Peņa v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[kcbrown]

BASED ON THE CASES PRESENTED TO THEM. Time and time again it has been pointed out to you that every case is different and there are reasons for SCOTUS to not take a case where bad law COULD be entered into the system.

Just because you/I don't know what that concern is, doesn't make it less unlikely. The nuances of law is probably abstract to people like us that are not attorneys.

Much of your pessimism comes from you thinking you understand the nuances but in fact, you may very well be off base in your analysis.

Well, no, my hypotheses thus far are not dependent upon the nuances you speak of. My approach is empirical, not analytical.

It's certainly possible that my approach is incorrect, but if it is, it would be unusual, the equivalent of finding a system which is empirically completely random but which in fact is deterministic.

If your claim is that the legal system cannot be predicted empirically, then it's on you to show why. Even quantum mechanical systems, which are inherently random, can be predicted in a statistical fashion.

[antiseen]

All this activity and I thought something had updated. Oh well.

[taperxz]

Well, no, my hypotheses thus far are not dependent upon the nuances you speak of. My approach is empirical, not analytical.

It's certainly possible that my approach is incorrect, but if it is, it would be unusual, the equivalent of finding a system which is empirically completely random but which in fact is deterministic.

If your claim is that the legal system cannot be predicted empirically, then it's on you to show why. Even quantum mechanical systems, which are inherently random, can be predicted in a statistical fashion.

How do you know if you don't know what they are? One may think they can build a house by reading a book or watching "Tim the Tool Man Taylor" but in reality, if you/i don't have the experience to do so, how could you know what the criteria of the nuances are?

[advocatusdiaboli]

All this activity and I thought something had updated. Oh well.

If you just want to be notified of updates, I suggest you get on a mailing list with FPC or CD Michel or some other entity and you'll get updates when there is that rare and infrequent actual movement on a case.

[kcbrown]

How do you know if you don't know what they are? One may think they can build a house by reading a book or watching "Tim the Tool Man Taylor" but in reality, if you/i don't have the experience to do so, how could you know what the criteria of the nuances are?

Well, inasmuch as I'm the person who formulated the hypotheses, I know what they are and are not dependent upon.

My hypotheses are dependent upon that which is easily visible. "Nuances" generally tend not to qualify as being easily visible.

What you're speaking of are things that amount to hidden inputs into the system. Empirically speaking, that would yield random fluctuations in the output that would place an upper bound on the probability that a given prediction from the empirical model will be correct.

Is it possible that the nuances you speak of are controlling, and thus the primary determinant of the output? Sure. But to insist on that is to insist that the system in question is essentially immune to empirical analysis. That might be a reasonable thing to believe if the empirical approach were yielding predictions that proved to be no better than chance. But it's not.

[kcbrown]

My point was directed at why SCOTUS would deny cert to a case where YOU think they should not have. (then formulate your hypothesis)

I have an hypothesis that explains why they denied cert. It's as simple as that. But it's a predictive hypothesis, so it is not merely explanatory. Future events are a litmus test for it. Incorrect predictions demand modification or disposal of the hypothesis. Correct predictions suggest validity. It's that simple. It has already been through a couple of rounds of predictive testing. This is nothing more than the scientific method being applied to the legal sphere. I'm sorry that it gives you fits. I'm sure it wouldn't if the resulting predictions were of success, right? That suggests, then, that the issue you have is not with the method itself, but with what it actually predicts.

The nuances of the empirical approach my also be well out of your or my understandings of the law as not being attorneys.

An empirical (as opposed to analytical) predictive approach is, by its very nature, one that does not require an understanding of the internals of that which is being examined. That is both its strength and its weakness. It's a strength because it means the approach can be used in the absence of "insider information". It's a weakness because, firstly, it means you can't go directly to the answer and, secondly, there is inherent uncertainty in its predictions, as they are generally statistical by nature (but when the system in question is deterministic, the method will tend to converge on a deterministic hypothesis).

What you are suggesting in the above is that the results of court proceedings are somehow immune from successful prediction on the basis of observation, to insist that it is beyond the reach of the scientific method. I'm sorry, but I do not buy that, and I proceed under the assumption that your suggestion is false. To do otherwise is to ascribe to the legal system some of the same characteristics that are ascribed to God ("we are too feeble to understand His will").

IMHO very few here have the ability to accurately predict the how, when and why of 2A rights.

That may be. But that alone will not prevent my from making the attempt.

[dantodd]

On another note, has it been two weeks yet? Are they stretching it out for show do you think (the decision on the intervention by the AG) or is it really that hard to figure out?

on the off topic stuff. No hard feelings. Find me on Facebook if you're there. We can get together and have a drink. I'll buy the odd numbered rounds. If you're in my neck of the woods there's a grant restaurant run by a gun friendly guy. 2 for the price of one. Great food and knowing some of your food bill goes to guns and ammo.

Why so long? Good question. Perhaps there is some dissent, it was a 2-1 decision. It is probably bad form for the two in the majority to shut off discussion before the minority voice feels they've had their say. Me ember these guys and women work together all the time, extra courtesy today may get you more time to sway other judges at a later date.

