Jackson v. City & County of San Francisco

[kcbrown]

kcbrown, I think I figured out your reading and comprehension problem. You like to use non-standard definitions. We wind up talking about different things, thinking we are talking about the same thing.

That is possible. We'll see.

Public safety is an aggregated effect, yet you also refer to its individual components as the same thing.

Ah, yes, this is true, and a very good point. You're thinking that when I say ∆S, I'm referring to the individual effect only. And that's true. My problem is that I misstated how that relates back to public safety.

That means my formula really ought to be:

P' = P + ∑(∆S) + ∑(∆O)

Assuming, of course, that ∆O also needs aggregation (if it does not, then omit the aggregation function for it in the above).

You make a good point here, but it doesn't change my original assertion one bit.

What is ironic about this is that you insist that "you cannot divorce the aggregate from the individual" yet you do exactly that with public safety.

If that's what I'm doing, then it's not my intent. I'll have to revise the formulas to reflect the aggregation. See above.

Can you help me understand the importance that changes to "self defense" always effect the "self defense" portion of public safety. Given that other things impact public safety (aggregate), the total effect on public safety may be dominated by those other factors.

That is certainly possible, of course, but the problem here is that self-defense is the foundation of a fundamental Constitutional right. That automatically gives it massive importance over and beyond other things that impact public safety that themselves do not have the same stature.

I understand your point about an aggregated "self defense", but the definition of self defense is not an aggregated effect.

Right. Self-defense is an individual thing, with effects to it measured individually first, and then aggregated after.

It is a really important concept when understanding the courts interest balancing approach. I may be easier to understand it with respect to other individual rights like the first amendment. What is the difference in the individuals first amendment rights vs the aggregated right? I would contend that there is no appreciable difference because there are no (substantial) additional benefits to the aggregated right.

But that's not so at all. The first amendment right to speech is something that, just like with self-defense, yields an effect on others even if what is being considered is with respect to the individual who wishes to engage in speech. When a person is unable to engage in speech, it means he is unable to reach an audience, which means that everyone in his audience is affected by the restrictions on that specific person's speech.

I think the two may be closer to each other than you think.

The second amendment is very different, there is a substantial benefit with the aggregated right. When you apply a test that does not take this aggregated effect into account you will get the wrong answer because you are essentially ignoring its effects. When I am talking about an interest balancing approach, I am talking about balancing the aggregated effects, not the individual one articulated by the court.

OK, let's explore that a bit, because I think you may have a valid point here, depending on your answers.

What exactly do you mean by the "aggregated right"? How would you measure it, if not as an aggregate of the individual effects? How does it compare with the "collective right" approach that was explicitly overturned in Heller? How does it fit in with the decision that the right to arms is an individual one?

Your definition of "dangerous" is another example of an non-standard definition. I see no indication in the dictionary (standard) definition that "one must go out of their way" for it to be considered dangerous. By that definition this sign is dangerous.

LOL! That's an awesome sign!

The question you should be asking yourself is whether or not the objects that meet the criteria I specified are in any way inconsistent with the definition. I do not see how they would be. It is precisely because interaction with them -- that, but for luck or training or the aforementioned care, would result in injury -- is easily accomplished to the point that accidental injury is a substantial concern. Since one of the definitions is "able or likely to cause injury, pain, harm, etc.", it follows that the objects I speak of are fully compatible with the definition of "dangerous".

I did not at all intend to mean that such objects were the only objects that are "dangerous", and I alluded to that in the part you're referring to. And while I cannot think of any objects which are dangerous only when interacted with but which do not require that one go out of his way to ensure that harm does not come to another when they interact with the object, I suppose it's possible that such objects exist. Regardless, the objects with the characteristic I outlined most certainly qualify as "dangerous", and firearms are included in that set.

So you haven't really done anything to address my primary argument, which is that firearms qualify as "dangerous" objects by the commonly understood definition of the term, the use of "dangerous" as a term applied to objects is in the common vernacular, and therefore you will be laughed out of the courtroom if you attempt to argue that firearms are not "dangerous".

When I said concealed carry is too dangerous, I was paraphrasing. You understand the criminal part, but you fail to understand the part where it does not "contribute to public or personal defence" That is what makes it dangerous.

Except that the evidence shows quite the opposite. Concealed carry does contribute to personal defense, as evidenced by the numerous times that concealed carriers have avoided injury or death by deploying their firearms. Of course, one can make the same argument about open carry, too.

Furthermore, you make the mistake of presuming that if something doesn't "contribute" (i.e., improve), then it must make it worse (e.g., be "dangerous"). But that doesn't follow from carry of firearms at all. If a person carries around a firearm and otherwise never touches it, except to remove the holster and put it on, then it won't even have an effect arising from accidents. However, that is clearly a somewhat low-probability thing. People will be manipulating the firearm from time to time, if only to take it out of and put it back into a safe or something.

That said, yes, accidents from firearms are clearly a public safety concern. The question clearly has to be how much.

I am not trying to dispute that in today's world there is substantial benefit to concealed carry, I am disputing that the historical analysis (which does not take into consideration today's standards) would allow concealed carry. The people back then would not carry concealed because it was not an honorable way to carry.

