search
top

What Are The Odds? Or How Important is This Election

A commenter from earlier gave us an idea of just how important the 2012 election is for gun owners:

From the perspective of anyone who supports the RKBA, this election should be about, “How much do you want to bet that Scalia, Kennedy, Thomas, Alito, and Roberts will all still be living by the end of 2016?” By then, their ages would be 80, 80, 68, 66, and 61.

At the risk of being a bit morbid, this begs the question of just what is the likelihood that one of the Heller 5 is going to kick the bucket between now and the end of what would be Obama’s second term. Given this rather morbid site, one can actually make a rough calculation, based on statistics for people that age in the DC area. Scalia, Kennedy and Thomas have roughly the same chance of dying, at 16%. Thomas is younger, but being African-American skews him into the same bracket as the older Scalia and Kennedy. Roberts is only 4%, being the youngest member of the court, and Alito only 6%, being not much older.

But the loss of one of the Heller 5 would result in a failure for the Second Amendment, and for basic failure analysis, you multiply the probabilities of the individual components functioning properly over that time to arrive at a 46% probability that if Obama gets a second term, the Second Amendment is toast. I’m not comfortable those odds, and I sure as hell hope other folks who care about the Second Amendment aren’t either. Reality is that the Justices, being upper middle class and with great health care coverage, will probably beat statistical averages. But that should still scare you. This also only considers death, and not health problems that force a retirement, or a justice just getting old and tired.

The odds of getting a pro-2A Justice from Obama are zero percent, and even if the GOP takes the Senate, I still don’t put the odds up above zero. Any of the Republican field will have a considerably higher probability of nominating a pro-2A Justice, just because the pool of candidates they have to choose from has a much higher probability of containing a pro-gun Justice than the pool Obama can pick from.

30 Responses to “What Are The Odds? Or How Important is This Election”

  1. Countertop says:

    And what happens when we fail to take the Senate as well (or, even, not just fail but Obama picks up seats because of all the line-in-the-sand-anyone-but-Romney 3 percenters)

  2. Joe Huffman says:

    You did the calculations wrong. You almost never add probabilities. You generally should multiple them. You can easily discover the error of your ways by imagining a few more justices such that the odds increase to above 100% or each of the Heller five having 50% odds. Probabilities must never exceed 100%. If they do then you are doing it wrong…

    In this case you are interested in the odds that one of the justices will die in the given amount of time. This is the same as asking the question, “What are the odds of all of them being alive?” then subtracting that answer from 100%.

    Those odds are the product of each of the individual odds of each justice remaining alive. Hence the odds are:

    Pallalive = (1 – 0.16) x (1 – 0.16) x (1 – 0.16) x (1 – 0.04) x (1 – 0.06)
    Pallalive = 0.535

    Or a 46.5% chance of getting toast.

    It doesn’t change the conclusions in this case but it might in some other problem you apply probability and statistics to.

  3. Freiheit says:

    And what happens when we vote “not Obama” and get a RINO?

    • Sebastian says:

      Bush Sr. was a RINO, a northeastern blue-blood, who didn’t like assault weapons very much, and at least managed to do 50% on his picks as far as the Second Amendment are concerned. That is much better odds than you’ll get from Obama.

      • one of the women says:

        Bush Sr. gave us Justice Clarence Thomas. Any complaints from the RKBA crowd?

        Even a RINO will be better than Obama. THAT is what pro-RKBA people have got to start realizing.

        This is not the time to say, “I want my machine gun, and if you won’t support that right, I’m not going to waste my time voting for you.” If too many play that game, Obama and his crew will turn them loose on your .22 target pistol.

        The name of the game this election is, “Can you count to five?”

  4. Sean says:

    Good analysis. How do we address the probability of a case coming before said justices in any period of time?

    Is that viewed as a constant? Curiously recently cases of interest to 2A were brought on by 2A supporters, not the antis.

    Even if the worst happens, doesn’t that just mean that restrictive states and jurisdictions will remain as-is?

