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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 09-11-2008, 4:47 PM
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Default Nordyke: 2A/14A Briefs are filed

The Nordykes and the County have filed their briefs regarding whether the Second Amendment applies to state and local government and whether the Alameda County gun show ban violates those rights.

Nordyke
Alameda County

Hats off to Don Kilmer and Don Kates for their excellent brief as well as the cast of characters who have assisted in getting these briefs complete and well argued.

Reply briefs for both parties are due 10/2/2008. No argument has yet been scheduled. I'll get an update on potential next timing steps after 10/2.

Here is the background on the Nordyke case as its a bit convoluted. We expect to win this one as our 3 judges are predisposed to the argument.

-Gene
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Last edited by hoffmang; 09-11-2008 at 4:49 PM..
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  #2  
Old 09-11-2008, 4:54 PM
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Nice. It's always heartening to read and hear of people who push the cause for the RKBA. I can't imagine what the legal fees might be to some degree on a case like this.

.
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Old 09-11-2008, 4:54 PM
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Quote:
Originally Posted by hoffmang View Post
Here is the background on the Nordyke case as its a bit convoluted. We expect to win this one as our 3 judges are predisposed to the argument.
That is so cool. I'm so looking forward to turning in a CCW with the "good cause" statement being simple, "2A, 1983". That's only 6 letters! And a coma. I know the Supreme Court just spent a lot of time recently looking at a coma.
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Old 09-11-2008, 5:11 PM
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Originally Posted by CCWFacts View Post
That is so cool. I'm so looking forward to turning in a CCW with the "good cause" statement being simple, "2A, 1983". That's only 6 letters! And a coma. I know the Supreme Court just spent a lot of time recently looking at a coma.
Might want to be a tad more verbose , say like this:

"42 USC §1983"

Just so they get your drift
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Old 09-11-2008, 5:37 PM
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WTH? 98 pages?! I am reminded of the quote "If I had more time, I would have written a shorter letter." But admittedly, I know nothing of these practices. I guess appellate judges have enough time to read everything.

Thanks, hoffmang, for keeping us up to date.

Last edited by Shotgun Man; 09-11-2008 at 5:41 PM..
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Old 09-11-2008, 5:43 PM
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WTH? 98 pages?! I'm reminded of the quote "If I had more time, I would have written a shorter letter." But admittedly, I know nothing of these practices. I guess the judges have enough time to read everything.
Don't they have lacke- *err* law clerks at the Circuit level?
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Old 09-11-2008, 6:43 PM
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Thanks Hoffmang, downloaded both briefs for later reading.
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  #8  
Old 09-11-2008, 6:47 PM
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Our side's brief is still under the length limits for the 9th Circuit Court of Appeals.

I've now had a chance to read Alameda's brief. Wow. It makes me think Jagger is of Counsel to Alameda... Heck, maybe he is. Bottom line is that they don't have much of an argument. The reply brief is going to be fun.

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  #9  
Old 09-11-2008, 7:07 PM
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Ok, the 98 pages scared me, but then I realised that the first 20 or so pages are index, then the actual pages are double-spaced and like 20 lines per page, and the average page seems to have about 20% footnotes.

Turns out, this thing is WAY shorter than I thought

I've read about halfway through, and it looks solid to me. Then again, I'm not a lawyer.

Still, this is all VERY awesome.

Incorporation here we come....
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Old 09-11-2008, 7:27 PM
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Actually the first part of the Alameda brief impressed as it was very direct and fairly well written although they are betting the whole farm that the 2nd isn't incorporated.

Then they went off on the tangent that all the States couldn't agree on what gun laws are and then about page 21 or so they couldn't stop themselves and started the same old arguments that there is no right to self defense and the 2nd only applies to the military, etc.

I feel better after reading it.
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  #11  
Old 09-11-2008, 7:55 PM
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Originally Posted by Fjold View Post
Actually the first part of the Alameda brief impressed as it was very direct and fairly well written although they are betting the whole farm that the 2nd isn't incorporated.

Then they went off on the tangent that all the States couldn't agree on what gun laws are and then about page 21 or so they couldn't stop themselves and started the same old arguments that there is no right to self defense and the 2nd only applies to the military, etc.
I feel better after reading it.
OMG, did they just wake up from a coma ?
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  #12  
Old 09-11-2008, 10:02 PM
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Excellent post-dinner vacation reading!! Exciting times...

