Peruta v. County of San Diego (CCW Case)

[kcbrown]

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).

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.

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.

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.

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.

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.

 

[press1280]

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?

What does that tell me if a judge does not vote "party line" on immigration? Abortion? Voting rights act? Voter Id? Why would i cherry pick one hot button issue over another?

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.

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.[/QUOTE]

One big difference though is legislators have to face the voters, federal judges do not.

 

[danb]

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.

Abortion? Gay rights? Not hot-button issues for a Bush appointee? Really? If there are Reagan and Bush appointees secretly gay (see: Vaughn Walker), do you think its possible there are Clinton and Carter appointees with guns?

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.

... cases you've cherry picked.


If your proposition is that history predicts the future based on a tiny subset of cases, you really don't need a fancy model for that. Yes, we all agree that if the future is like the past then there is a 100% chance of no change. duh. Wrapping up history and prejudices in a fancy regression mathematical model and extrapolating merely rearranges your biases. It's just rationalization and defeatism under a different seemingly sophisticated guise. Models are not really useful to extrapolate history because I don't need math for that. We have elections and litigation because people can be persuaded and the past is not like the future. Models are useful when they can falsify assumptions or answer the question when things were different how were they different?. i.e. who can be persuaded, with what types of arguments, and so on. Do we have data for that? I know for a fact judges have changed votes... do you know why they did that?

 

[rlc2]

Thank you, a question...

IIRC Gura did notice the state that the state statute "could" be implicated by a win for the plaintiffs. But the state refused to enter the fray (in the Richards case).
While the state statute technically can stand with the judgement, the statute's purpose is radically changed to where the IA no longer has full discretion to grant/deny as they please.
I think Peruta isn't opposing intervention because they want the AG to appeal to SCOTUS, and give the NRA a shot at an epic SCOTUS win. I noticed in a press release the NRA took a slight shot at the SAF's Richards case as riding Peruta's coattails and possibly being a liability to Peruta standing as settled law in the 9th.

Sorry for newb question: what is the "IA"?

One thing I noticed several years ago reading in Calguns forums when Peruta was getting ready for District court, that I found distasteful, and counter productive:

There was a bitter pi$$ing contest and idle speculation about ulterior motives by funders, NRA, SAF, etc, and a lot of noise in the peanut galleries, including posts by parties under representation, even some comments by lawyers, that seemed completely unprofessional and foolish, when you consider that these are public forums, and strategic or tactical advantage can be gained,
BY YOUR ENEMY, if you show your hand.

Note: I am not inferring that its happening, here, at mdshooters, now. As I've already posted, I am infinitely grateful for the patient, educational, and deeply experienced commentary by many here, and obtw, also at calguns, that you cant get elsewhere, with a couple of exceptions, like Volokh or SCOTUSblog, for the curious lay reader.

Back to my recollection...I recall, after a fever pitch, it was obvious that a change was needed, and cooler heads prevailed, some leadership changed, and other structural changes to move forward on advocacy and who does what, including how to keep the base best informed, were made.

And now, after enough time has gone by, we see the results of that focus on quiet, patient, strategic legal teamwork, including at the funding level, and indirect collaboration, if not coordination, on different cases, across the country, not just in CA, to build a solid, brick by brick foundation, by waiting for the precedent and other factors, to evolve, for 2A rights.

Someone described it as 3d chess, vs checkers. And all I have to add is that IMHO, it worked, including making Calguns a much more collegial place to read, while still respecting free speech and differences of opinion.

Or, in another way of speaking, to have fun with the "caliber wars" in the forums, without getting into the circular firing squad. That is what one would imagine trolls from the left would like to start up, btw, now that they have been been so historically repudiated at the Nov 2014 elections, and the legal battles are going so well, for 2A relatively speaking, esp in CA.

I for one am adding to my lifetime membership in SAF, by doing same at NRA, and sending more to CGF. And I am trusting the legal beagles to keep their differences out of the forums, and am not wasting my time on starting circular finring squads. There are better more powerful direct ways to make your vote count at the funders level anyway. And a wealth of history and context, esp in NRA website, lately, if more education is needed.

