What are the odds?

The gun owner rights community has been frustrated by SCOTUS not accepting any significant 2nd Amendment cases other than NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL., PETITIONERS v. CITY OF NEW YORK, NEW YORK in 10 years. And that case which was declared moot four months ago when the city and the state changed the law once the court accept the case.

I still claim, “We have SCOTUS decisions, they have childish insult.” But that claim has been vigorously disputed:

You talk about SCOTUS decisions. At this point SCOTUS is firmly anti-gun. They stand by idly as the states run all over it.

The courts are NOT on our side Joe. They are either openly hostile at most or do not care. So stop using that fucking excuse. In less than four years they will siding with the government when the government just bans all guns With mandatory buyback or simply door-to-door confiscation.

THEY are the ones that will have court victories. They have far more than we do right now. Banning of private gun sales? Legal. Banning open and concealed carry? Legal. Banning magazine capacity? Legal. Banning entire classifications of firearms? Legal. Banning all semi automatic rifles? Legal. Confiscating all rifles? Legal.

And these are things that have already happened. So no, Joe. They have the court decisions. We have nothing. I will not be surprised when the Supreme Court overturns Heller And McDonald.

There’s some truth to that. But it’s not entirely true. And I’m of the opinion it can be considered mostly false. Let me explain.

First there is the “strictly speaking” definition of words argument. The court refusing to hear as case is not a court decision. It does not make precedent such that they would have to overturn the “decision” as some later time if a substantially similar case was brought to the court. So, “strictly speaking”, I’m pretty certain, we have all the SCOTUS decisions on our side for at least the last 20 years.

Agreed, that’s not at all that comforting when it takes months to buy a gun in D.C, “red flag” laws are showing up all over the country such that your guns can be taken away from you based on a false allegation and you have to prove your innocent to get them back, common firearms and magazine capacities are outlawed, you can’t purchase a handgun in a different state, you and/or your guns have to be registered, you need permission from the FBI to transfer ownership, you have to be 21 years old to purchase a firearm, and hundreds of other infringements which would not be tolerated if you were buying a book or even getting an abortion.

So, with that concession, I’ll go on to the next argument.

What are the odds we will get soon get a SCOTUS which will take a 2nd Amendment case and throw out a bunch of the laws infringing our rights? As nearly everyone in the community knows it’s about Justices Roberts and Ginsberg.

Roberts has long been a point of speculation and even evidence of being subject of outside influence on important cases. If, as some people have suggested, Roberts is impeached due to his poor decisions then a replacement justice with a character similar to Thomas or Kavanaugh would fix the problem. I put those odds at about 2% and dismiss them as unimportant as a stand alone event.

It’s also possible, as has been suggested many times, that there are people with black mail evidence. The one elaborated on at the link is just one of the figurative suggestions. More plausible ones involve a possibly illegal/irregular adoption. Discovery of such a blackmailer could lead to impeachment and/or elimination of that threat and subsequent better alignment with the constitution. I see these odds as a little better, say 5% and also don’t place much hope in it.

But since these two outcomes are essentially independent of each other the odds of one or the other coming true can be estimated at about 7%. It’s not great but I wouldn’t bet my life on a game of Russian Roulette with those odds. And of course you have to take into account that scenario is conditioned on the Roberts removal scenario is resolved while Trump is in office and Republicans hold the Senate. That conditional reduces the likelihood to insignificance again.

We are left with the Ginsberg replacement scenario. For years people have been wishing her a long and healthy retirement starting “tomorrow”. But the reality probably is, as friend Mike B. told me a few weeks ago, “She has made it clear the only way she will leave the court is in a hearse.”

That said, the odds of that happening appear to be noticeably increasing every few months. Again, the significance of her leaving the court is conditioned on Trump being in office and a Republican controlled senate at the time it happens.

Let’s estimate some numbers and see what we come up with for odds of that happening.

There are two scenarios of primary interest for each of two variables. 1) Does Ginsberg leave the court before or after the end of this year? And 2) Does Trump get reelected and do Republican hold the senate or not? I claim Trump and Republicans holding the Senate are correlated strongly enough that they can be considered a single event rather than somewhat independent.

I claim that the Ginsberg variable and the Trump/Senate variable are independent and hence the probabilities calculations are further reducing the complexity of the probability calculation.

If Ginsberg leaves SCOTUS by the end of the year (realistically say, the middle of November) my bet is that Trump will appoint a replacement and the Senate will consent regardless of the election results.

You might protest that that’s too short of time and the Democrats will protest too much. Really? The Democrats have been screaming obscenities at Trump and Republicans since the evening of November 8th, 2016. If Trump and/or the Republican senate lose this election my bet is they will rush the candidate through just as payback for all the abuse they have taken for the last four years. I say that with an estimated probability of 0.75.

My bet is that Ginsberg will take her hearse ride in less than four years from now. I say that with an estimated probability of 0.95. For ease of computation let’s just say it’s a certainty with the slack taken up by the chance Roberts or another “problem” justice is replaced in the next four years.

In order for the anti-gun forces to win SCOTUS Ginsberg has to show a pulse until the end of the year AND they need to defeat Trump. This makes the probability of them winning SCOTUS very easy to compute. It’s the simple multiplication of the two probabilities.

This leads to some very interesting results. Suppose the probabilities are 0.70 that Trump loses and 0.70 that Ginsburg “wins” in 2020. The probability of a gun owner SCOTUS loss is 0.49. Yes, the odds are slightly with us even if the Trump only has a 30% chance of winning the election and there is only a 30% chance of Ginsberg taking her hearse ride.