    These are judges, they can’t propose legislation. They won’t order black rifles be banned, unless a case is brought before them on the subject.

    • Sebastian says:

      I’d say the odds are nearly certain of a case going for cert in 4 years.

      • Arnie says:

        Agreed! If the court turns, a thousand liberal States/municipalities will immediately pass anti-gun laws and fast-track them to the supremes!

      • Ian Argent says:

        How many “shall-issue” cases are grinding through the district and circuit courts right now? I am aware of two, one out of NJ and one out of NY. Both have been appealed to their respective circuits.

  5. TS says:

    Allow me to play angel’s advocate…

    Does losing one of the Heller-5 automatically mean Heller/McDonald will be overturned? Are the Brady’s going to challenge and get the Supreme Court to hear a redefinition of the 2A? Maybe Kagan will be moderate? What about precedent? (I know- precedent went out the window when the Anti-4 voted in McDonald- but I am playing angel’s advocate for a moment).

    At the very least- advancement at the national level would be completely shutdown. It is not just the possibility of a Supreme Court nomination, but the district courts that are sure to turn over.

    • Sebastian says:

      Even if the court is afraid to completely overturn, it can narrow. We can have a right, but you can license it all you want, require ridiculous training, ban any particular subclass of weapons you want, as long as it’s not basic handguns (that don’t hold too many rounds).

      Really, all we have now is that you can have some vague right to have a gun in the home, if you’re willing to jump through a lot of hoops to exercise it. What we have now is not an actual right. Even having the Second Amendment frozen in time at 2012 is failure, and thanks to stare decisis, future courts will be loathe to overturn it.

  6. Countertop says:

    Read Emily Millers articles on the right in DC. You could easily face that. An it doesn’t take Brady to ring the Challenge, but Bloomberg to get a city or state to pass a ban ASKING to be challenged. Then, the challenge comes from our side, and we are set up to fail.

  7. Sebastian says:

    A big problem folks on our side have, is that they think logically. Heller and McDonald are decided, so clearly a robust Second Amendment flows from that. It does not need to be that case. Not at all. The left-wing of the Court would be happy to have an individual Second Amendment right that means absolutely nothing. If they don’t want to outright overturn Heller, and given they argued that in McDonald, I’m not sure we should rule out that possibility…. even if they don’t want to overturn Heller they can still do untold damage by limiting the right to utter meaninglessness. If Chicago and DC’s restrictions are allowed to stand, and be constitutional, we don’t have a Second Amendment, practically. I will be among those arguing that if we could have avoided taking it to the courts, we would have been better off.

    • Harold says:

      Ah! Now someone has identified a realistic threat from a change in makeup of the Supremes. In general I call BS on this meme (see below for my standard essay on the subject), but what you outline could trivially happen. On the other hand, I recommend that people study the history of the Supremes and civil rights for blacks. I count Heller as being equivalent to their first modern case with a good outcome, Missouri ex rel. Gaines v. Canada in 1938, pertaining to a black who wanted to enroll in a Missouri state university law school. All male, so that removed a lot of the normal issues of the period. It was a theoretical win in that it didn’t change the facts on the ground, e.g. the guy himself was disappeared or perhaps was convinced to disappear. Similarly, Heller and McDonald have in practice effectively barely changed the facts on the ground in D.C. and Chicago.

      Anyway, Brown v. Board of Education in 1954, let alone paratroopers in Little Rock, are a long ways off, and very possibly after several changes in the makeup of the Supremes.

      Here’s my usual essay, slightly updated, which should appeal to a political animal like yourself:

      Sorry, I just don’t buy it. A “right” which currently depends on the vote of a single notoriously fickle man (Justice Kennedy) or future appointed justices is no right at all.

      This is also assuming that when it comes down to specifics we’re going to get rulings that actually make a difference on the ground. So far not much of that has happened; if Miller II is denied cert I’m counting this experiment as over for the time being.

