    Failure to make the argument is why judges fail to value true public safety. You are more than welcome to point to a case that does make that argument. I have read lot of them, but have not read every single one.

    If you've read a bunch of cases involving "public safety" in other arenas than 2A, and have nonetheless failed to find any that argue the nature of public safety itself (namely, that it has an aggregate component), then it may be that there is no such case.


    Figuring out if there is a substantial relationship between the law and public safety is the legal question. There are lots of ways to prove and disprove this. Causation is one way. This does not mean that causation is not part of this legal question. It certainly is part of that legal question if is part of how to prove or disprove the relationship.

    Okay, but here's the problem: demonstration of causation on the basis of evidence requires two elements, not just one:

    1. The appropriate evidence
    2. The proper methods applied to that evidence

    The first element is exactly what plaintiffs have already been arguing, and the courts have decided that it is political. If the courts have decided that one element of evidence-based correctness is political, why in the world wouldn't they decide the same thing about the other element?

    Put another way, plaintiffs have already been arguing that causation has not been shown, by arguing that the evidence used for that purpose was inappropriate. The courts have responded to this by implicitly declaring that the selection of evidence is a political issue and beyond their reach. But if one necessary component of a showing of causation is a political question beyond the reach of the courts, why should the other necessary component not likewise be a political question beyond the reach of the courts? Stated that way, the courts have no choice but to accept as valid and true the totality of the government's evidence-based argument precisely because any argument that causation has not been shown is a political one.

    I see no way past that. Your argument needs to be raised, but I see no reason in the slightest to expect that it will succeed where past arguments about causation have failed.
     
    Last edited:

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    There is a way to know in advance whether or not a given challenge will be done so correctly. It is called look at other cases. In terms of AWB, you have Kolbe, NY, CT, Highland Park etc. All you really needed to do is look at Heller II to see how the court will rule. Why should the court reach a different conclusion? You have made something that had a slight chance and turned it into something with zero chance.

    A number of people argue that the Constitution is based on the common law. The constitution certainly does not spell out in detail what everything means. Our legal history is based on the common law that fills in the details. Do you believe the 1A only applies to congress, because that is what the text says.

    I certainly have read cases involving the 1A and the 4A, where public safety is used to restrict those rights in certain circumstances. I can't say that I have read every single one.

    If the plaintiffs want to challenge the evidence via causation, then they need to challenge the evidence directly. They have not challenged the evidence directly. They have challenged it indirectly, which makes the challenge appear to the court as a political challenge (two valid opinions). Challenging the evidence directly creates a legal question of whether the evidence that the government supplied is valid. If the government does not supply valid evidence then the law will not pass scrutiny.
     

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