Oh, I agree for the most part. But just as the people back then didn't have the internet, and yet historical analysis of the right to speech still yields the basic principle that what is important to protect is the ability to communicate, so too does an historical analysis of carry yield the basic principle that what is important to protect is the ability to carry itself.

One other thing, as regards the historical analysis. You talk about how people back then would not carry concealed because it was not an "honorable" way to carry. But I don't think that's quite the right nuance to take away from the analysis. No, the people back then would not carry concealed because they believed that concealed carry was indicative of ill intent, and thus it made them uneasy. Fast forward to today. Today, much of the population regards open carry as indicative of ill intent. So if one is to take away a basic principle from all of that, it's that it's permissible to ban the form of carry that would place the public at unease.

I am not going to get into an argument about whether Peruta specifically used the term concealed carry. Peruta does not address the question of open carry. The ordinance that he is challenging is the right of the sheriff to issue concealed carry permits. This is due to the fact that CA law does not allow open carry. The circuit court ruling takes into account today's standards with respect to concealed carry. The dissent is stating that Heller requires the historical analysis, which would not allow concealed carry.

Then your contention must be that the 9th Circuit would strike the open carry ban. Right? Anything else means that the 9th Circuit is actually intent on burying the right to carry.

Woollard is different. The 4CA used the wrong interest balancing approach (see above). The court also found that the right could be exercised without the permit in a few limited places, which was acceptable using this incorrect interest balancing approach. I personally believe that if the correct interest balancing approach is used the MD laws would be found unconstitutional.

That is possible, of course. But what specific interest balancing would you suggest? The one mentioned by Breyer in his dissent in Heller, perhaps? One would think not, seeing how it was explicitly enjoined in Heller.

Your logic is simply based on the premise (A->A) A="such reevaluation is necessary only if the prevailing belief is that the panel got it wrong", "the decision is incorrect as well" is the same thing as saying the "panel got it wrong" (A->A), "decision like this one that is incorrect is one that must be reversed" is saying the same thing (A->A). There is no deductive logic, you are only restating your premise.

No, I'm not. By "got it wrong", I mean that the 9th circuit believes the panel got the reasoning wrong. Incorrect reasoning yields incorrect conclusions, except by chance. But the reasoning here is based on an actual historical analysis done in the same way it was done in Heller, applied to the totality of the circumstances in the case just as was done in Heller. Since the methodology was the same as in Heller, for the 9th Circuit to disagree with the reasoning means that it intends to substitute the dissent's approach or the approach of the 2nd, 3rd, and/or 4th Circuits, which are really all the same thing, and that means reversing the outcome. Otherwise, you have to posit some brand new approach that the 9th Circuit will adopt that has, to my knowledge, neither been briefed nor argued.

The parallels to Heller must not be overlooked. While Heller calls what DC had a "complete ban", it actually included a licensing scheme. The registration requirement was a complete ban, but Heller didn't stop at that, it simultaneously addressed the licensing scheme. If "may issue" were sufficient to satisfy the right, Heller would have left the licensing scheme alone, and struck only the registration prohibition. Therefore, "may issue" cannot satisfy the right, since if it could, Heller would have left it alone due to the doctrine of Constitutional Avoidance.

Again, I do agree that plaintiffs in Peruta (and the other carry cases, as well, save for Woollard) erred by not simultaneously raising a challenge to the open carry ban, demanding as relief that concealed carry licenses be issued and/or that the open carry ban be struck.

You should read http://www.federalbarcouncil.org/vg/custom/uploads/pdfs/En_Banc_Report.pdf en-banc is not required and is according to the report even rarer than SCOTUS cases.

Yes. "Rarer". So rare that there is a probability somewhere between 0.24% and 0.48% of a given case being taken en banc. And in the 2nd Amendment arena, we've seen that happen twice in a row as regards our 2nd Amendment wins in the 9th Circuit. The probability of that happening is somewhere between 1 in 43000 and 1 in 174000. And that's for all en banc. Sua sponte is much rarer still, and yet that is precisely the mechanism by which both of our wins in the 9th Circuit went en banc. Mere coincidence? The odds are vastly against that.

What should be a rare occurrence is less than rare when we win a 2nd Amendment case in the 9th Circuit. Why aren't the cases where we lose in the 9th Circuit being taken up en banc sua sponte at anything like the same rate (indeed, why hasn't it happened at all)?

It is not designed to eliminate splits, it is designed to eliminate unnecessary ones. The court is taking the time to determine if this split is a necessary one. The laws are not black and white and neither is the second amendment. There are two possible outcomes, affirmed and overruled. Both are possible outcomes.

And do you believe both outcomes have an equal probability of occurring?

Answer this: if the 9th Circuit were to uphold, what reasoning would they use? It would have to be something different from what the panel used, since there's no point in taking the case en banc if those who voted to do so already agree with the panel's reasoning. But what could they possibly substitute that has already been briefed, much less argued, when what has been briefed and argued, as far as I know, leads straight to either the panel's reasoning or the dissent's?

