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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 08-26-2009, 3:00 PM
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Default DC Carry/Palmer: MSJ Filed

SAF and Alan Gura filed a Motion for Summary Judgment in Palmer v. DC today. You want to read the Memorandum in Support.

1 Main Document 1 page
2 Memorandum in Support 22 pages
3 Text of Proposed Order 2 pages
4 Statement of Facts 7 pages
5 Declaration of Tom G. Palmer 2 pages
6 Declaration of George Lyon 2 pages
7 Declaration of Edward Raymond 2 pages
8 Declaration of Amy McVey 2 pages
9 Declaration of Alan Gottlieb 2 pages
10 Exhibit A 3 pages
11 Exhibit B 2 pages
12 Exhibit C 3 pages
13 Exhibit D 6 pages
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  #2  
Old 08-26-2009, 3:32 PM
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I wish I understood all of that better. It looks good to my untrained eyes though.

-madmike.
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Old 08-26-2009, 3:37 PM
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Beautiful!
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Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
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Old 08-26-2009, 3:37 PM
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Originally Posted by madmike View Post
I wish I understood all of that better. It looks good to my untrained eyes though.

-madmike.
Basically the 2nd Amendment states you have the right to keep and bear and DC explicitly violates the latter.
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Old 08-26-2009, 4:15 PM
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Originally Posted by KCM222 View Post
Basically the 2nd Amendment states you have the right to keep and bear and DC explicitly violates the latter.
I got the gist, I just start to glaze over from the long winded version that seems to be necessary for anything involving the courts(esp. SCOTUS). My attention span is to short for all the subtleties.

But thanks for the crayon drawing, as far as you knew I may have needed it.

-madmike.
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  #6  
Old 08-26-2009, 5:12 PM
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Isnt winning via an MSJ an extremely rare occurence in emerging civil rights cases?
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  #7  
Old 08-26-2009, 5:16 PM
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So, where are the crayon drawings? I need them, too. (EDIT: I've read the links now)
Hoffmang, artherd, bweise, Ivanimal, Kestryll, Librarian and holy cow, an ocean of many other brilliant minds here, keep me both in in awe and in a thankful posture for what they do so effectively for Calif gun owners.
I think that they get so focused and full of good zeal, that they sometimes need this small reminder.
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Old 08-26-2009, 5:30 PM
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Originally Posted by Kharn View Post
Isnt winning via an MSJ an extremely rare occurence in emerging civil rights cases?
As Gene explained in the Sykes thread, a MSJ is how these things are settled because there are no facts in dispute. This is only a question of law. So you don't have a trial, instead you just have a bunch of grumpy people in black robes deciding what the law means. When that happens, it's all about Motions of Summary Judgements.
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  #9  
Old 08-26-2009, 6:26 PM
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They're challenging both the carry ban and the inability for out-of-district people to obtain permits. Arguing to the latter point, we find something that will make "Billy Jack" very happy:

Quote:
Even absent a Second Amendment right, the Ninth Circuit held that a California Sheriff’s policies regarding the issuance of handgun carry permits may be restrained by the Equal Protection Clause. Guillory v. County of Orange, 731 F.2d 1379 (9th Cir. 1984).
If they win this point and force DC to issue permits to out-of-district people, AND incorporation either survives the Nordyke en banc or is ruled on by the Supremes, that means California cannot refuse to issue CCW to people like me living in Arizona. I think that's the case NOW under current precedents (mainly Ward v. Maryland 1872 and Saenz v. Roe 1999) but with this new combination of cases, there's no counter-argument even possible.

Last edited by 1JimMarch; 08-26-2009 at 6:29 PM..
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Old 08-26-2009, 6:28 PM
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Soooooo, I assume DC didn't reply to the complaint?
What's the timeline now?
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  #11  
Old 08-26-2009, 6:59 PM
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Nice motion, but I did get momentarily confused with the following verbiage:

Quote:
Defendants have many options at their disposal. Assuming they wish to regulate the
carrying of weapons, Defendants may, as suggested by their basic carrying statute, license the
carrying of handguns much as they do the keeping of handguns. They may entirely proscribe the
carrying of handguns in either a concealed or open manner. And they may restrict the carrying of
handguns in sensitive places. But Plaintiffs do not ask the Court to legislate for the District, only
to enjoin those practices and policies that violate the right to arms until the District conforms its
conduct to constitutional requirements.
I get what we're saying, but I know the argument.