--Neill
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  #13  
Old 09-11-2008, 10:07 PM
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I'm reading through the major portion of the last half where it argues that the 2A is fundamental to the concept of ordered liberty. The breadth and depth of evidence on that is overwhelming, going back to Greek and Roman times. The modern liberal view on this is an incredible aberration, only seen previously in situations where some country was being occupied, or where the nobles were terrified of their peasants.

I also read the first part where it shows how this whole thing is just PCness, with plenty of talk about how they allow these Scottish performances to use firearms (including discharging them with blanks) while arguing that gun shows should not have firearms.
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Old 09-11-2008, 10:08 PM
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I didn't finish this, but IIRC, the courts previous ruling was that they could not rule on the side of Nordyke because there was some case prior outlining that RKBA was a collective right, and that unless something changes in the definition of the 2A, they could not side with Nordyke? Am I wrong on this?

And if that is the case, the argument on the other side is that, even though the change in definition has been made, the State of California doesn't have to recognize it, because the law is only a restriction of Congress, and not that of the States? Although some might agree...then why does it say "the right of the people" and not, "the right of the states"?

So, then according to their argument, if the right to keep and bear arms was only a restriction on Congress, when they (Congress) formed and passed the Federal AW ban, then the state didn't have to enforce it, because Congress was overstepping its boundary and the 2A.
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  #15  
Old 09-12-2008, 7:52 AM
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I think it has been pointed out that the California Constitution is self-incorporating, so now that there is a U.S. Supreme Court ruling, the case can be argued on Second Amendment grounds.

Personally, I wish the “incorporation doctrine” had been strangled in the cradle, as it is unconstitutional in itself.
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Old 09-12-2008, 8:30 AM
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Quote:
as Justice Scalia has explained, “properly understood,
[the Second Amendment] is no limitation upon arms control by the
states.” Antonin Scalia, A Matter of Interpretation, Federal Courts
and the Law, 136-137, n.13 (Princeton University Press 1997).
Interesting quote. How much out of context is it?
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Old 09-12-2008, 10:49 AM
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Originally Posted by CCWFacts View Post
I'm reading through the major portion of the last half where it argues that the 2A is fundamental to the concept of ordered liberty. The breadth and depth of evidence on that is overwhelming, going back to Greek and Roman times. The modern liberal view on this is an incredible aberration, only seen previously in situations where some country was being occupied, or where the nobles were terrified of their peasants.

I also read the first part where it shows how this whole thing is just PCness, with plenty of talk about how they allow these Scottish performances to use firearms (including discharging them with blanks) while arguing that gun shows should not have firearms.
OMG, this is so true. I went with friends to the Scottish festival in Pleasanton. My friends daughters are dancers, and so I went with them to watch them compete. I saw swords, rifles, shields, knives and so many really leathal weapons there. What I thought was really really ironic was when I bought a diet pepsi. They sold them in cans and emptied the soda into a styrofoam cup, because they said that the aluminum can could be used as a weapon. OMG it was like I was in this topsy turvy world of PCness.
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  #18  
Old 09-12-2008, 11:16 AM
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Quote:
Originally Posted by M. D. Van Norman View Post

Personally, I wish the “incorporation doctrine” had been strangled in the cradle, as it is unconstitutional in itself.
I am so with you on that one.
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Old 09-12-2008, 11:25 AM
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"It makes me think Jagger is of Counsel to Alameda"

lmao, what, no rules of construction mentioned?
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Old 09-12-2008, 11:27 AM
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Very nice... thanks for the heads-up, hoffmang!
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Old 09-12-2008, 11:38 AM
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GO Madison Society!

(By the way, our annual dinner is in Modesto on October 11 at 6:00 PM. Get your tickets before they sell out. Open carry is not discouraged!)
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Old 09-12-2008, 12:29 PM
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Let's say we win, would this help get back the Pomona guns shows we miss so much?
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Old 09-12-2008, 12:36 PM
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It might open up the fairplex to gun shows again, but the quality/quantity of the Great Western's wouln't be back until the rest of the anti-gun laws start rolling back.
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Old 09-12-2008, 12:41 PM
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Quote:
Originally Posted by ilbob View Post
Interesting quote. How much out of context is it?
Scalia's quote is very out of context. Look for the rest of it in the Nordyke's reply brief.