Just for the sake of more examples, so you can easily follow along at home, if the odds are 0.5 and 0.5 then the gun owner odds of a loss are down to 0.25. If the odds are 0.5 of a Trump loss and 0.7 of a Ginsberg win in 2020 gun owners are at 0.35 chance of a loss. Drop in your estimates and see what you come up with.

My estimates are a 0.25 chance of a Trump/Senate loss. I don’t believe the polls are any more accurate than they were in 2016. The enthusiasm/turnout seen at the political rallies in 2008, 20012, and 2016 were excellent predictors of who would win. I expect the same will be true in 2020. I think Trump has enough enthusiasm he can beat the margin of fraud with a 0.75 chance. Also, every day the riots go on and Democrats don’t lift a finger to stop them, let alone appear to encourage them, the more likely it is that Trump and Republicans will win.

I give Ginsberg a 0.5 chance of holding on through the end of the year.

This results in a 0.13 chance of a gun owner loss of SCOTUS. In other words, I believe we have a 0.87 chance of getting a SCOTUS friendly to gun owners within the next four years.

I have been hesitant to elaborate on this because, and Glenn Reynolds says, “Don’t get cocky kid.” There are things gun owners must do to increase/maintain those odds. But it’s important people not get depressed/demoralized too.

I want this to be a call to help win a fight which is quite winnable. Please find ways to support a continued Republican Senate and a Trump presidency. NRA-ILA can help you support pro-gun candidates even if you don’t want to give money to the NRA.

With the caveat that this is a probability, not a certainty, I still say we have SCOTUS decisions on our side, we will continue to have SCOTUS decisions on our side, and our opposition has childish insults.


8 thoughts on “What are the odds?

  1. I think we have friends on the Court. But I think they are concerned about Roberts flipping. So safer to just not take the case. The New York case was safe because they could always retreat back to a narrow ruling to keep Roberts on board. With everything else, you risk Roberts bolting entirely, or needing to water down the opinion to such a degree that it won’t achieve much that Heller and McDonald failed to. So what do you do? RBG is not long for this earth. Better to wait and see if you can get six votes so you don’t have to worry so much about whether the squish bolts the majority.

    • I agree. It takes 4 justices to grant cert.

      Since Heller, the court has lost antigun Souter and Stevens, replacing them with Sotomayor and Kagan.
      The progun side lost Scalia and Kennedy, replacing them with Gorsuch and Kavanaugh.

      So the court’s make up is the same. The antigun justices don’t want to grant cert because they are not assured of a win, and the progun don’t because of concessions that would need to be made to get Roberts onboard.
      Remember that the mentioning of machine guns and the “banning in sensitive areas” language in the Heller decision was reportedly put into the majority decision to appease Roberts.
      To take another case at this point would not serve the interests of either side, so until one side or the other gains a clear advantage, we will be stuck with what we have.

  2. We’re getting closer and closer to a situation where we will be required as a part of our rebellion, to state the the Supreme Court has lost its standing by ruling un-Constitutionally, no matter how many “Justices” they have voting for something and how “settled” they say a law is…

    Sooner or later, and it’s coming closer to sooner, we’re going to have to make some hard choices. Not difficult, as everybody and their brother will know that the sham verdicts and findings are violations of the Constitution… It’s the decision to stand against what purports to be the legitimate government of these United States that difficult as we’ll be crossing a few lines in the sand.

    • Next time the Dems get the Senate, House, and Presidency, look to see SCOTUS expanded to 11 justices. Then it will be 6 to 4 and a half (Roberts). If they really want to go for it, they will just make it 15 justices, then it will be 10 to 5.

      • Or what’s to stop them from just “Scalia-ing” the judges they don’t like? It’s not like the FBI is going to investigate real hard? Or the right is going to do anything about it. More to the point.
        There are a bakers dozen of organizations in the gun community that could have attacked the “Miller” decision. Even today. As were still being tormented and abused by it?(A dead cat could argue/win that case). But no direct action from the experts? That’s the problem as I see it. We have so many examples of this it’s insane. And here we still are. Paying experts to get back what was ours.
        I think we’ve been played.

  3. Your math is impeccable and makes me feel better.

    I find the Roberts blackmail scenario to be ridiculous and never cease to be amazed at its persistence among conservatives. First of all you can’t blackmail someone about something that is already publicly known. Second, good luck blackmailing the CJ about a paperwork violation. Not to mention, that the children are young adults now and any revelation would have zero consequences for them. Worst case would be bribery but one assumes the evidence would be ambiguous. If there were something else (Epstein, kiddie porn on the SCOTUS computer etc.) perhaps but no evidence has been found. I think the real answer is that he has lived his life in the Swamp and his friends and neighbors are from there too.

  4. Roberts as swamp creature? Sure. But one can only imagine what the Hillary has done to the right with her copies of 900 FBI files?
    I think our biggest problem is under estimating the moral degradation of those in power.

  5. Kind of hard for someone to fight a court battle over illegal confiscation and 2nd/4th article rights when your name is Gary Willis.

    Hard to get a day in court if your name is Vicki Weaver, or LaVoy Finnicum, or wven David Koresh.

    Hell, even if you’re a pest controller from out of state, like Daniel Shaver, you might not get your day in court, or even last long enough to get cuffed.

    All these people sure had the business-end of the law explained to them in a forthright manner.

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