To measure sales efficiency, SaaS startups should use the 4×2

To measure sales efficiency, SaaS startups should use the 4×2

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Brian Ascher
Contributor
Brian Ascher is a partner at Venrock, where he invests broadly across enterprise and fintech and serves on the boards of several companies, including Personal Capital, 6Sense, Socrates AI, Dynamic Signal, Retail Solutions, SmartBiz Loans, and Inrix.

Once you’ve found product/market fit, scaling a SaaS business is all about honing go-to-market efficiency.

Many extremely helpful metrics and analytics have been developed to provide instrumentation for this journey: LTV (lifetime value of a customer), CAC (customer acquisition cost), Magic Number and SaaS Quick Ratio are all very valuable tools. But the challenge in using derived metrics such as these is that there are often many assumptions, simplifications and sampling choices that need to go into these calculations, thus leaving the door open to skewed results.

For example, when your company has only been selling for a year or two, it is extremely hard to know your true lifetime customer value. For starters, how do you know the right length of a “lifetime?”

Taking one divided by your annual dollar churn rate is quite imperfect, especially if all or most of your customers have not yet reached their first renewal decision. How much account expansion is reasonable to assume if you only have limited evidence?

LTV is most helpful if based on gross margin, not revenue, but gross margins are often skewed initially. When there are only a few customers to service, cost of goods sold (COGS) can appear artificially low because the true costs to serve have not yet been tracked as distinct cost centers as most of your team members wear multiple hats and pitch in ad hoc.

Likewise, metrics derived from sales and marketing costs, such as CAC and Magic Number, can also require many subjective assumptions. When it’s just founders selling, how much of their time and overhead do you put into sales costs? Did you include all sales-related travel, event marketing and PR costs? I can’t tell you the number of times entrepreneurs have touted having a near-zero CAC when they are just starting out and have only handfuls of customers — which were mostly sold by the founder or are “friendly” relationships.

Even if you think you have nearly zero CAC today, you should expect dramatically rising sales costs once professional sellers, marketers, managers, and programs are put in place as you scale.

One alternative to using derived metrics is to examine raw data, which is less prone to assumptions and subjectivity. The problem is how to do this efficiently and without losing the forest for the trees. The best tool I have encountered for measuring sales efficiency is called the 4×2 (that’s “four by two”) which I credit to Steve Walske, one of the master strategists of software sales, and the former CEO of PTC, a company renowned for its sales effectiveness and sales culture. [Here’s a podcast I did with Steve on How to Build a Sales Team.]

The 4×2 is a color-coded chart where each row is an individual seller on your team and the columns are their quarterly performance shown as dollars sold. [See a 4×2 chart example below].

Sales are usually measured as net new ARR, which includes new accounts and existing account expansions net of contraction, but you can also use new TCV (total contract value), depending on which number your team most focuses. In addition to sales dollars, the percentage of quarterly quota attainment is shown. The name 4×2 comes from the time frame shown: trailing four quarters, the current quarter, and the next quarter.

Color-coding the cells turns this tool from a dense table of numbers into a powerful data visualization. Thresholds for the heatmap can be determined according to your own needs and culture. For example, green can be 80% of quota attainment or above, yellow can be 60% to 79% of quota, and red can be anything below 60%.

Examining individual seller performance in every board meeting or deck is a terrific way to quickly answer many important questions, especially early on as you try to figure out your true position on the Sales Learning Curve. Publishing such leaderboards for your Board to see also tends to motivate your sales people, who are usually highly competitive and appreciate public recognition for a job well done, and likewise loathe to fall short of their targets in a public setting.

4x2 chart venrock saas

A sample 4×2 chart.

Some questions the 4×2 can answer:

Overall performance and quota targets

How are you doing against your sales plan? Lots of red is obviously bad, while lots of green is good. But all green may mean that quotas are being set too low. Raising quotas even by a small increment for each seller quickly compounds to yield big difference as you scale, so having evidence to help you adjust your targets can be powerful. A reasonable assumption would be annual quota for a given rep set at 4 to 5 times their on-target earnings potential.