And the tin foil hat soil is fetid and fertile over at Kos, HuffPo, and the WAPO and NYT comment forums for anyone who wants to plant seeds and jerk bad ideas out by the roots.

Thats just one newbs $0.02, and YMMV, but I expect there are many more newbs with inquiring minds who lurk and learn, and can benefit from the deep wisdom with comity, here, as I have, especially when both are missing on the left, where new 2A believers have been mugged by reality...

 

[rlc2]

Esqappellate, thank you.

What is your opinion on the dual timing of Harris' appeal of denial of intervention, with sua ponte call for en banc rehearing.

It seems to me that one interpretation would be to make the use of all options more efficient, and fair-appearing.

Please correct me if am am wrong, but should Harris be granted intervention, then the State IS a party, and can take over from San Diego County, correct?

And if the larger panel says, lets rehear, then Harris gets that second bite at the apple in the Garden of Eden in the 9th. (ok, the metaphor is a bit lame...)

But, if the 9th judges, as individuals believe in the law, and their fidelity to their oath, and if as men in a position of high trust, fiduciaries of that public trust, if you will forgive my layman's words, and they are at all sensitive to the reputation of the 9th,

and to their own individual reputations, then would it be better for them to say, "we respect our peers of the 3 judge panel,, and their fidelity to their oath, and while noting differences of opinion exist, believe the decision best respects the law, as is...and deny rehearing, while respecting the Sovereign State and its representatives responsibility to appeal for cert as desired.

Is that just my hopeful thinking, for a rational Solomonic decision, or hopelessly naive?
(I know the 9th will never BE the garden of eden, but avoiding future sin would be beneficial, no?)

There is one other interpretation, that Judge Thomas would aver, and I wonder if in your opinion, is there a clear and compelling reason, under the law, to rehear the case?

I realize that may be too blunt to have to answer, in a public forum, given your work environment requires detachment, and respect for process, and Judges you might go before in future.

So, outside of going to law school, how would a lay person score that?


And while I find kcbrowns political affiliation theory interesting, I think it both overstates that influence, and does not take into account the scales of justice, on the law, the arguments, and the ability of lawyers to educate and persuade, or the integrity of federal judges.

Is it even possible to say, for example that "Judge Thomas position is a 10% chance" vs the existing decision, on the strength of law?
Is there anything new, that has come up, that changes things since then?
Where else, would a newb look for relative strength on the opposing legal arguments? I dont have time for law school..��

And I hate to default to "who appointed them". That seems too simple, depressing, and if mostly true, horribly disappointing...

(not a comment on you, kc, but on implications...to this old boy scout)

 

[Kharn]

IA = Issuing Authority?

 

[press1280]

IA = Issuing Authority?

Right!

 

[kcbrown]

Abortion? Gay rights? Not hot-button issues for a Bush appointee? Really?

Didn't say RKBA was the only hot-button issue for judges. I said it's probably more of a hot-button issue for judges than other issues.

If there are Reagan and Bush appointees secretly gay (see: Vaughn Walker), do you think its possible there are Clinton and Carter appointees with guns?

I know there are. But the question isn't whether they exist, but how many do. In particular, how many exist in the regions where we're forced to bring cases.

... cases you've cherry picked.

Wait, are you accusing me of intellectual dishonesty here? I didn't intentionally "cherry pick" those cases. In fact, I couldn't have, because I didn't know ahead of time what the composition of most of their panels was. The very fact that I was surprised by the relative lack of support of the right on the part of Republican nominees should tell you that. I couldn't have been surprised by that if I had been aware of the composition of the panels ahead of time.

