CALGUNS FOUNDATION SUES LOS ANGELES COUNTY, SHERIFF LEE BACA (3/9/12)

[Tincon]

I don't think so. However that is just my opinion. The other issues I raised are more concrete.

eta to clarify, I don't think it was reasonably winnable at this time.

[kcbrown]

I don't think so. However that is just my opinion. The other issues I raised are more concrete.

If San Mateo was not winnable on state preemption grounds, then

1. How does it reduce the strength of state preemption, when said strength was already insufficient to prevail in this case?
2. In what way is the state preemption precedent in Fiscal "great" if it is clearly insufficient to prevail here?
3. It is not CGF's fault that this case was lost. Your complaint reduces to one about the fact that this action was brought at all, and not about how it was argued (within the confines of state preemption, at least).

Look, either state preemption applies to the San Mateo ordinance, or it doesn't. The courts said it doesn't, and you are also clearly saying the same thing. On what basis, then, are you complaining about the end result? "Strengthening" state preemption merely means illuminating the various situations in which it is applicable, but it does not follow from that at all that it will suddenly become applicable here where it clearly is not applicable now.

If the basis of your complaint is that this decision merely removed the possibility of the courts mistakenly expanding state preemption to include the San Mateo ordinance later then, well, that's a very weak position to be arguing from.

[Tincon]

The law isn't as black and white as you would like to think. if it were there would be no need for lawyers.

[kcbrown]

The law isn't as black and white as you would like to think. if it were there would be no need for lawyers.

No, but the clarity of the law is not the issue here. Again, either state preemption applies or it doesn't. In this case, your opinion is clearly that the case was, at least at this point, unwinnable on state preemption grounds, and that means that the lawyers were irrelevant to the question here.

To argue that state preemption doesn't apply now but will later is to argue that the state preemption law is a changing law. But it is strictly beyond the judiciary's power to create law. Their job is solely to interpret it and apply it to the facts before them, and to do so in a consistent fashion so as to bring stability to the law (is that not, after all, the stated purpose of stare decisis?).


Regardless, I am not relying on the supposedly stable nature of the law for my argument here. The law may indeed be a changing thing due to the actions of the judiciary. But it is one thing to acknowledge such, and another entirely to rely on it, most especially to rely on it changing in a particular way. You're doing the latter. Your argument is not reasonable otherwise.

But that itself is still problematic. I would argue that relying on the law itself changing in a particular direction, as opposed to merely being illuminated in areas that had previously been dark, for the purpose of leveling criticism is itself an unreasonable thing to do. You, of course, might have a different opinion about that, but you should be careful, because the same reasoning can just as easily be used against you as regards any legal action you support that doesn't happen to turn out well.

[Tincon]

Your assumptions about the law are simply incorrect.

[kcbrown]

Your assumptions about the law are simply incorrect.

Which ones? Please be more specific. More precisely, please specify which ones cause my argument to be invalid.

[Tincon]

"either state preemption applies or it doesn't."

[kcbrown]

"either state preemption applies or it doesn't."

I was referring specifically to San Mateo's ordinance.

Either state preemption applies to it or it doesn't.

Now, the judiciary's interpretation on that can change, of course, but now we're back to the problem of relying on that interpretation changing and, worse, presuming that said interpretation will change in our favor as the basis for criticism.

My argument is not that such is not possible. It is that such is a very weak position to be arguing from. What makes you think the interpretation would not, absent San Mateo, change against us? Got a crystal ball, do you?

[Tincon]

So, after I said it would be unfair to draw that conclusion, and you insisted on having my opinion anyway, you want to attack it as subjective? While ignoring the far more concrete reasons the suit was a terrible idea? Seems like shades of straw man.

[Tincon]

And you are still incorrect with respect to your black and white "does or does not" analysis. Had the case been better litigated and filed after another case or cases had reinforced Fiscal, it would certainly have had a "reasonable" chance of winning.

[kcbrown]

So, after I said it would be unfair to draw that conclusion, and you insisted on having my opinion anyway, you want to attack it as subjective?

No. I am attacking it (meaning, here, your criticism of CGF as regards San Mateo. I am not attacking your opinion that San Mateo was, currently, unwinnable) as either internally inconsistent or as unreasonable or, at the very least, very weakly supported.

While ignoring the far more concrete reasons the suit was a terrible idea? Seems like shades of straw man.

What concrete reasons? The "concrete" reasons being that the interpretation of the judiciary might change sufficiently and favorably as regards state preemption so as to make it suddenly apply here when it currently does not?

That's not a "concrete" (i.e., backed by evidence and logic) reason, it's a squishy, wishful thinking "reason".

[kcbrown]

And you are still incorrect with respect to your black and white "does or does not" analysis. Had the case been better litigated and filed after another case or cases had reinforced Fiscal, it would certainly have had a "reasonable" chance of winning.

That is conjecture at best, is it not? On what basis, other than your magic crystal ball, do you argue that it would certainly have had a reasonable chance of winning?

[kcbrown]

And you are still incorrect with respect to your black and white "does or does not" analysis. Had the case been better litigated and filed after another case or cases had reinforced Fiscal, it would certainly have had a "reasonable" chance of winning.

Since I've done what I set out to do to shed light on the nature of your opinion of CGF's action here (whether such changes anyone's opinion is a different question!), we can and probably should move on to more interesting and concrete questions, and the above suggests a most interesting line of inquiry.

What series of cases would you bring in order to sufficiently change the judiciary's interpretation of state preemption such that they would be more likely than not to strike down San Mateo's ordinance as a violation of state preemption, and what is your estimate of the probability of winning each one (presume for the purpose of the probability estimate of a given case that all prior cases had been won)?

[Tincon]

Since I've done what I set out to do to shed light on the nature of your opinion of CGF's action here

No, you have ignored my objective analysis, insisted on an answer to a hardly relevant subjective question, then attacked the answer for being subjective.

What series of cases would you bring in order to sufficiently change the judiciary's interpretation of state preemption

Yeah, let me just research and draft those cases, on the fly, by myself, so I can post them here in advance for everyone to see. Give me a break.

[kcbrown]

No, you have ignored my objective analysis,

What, the bit about arguing San Mateo under a 2nd Amendment context as opposed to a state preemption context? Yeah, as if that is going to work absent a recognized right to carry in public. That would just give you more fodder to use to laugh at CGF.

So that leaves us with the notion of bolstering state preemption:

In my opinion it wasn't the next preemption case that should have been brought, or even the next to next. We would have been better off filing a stronger preemption case first to further bolster California's preemption doctrine incrementally, instead of jumping the gun and filing this case (and then failing to see the writing on the wall when it didn't even survive MTD and appealing it all the way up).

And yet, you don't even know what case that might be, or even if it exists!

insisted on an answer to a hardly relevant subjective question, then attacked the answer for being subjective.

Subjective or not, it's a basis for your complaint against CGF, so it's relevant to the extent that your criticism of CGF's action depends on it.

Yeah, let me just research and draft those cases, on the fly, by myself, so I can post them here in advance for everyone to see. Give me a break.

So you haven't even done the research to back your claim here? That makes your criticism of CGF even weaker, and makes your claim of future applicability of state preemption to San Mateo's ordinance a wholly unsupported one.