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December 6, 2019 at 06:10PM

Laravel and MySQL 8: Fixing MySQL Server Has Gone Away Error

Laravel and MySQL 8: Fixing MySQL Server Has Gone Away Error

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Laravel and MySQL 8: Fixing MySQL Server Has Gone Away Error

If you’ve tried to upgrade your Laravel applications to use MySQL 8, you might have run into the following error that left you scratching your head:

SQLSTATE[HY000] [2006] MySQL server has gone away 

The php.net manual has an outdated (but still relevant explanation):

When running a PHP version before 7.1.16, or PHP 7.2 before 7.2.4, set MySQL 8 Server’s default password plugin to mysql_native_password or else you will see errors similar to The server requested authentication method unknown to the client [caching_sha2_password] even when caching_sha2_password is not used.

This is because MySQL 8 defaults to caching_sha2_password, a plugin that is not recognized by the older PHP (mysqlnd) releases. Instead, change it by setting default_authentication_plugin=mysql_native_password in my.cnf. The caching_sha2_password plugin will be supported in a future PHP release. In the meantime, the mysql_xdevapi extension does support it.

We should expect a future version of PHP to have support for caching_sha2_password authentication. However, in the meantime, you can fix it quickly with the following changes:

First, we need to find the paths MySQL will look for a configuration file. We can find out by running mysql --help. The command prints out a lot of info, but you’re looking for something like the following:

mysql --help ... Default options are read from the following files in the given order: /etc/my.cnf /etc/mysql/my.cnf /usr/local/etc/my.cnf ~/.my.cnf 

Take the paths from your command output and adapt the following with the paths you get from mysql --help:

ls -la \ /etc/my.cnf \ /etc/mysql/my.cnf \ /usr/local/etc/my.cnf \ ~/.my.cnf ls: /etc/my.cnf: No such file or directory ls: /etc/mysql/my.cnf: No such file or directory -rw-r--r-- 1 paul staff 61 Dec 5 19:40 /Users/paul/.my.cnf -rw-r--r-- 1 paul admin 113 Oct 28 2017 /usr/local/etc/my.cnf 

I like to manage the file from ~/.my.cnf, but unless you’ve previously done that, you’ll probably have to create the file if you want to manage configuration from that path.

I suggest you use the ~/.my.cnf path, but whatever path you determine you need to add the following:

[mysqld] default_authentication_plugin=mysql_native_password 

If you’re using Homebrew and you want to update the /usr/local/etc/my.cnf file, add the following at the end of the file under [mysqld]:

# Default Homebrew MySQL server config [mysqld] # Only allow connections from localhost bind-address = 127.0.0.1 default_authentication_plugin=mysql_native_password 

Last, you need to restart MySQL using whatever method is appropriate for your system. If you’re using Homebrew on a Mac, you can run brew services:

brew services restart mysql 

If you’re using Docker, here’s an example Docker Compose configuration to get MySQL 8 working with Laravel and other PHP projects:

services: # ... mysql: image: mysql:8.0 # PDO Doesn't support MySQL 8 caching_sha2_password Authentication # @see https://dev.mysql.com/doc/refman/8.0/en/upgrading-from-previous-series.html#upgrade-caching-sha2-password command: --default-authentication-plugin=mysql_native_password ports: - 13306:3306 volumes: - mysql:/var/lib/mysql environment: MYSQL_DATABASE: my_database MYSQL_ROOT_PASSWORD: root volumes: mysql: driver: "local" 

With that change in place, you should be able to connect to MySQL 8 from PHP applications!


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December 6, 2019 at 09:29AM

What metrics I’m using for real-time monitoring of my Laravel application

What metrics I’m using for real-time monitoring of my Laravel application

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Hi I’m Valerio, software engineer and creator of Inspector.

As product owner I know that being able to prevent users from noticing an application issue is probably the best way for developers to contribute to the success of a software-based business.

We could talk about user complaints, customer churn, a thousand other things, but in short, in a highly competitive market any application error can expose developers to competitive or even financial risks. We publish new code changes almost every day, and it’s quite impossible to anticipate all the problems that could happen after every release.

