En banc Decision in Peruta -- a loss

[ironpony]

Are there repercussions to SCOTUS if they just ignore this? Seems this would be/is/has been their safest course.

 

[press1280]

Are there repercussions to SCOTUS if they just ignore this? Seems this would be/is/has been their safest course.

Not really.

 

[jcutonilli]

Does Peruta present a similar argument to the previous loses ? We may already have our answer then. Shew, I'll be in the reloading section.

Yes, although the amicus briefs were better this time.

Basically the same argument. Only difference now is Norman's ruling creating a split plus the unusual history of this case (en banc, state intervention,exc.).

I finally got around to looking at the cert petition and the state's response. I don't see how anyone can claim that it is the same argument. While the individual right claimed is the same (self defense), the state's argument is different. Instead of citing public safety, they cite the historical prohibition on CCW. Peruta is not really disagreeing because they are not challenging it directly. Peruta is using the state's prohibition on open carry to indirectly challenge the CCW law. Peruta did not cite public safety statistics on why it is acceptable, although several of the amicus briefs do this.

 

[press1280]

I finally got around to looking at the cert petition and the state's response. I don't see how anyone can claim that it is the same argument. While the individual right claimed is the same (self defense), the state's argument is different. Instead of citing public safety, they cite the historical prohibition on CCW. Peruta is not really disagreeing because they are not challenging it directly. Peruta is using the state's prohibition on open carry to indirectly challenge the CCW law. Peruta did not cite public safety statistics on why it is acceptable, although several of the amicus briefs do this.

I was only referring to the lawsuit, not so much what the state's response was. They essentially have used the same arguments in Kachalsky, Woollard and Drake but tailored to the particular law of the state.

I think they've put forward statistics from several states that show only a minute number of permits are revoked for any reason, as well as crime stats that show no increase (but sometimes a decrease) in crime rates.

What else should they put forward?

 

[Inigoes]

Watching Trump's speech tonight.

I thought I heard him give a tell, about the 2A coming along nicely and Gorsuch.

Any chance the executive tells the judicial, "hey, cut us some slack" behind the scenes?

 

[MrNiceGuy]

Instead of citing public safety, they cite the historical prohibition on CCW.

Such an insulting and ludicrous line of reasoning. At the start of 1954 (prior to Brown v Board of Education), there were 58 years of historical judicial support for racial segregation, effectively condemning black people to second class citizen status. Wrong is wrong and doing it longer doesn't make it less wrong. Probably better I'm not a lawyer writing response briefs for cases like this because I wouldn't be able to resist throwing in a pretty biting line or twelve to that effect. The lawyer making that argument ought to be ashamed, but obviously that's a foreign concept to them.

 

[jcutonilli]

I was only referring to the lawsuit, not so much what the state's response was. They essentially have used the same arguments in Kachalsky, Woollard and Drake but tailored to the particular law of the state.

I think they've put forward statistics from several states that show only a minute number of permits are revoked for any reason, as well as crime stats that show no increase (but sometimes a decrease) in crime rates.

What else should they put forward?

I am not sure who "they" are referring to, but Peruta has not addressed statistics in their cert petition.

The 9th Circuit en banc did not make an argument based on statistics, it was entirely based on historical precedent. CA is using this same argument.

I don't see an argument based on statistics winning because the state has its own statistics and gets deference to them.

 

[jcutonilli]

Such an insulting and ludicrous line of reasoning. At the start of 1954 (prior to Brown v Board of Education), there were 58 years of historical judicial support for racial segregation, effectively condemning black people to second class citizen status. Wrong is wrong and doing it longer doesn't make it less wrong. Probably better I'm not a lawyer writing response briefs for cases like this because I wouldn't be able to resist throwing in a pretty biting line or twelve to that effect. The lawyer making that argument ought to be ashamed, but obviously that's a foreign concept to them.

It is not that ludicrous. Heller talks about the historical precedent against CCW when it mentions that the right is not unlimited.

Even Peruta is not exactly disputing it. They “do not contend that there is a free-standing Second Amendment right to carry concealed firearms.” The only right they have ever asserted is the right to bear a handgun outside the home in some manner, whether openly or concealed.

 

[press1280]

I am not sure who "they" are referring to, but Peruta has not addressed statistics in their cert petition.

