En banc Decision in Peruta -- a loss

[GlocksAndPatriots]

Your argument is not supported by facts. This term SCOTUS voted unanimously in the vast majority of the cases (according to Scotusblog). Is Thomas too far to the left for you because all of the other justices voted the same way he did for those cases.

Because the majority of cases had nothing to do with ideology.

 

[jcutonilli]

Because the majority of cases had nothing to do with ideology.

So your saying that "SCOTUS is a lot less political than you make them out to be." and that they are not simply "making decisions on [their] personal faith, rather than the law."

 

[AliasNeo07]

I agree, I think SCOTUS is far less political than people make them out to be. I'm sure personal feelings creep in from time to time, because they are humans, by I do respect everyone that currently sits on the bench and I believe they make their decisions based on their interpretations of the law, not personal feelings.

A majority of SCOTUS cases are unanimous. And most cases are boring...things like tax code, etc. These "tabloid cases" come about only now and then, and that is the only time most Americans even bother to pay attention.

Why do a lot of the 5-4 cases come out the way they do, with 5 "Democrats" and 4 "Republicans", or whatever? Not because they are Democrats or Republicans, but because they share the same judicial philosophy. Democrats tend to appoint people with certain judicial philosophies, as do Republicans.

I tend to favor a more conservative, originalist type of philosophy.

I don't hate Roberts for his Obamacare vote. I don't like Obamacare, but I don't believe he voted that way to "save Obamacare" or because he personally liked Obamacare. I believe he voted that way because he believe the constitution demanded he do so.

When you listen to interviews, speeches, lectures from these justices, all of them, Democrat and Republican appointees, all say the same thing -- They don't vote based on personal politics, and they do not believe for a second their colleagues, even the ones with whom they disagree, do either.

That is just my .02.


But still, they should have granted cert and overturned the 9th circuit ruling

 

[kcbrown]

You don't understand what I am saying. You also seem to jump to conclusions about how the court will decide things without explaining how they have reached that conclusion via past precedent.

"Past precedent" has clearly defined "public safety" as something that does not demand individual safety, since otherwise the courts could not have decided that the government has public safety as a compelling interest and simultaneously doesn't have a duty to protect individuals. The stance the courts have taken on that subject is mutually exclusive to a definition of public safety that is composed of the safety of individuals.

While I certainly did not cite specific precedent, it doesn't seem logical to need to. The courts' conclusions are all that's needed here, and I expect you're already quite familiar with which ones have stated that the government has no duty to protect individuals. But if you'd like, I'll be happy to dig some of them up.

In Kolbe, both sides agreed that public safety was an important government interest, but they did not really define what that meant or who really provided it.

I responded to this here, but can continue this in that other thread as well as (or instead of) in this one if you'd like. But the short version is that the only way we can win is if prior precedent defines "public safety" in a way that we can use to our advantage. What I didn't say in that other thread, but can say here, is that prior precedent seems to define it in such a way that we cannot use it in the way you seem to want to, per the argument above.

The historical understanding of "public safety" is irrelevant if precedent has already been built on top of a different understanding. New precedent takes priority over old precedent. That's how precedent works (else Heller would not have precedential priority over Miller).

When you get into a quantitative argument you are implicitly acknowledging that there is a relationship and that the issue is over how much.

That's true, but that does nothing to address my argument that "public safety" is either quantitative, in which case you cannot avoid a quantitative argument, or it's not, in which case prior cases that were decided on the basis of quantitative arguments are all null and void (since the non-quantitative nature of "public safety" would render quantitative arguments irrelevant). Which is it?

 

[kraftyone]

I wish they would just take one of these cases and slap down all these liberal judges

 

[adit]

I wish they would just take one of these cases and slap down all these liberal judges

Hopefully they are just waiting for Kennedy to retire.

 

[jcutonilli]

"Past precedent" has clearly defined "public safety" as something that does not demand individual safety, since otherwise the courts could not have decided that the government has public safety as a compelling interest and simultaneously doesn't have a duty to protect individuals. The stance the courts have taken on that subject is mutually exclusive to a definition of public safety that is composed of the safety of individuals.