It’s too important for developers to catch errors on their products —before— their users stumble into the problem drastically reducing negative impact on their experience.

I’m refine and search every day new metrics to move my business forward, and my product itself is a tool that provide instant and actionable metrics to its users, so I study and practice a lot to find the best possible information to avoid unnecessary risks.

I’m not interested to create charts that looks good (even if they are), my priority are useful, indeed needful metrics to distinguish between something that doesn’t need to be rushed and something that needs immediate attention to keep my application (and my business) stable and secure.

Why averages don’t work?

Anyone that has ever made a decision uses or has used averages. They are simple to understand and calculate.

But although all of us use them, we tend to ignore just how wrong the picture that averages paint of the world is. Let me give you a real-world example. 

Imagine being a Formula 1 driver.

Your average “execution” time for a lap is comparable with the top three in the ranking, but you are in fifth position. 

According to the average, everything is fine. According to your fans, it’s not so good.

Your “Team Principal” – the person who owns and is in charge of your team during the race weekend –  knows that relying on averages is not a good way to understand what’s going wrong. He know that, when it comes to making decisions, the average sucks.  When calculating the average, it’s likely that in some races you’re so fast that you can make up for the next four races with bad performances.

As an F1 driver you can compare your “execution” time and results with other drivers, but with your application you are alone, the only feedback you have is customer churn.

Your team principal knows that focusing too hard on the best performances is not so useful to understand what’s going wrong and how to fix it (car settings, pit stop, physical training, etc.).

He recalculates the average taking into consideration only the worst 5% of your races (95th percentile). Isolating these executions from the noise he can now analyze them and clearly see that every time something goes wrong it is because of the pit stop.

Measuring in real time the worst 5% of your application cycles gives you the same opportunity. You’re able to understand what is going wrong when your application slow down (a too time-consuming query, slow external services, etc.) and avoid bad customer experiences, because you always have the right information before your users stumble into the problem.

Inspector’s timeline

In a typical web back-end we experience the same scenario: some transactions are very fast, but the bulk are normal. The main reason for this scenario is failed transactions, more specifically transactions that failed fast, not for bugs but due to user errors or data validation errors.

These failed transactions are often magnitudes faster than the real ones because the application barely starts running and then stops immediately; consequently, they distort the average.

The secret to using averages successfully is: “Measure the worst side”

Inspector shows you the “execution time analysis” of the worst 50% (Median) and the worst 5% (95th percentile) of application cycles.

As you can see the median (blue line) is rather stable but has a couple of jumps. These jumps represent real performance degradation for the majority (50%) of the transactions. The 95th percentile (red line) is more volatile, which means that the outliers slowness depends on data, user behavior, or external services performance.

In this way you will automatically focus only on transactions that have bad performance or problems that need to be solved. 

Inspector eliminates any misunderstanding and offers a dashboard that informs you directly about things that can cause problems to your users and even to your business, including errors and unexpected exceptions, as you can read about in the first part of this series [Laravel Real-Time monitoring & alerting using Inspector].

Automatic alerting

In real-world environments, performance gets attention when it is poor and has a negative impact on the business and users. But how can we identify performance issues quickly to prevent negative effects? 

We cannot send out alerts for every slow transaction. In addition, most operations teams have to maintain a large number of applications and are not familiar with all of them, so manually setting thresholds can be inaccurate, time-consuming and leave a huge margin for errors.

1 — Blue line still flat, Red line jump (low priority)

If the 5% degrade from 1 second to 2 seconds while the 50% is stable at 700ms. This means that your application as a whole is stable, but a few outliers have worsened. It’s nothing to worry about immediately but thanks to inspector you can drill down into these transactions to inspect what happened.

Inspector metrics don’t miss any important performance degradation, but in this case we don’t alert you, because the issue involves only a small part of your transactions and is probably only a temporary problem! Thanks to Inspector you can check if the problem repeats itself and eventually investigate why.

2 — Blue line jump, Red line still flat (high priority)

If the worst 50% moves from 500ms to 800ms I know that the majority of my transactions are suffering an important performance degradation. It’s probably necessary to react to that.