 

[jcutonilli]

First of all you can't simply change the equation without redefining the variables. To simplify things the equation should be P=Sa+O and Sa=sum(Si) with P being the total public safety (aggregated) Sa being the self defense portion of public safety (aggregated) O is the other factors (everything but self defense) (aggregated) Si is the self defense portion of public safety from an individual.

The problem with looking at the second amendment as only an individual right is that P>>Si and when P is interest balanced against Si, Si looses based on first amendment scrutiny determinations. The first amendment affects others like Si affects those around them. An individual can't really speak to everyone, nor can multiple people talk to the same person at the same time.

When you aggregate Si you get Sa, which I believe would be able to balance against P. So the question is "Is there something analogous to Sa with respect to the first amendment?" Case law does not seem to indicate that there is because public safety is able to trump first amendment rights under intermediate scrutiny.

I don't think the sign is dangerous because it does not cause the harm, yet it meets your definition because it "goes out of its way". You also list accidents, yet no one "goes out if their way" to get into one. By your definition this is not dangerous.

I though we agreed that the firearm is not dangerous, but the interaction between the person and a firearm is dangerous. Do I really need to quote where you agreed to this?

I am not aware that there was historical evidence supporting concealed carry. The internet analogy is not appropriate here because the internet was neither banned nor allowed, but concealed carry was definitely banned based on historical analysis.

I don't believe it was a mistake for Peruta to challenge only the concealed carry portion for the reason you list about open carry making the public at unease. I am simply trying to explain the dissent in Peruta. I would suspect that the 9CA would strike a complete ban on open carry, but it may allow severe restrictions (see Jackson and Woollard for examples)

I am suggesting an interest balancing approach that actually balances the correct interest namely the aggregated self defense portion of public safety (Sa). Most of the circuits have accepted the interest balancing approach.

It is unclear why you think the court granted en-banc twice in a row or why you think there was sua sponte. The en-banc was petitioned by Yolo County (Richards v Prieto) Peruta was pulled in because it was essentially the same case from the same panel. It cites the Peruta case for its reasoning.

I have not seen the numbers for en-banc rulings. I do know that SCOTUS reversed 70% of its cases and affirmed 30% (http://www.scotusblog.com/statistics/) It would not surprise me that a similar percentage would be likely. It is possible that the en-banc will come up with a different reasoning, but it is also possible that they would use the same reasoning found in either the opinion or the dissent. You keep failing to understand rule 35. It is not as much about the case as it is about how the case interacts with the other cases that have been decided. You can't simply read the opinion to determine this. It requires research into these other cases. All we really know is that a majority of judges want to take the time to conduct this additional research.

 

[kcbrown]

First of all you can't simply change the equation without redefining the variables.

Why not? You did. You maintained the definitions of the variables I was using in order to produce a formula essentially the same as my revised one (the only difference is that I'm addressing the difference attributable to a single law, and then deriving the sum total of public safety from that and the previous total value, whilst you're directly generating the sum total of public safety attributable to everything).

To simplify things the equation should be P=Sa+O and Sa=sum(Si) with P being the total public safety (aggregated) Sa being the self defense portion of public safety (aggregated) O is the other factors (everything but self defense) (aggregated) Si is the self defense portion of public safety from an individual.

Which is essentially the same as what I stated (remember that I said to omit the aggregation on ∆O if such aggregation wasn't applicable). ∆S is the individual contribution to public safety arising from the change to self-defense, and ∑(∆S) is its aggregate, the same as Sa.

The problem with looking at the second amendment as only an individual right is that P>>Si and when P is interest balanced against Si, Si looses based on first amendment scrutiny determinations. The first amendment affects others like Si affects those around them. An individual can't really speak to everyone,

"An individual can't really speak to everyone." Really? The President manages that routinely.

An individual needn't be able to speak to everyone for the effect on his speech to have an effect on everyone. Speech is about the message. The transmission of the message doesn't end at the people who are direct listeners of the individual in question. Those people are capable of turning around and re-transmitting the message. But if you stop the individual from being able to speak his message, then you prevent others from hearing it and, thus, from retransmitting it.

nor can multiple people talk to the same person at the same time.

If you mean at exactly the same time, as in the listener is hearing multiple people simultaneously, then no, they can't. But a single person is most certainly capable of hearing from multiple others. This forum is proof.

When you aggregate Si you get Sa, which I believe would be able to balance against P. So the question is "Is there something analogous to Sa with respect to the first amendment?" Case law does not seem to indicate that there is because public safety is able to trump first amendment rights under intermediate scrutiny.

I don't know. You wouldn't see such a construct in case law if what you're arguing here hadn't been argued in the cases in question. And yes, there is an analog to Sa (a.k.a. ∑(∆S)) with respect to the First Amendment, but it is not an aggregate that fits into the public safety equation. So it probably wouldn't help, if the courts are insistent upon claiming that public safety trumps speech.

I don't think the sign is dangerous because it does not cause the harm, yet it meets your definition because it "goes out of its way".

