kcbrown
Super Genius
- Jun 16, 2012
- 1,393
Cases that get to this level are hot button issues for someone - immigration, 4th amendment issues for tech companies (i see the 9th has some under national security) etc. Cases like this where the law is not settled are hot button almost by definition?
Well, not really. The question is whether or not it's a hot button issue for the judge. Some will be, of course, and some won't be. The question is how likely the right to keep and bear arms will be such an issue for the judge.
I contend that the right to keep and bear arms is more such an issue than almost any other, even more so than minority civil rights. And the evidence appears to support my contention. The degree of judicial rebellion we've seen in the courts is, from what I can tell, greater than we've ever seen before. Even the courts in the south during the civil rights movement weren't this rebellious (the only case I can find where they were was NAACP v Alabama, but that involved rebellion on the part of state courts whereas we're seeing rebellion in the federal courts).
Yes, there may be a reasonable amount of uncertainty. But when, out of 11 cases, the 12 Democrats who were on the panels unanimously sided against the right whereas the Republicans on those cases sided with it about 50% of the time (this is true even of the 7 of those cases where both Democrats and Republicans sat on the panel), it's quite the stretch to claim there's no discernible pattern.If the data is sparse as you are saying (true, limiting the data to 2a cases) then your model uncertainty is astronomical. You cannot measure things with no data.
That may be, and I agree that should improve the accuracy of the model. But the plain fact of the matter is that what you're arguing is that the model will incorrectly predict losses. And for that to occur, the Democrat nominees would have to side with the right much more than they have in the cases I listed. Which is to say, the cases I listed would somehow have to be exceptionally under-representative of the support for the right on the part of Democrat nominees. It's possible that such is the case, but the only way we're really going to find out is to see how actual events compare with the model's predictions. And that is precisely what I'm looking forward to.The other big issue is that what it means to be a Democrat is not fixed in time or place. A San Diego or NJ republican today is probably left of a Montana or Texas Dem on 2a issues. Arkansas used to be a single-party Dem, now its a single party GOP state. Reagan was anti-handgun and signed some CA gun control. People are not one issue voters amd views evolve. Thats why we need actual data on voting behavior. Probably someone has scored these judges like they score legislators.
Finally, the degree to which Democrat-appointed judges (and Republican-appointed ones, for that matter) support the right is irrelevant to us for those areas that have strong state-level support of the right, because we don't need to bring cases in those areas. The only areas where any of this matters are those that intrude upon the right. That may, of course, cause Democrats (and Republicans alike) who support the right to be underrepresented in those areas that intrude upon the right as compared with the country at large, but that is actually proper if we only care about making predictions for those intrusive areas. Even so, the two cases in the 5th Circuit suggest that support for the right in the federal judiciary may not vary with region as much as you think.
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