-Gene
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Old 09-12-2008, 12:51 PM
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Quote:
Originally Posted by Theseus View Post
I didn't finish this, but IIRC, the courts previous ruling was that they could not rule on the side of Nordyke because there was some case prior outlining that RKBA was a collective right, and that unless something changes in the definition of the 2A, they could not side with Nordyke? Am I wrong on this?
You are somewhat wrong. Previous rulings have been about 1A, pre-emption, and various issues around that. The 2A issues were just ruled right out because of previous (wrong) 9th Circuit precedent. Heller invalidates that precedent. It makes it as if there has never been a gun case in a Federal Court in California before.
Quote:
And if that is the case, the argument on the other side is that, even though the change in definition has been made, the State of California doesn't have to recognize it, because the law is only a restriction of Congress, and not that of the States? Although some might agree...then why does it say "the right of the people" and not, "the right of the states"?

So, then according to their argument, if the right to keep and bear arms was only a restriction on Congress, when they (Congress) formed and passed the Federal AW ban, then the state didn't have to enforce it, because Congress was overstepping its boundary and the 2A.
For various hyper technical reasons, they are partially right. The first 8 Amendments probably only bound Congress. That changed some after the Civil War but even that remains arguable. That said, the Supreme Court has adopted a long line of decisions that selectively incorporate or enforce most of the first 8 amendments against the states. What is very clear now is that if a right meets the standards set forth in the Supreme Court Incorporation cases, then the states are forced to abide by it. The 2A clearly does and that's what our side's brief fully explains.

-Gene
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  #26  
Old 09-12-2008, 2:56 PM
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Things are looking good for our side.
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The same way they enforce all the rest of the BS laws. Only criminals are exempt, while the honest obey.
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Old 09-12-2008, 3:01 PM
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Hey if the Supreme Court can find that the right to have an abortion, which isn't even mentioned or alluded to or implied anywhere in the written Constitution, is an incorporated right that is essential to the concept of ordered liberty, then surely they can find that the right to keep and bear arms might also be worthy.
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Old 09-12-2008, 3:14 PM
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Originally Posted by CCWFacts View Post
Hey if the Supreme Court can find that the right to have an abortion, which isn't even mentioned or alluded to or implied anywhere in the written Constitution, is an incorporated right that is essential to the concept of ordered liberty, then surely they can find that the right to keep and bear arms might also be worthy.
We've clearly got 5 for Incorporation of the 2A.

Here is my prediction:
95% chance we win, 85% chance it's 3-0.
30% chance of an en-banc appeal grant, If granted 80% chance we win.
60% chance Alameda appeals to SCOTUS.
If appealed 75% chance SCOTUS grants cert to give us a 5-4.

That last one has been a result of the_quark's thinking. Kennedy has said he finds this area of the law fascinating so we may have everything we need to bring the question all the way up without a circuit split. The good news about that is that it would make Incorporation very firm. The downside is that it would mean that it will take longer before we can start using Incorporation here in California.

However, either way, I expect we're 90%+ that this case Incorporates the 2A against CA sooner or later.

-Gene
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Old 09-12-2008, 6:19 PM
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I'm sorry guys but what exactly is "INCOPORATION" that you are referring to?

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Old 09-12-2008, 6:27 PM
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http://en.wikipedia.org/wiki/Incorpo...Bill_of_Rights)

Quote:
Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis
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Old 09-12-2008, 6:41 PM
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If we already have some of the BoR incorporated already, why is it even a question as to having the whole darn thing applied? I don't see how they get away with this nonsense of some of the Constition is more important than others or randomly applicable as they see fit. (Other than the fact that nobody holds them to any standard coupled with consequences for violating it.)
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Old 09-12-2008, 6:56 PM
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As crappy as delaying incorporation (via appeal to SCOTUS) would be, a cert grant and upholding of incorporation will help nationwide.
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Old 09-12-2008, 7:24 PM
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This is a good thread, I would just like to keep up on it.
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Old 09-13-2008, 9:44 AM
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If we already have some of the BoR incorporated already, why is it even a question as to having the whole darn thing applied? I don't see how they get away with this nonsense of some of the Constition is more important than others or randomly applicable as they see fit. (Other than the fact that nobody holds them to any standard coupled with consequences for violating it.)
Entire PHD careers are based around answering the questions above. The short answer is that the 14th Amendment certainly meant to make the treatment of citizens equal inside a state and relatively equal state to state. Most of the drafters of the 14th wanted to over-rule Baron v. Baltimore which is the case that said the 5th Amendment didn't apply to the states. However, its not so clear that that's what the states and the people thought the 14th Amendment did at the time.