In many cases, we see that the red line does not change at all in such a scenario. This means the slow transactions didn’t get any slower; only the normal ones did with a high impact on your users.

In this scenario Inspector will alert you immediately.

Conclusion

Your team can now work for a better pit stop and you will soon be able to compete with the best drivers in the league. Measure continuously potential problems is the secret behind the great Formula 1 teams to achieve success not once, but to remain in the top teams for all the years to come.

Inspector is a developer tool that drastically reduce the impact of an application issue because you will be aware of it before your users stumble into the problem.

Thank you so much for reading it. To make Inspector more sophisticated and mature, it will not be possible to accomplish without your help. Don’t hesitate to share your thoughts on the comment below or drop in live chat on our website! Let’s make it together.

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December 5, 2019 at 08:48AM

New Package: Laravel Invoices – Generate PDF Flexibly

New Package: Laravel Invoices – Generate PDF Flexibly

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Presenting to you our totally new package. While working with invoices on client projects, we didn’t find convenient way to generate PDFs.

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December 5, 2019 at 08:48AM

New Zealand Data Breach Reveals Extent of Gun ‘Buyback’ Non-Compliance

New Zealand Data Breach Reveals Extent of Gun ‘Buyback’ Non-Compliance

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I’ve been following the New Zealand firearm “buyback” with some amusement as I ran estimates on the compliance rate based on NZ Police turn-in reports and NZ government guesstimates of the number of affected firearms. (It’s a measly 16.5% as of November 24.)

News of the “buyback” privacy breach has added extra humor value. Sorry, Kiwi gun owners who were complying; I’m sure you weren’t laughing.

But privacy issues aside, I am. And not merely at the gross incompetence displayed. I’m encouraged by the additional proof of non-compliance.

Government estimates of the number of newly banned firearms range from an early 173,000 to, finally, 240,000. I’ve been rolling with the final 240K figure.

At the end of November, 21,655 people had been paid for 36,045 firearms. That works out to an average 1.66 firearms per person.

Reports have it that people turning their firearms had to pre-register online through the breached web site. A total of 38,000 people registered and now have their personal and financial data endangered.

There are only 17 days left in the amnesty period, so you’d expect that pretty much everyone who had any intention of complying would have registered by now.

Only 38,000. Let’s assume that the 1:1.66 ratio holds true. That would account for 63,080 firearms or 26.3% compliance.

I had been projecting 19.8% assuming no sudden, last-minute rush, and turn-in rates holding steady. But I also figured some folks would get cold feet in the final weeks and decide to turn in their property, especially registered Cat-E “military-style semiautomatic” owners since the government does know who they are (but 60% of even those aren’t complying yet).

I had speculated that the New Zealand government would stop reporting turn-in numbers out of sheer embarrassment. Then they’d dust off early lowball estimates and simply declare the amnesty a success.

Now this breach fiasco just gives them a better opportunity to do so.

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December 5, 2019 at 11:01AM

New ‘Home Defense Act’ Would Reclassify SBRs as Semi-Autos

New ‘Home Defense Act’ Would Reclassify SBRs as Semi-Autos

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Congressman Roger Marshall, M.D. (R-Kan.) introduced a potentially important piece of legislation in Washington Tuesday. The Home Defense and Competitive Shooting Act would streamline bureaucratic regulations, reduce ATF processing times and remove unconstitutional finger print requirements and fees for certain rifles.

Dianna Muller spoked before House Judiciary Committee.

RELATED STORY

WATCH: Dianna Muller Tells House Judiciary Committee ‘I Will Not Comply’

Home Defense and Competitive Shooting Act

“Opponents of the Second Amendment want to use bureaucracy and regulations to obstruct citizens attempting to exercise their God-given right to keep and bear arms,” Marshall said in a statement. “The firearms addressed in this bill are commonly used for hunting, personal defense, and competitive shooting. Since I came to Congress, I have fought tooth and nail to stop attempts that would strip our Constitutional right to keep and bear arms. This bill will eliminate regulations designed not to protect Americans, but to deny them their Constitutional rights.”