The 9th Circuit en banc did not make an argument based on statistics, it was entirely based on historical precedent. CA is using this same argument.

I don't see an argument based on statistics winning because the state has its own statistics and gets deference to them.

I'm sure those stats provided by SAF, NRA were in the district court proceedings.

 

[Inigoes]

After perusing scotusblog

it looks like only opinions will be released today, not any orders list. Today will probably wipe out the majority of crimmigration dockets which make up the bulk of the undecided cases.

 

[Inigoes]

nothing today

 

[777GSOTB]

Looks like we'll have to wait till Monday for Certiorari Denied...Damn, get this over with already.

 

[kcbrown]

I don't see an argument based on statistics winning because the state has its own statistics and gets deference to them.

Wait, what?

If a public safety argument based on statistics can't win, then how can any public safety argument win, save for one that says that the government's public safety argument is immaterial?

Do you seriously expect a court to treat a public safety argument that is not backed by statistics as having greater persuasive power than one that does? Because as regards your claim that we should be arguing on the basis of public safety, that's the only thing that's left in light of the above.

Now it sounds like the only argument we can make is that Heller takes public safety arguments off the table on the basis that, otherwise, courts would be deciding "on a case-by-case basis whether the right is really worth insisting upon".

 

[Inigoes]

Today is listed as another non-argument day

 

[jcutonilli]

Wait, what?

If a public safety argument based on statistics can't win, then how can any public safety argument win, save for one that says that the government's public safety argument is immaterial?

Do you seriously expect a court to treat a public safety argument that is not backed by statistics as having greater persuasive power than one that does? Because as regards your claim that we should be arguing on the basis of public safety, that's the only thing that's left in light of the above.

Now it sounds like the only argument we can make is that Heller takes public safety arguments off the table on the basis that, otherwise, courts would be deciding "on a case-by-case basis whether the right is really worth insisting upon".

Statistic don't define rights. The role of the courts are to judge the law, the role of the legislature is to define the law. In those instances, the court verifies that the legislature used reasonable judgment in determining the law, and determines if there was sufficient connection to a government interest to sustain the law.

When you look at the governments role, it does provide some level of public safety. Just like all rights, this role is not absolute. While they provide a generalize role in public safety, they do not protect the individual citizen. I would go so far as to say they don't really provide public safety (specifically to the public), with the caveat that there is a general obligation. To say that the governments role is immaterial is wrong, but it is equally wrong to make this generalized obligation something more than it is. None of the cases to date have argued this point and has made the governments argument that much stronger.

When you look at the citizens' role in public safety, it is primarily centered around the individual. When you look at solely the individual, there is essentially no public safety because an individual is a minute part of the public. When you look at the aggregation of the individual (definition of the public), you get a much different situation because you are really addressing how the public really protects itself. By arguing self defense, you are ignoring the aggregation of everyone and that effect on society.

What statistics do you need to make that argument?

 

[kcbrown]

Statistic don't define rights. The role of the courts are to judge the law, the role of the legislature is to define the law. In those instances, the court verifies that the legislature used reasonable judgment in determining the law, and determines if there was sufficient connection to a government interest to sustain the law.

When you look at the governments role, it does provide some level of public safety. Just like all rights, this role is not absolute. While they provide a generalize role in public safety, they do not protect the individual citizen. I would go so far as to say they don't really provide public safety (specifically to the public), with the caveat that there is a general obligation. To say that the governments role is immaterial is wrong, but it is equally wrong to make this generalized obligation something more than it is. None of the cases to date have argued this point and has made the governments argument that much stronger.

What would be the legal basis for such an argument? Has it ever been made in any other context?

The courts have already acknowledged that the government does not have any sort of duty to protect individuals, only to provide some nebulous "public safety". This is just as true of the courts as it is of any other government institution. The problem here is that the government's argument is obviously that the law they impose clearly satisfies that latter role.

The argument you're proposing is for the purpose of getting the law struck. If the law satisfies the government's role (as the government will clearly argue, with statistics to back that position), what possible argument can you make that striking the law will result in at least the same degree of public safety benefit except through a statistical showing? By merely asserting that the aggregate of individual safety yields a public that is safer in the absence of the law in question than with it? You've just taken the statistical argument off the table, so it looks to me like you've just blown out of the water the only possible means of getting the law struck through a public safety argument. There's no way the court is going to buy your argument without supporting evidence. What possible supporting evidence can you bring to the table that is not statistical in nature?