I didn't say that the object "goes out of its way", I said that the person interacting with it "goes out of his way" (I said "their" instead of "his" in the original, but the meaning and intent is the same). It is the person interacting with the object that has to take greater care than usual to ensure that harm does not come to himself or others when he interacts with a "dangerous" object. An object is "dangerous" if someone interacting with it must take extraordinary care (whether it be through training, or safety procedures, or whatever) to ensure that injury to himself or others does not occur. An object which is not "dangerous" does not require such extraordinary care in its use. That does not mean that someone cannot cause harm with an object that would not be regarded as "dangerous", of course.

You also list accidents, yet no one "goes out if their way" to get into one. By your definition this is not dangerous.

No. People go out of their way (by using safety procedures, getting training, etc.) to avoid accidents when they interact with dangerous objects.

Wow, did I really state things so badly in my original wording that you misunderstood it so much? I said:

What is the difference between a "dangerous" object and an object that isn't "dangerous"? I'll tell you one such: a "dangerous" object is one for which one must go out of their way (safe handling procedures, training, etc.) to ensure that harm does not come to another when they interact with that object. A "non-dangerous" object is one that does not require such.

I suppose I should have said "his" instead of "their". That might have made the above more clear. So my apologies for any confusion that may have arisen. Even so, how you arrived at the interpretation you did is unclear to me ("one" in the "one must" above clearly refers to a person, not an object).

I though we agreed that the firearm is not dangerous, but the interaction between the person and a firearm is dangerous. Do I really need to quote where you agreed to this?

We agree that the firearm is inert unless interacted with. But we do not agree that the firearm is not "dangerous" as that term is used in the common vernacular.

I am not aware that there was historical evidence supporting concealed carry.

No? Bliss v Commonwealth clearly proves that such evidence exists. After all, the court protected concealed carry there. And not only that, but it was the first carry case as far as I'm aware of, with the people sitting on the bench temporally closer to the founders than any of those who heard the later cases -- so much so that some of the founders were still alive when Bliss was decided. The same cannot, as I recall, be said of the later cases.

The internet analogy is not appropriate here because the internet was neither banned nor allowed, but concealed carry was definitely banned based on historical analysis.

That's true, but I'm not sure that it's as damaging to my point as you seem to think. The real point is that the ban on concealed carry had justification behind it, and as with all such things, it's important to get to its root. The root of the justification there is that concealed carry amounted to a sort of affray in the eyes of the people at the time, as does open carry today.

I don't believe it was a mistake for Peruta to challenge only the concealed carry portion for the reason you list about open carry making the public at unease. I am simply trying to explain the dissent in Peruta. I would suspect that the 9CA would strike a complete ban on open carry, but it may allow severe restrictions (see Jackson and Woollard for examples)

You mean severe restrictions such as a "may issue" licensing scheme, perhaps?

I am suggesting an interest balancing approach that actually balances the correct interest namely the aggregated self defense portion of public safety (Sa). Most of the circuits have accepted the interest balancing approach.

That might work. Don't be surprised if it doesn't, however.

I suspect self-defense hasn't been argued in that way, though I can't be certain because I cannot seem to find the plaintiffs briefs on these carry cases. Maybe the one for Peruta is still around, in which case it would be possible to examine it. I'll look.

By the way, you correctly observe that most circuits have accepted the interest balancing approach. But doesn't that fact conflict with Heller, which admonishes against at least certain types of "interest balancing"? If not, why not?

It is unclear why you think the court granted en-banc twice in a row or why you think there was sua sponte. The en-banc was petitioned by Yolo County (Richards v Prieto) Peruta was pulled in because it was essentially the same case from the same panel. It cites the Peruta case for its reasoning.

This proves en banc was sua sponte: http://cdn.ca9.uscourts.gov/datastore/general/2014/12/03/10-5697112-03-2014B.pdf:

A judge of this Court having made a sua sponte call for a vote on whether this case should be reheard en banc ...

So yes, that does indeed make it twice in a row that a 2nd Amendment win in the 9th Circuit was taken en banc sua sponte.

I have not seen the numbers for en-banc rulings.

You mean as regards rate of reversal? Me neither. Has me wondering if there's something that analyzes that. You'd think there would be.

I do know that SCOTUS reversed 70% of its cases and affirmed 30% (http://www.scotusblog.com/statistics/) It would not surprise me that a similar percentage would be likely.

Well, as I said, SCOTUS has to address circuit splits, whilst the circuit courts don't, so SCOTUS has some incentive to affirm cases that the circuit courts lack. So I'd say that the 70% reversal rate is likely to be a lower bound.

It is possible that the en-banc will come up with a different reasoning, but it is also possible that they would use the same reasoning found in either the opinion or the dissent.

But that fails to answer my question. For the court to come up with different reasoning but uphold the original decision, it would have to come up with something that, to my knowledge, has neither been argued nor briefed.

Isn't that impermissible? Indeed, isn't it your claim that the courts merely decide which argument in front of them is superior?

You can't have it both ways. Either courts decide which argument in front of them is superior, in which case logic demands that the 9th Circuit must reverse Peruta, or they use whatever arguments they see fit whether or not those arguments have been put in front of them by the parties or amici. Which is it?

You keep failing to understand rule 35. It is not as much about the case as it is about how the case interacts with the other cases that have been decided. You can't simply read the opinion to determine this. It requires research into these other cases. All we really know is that a majority of judges want to take the time to conduct this additional research.