The proposed bill specifically addresses short-barreled rifles, regulated by the NFA since 1934. Should this bill pass, SBRs would reclassify as simply semiautomatic rifles. It would also remove any form or tax stamp from the rifle.

“The introduction of this bill is yet another landmark towards restoring the constitutionally-recognized right to keep and bear arms without infringement by federal regulations and whimsical rulemaking by anti-gun D.C. bureaucrats,” said Aidan Johnston, Director of Federal Affairs for Gun Owners of America. “Gun Owners of America urges every member of the House of Representatives to cosponsor this bill.”

“On behalf of the NRA’s five million members, I thank Dr. Marshall for introducing necessary legislation that will restore Constitutional rights to law-abiding Americans to choose which firearms best suit their needs,” said Jason Ouimet, executive director, National Rifle Associations’s Institute for Legislative Action. “It’s time Congress eliminates costly and unnecessary government regulations on short-barreled rifles, which are used in sport shooting, hunting and are especially popular with women gun owners for self-defense.”

Road Ahead

Any proposed legislation such as this makes the 2A crowd happy. But a Democratic-controlled House of Representatives makes passage of the bill highly unlikely. Had this bill come to the floor prior to the mid-term election, it could have fared much better. But one can hope.

For more information, visit marshall.house.gov.

The post New ‘Home Defense Act’ Would Reclassify SBRs as Semi-Autos appeared first on Personal Defense World.

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December 5, 2019 at 10:03AM

Satisfying Plank Collapse

Satisfying Plank Collapse

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Satisfying Plank Collapse

Link

Hobbyist Crouzier Benjamin loves to build complex structures using thousands of Kapla wooden planks. For this build, he took about 2 weeks assembling 20,000 of the beams, then watched it all fall in about 30 seconds. Check out his YouTube playlist for lots of other fun architectural collapses.

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via The Awesomer https://theawesomer.com

December 5, 2019 at 11:08AM

Coca-Cola’s Glowing Lightsaber Bottles Are the First Flexible OLED Tech I’m Willing to Pay For

Coca-Cola’s Glowing Lightsaber Bottles Are the First Flexible OLED Tech I’m Willing to Pay For

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I’m one hundred percent in support of a future where screens are flexible and foldable instead of fragile and easily shatterable. I’m just not willing to spend $2,000 on a folding phone or $10,000+ on a rollable TV. I will, however, happily drop $2 or $3 on a plastic bottle with a glowing lightsaber on the label.

As the marketing machine for Star Wars: The Rise of Skywalker slowly but surely kicks into hyperdrive ahead of the film’s mid-December release, every section of every store is slowly being taken over by Star Wars-branded merchandise—in addition to a monsoon of toys. But it seems like Singapore is the place to be if you want to snag one of the most interesting pieces of The Rise of Skywalker merchandising: Coca-Cola has wrapped its bottles in a thin flexible OLED panel and electronics, including a battery, allowing images of Rey’s and Kylo Ren’s lightsabers to actually glow.

Flexible OLEDs are currently just a little too expensive when used in consumer products that actually take advantage of their ability to, you know, flex. But this might be the perfect application for the technology at this point in time. OLED is self-illuminating, so no backlight is needed, allowing the ultra-thin panels to be tucked behind a plastic bottle’s label without looking like a bunch of electronics have been poorly hidden. And no matter how much those bottles get tossed around and banged up during shipping, at least most of the panels should survive and continue to work just fine, creating a rather neat effect that will undoubtedly help Coca-Cola sell a lot of fizzy water this month.

There’s a catch, however. These bottles are only being made available in Singapore, just 8,000 of them are being produced for Coca-Cola’s “No Sugar” drinks, and they’re being randomly distributed to 45 secret locations across the country. It’s a strategy that presumably helps deter long lineups full of obsessive fans or professional eBayers, but it’s annoying for legitimate collectors who will potentially have to scour an entire country to score one of these at a reasonable price.

Also, if you do manage to get your hands on one of these bottles, you’ll want to make sure you don’t get too lightsaber happy. The battery life for the OLED is rated for about 40 minutes in total, letting you illuminate the saber roughly 500 times as long as you keep your lightsaber battle shorter than five seconds.