Since then, the court has selectively added parts of the Bill of Rights as being applied to the states. Among the rights that hasn't been incorporated is the right to jury trial in civil cases and a requirement of a grand jury indictment in criminal cases. On the other side, even the 3rd Amendment was assumed to be incorporated in its one modern case in New York.

-Gene
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  #35  
Old 09-13-2008, 10:53 AM
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Entire PHD careers are based around answering the questions above.

-Gene
Maybe thats the largest part of our problem! We've given over to the convoluted mind of the highly educated who many times are just socialist in disguise.
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Old 09-13-2008, 11:02 AM
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Maybe thats the largest part of our problem! We've given over to the convoluted mind of the highly educated who many times are just socialist in disguise.
No. It's more that its not exactly clear what the Reconstruction Republicans meant to do and actually did in the latter part of the 19th Century.

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  #37  
Old 09-13-2008, 12:28 PM
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The Volokh Conspiracy has a discussion on the Nordyke v. King supplemental Second Amendment briefs, including comments by Don Kilmer, the co-author of the Nordyke brief.

Some interesting perspectives...

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Originally Posted by Eugene Volokh
BRIEFS ON WHETHER THE SECOND AMENDMENT SHOULD APPLY TO THE STATES VIA THE FOURTEENTH: This is the "incorporation" question, and it's raised in Nordyke v. King, a case now pending before the Ninth Circuit; the pro-incorporation and the anti-incorporation briefs are now both available.

Note, though, that the issue in this case relates only to a ban on possession on government-owned nonresidential property: Alameda County banned firearms possession in county-owned "parks, recreational areas, historic sites, parking lots of public buildings (the State prohibits gun possession within the same buildings), and the County fairgrounds." The Ninth Circuit might well conclude that it need not decide whether the Second Amendment is incorporated, because even if it is incorporated it doesn't apply to the government's restrictions on the use of its own nonresidential property.

I'm not sure whether such a result would be right or wrong, but I want to flag the possibility that the Circuit will reach it. The First and Fourth Amendments often (though not always) apply differently to the government as proprietor than to the government as regulator of what happens on private property; likewise as to the right to an abortion; the circuit may well hold that the Second Amendment does so, too, and that it gives the government broad authority to control gun possession.

Note, by the way, that it's also possible that there may be a right to possess a gun in self-defense on government property, but no right to possess a gun for purpose of selling it. (The right to keep and bear arms necessarily includes the right not to have the government stop everyone from selling you such guns, just as the right to use contraceptives includes the right not to have the government stop the sales of contraceptives. But it need not include the right to buy a gun on government property, just as the right to have an abortion does not include the right to get an abortion in a county-owned hospital.)
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Old 09-13-2008, 1:54 PM
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I think Eugene is mostly wrong as to his case analysis. Don Kilmer makes one of the points why. The other point is that Incorporation has to be ruled on because if the 2A is incorporated, then the equal protection of law as between the Scottish Games and Gun Shows analysis is strict scrutiny.

Also, our panel is pre-disposed to incorporate - a historical fact Eugene may not be aware of.

-Gene
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Old 09-13-2008, 2:16 PM
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I'm hoping Eugene is wrong, too. Without an understanding of the background of Nordyke, I can see how he could come to such a conclusion.

The County's brief seems to take a somewhat bizarre approach, arguing that the Second Amendment's purpose is only to re-state that police power rests with the states, and not with the federal government. That, plus relying on a comment that Scalia's made many times in arguing why the Second Amendment must be seen as recognizing a pre-existing individual right.

Also, from reading the follow-up comments on VC, it looks like the Circuit Court must rule even if Alameda drops their prohibitions at the last minute (in another attempt to avoid a pro-incorporation decision). And Kilmer says they'll still rule on incorporation even if Nordyke looses on their Second Amendment claims.

Is this true? Is this a bona fide "pure play" incorporation case before a favorable panel?
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Old 09-13-2008, 3:53 PM
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Is this true? Is this a bona fide "pure play" incorporation case before a favorable panel?
Yes. I suggest you read this same 3 judge panel's earlier decision which predated Heller.

-Gene
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