      And if a new makeup results in a quick reversal of Heller and Miller the only thing it will harm is the prestige of and respect for the Supreme Court, which would not be an entirely bad thing. It would most certainly energize us politically, which is an area in which I’ll note we are enjoying overwhelming victories, even if Obama has finally removed his mask with his new budget proposal.

    • Alpheus says:

      This is actually very important to remember. It should be kept in mind that all nine justices found the 2nd Amendment to protect an individual right, but only five found that DC’s laws infringed on that right.

      Then, in McDonald, two justices (if I remember correctly) turned on the indvidual right.

      As for Harold’s point: I completely agree that our right shouldn’t hinge on a single vote on the Supreme Court…and strictly speaking, it doesn’t. Unfortunately, we don’t have a system that recognizes this right! Yes, that means our Government is illegitimate, and so is Great Britain’s government. But what are we going to do to change it? It’s useless to just overthrow either government, because unless we install some sort of Libertarian Dictator, we’re going to get yet another government, selected by the people, that’s going to infringe on this right.

      Thus, it’s completely reasonable to fight, via elections and court appointments, for a government that will recognize our rights. More importantly, we need to continue our work in changeing the hearts and minds of the people, so that it would be unthinkable for anyone to vote for a candidate that doesn’t recognize our rights! If we do this, government is more likely to back off…and if we do this, and government continues to oppress us, then revolting against it will more likely result in a government that actually recognizes our rights.

      I sympathise with those (mostly libertarian) types who claim that voting is useless, and if we want an “anarcho-capitalist” society, we shouldn’t even be voting, but the fact remains, there also exists “self-defense voting”, where we vote to do what we can to protect our property and our freedoms. Holding our noses and voting for Mitt, or Santorum, or Newt, or Paul (I have problems with all these candidates–especially Newt, who’s an out-and-out Progressive who’s very good at advancing Collectivism wrapped up in Conservative rhetoric) will be such a defensive vote.

      Personally, I just hope that these candidates will continue to “succeed” to the point that it’s a three-way tie at the Convention, and that someone actually Libertarian Conservative rises up and takes the nomination. Unfortunately, the names usually bandied about in this scenario (Palin, Christi come to mind) are probably just as bad as our current crop!

  8. My two big questions are:

    I. In the cases we’re seeking wins, can’t we withdraw them if this happens. Sure it’d be a setback and delay progress for several more years. But wouldn’t it at least keep us from getting precident set against us?

    II. What guarantee do we have that in voting in a Rhino, we’ll get what we need. When I look at the four dissenters, 1/2 were appointed by Republicans. That doesn’t breed much confidence with me.

    Stevens – Appointed by Republican (President Ford)

    Souter – Appointed by Republican (President Bush Sr.)

    Ginsburg – Appointed by Democrat (President Clinton)

    Breyer – Appointed by Democrat (President Carter)

    • Sebastian says:

      I. You don’t have perfect control over what individual lawyers do. Even if the smart ones, like Gura, read the tea leaves and back down, others, probably more ridiculous characters, will still take sure to lose cases forward.

      II. There are no guarantees in this business. It comes down to odds, and the money is that any of the GOP field, including Romney, have a much higher probability of picking good justices than Obama. Obama is only picking a pro-2A justice if someone tricks him into doing it.

      Also, Breyer was a Clinton nominee. Carter didn’t have a Supreme Court appointments. I could also turn the argument around and say that while Bush Sr. put Souter on the court (who everyone thought was conservative at the time, and who was a conservative for a few years), he also put Thomas on the court.

    • Bitter says:

      Using your argument of who appointed which justices, let us look at the other side – the side we need to strengthen:

      Alito – Appointed by Republican (President George W. Bush)
      Roberts – Appointed by Republican (President George W. Bush)
      Thomas – Appointed by Republican (President George H. W. Bush)
      Kennedy – Appointed by Republican (President Reagan)
      Scalia – Appointed by Republican (President Reagan)

      So, given that Democratic appointments are 100% against us and Republican appointments are 71% in our favor, then your argument there loses.