This above-bolded sentence could have been more artfully crafted to say something like, "They may entirely proscribe the carrying of handguns in a concealed manner or they may entirely proscribe the carrying of handgun in an open manner. A blanket prohibition on the carrying of handguns, however, is unconstitutional.

Not knowing the argument, the original sentence could be misinterpreted to mean DC is free to outlaw all forms of carry. Mind you, this paragraph precedes the argument where everything is fully explained.

Last edited by Shotgun Man; 08-26-2009 at 7:57 PM..
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  #12  
Old 08-26-2009, 7:03 PM
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Quote:
Originally Posted by Shotgun Man View Post
Nice motion, but I did get confused with the following verbiage:
It means that the district can choose between OC and CC. The amendment defines a right to carry a gun. The government can determine HOW it is carried.
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  #13  
Old 08-26-2009, 9:49 PM
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Exactly. Under this theory of Gura's, DC can pick whether people do CCW or LOC, or allow both, but they can't ban both.

But there's some "gotchas" Gura isn't mentioning yet (not saying he needs to mind you). If the agency "allows street carry by concealed means only", and that's the only way to exercise a constitutional right to carry, can the state (or DC) make people pay? There's a LOT of case law saying you can't bill people and make them pay to exercise a civil right - pay-to-vote (poll tax) was banned long ago for example, ditto "journalism permits". The gov't can't make people buy permits to carry out political or religious speech, which is why Jehovah's Witnesses don't have to buy "merchant's licenses" - they brought that case to the US Supreme Court because communities were trying to restrict their door-knocking. And there's other examples.

Put another way: if incorporation happens, will Texas be able to continue with banning open carry? They have concealed carry, yeah, but only if you pay.
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  #14  
Old 08-26-2009, 10:08 PM
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Quote:
Originally Posted by 1JimMarch View Post
Exactly. Under this theory of Gura's, DC can pick whether people do CCW or LOC, or allow both, but they can't ban both.

But there's some "gotchas" Gura isn't mentioning yet (not saying he needs to mind you). If the agency "allows street carry by concealed means only", and that's the only way to exercise a constitutional right to carry, can the state (or DC) make people pay? There's a LOT of case law saying you can't bill people and make them pay to exercise a civil right - pay-to-vote (poll tax) was banned long ago for example, ditto "journalism permits". The gov't can't make people buy permits to carry out political or religious speech, which is why Jehovah's Witnesses don't have to buy "merchant's licenses" - they brought that case to the US Supreme Court because communities were trying to restrict their door-knocking. And there's other examples.

Put another way: if incorporation happens, will Texas be able to continue with banning open carry? They have concealed carry, yeah, but only if you pay.
We both know the answer to the question is "No", Murdock v. Pennsylvania already makes this clear. HOWEVER, attacking the fees for exercising of a civil right needlessly complicates the current case, which is to attack the carry ban outright. We can attack the fee requirements in the next steps, but not now. Gura's precision strikes are good for this sort of work.
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  #15  
Old 08-26-2009, 11:01 PM
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Quote:
Originally Posted by Gray Peterson View Post
We both know the answer to the question is "No", Murdock v. Pennsylvania already makes this clear.
You have to get a permit to hold a parade or rally, and I believe there is some "nominal" charge for that. Newspapers have to pay business taxes; they just can't be targeted at business only. The post office can't refuse to mail your political propaganda, but they can charge for it, just like everything else they mail.

I doubt you will ever get ccw permit applications down to free as long as there are real costs associated with processing them.
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  #16  
Old 08-27-2009, 1:01 AM
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Quote:
Originally Posted by Scarecrow Repair View Post
You have to get a permit to hold a parade or rally, and I believe there is some "nominal" charge for that. Newspapers have to pay business taxes; they just can't be targeted at business only. The post office can't refuse to mail your political propaganda, but they can charge for it, just like everything else they mail.