While I certainly did not cite specific precedent, it doesn't seem logical to need to. The courts' conclusions are all that's needed here, and I expect you're already quite familiar with which ones have stated that the government has no duty to protect individuals. But if you'd like, I'll be happy to dig some of them up.

I responded to this here, but can continue this in that other thread as well as (or instead of) in this one if you'd like. But the short version is that the only way we can win is if prior precedent defines "public safety" in a way that we can use to our advantage. What I didn't say in that other thread, but can say here, is that prior precedent seems to define it in such a way that we cannot use it in the way you seem to want to, per the argument above.

The historical understanding of "public safety" is irrelevant if precedent has already been built on top of a different understanding. New precedent takes priority over old precedent. That's how precedent works (else Heller would not have precedential priority over Miller).


That's true, but that does nothing to address my argument that "public safety" is either quantitative, in which case you cannot avoid a quantitative argument, or it's not, in which case prior cases that were decided on the basis of quantitative arguments are all null and void (since the non-quantitative nature of "public safety" would render quantitative arguments irrelevant). Which is it?

Your jumbling together the various parts of public safety and not understanding them. While there are generalities you can say there will also be exceptions when you get to the specifics. When you say that public safety does not demand individual safety, that is not technically correct. So long as public safety and individual safety coincide, individual safety is preserved. It is only when public safety and individual safety diverge that public safety takes precedence over individual safety.

You need to be careful when you pluralize individuals. This is because individuals make up the public. Are a group of individuals really just individuals or can they be considered the public? I don't think that there is a simple answer. It really depends on how well the group mimics the public and under what circumstances. You seem to be saying that a group no matter how large cannot be considered the public.

When 2A cases are presented in court, they get framed as a public safety issue vs an individual right/safety. Individual rights lose in that situation because it appears as if individual safety and public safety are diverging. The argument over whether they are diverging is simply about how bad the situation is. That sounds like a policy question and the courts differ to the legislature on policy questions.

I believe you need to demonstrate why you are not dealing with and individual right, but that it really is about public safety. When you aggregate individuals, that seems to me to pretty much be the public. Add on the fact that the government does not really protect specific people. The only effective means of public safety is that provided by the people themselves.

If you rely solely on the the government to provide public safety you run into another problem. The government itself. There is documented proof that the government has adversely affected the public safety with respect to how the Baltimore City Police Department conducts its operations. While they don't need to protect any specific person, they cannot destroy the public's safety in the process. This is the specific reason the second amendment was codified and is happening today.

I fail to understand why the quantity of public safety should matter. Guns are not the problem. Bad people are the problem. I don't need specific numbers to say that criminals are the problem and that law abiding people are not the problem. People have historically been part of the solution to apprehend criminals. Why do you want to deny or ignore that? I don't understand why you think precedent prevents anyone from apprehending a criminal.

 

[kcbrown]

Your jumbling together the various parts of public safety and not understanding them.

Perhaps. Would you mind being more specific?

While there are generalities you can say there will also be exceptions when you get to the specifics.

That's true, of course, but it's likely always true regardless. Is the argument you're putting for one that is intended to take advantage of a specific exception? If so, then what exception would that be?

When you say that public safety does not demand individual safety, that is not technically correct. So long as public safety and individual safety coincide, individual safety is preserved. It is only when public safety and individual safety diverge that public safety takes precedence over individual safety.

Then explain where the "no duty to protect" doctrine comes from. It's one thing to claim that the government has no duty to protect an individual when public safety would be compromised by it. It's another thing entirely to claim that the government has no duty to protect an individual whatsoever. And yet, it is the latter, not the former, which the courts have found. See, e.g., Warren v District of Columbia:

The trial judges correctly dismissed both complaints. In a carefully reasoned Memorandum Opinion, Judge Hannon based his decision in No. 79-6 on "the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen." See p. 4, infra. The duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists.

(emphasis mine)

The statement that the government has no duty to protect individuals (or to provide to an individual any public service whatsoever, for that matter) is, except when a "special relationship" exists, unequivocal.