Regardless, I still think it is coming sooner rather than later. (If I keep saying that I'll eventually be right. :-))

[IVC]

And I have good reason for using it as a default: it is better to be pleasantly surprised than unpleasantly surprised.

That's the easy way out. If you are going to do anything remotely risky such as rock climbing or running a business, you need a much better framework. Otherwise, you'll never get off the ground (literaly and/or figuratively).

But my predictions aren't certain. I have repeatedly stated that there is the possibility that they will be incorrect. My predictions are merely the output of a working hypothesis, nothing more.

You defend them as if the fine print is not there...

When it comes to the courts in general, my "hypothesis", such as it is, is that the probability of losing in a given court exceeds the probability of winning by a fair margin. But that's a fairly simplistic one that is based solely on observation. The data to date bears this out, as it should given that the hypothesis is based entirely on it.

Hence your problem. The binary win/lose is a terrible statistics. You need to look at *how* we lost and what the consequences are in the long run.

The only reason you got Peruta wrong is that you counted Irma Gonzales' decision as a binary "loss" instead of looking at the consequences of her linking the availability of OC to the constitutionality of the CC ban. That's something many of us pointed out *years* ago.

[kcbrown]

That's the easy way out. If you are going to do anything remotely risky such as rock climbing or running a business, you need a much better framework. Otherwise, you'll never get off the ground (literaly and/or figuratively).

I don't see how. That framework informs of the risk, and sometimes of the reward itself. But the risk versus reward threshold is a purely subjective one that has to be evaluated by the individual, because it involves assigning value to the reward, as well as to the consequences of failure.

My framework does not prevent me from taking risks when I believe the reward outweighs them. I am, after all, a private pilot, among other things, and that is most certainly an activity that carries a heightened degree of risk.

You defend them as if the fine print is not there...

I defend them as if they are the most likely outcomes. What should I be doing differently? Postfixing every prediction with a bunch of disclaimers? ("Your mileage may vary", "Void where prohibited", "Future returns not guaranteed by past performance", "Professional drivers on a closed course", etc. )

Hence your problem. The binary win/lose is a terrible statistics. You need to look at *how* we lost and what the consequences are in the long run.

Well, I've been doing that too, but that's only loosely related to predictive outcomes in legal cases. The plain fact is that courts can and do pick and choose what to use for justification of their decisions, and that means that how we lost (or won!) mainly serves to add to the list of things later courts can pick and choose from. That can, of course, be useful in figuring out how a later decision might look, but appears to be almost entirely uninformative as to whether or not said decision will be favorable to us.

I realize that the specifics of the cases will shape how things unfold, but whether we win or lose is most certainly the most important thing by far. If you win big initially and then lose everything else after that, the initial win will prove not to be that important after all. Recognition of the right is worthless unless it is followed by reasonably consistent protection of it, and protection requires wins.

The only reason you got Peruta wrong is that you counted Irma Gonzales' decision as a binary "loss" instead of looking at the consequences of her linking the availability of OC to the constitutionality of the CC ban. That's something many of us pointed out *years* ago.

No, I understood that just fine. But it was inconsequential. Heller specifies that a functional firearm that is ready for use in a confrontation is what is protected, while Gonzales' decision insists that an unloaded firearm satisfies the right. An unloaded firearm certainly does not qualify in that respect, and I have no reason to believe that the Peruta panel would have decided the issue any differently had OC been off the table at the time. They followed Heller very closely, and I have no reason to believe that they would have excluded the state of the firearm in their decision had the district decision been justified on different grounds. Similarly, had the Peruta panel been dominated by anti-rights types, I have no reason to believe that they would have reversed the district court even if the district court had used some other justification for deciding against us. Which is to say, I have no reason to believe that the 9th Circuit would have disagreed with the district court's "logic", whatever that "logic" might have been.

My belief at the time I made a prediction about the 9th Circuit Peruta decision was that O'Scannlain was against the right to keep and bear arms, as evidenced by the Nordyke decision he penned which rendered strict scrutiny as impotent as rational basis in striking down laws. I was quite obviously incorrect in my belief about O'Scannlain. Had I reason to believe he was on our side, my prediction about Peruta would have been a lot more uncertain, at the very least.

But my belief about the 9th Circuit as a whole will remain as it is until I see evidence contradicting it. The plain fact of the matter is that, generally, Democrat judges have sided against the right to keep and bear arms while Republican judges have not. There are exceptions to both of those, but they are just that: exceptions.


In any case, the plain fact is that, as any scientific inquiry must be, this is a learning process. I will get some things wrong. My hypotheses will require modification, and some may even require abandonment. But that will not dissuade me from making the inquiry, which of necessity requires that I make predictions. I'm sorry you don't like the predictions I'm making, but the plain fact of the matter is that there are two, and only two, things that will change them: proof that they are logically contradictory, and real-world events that contradict them. Dantodd's the only person who has thus far been able to provide the former (that forced a modification of my Supreme Court hypothesis), but I welcome all such. Only future events can provide the latter.