I selected every post-McDonald 2A case I could find where the federal appellate courts had rendered a 2A-related verdict and that I felt we would clearly have come down on one side or the other on. There are a couple of cases I didn't include because it either wasn't clear where the right lay or the decision didn't involve the 2nd Amendment, and I'll happily include those if you tell me, for each of them, whether the decision supported or opposed the right. Those cases are Lane v Holder, Kwong v Bloomberg, and Osterweil v Bartlett. The available Lane v Holder decision was strictly with respect to standing, and was reversed by SCOTUS and is now being litigated on the merits at the district level, if I'm not mistaken. Kwong v Bloomberg revolves around the question of whether or not the permit fees are "too high", and I felt that the answer to that one wasn't really clear enough to call one way or the other. Osterweil v Bartlett doesn't count because it avoided the Constitutional question.

Also, if there are any other 2A cases that have been decided at that level that I somehow missed, I'd like to know so I can include them as well.

Bottom line: you accuse me on the basis of ignorance.

I'm not interested in data that justifies my beliefs. I'm interested in data that makes my predictive hypothesis more accurate, or that shows that the hypothesis is fundamentally flawed (most especially, in that latter case, data that suggests a better predictive approach), meaning that it's not much better than flipping a coin at determining the outcome of 2A cases. Truth is what I'm after here, not confirmation of any prejudices. You can believe that or not as you will.

If your proposition is that history predicts the future based on a tiny subset of cases, you really don't need a fancy model for that.

I don't suspect that political party is a terribly good indicator of how a judge will decide cases in general. I won't be surprised if that is actually limited to 2A cases. It might not even be applicable there. That is what I want to discover. The data I've seen so far suggests that, at least on the Democrat side, it is highly indicative.

Yes, we all agree that if the future is like the past then there is a 100% chance of no change. duh. Wrapping up history and prejudices in a fancy regression mathematical model and extrapolating merely rearranges your biases. It's just rationalization and defeatism under a different seemingly sophisticated guise. Models are not really useful to extrapolate history because I don't need math for that.

The "history" I'm going by here is very recent.

We have elections and litigation because people can be persuaded and the past is not like the future. Models are useful when they can falsify assumptions or answer the question when things were different how were they different?. i.e. who can be persuaded, with what types of arguments, and so on. Do we have data for that? I know for a fact judges have changed votes... do you know why they did that?

I don't have data on which judges have changed their votes as regards the 2nd Amendment, much less data that would indicate why.

 

[kcbrown]

And I hate to default to "who appointed them". That seems too simple, depressing, and if mostly true, horribly disappointing...

(not a comment on you, kc, but on implications...to this old boy scout)

No worries. I'm with you on that. I'd like for the result to be different, for my predictive hypothesis to be badly wrong.

What I want is rarely what the real world delivers.

 

[Blacksmith101]

I come to this thread to find out the latest on Peruta v. County of San Diego (CCW Case) not to read page after page of posts about how judges may show bias. If the subject is worth discussing it is worth its own thread. I don't mind a little thread drift but it is time to take this elsewhere and get back to the original purpose of this thread.

 

[danb]

Wait, are you accusing me of intellectual dishonesty here?

No, confirmation bias.

I selected every post-McDonald 2A case I could find where the federal appellate courts had rendered a 2A-related verdict and that I felt we would clearly have come down on one side or the other on.

Reducing the set of cases to the ones you "feel" are apt is quintessential cherry picking. You went looking for the cases, and you found the ones that confirmed your prior. You "feel" abortion and gay rights are less hot button issues, so you did not look at them.

People should put about as much stock in the prediction of this model as Daniel Websters prediction about MD fingerprinting laws based on 5 data points (http://articles.baltimoresun.com/20...rchases-gun-control-restrictions-on-gun-sales).

I don't suspect that political party is a terribly good indicator of how a judge will decide cases in general. I won't be surprised if that is actually limited to 2A cases.

What else did you try? How about law school? Who they clerked for? Do Standford and Chicago for example tend to produce more "conservative" judges? Have the judges been scored based on ideology? (http://mqscores.berkeley.edu/) How about the phase of the moon (given enough variables, some will be artificially correlated just by chance)?