It is the latter which makes the definition of "public safety" that the courts use one which conflicts with individual safety. This is a logical consequence of how the courts have decided the issue. I cannot help that the logical consequence is what it is. It is there nonetheless and we have to deal with it. And it has logical consequences with respect to the argument you are attempting to put forth.


By the way, I do not consider Castle Rock v Gonzales to be material here, because that case seems to be about whether or not an individual has a "property interest" in police enforcement of a restraining order, and not about whether the government has a duty to protect individuals. Indeed, there is nothing in the Constitution which imposes any kind of duty upon the government with respect to public safety at all, at least that I can find. As such, the government's "compelling interest" in public safety clearly must derive from some other source. It may well be crafted from whole cloth by the judiciary, but it looks like it's implied by at least some state constitutions (Maryland's, for instance).

You need to be careful when you pluralize individuals. This is because individuals make up the public. Are a group of individuals really just individuals or can they be considered the public? I don't think that there is a simple answer. It really depends on how well the group mimics the public and under what circumstances. You seem to be saying that a group no matter how large cannot be considered the public.

No, I'm saying that the aggregate of individual safety cannot be considered to be "public safety" because that would conflict with precedent (i.e., that the government has no duty whatsoever to protect individuals).

When 2A cases are presented in court, they get framed as a public safety issue vs an individual right/safety. Individual rights lose in that situation because it appears as if individual safety and public safety are diverging. The argument over whether they are diverging is simply about how bad the situation is. That sounds like a policy question and the courts differ to the legislature on policy questions.

Yes, completely agree so far.

I believe you need to demonstrate why you are not dealing with and individual right, but that it really is about public safety. When you aggregate individuals, that seems to me to pretty much be the public. Add on the fact that the government does not really protect specific people. The only effective means of public safety is that provided by the people themselves.

Were that the case, then the decision the courts have made about the government not having a duty to protect individuals would conflict directly with what public safety is. If you were to successfully make this argument, it would destroy current precedent precisely because of that conflict.

So it's on you to show how the argument you're making does not conflict with the precedent that says that the government has no duty to protect individuals. If the aggregate safety of all individuals is what "public safety" is, then it follows that if the government has a compelling interest in that, then it must have a duty to protect individuals unless protection of an individual would endanger a larger number of other individuals or otherwise compromise the aggregate safety. But that is not the doctrine which forms current precedent. The current doctrine is unequivocal: the government has no duty whatsoever to protect individuals.

Hence, it logically follows that for current precedent to stand, "public safety" must be something other than the aggregate of the safety of all individuals in the public, or even the aggregate of the safety of the individuals within any subgroup of the public (absent a "special relationship").

If you rely solely on the the government to provide public safety you run into another problem. The government itself. There is documented proof that the government has adversely affected the public safety with respect to how the Baltimore City Police Department conducts its operations. While they don't need to protect any specific person, they cannot destroy the public's safety in the process. This is the specific reason the second amendment was codified and is happening today.

Oh, I quite agree, but I see no reason the courts won't dismiss (because the government will argue) such evidence as being exceptions to the general rule, rather than being the rule itself. And in any case, the government will also say that things like the Baltimore consent degree illustrate that the there's a corrective mechanism in place to ensure that the government does provide public safety.

I fail to understand why the quantity of public safety should matter.

It matters only if "public safety" is a quantitative thing. My point here is that if "public safety" is quantitative, then you cannot escape a quantitative argument. But if "public safety" isn't quantitative, then cases which were decided on a quantitative basis clearly must be null and void, since quantitative arguments are irrelevant if "public safety" isn't a quantitative attribute.

Hence, I see no way to avoid the conclusion that "public safety", whatever it is, must be quantitative in nature, since to conclude otherwise is to insist that the precedent formed by the cases that were decided on a quantitative public safety basis must be null and void.

Guns are not the problem. Bad people are the problem. I don't need specific numbers to say that criminals are the problem and that law abiding people are not the problem. People have historically been part of the solution to apprehend criminals. Why do you want to deny or ignore that? I don't understand why you think precedent prevents anyone from apprehending a criminal.

