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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #401  
Old 03-01-2018, 1:32 PM
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Originally Posted by kcbrown View Post
At this point, there is only one primary legitimate reason for continuing to file cases: anticipation of a significant compositional change in the Supreme Court.
Which is a good idea at this point. We have liberal justices in their 80s. Having cases ready to ask for cert when one of the liberals "retires" is a reasonable strategy.

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That said, failure to successfully challenge laws runs the risk of those laws becoming "longstanding" and, thus, being bootstrapped into Constitutionality even in the face of a "conservative" court, so there comes a point where there's no real alternative but to challenge the law. ...
That's also true. And we may get circuit level wins like we did in DC. The composition of the 9th may change too and we might win en bancs there if Trump can fill the vacancies. And finally, it's better for our psychology to take action than to do nothing.
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  #402  
Old 04-08-2018, 4:26 PM
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Well, I certainly realize that you always had faith in that argument. But interestingly enough, I didn't regard it as being a faith-based argument in the beginning, or even until relatively recently. Absent evidence to the contrary, it always had some plausibility, because it was just an interpretation of Heller like so many others (not the most well-supported interpretation, to be sure, but not entirely implausible, either).

The difference between now and before is that we do have evidence, in the form of Thomas' dissent to denial of cert in Peruta and most especially the way Norman was denied cert without so much as a comment in protest. The former cast grave doubt on the argument. The latter put a stake through its heart. Once you have substantial evidence like that against an argument, continued belief in that argument requires faith that overrides evidence and logic, thus making it "faith-based". But it's not until the point where the evidence refutes the (otherwise plausible) argument that it can legitimately be regarded as "faith-based".

So you shouldn't feel bad, at all, for getting behind the argument! Most certainly, both state courts and even the earlier Supreme Court (see Baldwin) insisted that open carry is the only protected mode of carry under the 2nd Amendment and other equivalent state provisions, so it's not like there isn't any plausibility to that interpretation. Indeed, it was sufficiently plausible that an entire case (Norman) was essentially dedicated to it. It's just that courts are political before they are anything else, so the end result is going to be whatever the players on the court want it to be, and nothing else. It's now clear that the players don't like open carry and don't want to explicitly protect it (indeed, it looks like they don't want to, as a group, protect anything at all except for poor homeless women wielding nonlethal weapons).

I must agree.


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Originally Posted by kcbrown View Post
At this point, there is only one primary legitimate reason for continuing to file cases: anticipation of a significant compositional change in the Supreme Court.

That said, failure to successfully challenge laws runs the risk of those laws becoming "longstanding" and, thus, being bootstrapped into Constitutionality even in the face of a "conservative" court, so there comes a point where there's no real alternative but to challenge the law. Once a law becomes "longstanding", equivalent laws that are passed in other jurisdictions later will inherit that "longstanding" attribute. So we have to challenge those laws before that happens, regardless of the judicial climate.

Agreed. As I agree with what ccfacts had to say as well.


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  #403  
Old 04-17-2018, 9:51 AM
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Paladin referred me to this picture of the brilliant litigator Mr. Nichols:



He did clearly state in his filings that he would be open carrying loaded guns at certain locations on a certain schedule.

The FB post is from March of this year. I wonder how the police are avoiding arresting him. I guess it's a misdemeanor and they have discretion on that? Not sure.
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  #404  
Old 04-17-2018, 12:27 PM
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what a jagaloon
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  #405  
Old 04-17-2018, 3:30 PM
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So cops have no discretion with felonies correct?
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  #406  
Old 04-17-2018, 3:45 PM
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Originally Posted by sfpcservice View Post
So cops have no discretion with felonies correct?
Not exactly. The police don't have to arrest anyone, or even come to your aid when you call (Warren v. DC). The DA does not have to prosecute anyone. The gov't does not have to provide police departments at all (CA GOV Code Sec 845).

All the lawsuits from the LA riots, claiming that no officers responded to help, were dismissed.

Where are the lawsuits against the Broward County Sheriff, Parkland Police, for failing to stop that guy?

How about lawsuits against the police departments for failing to stop Aurora CO? Newtown CT? Stockton... San Bernardino... Columbine... Seal Beach... North Hollywood... Las Vegas...

120,000 + gang members in Los Angeles....

???
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  #407  
Old 04-18-2018, 11:52 AM
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Originally Posted by Drivedabizness View Post
what a jagaloon
It's actually pretty brilliant when you think about it. What is the Gov going to do, arrest him? That'll look great on his appeal to SCOTUS - retaliatory arrest for challenging the OC ban. Yet, if they DON'T arrest him, what does that do for his equal protection argument? Finally, what does it say about having to sue the Gov in order to be free from arrest for exercising your Constitutional Rights.