But I have read the other cases. On that basis alone, the 9th Circuit will reverse, if such "harmony" is one of the goals. But I see nothing in the rules demanding such "harmony", and the existence of circuit splits proves that such "harmony" is not a requirement (though, as shown below, it is a justification for en banc review. That en banc review is denied for cases in which the decision conflicts with that of other circuits is proof that such "harmony" is not insisted upon).

As to the bit about "how the case interacts with the other cases", FRAP 35 says this:

FRAP 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
​

(2) the proceeding involves a question of exceptional importance.
​

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.

(1) The petition must begin with a statement that either:
​

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or
​

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.
​

That last does suggest harmony with other circuits is a justification for en banc, so you have a point here. But unfortunately for you (for all of us, really), that point supports mine, which is that the 9th Circuit took Peruta en banc for the purpose of reversing it.

 

[jcutonilli]

I did change the equation by redefining the variables, you never had Sa and Si as different variables. You had defined your dS as Sa and then changed the equation to be sum(Sa) which is incorrect, had you redefined dS to be Si you would have been correct. Sa and Si make it easier to identify whether it was aggregated or referring to an individual.

An individual can't really speak to everyone is a realistic situation. While it is theoretically possible to speak to everyone, reality is much different (I thought you were all about reality). Small children don't understand, neither do the majority of Americans (as evidenced by voter turnout). Additionally the effect of the message is very different across the population. While some may agree with it, others will oppose it or be neutral. The net effect is that not everyone is really spoken to.

The sign does not "go out of its way", but it does define safe handling instructions, which you have defined as "going out of their way" ie dangerous. Safe handling instructions avoid most accidents, but they do not eliminate them in their entirety. There are situations that do not typically occur, which are the type of accident that I am talking about. The gun simply exploding would be an example of something dangerous where you don't go out of your way, or you slipping and falling on the stairs. A firearm can't be both inert and dangerous. They are mutually exclusive terms.

Kentucky changed their constitution due to Bliss, eliminating concealed carry. This demonstrates my point. I am not trying to argue this is an insurmountable fact, just that the historical analysis does not support concealed carry.

The courts certainly think Heller allows an interest balancing approach. Heller does state that the historical analysis is equivalent to at least intermediate scrutiny. Rational basis is also an interest balancing approach that the majority don't feel is appropriate.

Yes Peruta was sua sponte, but that does not prove the en-banc was sua sponte. It is only one en-banc not two. It is driven by Richards which was not sua sponte. Rule 35 would require that the en-banc evaluate Peruta if they were evaluating Richards because they are the same case.

SCOTUS does not have to address circuit splits. I can allow them. These splits may be due to nuances between cases, where the court wants to define the limit. These nuances are what the en-banc is looking for. It may decide that there are sufficient nuances (between the cases) and the limit of what is acceptable is somewhere between the different circuits In this case the court would affirm the decision. It may also decide that there are insufficient nuances and overrule the decision. It is not about demanding harmony, it is about figuring out if there needs to be harmony.

 

[kcbrown]

Apologies for the delay...

I did change the equation by redefining the variables,

Ah, yes, your variables do seem to be different than mine, but only in that they represent a total across all things self-defense (for Sa) and others (for O), while mine represent the changes due to the law being considered.

In any case, your original assertion (that one must change the variables in order to change the formula) is clearly false. If the original formula is in error, then one may need to change the definition of the variables, or the formula, or both, in order to correct it. In my case, I kept the definitions of the variables and changed the formula. That I didn't change the definitions of the variables is no indication whatsoever of whether or not the resulting formula is correct.

you never had Sa and Si as different variables. You had defined your dS as Sa and then changed the equation to be sum(Sa) which is incorrect,

∑(∆S) is the aggregate of the changes to public safety at the individual level due to the change in the law. There is nothing incorrect about it.

had you redefined dS to be Si you would have been correct. Sa and Si make it easier to identify whether it was aggregated or referring to an individual.

I thought I had made the terms quite plain, because I defined them ahead of time.

If their meaning isn't plain, then which ones require further explanation?

An individual can't really speak to everyone is a realistic situation. While it is theoretically possible to speak to everyone, reality is much different (I thought you were all about reality).

Well, sure, if you insist on the literal meaning of "everyone". I presumed you were using the term colloquially.

Small children don't understand, neither do the majority of Americans (as evidenced by voter turnout).

But your assertion wasn't about whether or not the target audience would understand the message, it was about whether or not the message could be delivered to the audience in the first place. Clearly, the opportunity to understand a message will never take place if it is never delivered, while delivery of it makes such understanding at least possible. Moreover, followup clarification messages can serve to increase the probability that the original message was properly understood. All of those things require delivery of the message, and it is that delivery that is protected by the First Amendment.

Additionally the effect of the message is very different across the population. While some may agree with it, others will oppose it or be neutral. The net effect is that not everyone is really spoken to.

That is irrelevant in a First Amendment context. The protection of speech is there to ensure that people are not constrained (by the government, at any rate) from making the attempt to convey their message to others.

The sign does not "go out of its way", but it does define safe handling instructions, which you have defined as "going out of their way" ie dangerous.