Precedent actually doesn't prevent anyone from apprehending a criminal, unless "citizen's arrest" has somehow been made illegal. And I agree with you that law abiding people are not the problem, and that criminals are. But if the government nevertheless claims that a law which imposes upon the right to arms is one which improves public safety, you have to counter that. You can't ignore it, because if you do, then the court will simply side with the government.

I'm sure the government can cite many laws which have "public safety" as their basis and which control the behavior of law-abiding individuals. Traffic laws are an excellent example of that. Why wouldn't the government argue that the law before the court is of that type, and if the government makes such an argument, how would you counter it?

You'd then have to show either that the government's claim is false or that the government's argument is irrelevant. You could argue that it is irrelevant because the nature of "public safety" is that of an aggregate of the safety of individuals, but then you run smack into the logical problems I outline above, problems which I guarantee the courts will pay great amounts of attention to, seeing how it is their own precedent that would be on the line there.


The problem here isn't that I don't personally agree with the argument you seem to be making -- I do. The problem is that I see no logical way for it to win in court with precedent as it currently stands.

You might wonder why I'm putting your arguments through the logical wringer here. It's because I want them to succeed. If they're solid, they must address the points I raise here, because the opposition will surely raise the same points I do.

 

[jcutonilli]

You keep saying "the government has no duty whatsoever to protect individuals" Let me quote from Warren to try and help you out. "The duty to provide public services is owed to the public at large" The words Warren uses to denote who is not covered are "any particular individual citizen" and "an individual". This is not the plural form you use. If you, as an individual, call the police, they will likely show up and provide service because you are a member of the public (public and individual safety coincide). If they are busy providing their services to other members of the public, you cannot expect them to stop providing these services to other members of the public (public and individual safety conflict). There are a finite amount of resources that cannot serve everyone at once.

This is what I am trying to get you to understand. Technically public safety is not just the aggregate of individual safety, the police and government do do things to provide the public's safety. These other things cannot be guaranteed though, so public safety is approximately the aggregate of individual safety.

The other issue I am trying to get you to understand is the quantitative issue of public safety. The government needs to demonstrate a substantial relationship between the law and public safety. Quantitative numbers seem like an appropriate way to establish the relationship. Laws do control the behavior of law-abiding individuals, which is why the quantitative numbers the government produces do not apply to law abiding people. The issues the government raises are already prevented by laws. It is only the people that break the law (criminals) that are the public safety problem. I do not need quantitative numbers to make that argument. In first amendment parlance it is an example of overbreadth (overbroad) because it impacts people that are not the problem.

 

[kcbrown]

You keep saying "the government has no duty whatsoever to protect individuals" Let me quote from Warren to try and help you out. "The duty to provide public services is owed to the public at large" The words Warren uses to denote who is not covered are "any particular individual citizen" and "an individual". This is not the plural form you use. If you, as an individual, call the police, they will likely show up and provide service because you are a member of the public (public and individual safety coincide). If they are busy providing their services to other members of the public, you cannot expect them to stop providing these services to other members of the public (public and individual safety conflict). There are a finite amount of resources that cannot serve everyone at once.

So far so good. This does not conflict with my analysis. As I said, if "public safety" is the aggregate of individual safety and the government has a "compelling interest" in "public safety", then it automatically follows that the government has a duty to protect the individual unless doing so would have a greater negative impact on the safety of other individuals or on the aggregate. Now, even if you formulate "public safety" as including some other ill-defined component, the above remains the case, except that said other component would also become part of the "unless" clause.

But that is not how the courts have formulated the claim. Their claim, which is now jurisprudence, is that the government has no duty to protect (or really any duty of any kind towards) an individual no matter what, except when there is a "special relationship" between that individual and the government. It is an absolute claim. It makes no provisions whatsoever for the aggregation of individual safety.