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December 5, 2019 at 11:48AM

Detailed Analysis of New York State Rifle & Pistol Assn. Supreme Court Arguments

Detailed Analysis of New York State Rifle & Pistol Assn. Supreme Court Arguments

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By LKB

As previously reported, I had a ringside seat for yesterday’s SCOTUS arguments, and Dan posted some of my quick observations from the argument. Now that I have had a bit more time to digest things (as well as some food and sleep), I want to go into a bit more detail on how I perceived how the argument went down.

Mootness

As has been widely reported, most of the time spent during oral argument involved addressing whether New York City’s last-minute maneuver (i.e., after the Supreme Court granted cert, the City and the State changed the law in a transparent and brazen attempt to evade appellate review) rendered the case at bar moot.

Mootness is a legal doctrine that provides that when there is no longer any actual dispute between the parties for the court to decide, an appellate court should dismiss the case rather than enter advisory or hypothetical opinions. However, it is a complicated area of law that has many exceptions, many of which were discussed yesterday.

Courtesy LKB

Contrary to how the media (and unfortunately some Chicken Littles in the firearms commentariat) have tried to spin the amount of time at argument that was spent discussing mootness, that fact doesn’t really mean anything. In appellate advocacy, you go into oral argument with an outline of points you would like to make…usually a very small subset of the arguments made in your briefs.

However, you are not in control of things, and your argument goes where the most active questioners on the Court want to take it. This is especially true at the Supreme Court, where the van Moltke maxim that “no battle plan survives first contact” is typically the case.

In NYSR&PA, the anti-2A wing of the Court (Ginsburg, Breyer, Kagen and Sotomayor) are all known as active questioners at oral argument, as opposed to Thomas, who almost never asks anything at all, and Roberts and Kavanaugh, who tend to ask very few.

As a result, the liberal wing of the Court dominated the time at oral argument with their questioning. However, just because they asked the most questions (and thus made the attorneys spend most of their argument answering them), that simply does not signify anything.

Supreme Court NYSRPA v City of New York

LKB for TTAG

So, how will the Court decide the mootness issue? As I expected, Ginsburg and Sotomayor were more than willing to swallow NYC’s brazen tactical maneuver. While I thought that Kagen and Breyer might have some shred of integrity on this procedural issue (blessing this kind of post-cert gamesmanship would set a horrid precedent for all sorts of cases – especially many that those two justices typically care about), that possibility evaporated at oral argument. Both of those justices were clearly on board with letting the City get away with it in order to avoid a potential expansion of Heller.

On the other hand, both Alito and Gorsuch did not mince words about how they felt about NYC’s chicanery. Gorsuch acidly remarked on NYC’s “Herculean efforts” to evade Supreme Court review after cert was granted. Thomas and Kavanaugh asked no questions, but their positions in past cases leave me with little doubt that they are not going to vote to hold the case moot.

That leaves the deciding vote on the mootness issue with Roberts. Early media reports were crowing that Roberts’ questions indicated that he was leaning toward finding the case moot. From what I saw (and confirmed in the transcript), I simply did not see that.

The Chief Justice asked only two questions, one of which was a bit of a trap that adduced a concession from NYC’s counsel that dismissing the case as moot would prejudice the plaintiffs’ ability to seek damages for violations of their rights.  If anything, I think Roberts’ questions cut the other way on which way he may be leaning.

supreme court scotus second amendment protest demonstration

Courtesy Kevin Hulbert

Additionally, if Roberts was going to wimp out on the mootness issue, I suspect he would have already done so. The Court had several earlier opportunities to dismiss the case as moot, and if he was so inclined, Roberts could have voted with the liberals and done so. He did not.

Of course, as the Obamacare decision illustrated, Roberts can certainly be a squish, and thus he could well sell us out on this issue. However, nothing I saw at oral argument supported the spin the media put on it.

Indeed, I suspect the media is pushing the “it’s going to be dismissed as moot” narrative for its own purposes (e.g., to be able to decry a Roberts “change of position” on mootness as evidence that the court is broken and needs to be packed, etc.)