That an object has "safe handling instructions" written on it is no indication that people will actually heed those instructions, or that said instructions are even necessary. It is the actual way the people in question interact with the object, not the existence of some set of instructions, that matters here.

Safe handling instructions avoid most accidents, but they do not eliminate them in their entirety.

That doesn't matter. That following such instructions is necessary to avoid most accidents that, were they to occur, carry a high probability of injury or death, is what makes the difference.

Now, obviously, "dangerous" is a subjective term as I mentioned before. In reality, the degree of "dangerousness" (which, I'd argue, is dependent upon the degree and probability of injury, or probability of death, in the event of an accident) varies widely across objects.

There are situations that do not typically occur, which are the type of accident that I am talking about. The gun simply exploding would be an example of something dangerous where you don't go out of your way, or you slipping and falling on the stairs.

"Going out of their way" refers to when people are interacting with the object in question. Another way of saying it is that when the object is "dangerous", people take greater care (e.g., through preparation, as in training, or through following safe handling procedures) with respect to interacting with it than they would with objects that are not "dangerous".

A firearm can't be both inert and dangerous. They are mutually exclusive terms.

They are not mutually exclusive as the term is used in the common vernacular, your protestations to the contrary notwithstanding. That's my point. Your claim above is just as true of automobiles, but those are regarded as sufficiently dangerous that we demand that people get many hours of training before they take unsupervised control of one in a public setting. Aircraft are regarded that way to an even greater degree. None of these objects will explode on their own, or otherwise do something dangerous on their own. It is the degree of care that the interaction with them demands that makes the difference.

Kentucky changed their constitution due to Bliss, eliminating concealed carry. This demonstrates my point. I am not trying to argue this is an insurmountable fact, just that the historical analysis does not support concealed carry.

I agree that it does not support concealed carry in isolation. Which is to say, if one is considering only concealed carry outside of any other context, then the historical analysis brings no support for it. But the context here is in the presence of a ban on open carry.

In that context, the historical reasons for bans on concealed carry matter. Those reasons were to prevent unnecessary alarm on the part of the public, since concealed carry was regarded as indicative of ill intent.

It's not sufficient to understand what happened. One must also understand why. That is the purpose of proper historical analysis: to ascertain the reason things happened the way they did, so that the lessons of the past can be properly applied to the present. The absence of that understanding leads to a "cargo cult" sort of approach, which works only if the relevant circumstances are the same. Here, they most certainly are not the same.

The courts certainly think Heller allows an interest balancing approach. Heller does state that the historical analysis is equivalent to at least intermediate scrutiny.

Does it now? Where? Please cite the passage stating such.

Rational basis is also an interest balancing approach that the majority don't feel is appropriate.

Rational basis is an "interest balancing approach"? Really? What interests are balanced by it? How does it account for the balance in question?

Yes Peruta was sua sponte, but that does not prove the en-banc was sua sponte.

Oh yes it does. A sua sponte call for en banc is entirely unnecessary if a petition for en banc exists, since both are decided in exactly the same way.

It is only one en-banc not two.

The other en banc I refer to is Nordyke, another case where we won on the merits and which was taken en banc via a sua sponte call.

SCOTUS does not have to address circuit splits. I can allow them.

That's true, but that wasn't what I was attempting to convey. My point is that circuit splits are among the things that come before the Supreme Court which do not come before the circuit courts, and addressing circuit splits can be done (perhaps even better, depending on the case) through affirmation. While the Supreme Court isn't forced to address circuit splits, it tends to do so anyway.

Which is to say, there's something to be gained by the Supreme Court affirming at least some cases. But there's no such gain to be had at the circuit court level with respect to en banc review.

 

[paulstitz]

What a waste of time!

 

[Brooklyn]

The issue is not the split but the diverging opinion that it represents. One way to avid a split is to ignore the disagreement. Another is to explore and clarify it. Make sure its intentional and substantive... to avoid the need for cert.. that's what I see here.

Plus a circuit split is not a requirement for cert.. so even if the in band reverses..cert is still possible..

The courts (at least in regards to public carry) have been using the "assume, without deciding" that the 2A has "some" application beyond the home. It's basically code for zero protection outside the home except for a total ban.

Sure the split isn't necessary for cert, but the overall stats and the Jackson dissent makes it clear to me at least that a split is the way forward. But the circuits are playing defense to keep the issue away from SCOTUS. Bonidy was another example. The District Court decided open carry was the protected right (reading tea leaves from Peterson), but the Circuit opinion both squashed the parking lot and post office from 2A protection, but also parroted the "assume,without deciding" logic, thus killing off any usefulness this case could have played in a split.[/QUOTE]

On this we agree.. I just dont think its going to work..

Once all circuits play coy.and decline to decide anything..

SCOTUS even Roberts will have had enough..its not sporting for SCOTUS to decide from on high as per Roberts.. but if they decline then I think Roberts will say.. we gave them a shot and we will see SCOTUS wade in.. .reluctantly perhaps.. but of necessity.

 

[Brooklyn]

What a waste of time!

No its actually counter productive. I wish it we just a waste of time

That would be harmless..

