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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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  #161  
Old 06-29-2011, 5:00 PM
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To clarify, I am not saying that the law is right. I am only saying that neither principle is directly applicable.
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  #162  
Old 06-29-2011, 6:40 PM
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a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. ...
Right, now as a consequence of my DV conviction I am banned from owning guns for life. Removal of ones civil rights is an increase in punishment after the fact.
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  #163  
Old 06-29-2011, 8:15 PM
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Originally Posted by MP301 View Post
Thats the problem for sure. But being convicted of Misd. DV does not a wife beater make necessarily. The Pro RKBA folks that dont have a clue before jumping on the torch and pitchfork bandwagon really need to get said clue.

Besides, show me another right that can be lost for life (or even 10 years) for a Misd. Conviction. Thats stupid on its face.
I should have put a sarcastic face in there. I know many people who have a DV conviction are not "wife beaters". That's why I wrote post #147 and started this thread. Not very clear on my part since I mostly post from my phone.
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  #164  
Old 06-30-2011, 6:23 PM
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Originally Posted by hoffmang View Post
LOL, you got me. However, I'm not sure if the law recognizes leap days in the count. It probably just handles it as the 10th anniversary which can be a variety of day counts.

-Gene
Gene,

Can you please elaborate on your comment on Of Arms And The Law?

"This case has to be read in parallel with US v Skoien out of CA-7...
-Gene"
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  #165  
Old 06-30-2011, 6:38 PM
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Originally Posted by anthonyca View Post
Gene,

Can you please elaborate on your comment on Of Arms And The Law?

"This case has to be read in parallel with US v Skoien out of CA-7...
-Gene"
Read the en-banc opinion in US v. Skoien especially what they said about California law.

-Gene
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  #166  
Old 06-30-2011, 6:50 PM
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Originally Posted by hoffmang View Post
Read the en-banc opinion in US v. Skoien especially what they said about California law.

-Gene
Nice. I brought that up in another thread. I even quoted what they said.

For those of you that don't know what we are talking about. The 7th said that misd DV is not a lifetime prohibition due to avenues for relief. They used California expungement as an example. The Feds are saying California expungement doesn't count because it's not complete expungement.

I have wanted someone to use that since I read those words.
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  #167  
Old 06-30-2011, 6:57 PM
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Originally Posted by anthonyca View Post
Nice. I brought that up in another thread. I even quoted what they said.

For those of you that don't know what we are talking about. The 7th said that misd DV is not a lifetime prohibition due to avenues for relief. They used California expungement as an example. The Feds are saying California expungement doesn't count because it's not complete expungement.

I have wanted someone to use that since I read those words.
Why is it not a complete expungement?
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  #168  
Old 06-30-2011, 7:23 PM
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Why is it not a complete expungement?
Exactly.

The ATF says, because the conviction can still be used as a prior offense for sentencing if one is arrested and convicted again.

Expungement was recognized in California for a while. There is even a memo from the California attorney general stating the change and it's implication on LEOs and others.
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  #169  
Old 06-30-2011, 8:39 PM
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Exactly.

The ATF says, because the conviction can still be used as a prior offense for sentencing if one is arrested and convicted again.

Expungement was recognized in California for a while. There is even a memo from the California attorney general stating the change and it's implication on LEOs and others.
Yes. DOJ keeps every piece of dirt about you forever. Even if you get something expunged, if the FEDs can see it on thier compouter screen, it happend and therefore meets thier needs for prohibition.
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  #170  
Old 07-01-2011, 7:14 AM
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Default You keep using that word, I don't think it means what you think it means.

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Originally Posted by SunTzu View Post
a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. ...
Right, now as a consequence of my DV conviction I am banned from owning guns for life. Removal of ones civil rights is an increase in punishment after the fact.
Per my best understanding of the law and definition of ex post facto (note that the wiki definition I gave is _not_ a law dictionary), ex post facto specifically speaks to creating a crime that allows you to be convicted for something that was not illegal at the time.

That is not what has occurred here. Rather, this was a new law that affects you only forward from the date of enactment, as related to a prior conviction. (In a court of law, a conviction is a finding of fact... one that is not in question unless the case before the court is an appeal of that specific conviction).

If one of the resident lawyers, law students, etc wish to step forward to correct this (non-lawyer's) reasoning, please do so.

Further, ex post facto or not has _no_ bearing on whether this is a civil rights issue or a 2nd amendment issue, nor whether there are other legitimate legal claims for overturning the law in question.
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  #171  
Old 07-01-2011, 8:17 AM
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Originally Posted by tabrisnet View Post
Per my best understanding of the law and definition of ex post facto (note that the wiki definition I gave is _not_ a law dictionary), ex post facto specifically speaks to creating a crime that allows you to be convicted for something that was not illegal at the time.

That is not what has occurred here. Rather, this was a new law that affects you only forward from the date of enactment, as related to a prior conviction. (In a court of law, a conviction is a finding of fact... one that is not in question unless the case before the court is an appeal of that specific conviction).