And if the public safety role of government extends to the courts, then the courts themselves must also be disinterested in individual safety. So the aggregate effect is the only effect the court will be interested in, and it's something that you cannot merely assert, since what you'd be bringing to the table then is an assertion without backing evidence, up against a government assertion that has backing evidence. The court will clearly favor the latter, and your argument will lose.

When you look at the citizens' role in public safety, it is primarily centered around the individual. When you look at solely the individual, there is essentially no public safety because an individual is a minute part of the public. When you look at the aggregation of the individual (definition of the public), you get a much different situation because you are really addressing how the public really protects itself. By arguing self defense, you are ignoring the aggregation of everyone and that effect on society.

What statistics do you need to make that argument?

Wait. Is a statistical argument now back on the table here? If so, then clearly you'd need statistical evidence showing that the aggregate safety is greater in the absence of a law like the one being challenged than it is with such a law in place.

Without such evidence, your argument is dead in the water.

 

[jcutonilli]

What would be the legal basis for such an argument? Has it ever been made in any other context?

The courts have already acknowledged that the government does not have any sort of duty to protect individuals, only to provide some nebulous "public safety". This is just as true of the courts as it is of any other government institution. The problem here is that the government's argument is obviously that the law they impose clearly satisfies that latter role.

The argument you're proposing is for the purpose of getting the law struck. If the law satisfies the government's role (as the government will clearly argue, with statistics to back that position), what possible argument can you make that striking the law will result in at least the same degree of public safety benefit except through a statistical showing? By merely asserting that the aggregate of individual safety yields a public that is safer in the absence of the law in question than with it? You've just taken the statistical argument off the table, so it looks to me like you've just blown out of the water the only possible means of getting the law struck through a public safety argument. There's no way the court is going to buy your argument without supporting evidence. What possible supporting evidence can you bring to the table that is not statistical in nature?

And if the public safety role of government extends to the courts, then the courts themselves must also be disinterested in individual safety. So the aggregate effect is the only effect the court will be interested in, and it's something that you cannot merely assert, since what you'd be bringing to the table then is an assertion without backing evidence, up against a government assertion that has backing evidence. The court will clearly favor the latter, and your argument will lose.

Wait. Is a statistical argument now back on the table here? If so, then clearly you'd need statistical evidence showing that the aggregate safety is greater in the absence of a law like the one being challenged than it is with such a law in place.

Without such evidence, your argument is dead in the water.

The legal basis is that it is the same argument the government uses to defend itself when someone tries to sue them for not protecting them when the crimes happen to particular people. There are literally thousands of cases where the government used this argument against victims. The court would need to overturn all of these cases and subject the government to untold liability every time a crime is committed. It is not going to happen.

It does not satisfy the governments role because it is not their role to protect individuals. In fact they are undermining the ability of the people to provide that role. If you read Stevens dissent in Heller, it clearly indicates that individual rights also have a collective component. Public safety is a manifestation of that concept with respect to self defense.

I fail to understand why you think this argument comes down to who does a better job. The second amendment was put in place to ensure that the people themselves can protect us. The government is actually part of the problem as demonstrated in the recent decent decree on the police department.

I see no need for statistics in this argument

 

[kcbrown]

The legal basis is that it is the same argument the government uses to defend itself when someone tries to sue them for not protecting them when the crimes happen to particular people. There are literally thousands of cases where the government used this argument against victims. The court would need to overturn all of these cases and subject the government to untold liability every time a crime is committed. It is not going to happen.

No, I mean: what's the legal basis for the aggregate of individual safety argument that you're putting forth? I'm fully aware of the legal basis of the government not having a responsibility to protect individuals.

I fail to understand why you think this argument comes down to who does a better job. The second amendment was put in place to ensure that the people themselves can protect us. The government is actually part of the problem as demonstrated in the recent decent decree on the police department.

OK, so if I'm not mistaken, the argument you're proposing is this:

1. The safety of the public is at least in part determined by the aggregate of the safety of individuals
2. The right to arms is a critical component of individual safety
3. The Second Amendment places the responsibility for protection of the public into the hands of individuals by protecting the individual right to arms
4. Therefore, the Constitution dictates, through the Second Amendment, how public safety is to be achieved and, thus, the public safety claim behind a law which conflicts with the 2nd Amendment cannot be used to override the right to arms.