[dantodd]

PM the details please.

Done

[IVC]

My framework does not prevent me from taking risks when I believe the reward outweighs them. I am, after all, a private pilot, among other things, and that is most certainly an activity that carries a heightened degree of risk.

If you trully believed "I'm going to crash" and then every time you landed you were "pleasantly surprised that you didn't" you would never take off.

Apply the same rational analysis to court cases, drop "here's why we're going to lose" and it might (just might) convert you from a pessimist to a skeptic.

I defend them as if they are the most likely outcomes. What should I be doing differently? Postfixing every prediction with a bunch of disclaimers?

Look up how Bayesian posterior probability works. If you want to be technical, you should calculate distribution over *all possible outcomes*. Picking just the most likely outcome makes your predictive model deterministic.

I realize that the specifics of the cases will shape how things unfold, but whether we win or lose is most certainly the most important thing by far.

If you insist on binary outcomes, then we have to consider district level Peruta a win because it established the framework for CA-9 to rule in our favor.

Similarly, had the Peruta panel been dominated by anti-rights types, I have no reason to believe that they would have reversed the district court even if the district court had used some other justification for deciding against us.

Cases that went against us don't support that line of thinking. We haven't seen any political decision that goes directly against Heller, only decisions that fill the void left by the narrowness of Heller.

To see why, consider SCOTUS tomorrow clarifies that "carry is a right." It would invalidate decisions in CA-2/3/4, but not because they used a faulty or political logic, but because they used an incorrect assumption that was *not* specified at the time they had to make their decision.

In any case, the plain fact is that, as any scientific inquiry must be, this is a learning process. I will get some things wrong. My hypotheses will require modification, and some may even require abandonment.

You'll need to change your framework before you worry about the hypothesis. Predicting outcome of horse races by approximating horses as perfect spheres can get you just so far...

[kcbrown]

PM the details please.

Me too, if you guys are willing to have me! You'll find I'm not the "down and out" type I play on TV...

[kcbrown]

If you trully believed "I'm going to crash" and then every time you landed you were "pleasantly surprised that you didn't" you would never take off.

But why should I believe "I'm going to crash" when the statistics are wildly against that?

Apply the same rational analysis to court cases, drop "here's why we're going to lose" and it might (just might) convert you from a pessimist to a skeptic.

The problem here is that the statistics are much more against us than in our favor. We have many more losses than wins.

Look up how Bayesian posterior probability works. If you want to be technical, you should calculate distribution over *all possible outcomes*. Picking just the most likely outcome makes your predictive model deterministic.

Well, that's not really possible, because "all possible outcomes" cannot reasonably be enumerated here, as now you're talking not just about wins versus losses, but how/why the wins occurred and how/why the losses occurred, the various legal constructs being used, the consequences of such, etc.

Sure, I agree that building a complete model of the whole thing would be preferable, but I don't see how that can reasonably be accomplished here.

If you insist on binary outcomes, then we have to consider district level Peruta a win because it established the framework for CA-9 to rule in our favor.

Really? So is it, then, your contention that had the district court ruled in our favor, the 9th Circuit with the same panel would have overturned and handed us a loss?

No, at the end of the day, what matters most is whether or not the right is upheld in practice. And that is a binary proposition.

Cases that went against us don't support that line of thinking. We haven't seen any political decision that goes directly against Heller, only decisions that fill the void left by the narrowness of Heller.

Really? See the district court's decision in Osterweil v Bartlett.

To see why, consider SCOTUS tomorrow clarifies that "carry is a right." It would invalidate decisions in CA-2/3/4, but not because they used a faulty or political logic, but because they used an incorrect assumption that was *not* specified at the time they had to make their decision.

Which assumption would that be?

You'll need to change your framework before you worry about the hypothesis. Predicting outcome of horse races by approximating horses as perfect spheres can get you just so far...

Well, of course. I'm not claiming that my approach is going to yield perfection. There are limits to attempting to model a process on the basis of observation, especially when one is forced to simplify. But I must regard that as being preferable to not even bothering to make the attempt.

[IVC]

But why should I believe "I'm going to crash" when the statistics are wildly against that?

Well, statistics on SCOTUS keeping circuit splits, or invalidating stare decisis are also wildly against it.

[kcbrown]

Well, statistics on SCOTUS keeping circuit splits, or invalidating stare decisis are also wildly against it.

What are the statistics on SCOTUS keeping circuit splits? This is an honest question. I don't know the answer to it.

But suppose for the moment that my hypothesis is correct with respect to the uncertainty of one of the Heller 5 members. Is it your contention that the existence of a circuit split would be sufficient to override the hesitation the others on the Court would have in taking a case when none of them had any idea which way the Court would decide the issue?

Which is to say, is it your contention that the pressure to issue some decision would override the desire to avoid generating a decision that is contrary to that which the members of the Court wish to generate?