It is that formulation which conflicts directly with a claim that "public safety" is at least in part composed of the aggregate of individual safety. And that means the claim that "public safety" is at least in part composed of the aggregate of individual safety is a claim that contradicts current jurisprudence, because it introduces a logical contradiction in the way courts have decided cases in the past. By making the claim, you are asking the court to toss out its current jurisprudence. What makes you think it will?

This is what I am trying to get you to understand. Technically public safety is not just the aggregate of individual safety, the police and government do do things to provide the public's safety. These other things cannot be guaranteed though, so public safety is approximately the aggregate of individual safety.

Whether it's approximate or not is immaterial to my argument. What matters is the totality. But now we're getting into a quantitative argument, are we not?

And in any case, current jurisprudence directly conflicts with the notion that "public safety" even contains an aggregate of individual safety, per the above.

The other issue I am trying to get you to understand is the quantitative issue of public safety. The government needs to demonstrate a substantial relationship between the law and public safety.

That hasn't been true thus far. Thus far, the government has only needed to claim that the relationship exists, and in the absence of us showing that the relationship isn't there, the courts have automatically deferred to the government on that claim.

Quantitative numbers seem like an appropriate way to establish the relationship. Laws do control the behavior of law-abiding individuals, which is why the quantitative numbers the government produces do not apply to law abiding people. The issues the government raises are already prevented by laws. It is only the people that break the law (criminals) that are the public safety problem. I do not need quantitative numbers to make that argument. In first amendment parlance it is an example of overbreadth (overbroad) because it impacts people that are not the problem.

But then you run afoul of the government's claim that the law in question nevertheless serves to improve public safety, along with the statistics it brings forth in support of that claim. How are you going to counter that claim? The government's claim here will be that the law improves public safety even if it impacts law-abiding individuals. And since the government has no duty to individuals (absent a "special relationship"), it logically follows that it has no duty to refrain from passing laws that negatively impact the safety of individuals, either, as long as those laws serve the government's compelling interest in "public safety".


Keep in mind that the arguments I'm raising aren't "my" arguments as such. They're the arguments I'd expect the government to raise in the event it is up against the argument you're putting forth. You cannot simply dismiss these arguments with a wave of the hand, because the court most certainly wouldn't let you get away with that.

 

[jcutonilli]

The problem with your analysis is that it assumes that only the government provides public safety. I believe Warren say exactly the opposite. Since the government does not really protect specific individuals the only protection individuals get is from themselves.

When you argue an individual right, the impact on pubic safety is by definition approximately zero because the individual is approximately zero percent of the public. When you aggregate the individual you get the public. I can ignore other contributions because there are no legal obligations. The statistics the government provides demonstrates that they are incapable of protecting the people.

 

[kcbrown]

The problem with your analysis is that it assumes that only the government provides public safety.

No, it doesn't assume any such thing. Individuals may contribute to public safety, but it must be through some means other than protection of the individual. This is so because if protection of the individual improved public safety (even if only minutely -- "slightly more than zero" is not the same as "zero"), then the government would be compelled to protect the individual since the government has a compelling interest in public safety and, thus, a compelling interest in anything that improves public safety.

I believe Warren say exactly the opposite. Since the government does not really protect specific individuals the only protection individuals get is from themselves.

That is true, but that's beside the point. The point is that the government's compelling interest is in public safety, and jurisprudence to this point has defined that term to exclude the safety of individuals. That must be true, for if it were not, the government would have a duty to protect individuals. The notion that "public safety" is at least in part composed of the safety of individuals automatically and inexorably leads to the conclusion that the government has a duty to protect individuals (except, of course, when doing so would have a greater detrimental impact on the remainder of public safety than would protection of the specific individual in question). This is so because, all other things kept equal, the safety of the aggregate, and thus public safety, is improved when individuals are protected relative to when they are not, and therefore government protection of individuals would improve public safety so long as that protection does not compromise some other aspect of public safety. This would be true even if individuals were able to provide their own protection, since the protective effects would then be additive. This logical link cannot be broken merely by asserting it does not exist.

Since the government does not have a duty to protect individuals, it follows that "public safety" cannot be, even in part, composed of the safety of individuals.