Is it theater? Yes, but very good theater.
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  #408  
Old 04-18-2018, 3:29 PM
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You may have a point!
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  #409  
Old 04-18-2018, 10:54 PM
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It's actually pretty brilliant when you think about it.
No sorry it's autistic. He will not achieve anything with this. IANAL so I don't understand the specifics but in a crim. case he will need an attorney and his attorney won't base his defense on the RKBA. He is not going to use a crim. case to defend the RKBA. And Nichols isn't an attorney and he is obviously incompetent. Have you READ his briefs? They are incoherent. I don't know if a judge in a criminal trial would even allow him to represent himself or make those arguments.

He's not the first person who has violated California's carry laws.

IANAL but I'm not a fool enough to think I can manage a complex legal case on constitutional issues. I don't even represent myself when I get a traffic ticket. I hire someone who is good at it, and the only thing at stake with that is a traffic ticket for me personally, not the RKBA of an entire state or the 9th circuit or please forbid, the entire US.

I hope he "wins the lottery" and "retires".
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  #410  
Old 04-19-2018, 6:22 AM
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Didn't his case get vacated? What are you all still doing here?
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  #411  
Old 04-19-2018, 4:16 PM
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Didn't his case get vacated? What are you all still doing here?
His case was stayed pending Peruta. Since then the case was argued and submitted, decision "pending."
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  #412  
Old 04-19-2018, 6:21 PM
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Originally Posted by CCWFacts View Post
No sorry it's autistic. He will not achieve anything with this. IANAL so I don't understand the specifics but in a crim. case he will need an attorney and his attorney won't base his defense on the RKBA. He is not going to use a crim. case to defend the RKBA. And Nichols isn't an attorney and he is obviously incompetent. Have you READ his briefs? They are incoherent. I don't know if a judge in a criminal trial would even allow him to represent himself or make those arguments.

He's not the first person who has violated California's carry laws.

IANAL but I'm not a fool enough to think I can manage a complex legal case on constitutional issues. I don't even represent myself when I get a traffic ticket. I hire someone who is good at it, and the only thing at stake with that is a traffic ticket for me personally, not the RKBA of an entire state or the 9th circuit or please forbid, the entire US.

I hope he "wins the lottery" and "retires".
That's funny...I find his briefs and FRAPs to be very coherent until . . .
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. . . he has to cite directly CA statutes / codes with all its parts, subsections, exclusions, exceptions, and previous decisions by CA9 and other levels / branches of the Federal courts.

=8-P
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  #413  
Old 04-20-2018, 1:18 AM
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His case was stayed pending Peruta. Since then the case was argued and submitted, decision "pending."
Stayed pending Young, not Peruta (although an easy mistake since a ton of cases were stayed pending Peruta).

Young was ahead in the pecking order, and got the better panel, so Nichols will likely be the benefactor.
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  #414  
Old 07-07-2018, 2:06 PM
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This video got me thinking. If OC is "the Right" to bear arms and 450,000 Remington Model 95 derringers were made between 1865 and 1935, did all those people who bought them just carry them at home or in their places of work, or did they have CCW permits?

450,000 waaay back then was a far greater proportion of the US population than it is now and that's not counting the guns made by all the other manufacturers of other "small handguns" (e.g., "real" Deringers, Sharps derringers, etc.).

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  #415  
Old 07-07-2018, 6:47 PM
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Originally Posted by Paladin View Post
This video got me thinking. If OC is "the Right" to bear arms and 450,000 Remington Model 95 derringers were made between 1865 and 1935, did all those people who bought them just carry them at home or in their places of work, or did they have CCW permits?

450,000 waaay back then was a far greater proportion of the US population than it is now and that's not counting the guns made by all the other manufacturers of other "small handguns" (e.g., "real" Deringers, Sharps derringers, etc.).

Many people like today carried CCW without a permit. If you got caught....that alone could be a criminal charge.

It's no different than today...there's what the law says - and there's what people actually do.

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  #416  
Old 07-07-2018, 9:29 PM
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Many people like today carried CCW without a permit. If you got caught....that alone could be a criminal charge.

It's no different than today...there's what the law says - and there's what people actually do.

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If that is true, there will be mid-19th C laws for CCW permits in old law books of state statutes. There would also be case law re. illegal CCWing.

Anyone know if Nichols present either of those in his briefs?
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  #417  
Old 07-07-2018, 9:38 PM
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Young was ahead in the pecking order, and got the better panel, so Nichols will likely be the benefactor.
That is good news.