 

[gamer_jim]

Does this qualify as an internet fight?

 

[kcbrown]

No its actually counter productive.

You think that because you think all skepticism of a positive outcome from our efforts is "counter productive".

 

[tomh]

You think that because you think all skepticism of a positive outcome from our efforts is "counter productive".

Given the importance of keeping Pro-2A folks both informed and motivated to help, yes I would agree it is counter productive.

[EDIT] Skepticism that is.

 

[kcbrown]

Given the importance of keeping Pro-2A folks both informed and motivated to help, yes I would agree it is counter productive.

[EDIT] Skepticism that is.

Because, you know, it's better and/or more important for people to blindly follow whomever tells them what to do, rather than have them think for themselves and make decisions for themselves with all the facts in hand, along with awareness of the various viewpoints...

The hypocrisy of that position is unfathomable, seeing how it's liberty and self-determination that we're fighting for. Either you want liberty and self-determination, in which case you must support making the real situation (and the various viewpoints on it) plain to all so that they can make decisions for themselves based on that, or you want puppets. Which is it?

You (plural, since you specifically are not the only person who does this) insist that the opposition is wrong because they won't listen to the facts and reason, and then turn around and criticize people here for deploying those very same things for use in analyzing the situation and the actions we're taking. You criticize the opposition for being "sheeple" and then turn around and insist that the very people within our ranks must behave the same way as regards the actions being taken by our side. That is the epitome of hypocrisy.


Edit: I should add that while we don't seem to be doing such a bang-up job in the courts thanks to the ideological approach taken by those who sit on them (remains to be seen if that changes, but I know of no real reason to believe it will), the narrative in public appears to be going quite a lot better. That's heartening, and certainly makes things more interesting, to say the least. Gives me hope, because Civil War II is the last thing I want to see.

 

[Brooklyn]

You think that because you think all skepticism of a positive outcome from our efforts is "counter productive".

No I think handing the opposition a list of attack points of our position is counter productive.. Let alone a peek at the next iteration.. But clearly you are smart enough to know that,so there is no point discussing the matter.

Carry on.

 

[jcutonilli]

No I think handing the opposition a list of attack points of our position is counter productive.. Let alone a peek at the next iteration.. But clearly you are smart enough to know that,so there is no point discussing the matter.

Carry on.

You seem to be suggesting that the only way to win is through obscurity. Everything get put out into the open during a trial so your premise of obscurity fails. It is important to understand where your positions are the weakest so you can craft an argument that overcomes the argument. Without open and honest debate you are not fully testing your arguments.

I maintain the reason we keep loosing is that we are unwilling to have open and honest conversations which leads to weak arguments being presented.

 

[Southwest Chuck]

jcutonilli, Please don't take offence (I know KC won't ), but I have watched and listened (read) to both you and KC (with whom I have great respect). I have debated KC before and although we have different approaches to things on occassion, I have found that his approach has much value in analyzing fact based data. That's not to say all of his conclusions are worth the screen it's printed on though .... ....... but then again, many are.

Anyway, I have found that both of you are guilty (as am I, and everyone else from time to time) of not seeing the forrest for the trees. You're just too close to the subject matter to recognize flaws in your thinking and are blinded by the trees to the point of seeing (or at least acknowledging) other valid points of view. Those points AWAYS have to be inferior to yours, in some way, anyway. Don't fall into that type of intellectual trap. Anyway, please consider the points below.

You seem to be suggesting that the only way to win is through obscurity.

That's not what he was suggesting, far from it

Everything get put out into the open during a trial so your premise of obscurity fails.

Not true. Giving your oponnents extra time not only to refine their arguments but to counter yours is foolish. Why do you think most filings are done on the last day they are due? Because no one wants to give their opponents even one more day to come up with a response.

It is important to understand where your positions are the weakest so you can craft an argument that overcomes the argument.

We are in total agreement here ...

Without open and honest debate you are not fully testing your arguments.

Again, I agree ... to a point. The open and honest debate though, should take place in a controlled environment where these discussions can be held in confidence lest possible strategies be exposed prematurely to your opponents

I maintain the reason we keep loosing is that we are unwilling to have open and honest conversations which leads to weak arguments being presented.

Possibly, but IMO, it's more likely that those in charge of any given challenge have already decided on their course of action and having previously analyzed different courses of action and their supporting facts in addition to the odds of success in the filing venue. Depending on the Circuit (and the given precedents of that Circuit), the same argument might have a better chance of prevailing in one Circuit than in another. You can't say that this type of analysis hasn't occurred since you weren't there, but you can surely make the claim it wasn't, especially since you disagree with the strategy.

Holding a strategy close to your vest is smart in most cases, IMO. For the people directly involved in litigation, having strategic discussions in a limited / closed / controlled environment (as opposed to a public forum), is smart. That's not to say litigators should ignore other outside input, and indeed, they should seek out and glean bits and pieces of info. and different theories / courses of attack from other sources and analyze those by testing / supporting / proving / disproving them, thereby honing their arguments to increase the chances of a successful challenge.