      • Countertop says:

        What Bitter said. Whatsmore, a Romney win will all but ensure a narrowly controlled Republican Senate (coatails and all that). They will certainly have more say over who Romney nominates – and the ability to make sure the 2nd Amendment is treated seriously – than they would over an Obama nominee where he doesn’t care about re-election and is intent only on firmly establishing his long term credibility.

        The other thing to remember, at this point, we are looking at not only the strong possibility of at least one and maybe two of the Heller five leaving the court; but its almost guaranteed that Ruth Bader Ginsburg (78 years old and in very poor health) will step down. That gives us the potential to not just solidify our side, but pick up a very important vote. And frankly, I’d be much more comfortable with a Republican who speaks and at least feigns interest in Republican issues choosing two or three new court appointees over a Democrat who has no need to give two flips about us (and is likely actively hostile to us).

      • Alpheus says:

        Let’s not forget Hagan and Sotomayor, both Obama appointees–and both who have already demonstrated a sick hostility towards the Second Amendment, one of which was actively campaigned against by the NRA.

        We know where Obama stands on this issue! This is a clear case, where I would like the devil I don’t know (although, at this point, can we really say we don’t know what we’re getting with any of the four candidates still running?!?) over the devil who has demonstrated pure, malicious intent. And, no, I’m not going to attribute incompetence to this–Obama clearly knew what he was doing when he appointed these justices.

        • I think Romney needs to come out in one of the next debates and declaratively state his desire to appoint Justices who will respect the Constitution and the Bill of Rights.

          It’d allay some of our fears. And I do agree, we haven’t seen a Democrat appoint a conservative judge in a while…if ever.

          If not for the court issue, I’d really not even bother…and that just shows how little draw Romney or this year’s team draws.

          • Harold says:

            I suppose that wouldn’t hurt if he sounded sincere enough and all that, but last night’s was the last scheduled debate from what I’ve been reading.

  9. dannytheman says:

    What I think is missing is the position we have been in over the last 20 years, and all the facts that have been listed saying/proving that the assault weapon ban did nothing, all the shall issue states and no blood in the streets, etc., etc.

    So the will of the people has to be taken into consideration in some way. In the hearings of these judges, with a hopefully more conservative House and Senate? The NRA will be involved in lobbying for friendly 2nd amendment nominees.

    The atmosphere of the time can not be ignored.

    • Countertop says:

      The house has no impact and no say whatsoever in the nomination process. The Senate doesn’t really care about what you think, and will care even less if Obama wins re-election AND Ds keep the Senate.

    • Countertop says:

      And I should point out, at this point the presidential nominating process has seriously tarnished the Republican brand. Combine that with a pathetic candidate recruiting process (again, focused on grass roots inspired conservative lines in the sand rather than ability to win) and this falls looking pretty frightening.

  10. Cargosquid says:

    Four words: Supreme Court Justice Holder

    Need anything else be said?

    • Harold says:

      If Fast and Furious hasn’t made him too radioactive for Republican Senators there’s no hope for the party. Not to mention the Marc Rich (sp?) pardon.

  11. Thomas F says:

    A really scary thing to consider is that Obama, if reelected, could be responsible for the appointment of 4-6 SCotUS justices.

    A telling indicator of Obama’s internal polling will be the early retirement of RBG and very possibly SB….

Trackbacks/Pingbacks

  1. Sebastian Discusses The Odds | Extrano's Alley, a gun blog - [...] Over at Shall Not Be Questioned, Sebastian discusses the probability that one or more Supreme Court Justices will die…
  2. SayUncle » On the election - [...] Gambling with supreme court justices longevity. That’s about the only reason these elections matter. A Romney or Santorum will…
  3. Beware the Apologist Gun Owners This 2012 Election | Shall Not Be Questioned - [...] being interpreted clear out of the Constitution, and as we’ve covered on this blog before, we’re looking at a…
top