You can certainly argue that the aggregate safety of individuals is a public good, but that is not something the government has a compelling interest in, else (again) the government would be compelled to protect individuals.

Because the safety of the aggregate is composed of the safety of the individuals within it, and because the government has no compelling interest in the safety of the individual, it follows that the government cannot have any compelling interest in the safety of the aggregate that arises from the safety of the individuals within it. To change this, you have to change the jurisprudence that is currently in place.

When you argue an individual right, the impact on pubic safety is by definition approximately zero because the individual is approximately zero percent of the public. When you aggregate the individual you get the public. I can ignore other contributions because there are no legal obligations. The statistics the government provides demonstrates that they are incapable of protecting the people.

The problem is that you cannot square the notion that there is no legal obligation to protect individuals with the notion that the government has a compelling interest in "public safety" unless "public safety" has no component with a dependence upon the individual. To aggregate individuals into a larger whole is to create a dependency upon the individual, however small a single individual's contribution to the aggregate may be. This is so because if the contribution of each individual were zero, the aggregate would also have to be zero.

The problem here is that the current jurisprudence is that the government has absolutely no duty to protect the individual whatsoever, save for when the individual has a "special relationship" with the government. That automatically excludes the notion that "public safety" has any individual component within it whatsoever, even if that component is a mere aggregate. The very definition of an aggregate creates a dependency upon the individual, but current jurisprudence insists that the individual is of no consequence whatsoever. But if the individual is of no consequence, then it follows that the aggregate must also be of no consequence, for the sum of many zeros is zero. And if the aggregate is of no consequence, then it cannot have any effect on "public safety".

Conversely, if the aggregate is of consequence, then the individual contributions to that aggregate are also of consequence and, therefore, the government would have a compelling interest in the individual. Current jurisprudence directly contradicts that. So you can either claim that public safety is composed in part of the aggregate of individual safety, or you can retain current jurisprudence. But you cannot do both, because they are mutually exclusive.



Now, I think it's worth attempting to make the argument you're putting forth in court, because there's always the possibility that the court will find the implications of current jurisprudence so distasteful that it will toss that jurisprudence out on its ear. I believe your argument, combined with the logical implications described above, does an excellent job of illustrating the distasteful implications of current jurisprudence, and may cause the court to question exactly what public safety could possibly be if the individual must be removed from the equation. But that's not the way I'd expect the court to go, because courts prefer to preserve jurisprudence regardless of the implications, most especially when that jurisprudence supports the government's position. See, e.g., the fate of the "privileges or immunities" clause in McDonald.

 

[jcutonilli]

The problem with your argument is that it is not logical. I believe the formal logical fallacy is called affirming the consequent. Yes the government wants public safety to happen, but it cannot always protect individuals. This does not mean that individuals cannot protect themselves. You can't always get what you want. The general statement is that the government wants public safety to happen. The specific exception to this general statement is that the government itself cannot always provide it. This does not make the specific exception the general rule. Your jumbling the different aspects of public safety together when you should not.

 

[kcbrown]

The problem with your argument is that it is not logical. I believe the formal logical fallacy is called affirming the consequent.

Affirming the consequent means presuming the conclusion. What conclusion am I presuming to be the case here?

When I start with the jurisprudence we have in hand, I presume that:

1. The jurisprudence itself is a given, i.e. that the government has no duty to the individual at all
2. That the government has a compelling interest in public safety
3. That a compelling interest in public safety automatically translates to a compelling interest in anything that yields a net improvement in public safety
4. That a compelling interest in something automatically translates into a duty towards that something

From the above, it immediately follows that the government cannot have a compelling interest in individual safety, because the government has no duty to the individual of any kind. A compelling interest in public safety automatically translates into a duty towards anything that improves public safety, as long as said duty would not have a greater detrimental effect on public safety. Since the government does not have a duty to protect the individual, it therefore cannot have a compelling interest in individual safety, and since it cannot have a compelling interest in individual safety, it follows that individual safety cannot improve public safety (remember that "public safety" here must be defined in such a way as to be consistent with the presumptions above), since if individual safety improved public safety, the government would then have a compelling interest in individual safety, which contradicts the first assumption above. Claiming that it's the aggregate that matters doesn't help you here, since an aggregate cannot count unless its constituents also count, since the aggregate is merely the sum of its constituents.