No one said one should not take such a course. What was said was that (I'm paraphrasing my understanding here) is that telegraphing moves and strategies to give the opposition a heads up, can be a mistake and might only make one's job harder, more costly, and time consuming, not to mention the possible increased risk in losing.

Just my 2 cents. It's worth what you paid for it

 

[jcutonilli]

I agree that holding a strategy close is smart in particular cases, but the issue with 2A cases is that there are 50 state jurisdictions and many more local jurisdictions. Once winning arguments get made in one jurisdiction they tend to be made else where and you wind up loosing the hold it close strategy.

While I cannot tell you if the plaintiffs analyzed different courses of action, I have read a number of court opinions. My interpretation of these opinions suggests very similar arguments across a number of cases. I disagree with the arguments because they have been proven by the courts to be weak arguments.

 

[Brooklyn]

You seem to be suggesting that the only way to win is through obscurity. Everything get put out into the open during a trial so your premise of obscurity fails. It is important to understand where your positions are the weakest so you can craft an argument that overcomes the argument. Without open and honest debate you are not fully testing your arguments.

I maintain the reason we keep loosing is that we are unwilling to have open and honest conversations which leads to weak arguments being presented.

Good for you.. .carry on..

 

[kcbrown]

jcutonilli, Please don't take offence (I know KC won't ),

Nope. Not in the slightest.

but I have watched and listened (read) to both you and KC (with whom I have great respect). I have debated KC before and although we have different approaches to things on occassion, I have found that his approach has much value in analyzing fact based data. That's not to say all of his conclusions are worth the screen it's printed on though .... ....... but then again, many are.

Telling the difference, of course, is the real trick.

No one said one should not take such a course. What was said was that (I'm paraphrasing my understanding here) is that telegraphing moves and strategies to give the opposition a heads up, can be a mistake and might only make one's job harder, more costly, and time consuming, not to mention the possible increased risk in losing.

Either the argument we offer is compelling AND will sway the judges to our side, or it's not. If it is, then no argument the opposition counters with will be sufficient, and we will win. If it's not, then no amount of secrecy will save us, because judges cannot rule on the basis of arguments we haven't raised. And even if secrecy somehow worked during the initial attempt, the opposition would simply win on appeal, since the presumption then is that it is the secrecy, and not the quality of the argument, that resulted in the initial win.

This stuff isn't a one shot kind of thing. Secrecy works when you don't have to lay all your cards on the table, or when the opposition is operating on a very limited clock. It's worthless when you have to lay all your cards on the table AND the opposition is not significantly time limited. And the latter is the case here (the government historically has gotten basically whatever extensions it wants in these cases).

Therefore, it follows that we may as well gain the greatest benefit possible from debate, which makes crafting the most sound and convincing arguments possible.

Don't make the mistake of thinking that, at least as regards the legal approach, we're fighting some sort of war in which the arguments themselves are bits and pieces of strategy which we can surprise the opposition with. The very nature of litigation logically precludes that, unless you insist that we are INTENTIONALLY losing (by intentionally putting forth less than the very best arguments we can muster) in order to preserve the secrecy of the arguments to come. That, of course, would be monumentally foolish precisely because of the precedential nature of legal decisions.



Sent from my iPad using Tapatalk

 

[Brooklyn]

Kcbrown you really are clueless about how legal arguments work..


This is a fact.

You do NOT advance a strong form argument prior to a weak form argument exactly because of the effect of precedence.. It is the exact opposite of scientific reasoning.


This is why we make fun of laywers and also why we hire them...and then let them do their jobs...or not.

I don't know if you can learn this form of argument.. .but if you don't you are a hazzard..

 

[kcbrown]

Kcbrown you really are clueless about how legal arguments work..

Then "enlighten" me. How do they "work"? What is it about bringing weak arguments before the court that results in winning?

This is a fact.

I wouldn't be surprised.

You do NOT advance a strong form argument prior to a weak form argument exactly because of the effect of precedence.. It is the exact opposite of scientific reasoning.

Because of the effect of precedent? Really?

So the idea is to enshrine the weakest form of your argument as the precedent in the courts? Really? And to, by bringing the weakest form of argument possible, minimize the chance of winning (by, if you win at all, barely winning)? Really?

Do tell how putting on your worst performance, as opposed to putting on your best performance, is somehow magically a winning "strategy".

This is why we make fun of laywers and also why we hire them...and then let them do their jobs...or not.

I don't know if you can learn this form of argument.. .but if you don't you are a hazzard..

Learning the form of the argument method isn't the problem. The problem is seeing how it actually helps. Maybe it works when the two sides are more or less equally balanced and the court is faced with some sort of decision to make on the basis of minutiae or something, such that "surprising" the other side with a very slightly superior argument results in a win. But how you believe it can "work" when the two sides in question are opposed at a very fundamental level, and when one side (ours) has logic, evidence, and historical tradition on its side whilst the other only has emotion and appeals to authoritarianism, is quite beyond me.

Please do explain how the approach you claim to be so effective in the legal realm can possibly "work" in the above described environment. And, especially, cite how it's working so "well" for us right now, seeing how we have such a "winning" track record with the approach you claim is superior.


The real world always wins in the end. In the real world, this "winning approach" you claim I fail to understand is losing.