Quote:
Originally Posted by Paladin View Post
This video got me thinking. If OC is "the Right" to bear arms and 450,000 Remington Model 95 derringers were made between 1865 and 1935, did all those people who bought them just carry them at home or in their places of work, or did they have CCW permits?

450,000 waaay back then
And the FN Baby Browning;
FN manufactured and marketed the Baby Browning pistol from 1931 until 1979, though exports to the USA only took place between 1953-1968. About 550,000 units were produced,
Astra 25 auto
The Astra 200, a clone of the FN Model 1906, was extensively developed with several versions and calibers, .25 ACP and .22 Short primarily. 234,105 were built. Manufacture ceased in 1967, mainly taking into account new customs rules in the United States


Walter Model 9, 200,000 made from 1921-1945


Colt Model 1908 Vest Pocket, 25acp, 1908–1948 produced 420,000

Note, it was called the "vest pocket" pistol and they sold almost half a million of them at a time when only about half a dozen states had legal concealed carry.

And many clones and similar pistols were produced in huge quantities for both the US and European markets from the early 1900s until the 1970s. The total production of these type pistols was in the millions for US and European markets.

Were people buying these pocket pistols for target shooting? Hunting? Collecting? No. They were being carried.

I assume that during this time period millions of people in the US and in Europe carried illegally and the police din't bother them so long as they were middle class whites. Also in the US there must have been a lot of people who had some kind of reserve deputy status which let them carry. I think police work is a lot more formal and legal now than it was then.
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  #418  
Old 07-08-2018, 4:09 AM
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Originally Posted by Paladin View Post
If that is true, there will be mid-19th C laws for CCW permits in old law books of state statutes. There would also be case law re. illegal CCWing.

Anyone know if Nichols present either of those in his briefs?
Not sure about the mid-19th Century but definitely early 20th. Some were not CCW permits as we know it but "permission" from local sheriffs. http://www.guncite.com/court/state/55a610.html
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  #419  
Old 07-08-2018, 8:28 AM
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Not sure about the mid-19th Century but definitely early 20th. Some were not CCW permits as we know it but "permission" from local sheriffs. http://www.guncite.com/court/state/55a610.html
A friend of mine showed me a hand-filled-in card he had, I guess from the 60s, which made him some kind of special deputy in Nevada. He was an attorney. I guess middle class people like that could get various forms of permission, or in many cases maybe didn't need formal permission, and carried. Obviously these pocket pistols were sold in the millions and they were carried.

I think the CCW reform movement that kicked off in the 80s (starting in Florida) wasn't creating anything new, just making the existing processes in many locations more formal and transparent.

Would be interesting to know more about the history of this situation, but would be pretty hard to document.
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  #420  
Old 07-08-2018, 9:11 AM
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Originally Posted by Paladin View Post
If that is true, there will be mid-19th C laws for CCW permits in old law books of state statutes. There would also be case law re. illegal CCWing.

Anyone know if Nichols present either of those in his briefs?
To think how the laws and regulations were written then - assuming they were even written - and how they are they are written today would almost be like comparing apples and orange.

Authorities presumed alot...and so did regular people.

Simply visit Nichol's site - read as I did the close to 100 precedents - many of which were also submitted or considered by Heller.

1. "Permission" from Sheriff
2. Concealing in and of itself without "permission" could be grounds for criminal prosecution.
3. Appeals for overturning such prosecution and conviction almost routinely denied/rejected.


Despite all that, still didn't change the behavior of people back then - and still to this day.


People still make concealable weapons - and people still carry concealed WITHOUT permission. And only a few get caught year to year.

People are going to do what they want to do.

Whether that is a good or bad thing is another whole debate.

=8-|
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Old 07-11-2018, 6:30 PM
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Originally Posted by Mulay El Raisuli View Post
So, while Heller didn't RULE that Open Carry is the Protected Right, by citing Nunn, etc, it sent a pretty big hint that OC was the only manner of "and bear" that they would support.
The Court in Heller did not provide a rule or explanation that regulation of the open carrying of firearms violated the 2nd Amendment. The Supreme Court in District of Columbia v. Heller reviewed state cases, like Nunn, and other sources to support the conclusion that possession of firearms was a personal right, unconnected to military service:

2. Pre-Civil War Case Law

. . .Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.[Footnote 21] . . .

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly . . .

Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . . .
District of Columbia v. Heller, 554 U.S. 570 (2008)

To the contrary, the Supreme Court in Heller, as has been discussed frequently, provided a rule wherein regulation by the states of firearms possession is presumptively valid under the Second Amendment:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler,5 La. Ann., at 489–90 [(1850)]; Nunn v. State,1 Ga., at 251 [(1846)]; see generally 2 Kent,[Commentaries on American Law (O. Holmesed., 12th ed. 1873)]*340, n.2; The American Students’ Blackstone 84, n.11 (G. Chase ed.1884). Id. at 26–27 (emphasis added) (some citations omitted)
District of Columbia v. Heller, 554 U.S. 570 (2008)

The above exception in District of Columbia v. Heller swallows the rule of "shall not be abridged." Notice how the Court turned to Nunn to conclude approvingly that states have historically heavily regulated firearms possession.

Any new appointee to the Supreme Court must follow stare decisis. With regard to bearing arms in public, the sole analysis, if certiorari is ever granted in a carry case, is whether a) a person has an unquestioned right to self-defense in public, b) whether a person has a right to self-defense with an implement of their choice such as a knife, stun gun, or firearm, and c) whether a state may entirely prohibit all forms of carrying of arms in public (openly or concealed). Id. District of Columbia v. Heller (There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.)

With regard to so-called "assault weapons" or magazines with 10+ round capacity, based on the language of Heller, the Court will conclude that regulation of firearms is well established in American jurisprudence, " . . . the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues . . . " Id. As much as the Second Amendment community would like to dream, the Supreme Court does not recognize a single jurisdiction permitting unlimited possession of firearms.

Just like that, the Second Amendment with any Trump appointee will be quietly tucked away in the annals of the dead letter with the other unpopular Amendments to the Constitution such as the 4th, 5th, 6th, 7th, 8th, and 14th Amendments.

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  #422  
Old 07-14-2018, 8:51 PM
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To think how the laws and regulations were written then - assuming they were even written - and how they are they are written today would almost be like comparing apples and orange.
The laws & regs were written in English. They were written by legislators, many of whom were lawyers. What's changed???

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Originally Posted by mrrabbit View Post
Authorities presumed alot...and so did regular people.

Simply visit Nichol's site - read as I did the close to 100 precedents - many of which were also submitted or considered by Heller.

1. "Permission" from Sheriff
2. Concealing in and of itself without "permission" could be grounds for criminal prosecution.
3. Appeals for overturning such prosecution and conviction almost routinely denied/rejected.


Despite all that, still didn't change the behavior of people back then - and still to this day.
Link to primary or secondary source?

Another thing I thought of that might be a possible weakness in LOC being "the Right" is that Vermont NEVER required a permit to LCC (loaded concealed carry). If the VT state constitution (where, IIRC, that is stated), merely constitutionalized at the state level what was actual practice back in the colonies, LCCing might fall under "the Right" as well.
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  #423  
Old 07-15-2018, 9:08 AM
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Nichols wrote a comment to a member of the Federalist society regarding Peruta
https://fedsoc.org/commentary/blog-p...oseph-greenlee

and Joe Greenlee responded.


https://fedsoc.org/commentary/blog-p...oseph-greenlee
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Old 07-15-2018, 11:45 AM
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Another thing I thought of that might be a possible weakness in LOC being "the Right" is that Vermont NEVER required a permit to LCC (loaded concealed carry). If the VT state constitution (where, IIRC, that is stated), merely constitutionalized at the state level what was actual practice back in the colonies, LCCing might fall under "the Right" as well.
Except, the history doesn't support this view. Vermont's state constitution predates the USC by 11 years, it was never a colony and was French territory until the end of the French and Indian War where it was annexed into New York. It was New Hampshire colonists that fought against Albany and the British to make Vermont its own country from 1777 until 1791. Its history and culture were distinct from British legacy even at this time.

There is every reason to believe that due to the shelter Vermont gave to Shays, that the founders didn't see eye to eye with how Vermont compared to the other colonies, and that it affected their decision to use decidedly different language for the USC 2A.

As for CC, it has historically been seen as a criminal's method and open carry was the right. It was seen as dishonorable to deceptively present yourself as unarmed to anyone else. Vermont barred permitting for CC as, at the time (1903), their belief was that it was against their state constitution, not the USC, to deprive people of their right to carry. Even if it was looked down upon as a way to carry arms, Vermont's culture is to give the middle finger to anyone that tramples on rights, irrespective of the popularity.

Vermont's constitution formally forbade slavery and its Supreme Court properly recognized that CC permitting and bans were directed at keeping minorities, free blacks and others defenseless and subject to persecution if they defended themselves as such.

TL;dr - Vermont culture is not transferable to make broad estimations of colonial behavior, and its Supreme Court rulings do not apply outside Vermont.

Last edited by Robotron2k84; 07-15-2018 at 12:35 PM..
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