I do not have a particular axe to grind here. Defeatism is a pet peeve of mine these days. Defeatism wrapped up in fancy pseudoscience math is like a double whammy. In social sciences, 80% of mathematical models are misused.

 

[clandestine]

I agree with K.C. and his view of Judges. I too hope that he is wrong.

 

[danb]

I agree with K.C. and his view of Judges. I too hope that he is wrong.

But you don't need fancy maths for that. If history repeats, the future will be like the past.

I think it will depend on whether Harris (or someone else) can come up with a new and interesting ("there is a right but...") argument that has not been considered. The anti-2A judges on the 9th are well aware denial of cert mean zilch. Taking this case en banc in this manner virtually guarantees SCT will hear it, as it screams "I am really important." Judges are not going to waste their precious time no matter how much they hate the 2A, unless they think that they can materially improve the dissent and swing a vote on the SCT. If Harris puts together a re-hash, I predict denial. If she puts together something new and clever, I predict they take the case.

 

[press1280]

But you don't need fancy maths for that. If history repeats, the future will be like the past.

I think it will depend on whether Harris (or someone else) can come up with a new and interesting ("there is a right but...") argument that has not been considered. The anti-2A judges on the 9th are well aware denial of cert mean zilch. Taking this case en banc in this manner virtually guarantees SCT will hear it, as it screams "I am really important." Judges are not going to waste their precious time no matter how much they hate the 2A, unless they think that they can materially improve the dissent and swing a vote on the SCT. If Harris puts together a re-hash, I predict denial. If she puts together something new and clever, I predict they take the case.

I'm not sure about this. What Harris wants is a new en banc opinion to follow CA2-4 and thus end the split in regards to may issue. Splits are what gets an overwhelming majority of cert grants. The question is whether Scotus sees en banc as conflict in and of itself or it basically has equal value to a 3 judge panel opinion that was denied en banc. I would be curious how many en banc cases scotus has taken.

 

[kcbrown]

No, confirmation bias.

That's the same thing as intellectual dishonesty.

Reducing the set of cases to the ones you "feel" are apt is quintessential cherry picking. You went looking for the cases, and you found the ones that confirmed your prior. You "feel" abortion and gay rights are less hot button issues, so you did not look at them.

NO. Understand this: it's not confirmation bias if the basis for picking the case is different than, and independent of, the variable(s) one is using as the basis of prediction.

Again, look at the reasons I excluded the three cases I didn't consider. Wanna tell me how I can possibly be biased for excluding a decision that didn't even involve the subject matter (2nd Amendment) of the hypothesis?

There is only one case that is even possibly an issue, and that's Kwong v Bloomberg. And guess what happens to the number of Democrat nominees who side with the right if I include that case in my analysis? NOTHING! It remains at zero. But it further damages the Republican support of the right.

"Confirmation bias" indeed.

So yes, go ahead and continue to believe that I am "cherry picking" cases when there remain, as far as I know, no appellate decision cases left on the table (after Kwong) for me to "cherry pick" from. If you insist that I am "cherry picking" cases after that, then it is you, and not I, who is biased, and who is presuming his own conclusion.

What else did you try? How about law school? Who they clerked for? Do Standford and Chicago for example tend to produce more "conservative" judges? Have the judges been scored based on ideology? (http://mqscores.berkeley.edu/) How about the phase of the moon (given enough variables, some will be artificially correlated just by chance)?

Of course I could try all sorts of hypotheses. But I'll need the relevant data (e.g., ideology scores) first.

I do not have a particular axe to grind here. Defeatism is a pet peeve of mine these days.

Then you do have a particular axe to grind, seeing how my predictions are "defeatist".

Defeatism wrapped up in fancy pseudoscience math is like a double whammy. In social sciences, 80% of mathematical models are misused.

Well, then if I'm misusing the model here, then its predictions should prove inaccurate, right?

Either the model correctly predicts outcomes or it doesn't. It remains to be seen which is the case.