Does that seem like a reasonable representation of your argument?

I see no need for statistics in this argument

Perhaps not. But you're already in front of a court that has decades of precedent behind various forms of "interest balancing". Your argument has to overcome all of that.

 

[jcutonilli]

No, I mean: what's the legal basis for the aggregate of individual safety argument that you're putting forth? I'm fully aware of the legal basis of the government not having a responsibility to protect individuals.

OK, so if I'm not mistaken, the argument you're proposing is this:

1. The safety of the public is at least in part determined by the aggregate of the safety of individuals
2. The right to arms is a critical component of individual safety
3. The Second Amendment places the responsibility for protection of the public into the hands of individuals by protecting the individual right to arms
4. Therefore, the Constitution dictates, through the Second Amendment, how public safety is to be achieved and, thus, the public safety claim behind a law which conflicts with the 2nd Amendment cannot be used to override the right to arms.

Does that seem like a reasonable representation of your argument?

Perhaps not. But you're already in front of a court that has decades of precedent behind various forms of "interest balancing". Your argument has to overcome all of that.

No that is not a reasonable representation, we have not really discussed the historical understanding, which Heller says is important for determining the understanding of the amendment.

From a historical perspective there were no police and under English common law, every person had an active responsibility for keeping the peace.

The police replaced the standing army due to the Posse Comitatus Act. The police have become abusive like the founders feared (See BCPD consent decree)

The lack of safety provided to the individual by the government plays into the determination that public safety is an aggregate of the individual self defense.

You can't balance an interest that involves the people themselves.

 

[kcbrown]

No that is not a reasonable representation,

OK.

we have not really discussed the historical understanding, which Heller says is important for determining the understanding of the amendment.

From a historical perspective there were no police and under English common law, every person had an active responsibility for keeping the peace.

Yes. But now we have an active police force that the courts presume improves public safety. Historical understanding does nothing to change that fact.

If your argument is that the definition of public safety is that which was understood at the time of ratification of the Constitution, well, Good Luck With That. I'd love to see jurisprudence to that effect. I'm betting there is none.

The police replaced the standing army due to the Posse Comitatus Act. The police have become abusive like the founders feared (See BCPD consent decree)

That will be irrelevant to the courts, unless you can show that police forces are generally abusive in the same way. Otherwise, the court will simply conclude that the existence of an active police force has a beneficial effect on public safety because that's what the government will argue (with backing statistics, naturally) and thus it's what the court will buy by default.

The lack of safety provided to the individual by the government plays into the determination that public safety is an aggregate of the individual self defense.

What? No, that doesn't follow. You can't use lack of safety of the individual in and of itself to conclude that public safety is an aggregate of individual self defense (really, an aggregate of individual safety). The latter doesn't logically follow from the former except when public safety is the aggregate of individual safety (a definition that the courts have not adopted. See below), and the government will just counter with the claim that public safety is maintained even if some individuals are not safe on an individual basis.

You can use the lack of safety provided by the government to the individual to show that public safety is lower in the presence of laws forbidding effective individual self defense than it is in the absence of such laws, but to do that you have to first convince the court that public safety is the aggregate of individual safety.

So it sounds like your argument hinges on a definition. But the courts have already been using something other than the definition of public safety that is compatible with your argument, because if they had been using the definition you seem to be proposing, then they'd have concluded that the government has some duty to protect individuals since failing to protect an individual would, in the absence of counteracting elements, lower the aggregate and thus yield a reduction of public safety.

You can't balance an interest that involves the people themselves.

Really? The courts do that all the time with speech.



Look, the bottom line is this. Either public safety is some quantitative thing or it's not. If it is, then you cannot win a public safety argument without showing quantitative effects, and that means using statistics. If it isn't, then you clearly have to show that public safety is actually something different than what the courts have been thinking it is, because courts have been deciding against the right on the basis of what they currently believe public safety to be.

Good Luck With That.



For the record, I don't disagree with your apparent definition of public safety. It is a logical definition. But the courts apparently do not agree with it, so I fail to see how this argument can possibly win in court, most especially given the implications adopting the definition would have on existing law, and particularly with respect to the "no duty to protect" doctrine that is currently in place.