The above conclusion does not appear in any of the presumptions above. Therefore, I cannot be affirming the consequent here.


Presumptions are inviolate. As such, any argument that leads to a contradiction with the presumptions is automatically invalid, unless the presumptions themselves are invalid. The argument that public safety is composed in part of individual safety (whether through aggregation or not) leads to a contradiction with the above presumptions. That makes it invalid in the face of the presumptions.

The only way out of that is to show that one or more of the presumptions themselves is false. But if at least one of the presumptions above is false, which ones are false, and why are they false?

Yes the government wants public safety to happen, but it cannot always protect individuals. This does not mean that individuals cannot protect themselves.

Nor did I say any such thing. What I did say is that by the definition (whatever it may be) of "public safety" that must be in place on the basis of current jurisprudence, individual protection/safety cannot be a part of public safety, even if it comes in the form of an aggregate.

You can't always get what you want. The general statement is that the government wants public safety to happen.

No. That's insufficient. The government has a compelling interest in public safety. A compelling interest goes way beyond the mere desire for something to magically happen. "Compelling" implies that the government must act to satisfy the interest.

The specific exception to this general statement is that the government itself cannot always provide it. This does not make the specific exception the general rule. Your jumbling the different aspects of public safety together when you should not.

Which "aspects" of public safety am I jumbling here? I haven't even been able to define "public safety" in the context of current jurisprudence. "Public safety" here is essentially a black box. All I can do with what we have so far is conclude that whatever "public safety" is, it cannot include individual safety. Not unless the government doesn't have a compelling interest in public safety. But the courts have concluded multiple times that the government does have such interest.


I cannot help that you do not like the logical consequences of current jurisprudence. If you can find a logical hole in the argument I put forth, I'm very much interested in it. But it's not sufficient for you to simply claim that the hole is there. You must show it. After all, that's what the court would expect you to do, no?

 

[jcutonilli]

Public safety, you cannot presume public safety in presumptions 2-4 and then conclude public safety. All you are really doing is restating presumption 1. If you are going to presume something you need to define it first.

You also need to realize that a compelling interest is not really a duty to act. The compelling interest is used to define limits to rights, which has no real action.

 

[kcbrown]

Public safety, you cannot presume public safety in presumptions 2-4 and then conclude public safety.

Huh? Public safety is just a thing that exists. There is no "presumption" nor conclusion of it in and of itself (to say that I conclude "public safety" is the equivalent of saying that I conclude "jcutonilli". It is nonsensical). I derive certain attributes of this thing we call "public safety" on the basis of other presupposed attributes of it. There is nothing invalid about that.

All you are really doing is restating presumption 1. If you are going to presume something you need to define it first.

No. I'm not simply restating the presumption that the government owes no duty to individual safety. I'm concluding that an argument that "public safety" includes an aggregate of individual safety is invalid because that argument conflicts with the presumption that the government owes no duty to individual safety.

You also need to realize that a compelling interest is not really a duty to act. The compelling interest is used to define limits to rights, which has no real action.

Huh? If a "compelling interest" in public safety doesn't mean that the government is compelled to improve or preserve public safety, then what does "compelling" mean here?

"Compelling" is a term used to describe "interest" in the context of limits on rights. The word "compelling" carries meaning in and of itself. A different term used in its place would carry different meaning. Are you saying the courts invented a definition for "compelling" from whole cloth?

 

[jcutonilli]

If public safety is some undefined thing then I do not understand what you are presuming and apparently you do not know either.

 

[kcbrown]

If public safety is some undefined thing then I do not understand what you are presuming and apparently you do not know either.

I explicitly stated my presumptions. Just because something is undefined (or, at least, not fully defined) doesn't mean you can't know anything about it or derive things about it.

There are some things about "public safety" which are known in advance. One such thing is that the government has a "compelling interest" in it. There are other things about it that can be derived from that which is known or presumed in advance, e.g. that it cannot include individual safety or the aggregate of individual safety.