I doubt you will ever get ccw permit applications down to free as long as there are real costs associated with processing them.
True, however fingerprint checks cost $19.25 with the FBI. The amount charged, by NYC, for example (355 or 400 or some outrageous amount) for even being able to possess a firearm for three years is likely not constitutional.
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  #17  
Old 08-27-2009, 8:45 AM
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That was beautiful. I can't wait to get my D.C. CCW license.
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  #18  
Old 08-27-2009, 9:27 AM
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Gura is brilliant. Robert Levy from CATO (who brought and single handedly financed Heller) had the wisdom to commit to Gura's arguing Heller before the SCOTUS, long before anyone knew who this young lawyer was. I am so grateful to Levy and Gura for getting this ball rolling early on. The subsequent monumental effort of all the parties here are equally humbling to me.

The contribution to preserving liberty into the future is incalculable. Thank you all.
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  #19  
Old 08-27-2009, 9:57 AM
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If we win, street crime in D.C. may no longer pay.

Then we can focus on cleaning up the 3 branches of the federal government . . . .
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Old 08-27-2009, 11:21 AM
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Quote:
We can attack the fee requirements in the next steps, but not now. Gura's precision strikes are good for this sort of work.
I agree completely. I'm just looking at the implications of where he's going, and if I can do that, so can the courts.
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  #21  
Old 08-27-2009, 11:28 AM
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Originally Posted by Paladin View Post
If we win, street crime in D.C. may no longer pay.

Then we can focus on cleaning up the 3 branches of the federal government . . . .
Which is precisely why the federal government and state governments of CA, IL, NJ, and NY do everything they can to stand in the way of the 2nd Amendment.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
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  #22  
Old 08-27-2009, 12:15 PM
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Which is precisely why the federal government and state governments of CA, IL, NJ, and NY do everything they can to stand in the way of the 2nd Amendment.
I don't think that's quite true.

Politicians do it to look tough on crime or something.

It's like Obama offering "Change".

He couldn't guarantee making things better, just making them different.

That's probably the biggest reason for anti-gun legislation, to make it look like the politicians are doing something.

There are politicians that want sheep to herd and want to disarm you for that reason but I don't think any are actually worried about any type of coup d-etat.
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Old 08-27-2009, 2:02 PM
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Quote:
Originally Posted by wash View Post
I don't think that's quite true.

Politicians do it to look tough on crime or something.

It's like Obama offering "Change".

He couldn't guarantee making things better, just making them different.

That's probably the biggest reason for anti-gun legislation, to make it look like the politicians are doing something.

There are politicians that want sheep to herd and want to disarm you for that reason but I don't think any are actually worried about any type of coup d-etat.
Why does the government hate organized crime?
They don't like the competition.
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  #24  
Old 08-27-2009, 7:54 PM
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Quote:
Originally Posted by KCM222 View Post
Basically the 2nd Amendment states you have the right to keep and bear and DC explicitly violates the latter.
By golly, we'll teach those guys in D.C. how to read the English language word by word. Yesterday's word was "keep"; today's word is "bear"; tomorrow's word is "FREEDOM!!!"
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Old 08-27-2009, 9:17 PM
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Originally Posted by SimpleCountryActuary View Post
By golly, we'll teach those guys in D.C. how to read the English language word by word. Yesterday's word was "keep"; today's word is "bear"; tomorrow's word is "FREEDOM!!!"
Maloney called. Tomorrow's word is ARMS.
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  #26  
Old 08-27-2009, 9:39 PM
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That case would likely be GVR'd.
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Old 08-27-2009, 9:52 PM
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That case would likely be GVR'd.
Are you speaking of Maloney? If so, what has changed since January of this year to warrant a GVR?
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Old 08-27-2009, 9:56 PM
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Originally Posted by dantodd View Post
Are you speaking of Maloney? If so, what has changed since January of this year to warrant a GVR?
Might be in reference to McDonald/incorporation; once 2A applies to the case a lower court should be able to address the arms issue (not saying it couldn't work its way back up).
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Old 08-27-2009, 10:01 PM
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Might be in reference to McDonald/incorporation; once 2A applies to the case a lower court should be able to address the arms issue (not saying it couldn't work its way back up).
Possibly but the problem with GVRing Maloney based on McDonald/NRA is that it doesn't address the question defining arms any further than "'nunchaku' are arms." It would seem the court would rather set a nation-wide precedent that more accurately defines "arms" rather than simply sending Maloney back to the circuit. Particularly with Sotomayor on the bench now.
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Old 08-27-2009, 10:18 PM
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Possibly but the problem with GVRing Maloney based on McDonald/NRA is that it doesn't address the question defining arms any further than "'nunchaku' are arms." It would seem the court would rather set a nation-wide precedent that more accurately defines "arms" rather than simply sending Maloney back to the circuit. Particularly with Sotomayor on the bench now.
A GVR would be a strong message for the panel to carefully consider the issue at the CA level lest it be brought back to them again. They may be waiting for a later case to create a post-incorporation split and address at that time. It would seem there would be a ton of clarity cases to work up through the courts after 2A/en bloc incorporation.
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  #31  
Old 08-28-2009, 8:24 PM
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Originally Posted by dantodd View Post
Maloney called. Tomorrow's word is ARMS.
Yup, get it out of order and we end up keeping and arming bears.
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Old 08-28-2009, 11:56 PM
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Thanks for posting...