I don't give a crap whether my prognostications are "defeatist", "pessimistic", or even if they are optimistic. I only care about whether or not they are accurate. I am a realist. I go where the evidence leads. What evidence do you have that a "defeatist" view is incorrect?

 

[esqappellate]

'The available Lane v Holder decision was strictly with respect to standing, and was reversed by SCOTUS and is now being litigated on the merits at the district level, if I'm not mistaken'

You are mistaken. Cert was denied in Lane. See Lane v. Holder 134 S.Ct. 1273 (Mem)
U.S.,2014

 

[kcbrown]

'The available Lane v Holder decision was strictly with respect to standing, and was reversed by SCOTUS and is now being litigated on the merits at the district level, if I'm not mistaken'



You are mistaken. Cert was denied in Lane. See Lane v. Holder 134 S.Ct. 1273 (Mem)

U.S.,2014

Oh. You're right. Sorry about that. I may have been confusing it with some other Gura case for which that was true, but I'll be darned if I can find which one.

 

[danb]

I'm not sure about this. What Harris wants is a new en banc opinion to follow CA2-4 and thus end the split in regards to may issue. Splits are what gets an overwhelming majority of cert grants. The question is whether Scotus sees en banc as conflict in and of itself or it basically has equal value to a 3 judge panel opinion that was denied en banc. I would be curious how many en banc cases scotus has taken.

True. Also questions of significance or (unusual) procedure. Gore is not appealing. If Gore has a problem with the result he should appeal. Regular procedure as I understand it means taking Baker and/or Richards, the state could argue or file briefs in those cases and still overrule Peruta. I bet the 9th has left a wrongly decided panel decision stand dozens and dozens of times when a defendant did not appeal, while they waited for right case to take en banc. How many times has a court 1) allowed the AG to intervene at the en banc level at the last minute, 2) after being warned state law was implicated and denying to participate, 3) when the defendant themselves declines to appeal?

Imagine the disarray if federal courts allowed this kind of willy-nilly last minute intervention when states did not like the result, because the defendant was not appealing. Who knows... SCT may look at it for the unusual procedure alone.

To me, this is that moment in poker when your excitement overwhelms your brain. Taking Peruta screams look at me!!! Look this is so important we bent over backwards to take this case!!. I think if she was smart she'd take a deep breath and move to Richards.

 

[danb]

Well, then if I'm misusing the model here, then its predictions should prove inaccurate, right?

Either the model correctly predicts outcomes or it doesn't. It remains to be seen which is the case.

The only way to "prove " your model and test accuracy is to run a time machine 1000 times and see the outcome, and see how close it is to 4% (or whatever). Here we only get to see one outcome.


On the other hand, we know Wil E Coyote's "ingenious" contraptions failed 99% of the time because we got to see him fail repeatedly and die only to try again. But that was a cartoon.

If you care where the evidence leads... try gathering some evidence first.

 

[kcbrown]

The only way to "prove " your model and test accuracy is to run a time machine 1000 times and see the outcome, and see how close it is to 4% (or whatever). Here we only get to see one outcome.

For this one case we only get to see one outcome. It most certainly won't "prove" the model. But it will add a post-prediction data point, which is necessary even if not sufficient.

Look, nothing "proves" predictive models. The only thing you can do is disprove them. Beyond that, all you can say is that the model hasn't yet been disproven and that you know of no more accurate model that is also usable.

That is as true of even our most revered physical models as it is of this one.


If you have a better predictive model in mind then SHOW IT. Show how it fits the evidence to date at least as well and how it predicts DIFFERENT outcomes than mine does for these cases. If you do not then you haven't a leg to stand on. I don't mind criticism when it shows how to improve the accuracy of the model. But your criticism as it stands right now amounts to a religious-like belief that we will win because you don't want to believe anything else.

If you care where the evidence leads... try gathering some evidence first.

Why do you believe the entire set (that I'm aware of. If I missed any I want to know about them) of 2A cases that have been decided by the circuits post-McDonald to not be evidence unless it is because you simply don't want to believe what it suggests?