Derivations such as that are obviously subject to the correctness of the presumptions upon which they are based. Presumptions can obviously be called into question. For instance, it may be that a "compelling interest" does not translate into a duty to that interest. But as regards "compelling interest", the plain meaning of the term "compelling" yields that translation, so for that translation to be invalid means that "compelling" in this context does not carry the plain meaning it usually does.

If the meanings of the words I'm using differ from the meanings I have presumed them to have, then I clearly need to know that in order to be able to proceed. Alteration of the meanings of the words involved could easily nullify my entire argument, but may raise others.

 

[jcutonilli]

We don't know anything about public safety because you have not defined it. We know that the government has a "compelling interest" in it, but that does not say anything about pubic safety. It only tells us something about the government. None of the presumptions say anything about public safety, they only tell us things about the government.

When I looked up affirming the consequent. https://en.wikipedia.org/wiki/Affirming_the_consequent it talks about the fact that what you presume was never asserted as the only sufficient condition for the result, other factors could account for the result. I get the fact that the government does not protect individuals. What that means is that I can ignore that factor when determining public safety. I get that the government wants to make sure that the public is safe, but they are not the only sufficient condition to ensure public safety, that is why we wrote the second amendment to ensure that the people themselves can protect themselves to ensure public safety. The government can't take that away because they would be violating their own compelling interest.

 

[kcbrown]

We don't know anything about public safety because you have not defined it. We know that the government has a "compelling interest" in it, but that does not say anything about pubic safety. It only tells us something about the government. None of the presumptions say anything about public safety, they only tell us things about the government.

Interesting point, and true enough. But another way of stating it is that there is some attribute or set of attributes of "public safety" that cause the government to have a "compelling interest" in it. This clearly must be so, since the government does not have a "compelling interest" in everything.

Regardless, while the government's "compelling interest" by itself may only tell us something about the government, it is when it is combined with other things that it tells us something about "public safety". Specifically, when combined with the fact that the government has no duty whatsoever to individuals, which necessarily includes the safety of individuals, it tells us that whatever "public safety" is, it cannot include the safety of individuals.

When I looked up affirming the consequent. https://en.wikipedia.org/wiki/Affirming_the_consequent it talks about the fact that what you presume was never asserted as the only sufficient condition for the result, other factors could account for the result.

That's true, but regardless, it does mean that when one is affirming the consequent, what one concludes is also at least one of the presumptions. But that's not the case for my argument (as I demonstrated).

I get the fact that the government does not protect individuals. What that means is that I can ignore that factor when determining public safety.

But when combined with the "compelling interest" government has in "public safety", it has additional implications for whatever "public safety" is. That's the point I'm attempting to make here.

I get that the government wants to make sure that the public is safe, but they are not the only sufficient condition to ensure public safety, that is why we wrote the second amendment to ensure that the people themselves can protect themselves to ensure public safety. The government can't take that away because they would be violating their own compelling interest.

I agree. And yet, the government doesn't have the duty to protect individuals. How can its interest in "public safety" possibly be "compelling" if it simultaneously is not compelled to take the actions necessary to ensure and maximize "public safety"? If "public safety" includes the safety of individuals, how can it possibly be that the government has a "compelling interest" in "public safety" while simultaneously not having any compelling duty to the safety of the individuals that make up the public? That's the contradiction that is in play here, and the only way I can see to resolve it (save for insisting that the meanings of the terms differ from their generally understood ones) is to say that whatever "public safety" is, it cannot include the safety of individuals.


Now, one could argue that the government actually does have a compelling interest in the safety of individuals, and that the traditional means by which it has achieved that safety has been to make it possible for individuals to arm themselves appropriately. The problem with that is that it would also imply that the government would have a duty to protect individuals where it reasonably can, since the safety of the individual, and thus of the public, is clearly increased when it is both the individual and the government, and not just the individual alone, which is providing for the safety of the individual. And that directly contradicts the current jurisprudence which says that the government has no duty to the individual whatsoever.