LKB prediction: 5-4 denial of the motion to dismiss the case as moot. However, if we see a cert grant in the next few weeks on another 2A case — there are several being held due to the grant of cert in NYSR&PA — then all bets are off.

The Merits of the Case

Because of the near-monopolization of the oral argument by the liberal wing of the Court on the mootness issue, very little time was spent on the merits (absolutely none on the Commerce Clause or Right to Travel issues). However, there were a few interesting moments.

The highlight of the arguments on the merits was a spectacular trap that Justice Alito sprang on the attorney for the City. Questioning him on NYC’s change of its laws, he asked, “Are people in New York less safe now as a result of the new city and state laws than they were before?”

Clearly surprised at this seemingly out-of-the-blue question, counsel responded that they were not less safe. Alito then pressed him to concede that there was thus no actual basis for the City to claim that the transportation ban was essential to public safety.

Counsel attempted to tap dance away from that, claiming the restriction accorded with the history of acceptable regulations under the Second Amendment.

Alito then pressed counsel on whether a total ban on transportation by premises license holders could possibly be constitutional. The City’s position – and Second Circuit law – “cabin” Heller to possession of a weapon in the home.

I expected him to respond “yes” and then just take the heat. Instead, he admitted that such a complete ban would violate the Second Amendment.

Justice Alito then pounced: “If that’s what it means, you’re conceding that the Second Amendment protects the possession of a firearm outside the home under at least some circumstances?” Counsel again tried to tap dance away, but again conceded that was a “fair way to look at it.“

So much for the City’s argument that Heller applies only to possession inside the home.

Counsel for both NYSR&PA and the Solicitor General pushed application of the “Text, History, and Tradition” test as the applicable standard, rather than strict scrutiny. In what I took as a transparent shot at Justice Kavanaugh, Justice Sotomayor remarked that she viewed the “Text, History, and Tradition” test as a “made-up standard.”

Supreme Court New York Second Amendment Protest

Courtesy Matt Laur

Needless to say, the fact that standards for decision – or even new constitutional rights – might have been “made up” by judges has hardly concerned Sotomayor in the past.

At another point, she remarked that questions about whether certain types of weapons were covered by the Second Amendment was not before the Court yet. I might be reading too much into it, but I took her comment and the way she asked it as a recognition that regardless of what happens in this case, she knows that the votes are there to take other 2A cases.

Near the end of the argument, Justice Ginsburg (who looked very frail, but nevertheless was engaged and asked a number of probative questions in both of Monday’s arguments) asked the City’s counsel whether, because the transportation ban forbade taking a licensed gun to a second house (whether in or out of the city), that would require a license holder who wished to be armed at home to acquire two guns — one for each house — and leave one gun at an unoccupied location at all times, which she seemed to intimate would be less safe than transporting one gun between them.

To me, she plainly was teasing an argument that perhaps the NYC transportation ban could be struck based on intermediate scrutiny, perhaps to try and tempt Roberts into reversing on narrower grounds. (Query why she would do this if she thinks Roberts might squish on mootness.)

At one point in the argument, Justice Breyer made a comment that indicated that he still does not accept that Heller was correctly decided…which caused his neighbor, Justice Thomas, to lean over and engage him in a whispered conversation.

My read on the merits: nothing has changed, and things are as they have been. There is a wing of the Court (Ginsburg, Breyer, Kagen, Sotomayor) that is adamantly anti-2A and would gladly reverse Heller if they had the chance. There are four votes (Thomas, Alito, Gorsuch, and Kavanaugh) who go the other way, and would likely expand Heller significantly.

Roberts is also at least nominally in this camp, but the question remains whether he will succumb to the Beltway social, media, and political pressure as he did in the Obamacare decision.

My prediction: if they reach the merits, 5-4 to reverse.  Smart money would be that Roberts will write the opinion, but I’ll go out on a limb and predict that he’ll assign it to Kavanaugh, and will adopt the “Text, History, and Tradition” test for 2A cases. Concurrence by Thomas, Alito, and Gorsuch, pushing for strict scrutiny and an end to lower court gamesmanship on 2A cases.

We’ll see . . . .

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December 3, 2019 at 03:24PM