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OSD 240: Look at me, I'm the entropy now
It used to be rational for gun control groups to spam court cases. That has now changed.
As is tradition, Judge Roger Benitez struck down a California gun law this week. The law was the state’s magazine capacity limit again, and he said that mag bans have no basis in the Constitution again. Kostas Moros has a great breakdown of the ruling.
The first time Benitez struck down California’s mag ban, in 2019, it was shocking. Judges just didn’t write opinions loudly defending gun rights. And they certainly didn’t make their opinions go into effect immediately, sparking one week where Californians imported more than one million magazines into the state. We even wrote a detailed breakdown of the opinion.
This is a far cry from a few years ago, when the Supreme Court denied cert on ten gun cases in a single day. And that bulk denial was the best case scenario — the other option was that they’d accept the cases and hand down rulings that strengthen gun control’s legal footing.
Today the shoe is on the other foot. And that has strategy implications for gun rights lawyers.
First a quick diversion. Wikipedia’s definition of the second law of thermodynamics is that “the entropy of isolated systems left to spontaneous evolution cannot decrease, as they always arrive at a state of thermodynamic equilibrium where the entropy is highest at the given internal energy” — commonly summarized to “entropy increases over time”.
That’s pretty dense, so some /r/eli5 users captured it more intuitively. It comes down to statistics. Entropy is a state of disorder or randomness. And in any system, there are a lot more disordered states than ordered states. One redditor said it like this:
There is a tiny chance that a dropped, shattered glass will fall in a way that reassembles the glass, and melts its pieces together on a molecular level. But it’s a tiny chance in comparison to all the possibilities of it shattering and spreading it out more evenly.
Over time a system will converge on the outcomes that are statistically most likely. The same concept appears in poker. It’s called “outs”, or how many of the remaining cards in the deck will give you a winning hand. If two people are playing poker and there’s one card left to reveal, the person who needs one specific card to come down is the statistical loser. You’d much rather be the person who’ll win if any card other than one (i.e. the dozens of remaining cards) comes down.
Federal courts used to be places with a lot more outs for gun control than for gun rights. But today, gun control only has a couple ways to win each hand, and if none of those lucky cards land, then gun rights win. That means that unlike a few years ago, it’s in gun groups’ favor to bring lots of cases. It used to be that each case risked creating a catastrophic precedent in favor of gun control. Things have precisely flipped, where today the best outcome gun control groups can hope for is to keep Bruen as-is, and the likely outcome is that Bruen will expand.
Bruen increases over time.
This week’s links
Piece in The New Yorker.
An endless parade of people with no prior convictions being made criminals over paperwork.
If you’ve ever bought snap caps and thought, “Darn, these aren’t made of real buffalo horn”, your problems are solved.
If investigators reasonably conclude behavior is criminal or malicious in nature and not LARP, they should collect or document three types of evidence, if available.
Proof that a subject planned for or already engaged in real-world violence related to the case. At trial, defense counsel could argue that LARPers are performers and have no interest in actual violence.
Direct contradiction of true LARPing behavior, such as a statement by a group member or leader that they were not playacting, or an instruction by a member or leader that conspirators should falsely claim they were LARPing if arrested. Presenting evidence of the crime without addressing role play might not be sufficient to win over a jury.
Documentation that, despite reasonable investigative measures, there is no circumstantial evidence to confirm any true LARP activity (e.g., the absence of LARP-related websites in a subject’s browsing history). Sometimes, creating a report that something was not found can add value to the overall persuasiveness of a case.
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Gun apparel you’ll want to wear out of the house.
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