Quote:
Originally Posted by hoffmang View Post
SAF and Alan Gura filed a Motion for Summary Judgment in Palmer v. DC today. You want to read the Memorandum in Support.

1 Main Document 1 page
2 Memorandum in Support 22 pages
3 Text of Proposed Order 2 pages
4 Statement of Facts 7 pages
5 Declaration of Tom G. Palmer 2 pages
6 Declaration of George Lyon 2 pages
7 Declaration of Edward Raymond 2 pages
8 Declaration of Amy McVey 2 pages
9 Declaration of Alan Gottlieb 2 pages
10 Exhibit A 3 pages
11 Exhibit B 2 pages
12 Exhibit C 3 pages
13 Exhibit D 6 pages
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Old 08-29-2009, 12:35 AM
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Originally Posted by SimpleCountryActuary View Post
Yup, get it out of order and we end up keeping and arming bears.
Haha, can you imagine if every American had a right to maintain an army of bears trained to use firearms?
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Old 08-29-2009, 8:06 PM
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Haha, can you imagine if every American had a right to maintain an army of bears trained to use firearms?
You would see a lot of Grand Theft Picnic Baskets.
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Old 08-29-2009, 10:02 PM
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Originally Posted by kf6tac View Post
Haha, can you imagine if every American had a right to maintain an army of bears trained to use firearms?
We don't? Man, I may have a lot of 'splanin' to do.

7x57
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  #36  
Old 09-09-2009, 6:30 PM
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You would see a lot of Grand Theft Picnic Baskets.
I don't think the ranger's going to like that, Yogi!
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  #37  
Old 01-22-2010, 11:24 AM
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The wiki on the case shows that the oral arguments were held today.
http://wiki.calgunsfoundation.org/in...ct_of_Columbia

When can we look forward to a decision from the court?
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  #38  
Old 01-22-2010, 11:26 AM
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I was wondering about this as well. Do we know if audio was recorded, and if so when it will be released?
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Old 01-22-2010, 11:41 AM
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Originally Posted by 2009_gunner View Post
The wiki on the case shows that the oral arguments were held today.
http://wiki.calgunsfoundation.org/in...ct_of_Columbia

When can we look forward to a decision from the court?
Whenever the clerks get around to drafting an opinion. lol.
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Old 01-22-2010, 11:55 AM
CCWFacts CCWFacts is offline
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Originally Posted by 1JimMarch View Post
But there's some "gotchas" Gura isn't mentioning yet (not saying he needs to mind you). If the agency "allows street carry by concealed means only", and that's the only way to exercise a constitutional right to carry, can the state (or DC) make people pay? There's a LOT of case law saying you can't bill people and make them pay to exercise a civil right - pay-to-vote (poll tax) was banned long ago for example, ditto "journalism permits".
I think you're wrong on this.

First, the same court upheld processing fees for gun permits in Heller itself. If fees to exercise the 2A were unconstitutional they would have removed those fees. If a fee is constitutional for "keep" then it's also constitutional for "bear".

Second, plenty of civil rights have fees attached. You need to pay for a parade permit. Churches need to pay various registration fees, both at the local level and probably at the IRS level. I presume that courts use some test to determine when fees can be applied and when they can't. It's intuitively obvious to me that poll taxes are not reasonable, but paying to process a parade application or process a gun permit does make sense.

Quote:
Originally Posted by 1JimMarch View Post
Put another way: if incorporation happens, will Texas be able to continue with banning open carry? They have concealed carry, yeah, but only if you pay.
I'm sure the fees are not a problem.
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