If one of the resident lawyers, law students, etc wish to step forward to correct this (non-lawyer's) reasoning, please do so.

Further, ex post facto or not has _no_ bearing on whether this is a civil rights issue or a 2nd amendment issue, nor whether there are other legitimate legal claims for overturning the law in question.
See http://www.usconstitution.net/glossary.html.Scroll down to the legal definition of ex post facto.
In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Does ANYONE. even antis or the government, honestly believe taking away a fundamental civil and human right after the fact is not an increase in punishment?

When the past cases of lautenberg ex post facto were decided the courts weaseled out of the truth because the 2nd was not considered an individual right by caselaw.
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  #172  
Old 07-01-2011, 9:04 AM
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"Further, ex post facto or not has _no_ bearing on whether this is a civil rights issue or a 2nd amendment issue, nor whether there are other legitimate legal claims for overturning the law in question. "

I have to respectfully disagree. please read "ex Post Facto Laws"

http://www.cjjohns.com/cjjohns/radios/expost.html

The only way you can say its Not ex post facto is if you dont believe it is an increase in punishment for the crime of DV prior to enactment of the law. However i believe that stripping someone of their right to bear arms solely based on a conviction that happened prior to enactment of the law has to be ex post facto, and consider it an increase in punishment.
Look at arguements about Crack vs cocaine sentencing in the Fair Sentencing Act of 2010. Government has said argued it cant apply retroactivily because it would violate Ex Post Facto Clause of constitution.

Ask yourself this: If congress today decided that anyone who ever had a speeding ticket in their life was no longer allowed to own or purchase a vehicle for the rest of their life. Made it against the law for car dealerships to sell you a vehicle. For the safety of the children of course. And gave you zero days to comply with the law. Forcing you to dispose of private property for a crime commited 10 20 or even 30 years ago. Would you not find it Ex Post Facto?

Last edited by SunTzu; 07-01-2011 at 9:08 AM.. Reason: grammer
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  #173  
Old 07-01-2011, 9:44 AM
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Originally Posted by SunTzu View Post
"Further, ex post facto or not has _no_ bearing on whether this is a civil rights issue or a 2nd amendment issue, nor whether there are other legitimate legal claims for overturning the law in question. "

I have to respectfully disagree. please read "ex Post Facto Laws"

http://www.cjjohns.com/cjjohns/radios/expost.html

The only way you can say its Not ex post facto is if you dont believe it is an increase in punishment for the crime of DV prior to enactment of the law. However i believe that stripping someone of their right to bear arms solely based on a conviction that happened prior to enactment of the law has to be ex post facto, and consider it an increase in punishment.
Look at arguements about Crack vs cocaine sentencing in the Fair Sentencing Act of 2010. Government has said argued it cant apply retroactivily because it would violate Ex Post Facto Clause of constitution.

Ask yourself this: If congress today decided that anyone who ever had a speeding ticket in their life was no longer allowed to own or purchase a vehicle for the rest of their life. Made it against the law for car dealerships to sell you a vehicle. For the safety of the children of course. And gave you zero days to comply with the law. Forcing you to dispose of private property for a crime commited 10 20 or even 30 years ago. Would you not find it Ex Post Facto?
Almost everyone would say that is ex post facto, because it affects them. Too many people don't pay attention until a law comes after them so we get this creeping incermentalism.
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  #174  
Old 07-01-2011, 3:00 PM
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Whether or not it affects me should have no bearing on whether I think it is /ex post facto/. I would not like it, I would believe it wrong. But my feelings as to whether it is fair should have no relevance.

The world isn't fair, justice isn't personal, and the universe doesn't give a damn. That's our job. To give a damn and fight back. Preferably not by trying to trick mother nature (cuz she sure as hell cannot be fooled), not any other form of intellectual dishonesty.

And yes, the problem with such laws is that those who back their passage think them acceptable because they think "I'm a good person, so this will never happen to me. Those to whom it will, /deserve/ it. They did something /bad/."

I have no such faith, and endeavor to have no such delusions.
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  #175  
Old 07-01-2011, 3:25 PM
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Tabrisnet,
I meant nothing personel was just enjoying the point counter point arguement and look forward to your response and reasoning.
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  #176  
Old 07-01-2011, 9:29 PM
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Tabrisnet,
I meant nothing personel was just enjoying the point counter point arguement and look forward to your response and reasoning.
I also meant nothing personal.

Have you changed your mind, or are we still wrong ?
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  #177  
Old 07-02-2011, 8:10 AM
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I have not changed my mind... and I did not take any of this personally.

I do find it odd that the courts may have said it was not ex post facto merely because it was not a civil right (prior to McDonald/Heller), as one would expect them to find a much narrower excuse why it was not. But per my interpretation, ex post facto should not hinge on what sanction is being taken, nor how it relates to specific rights. To put it differently, the individual articles of the Bill of Rights's ought be of equal standing, none immediately subordinate to any other.

Perhaps we can now claim that, per McDonald/Heller, it would be considered cruel & unusual to exact such a penalty on a misdemeanant, such that they are refused the right to defend themselves in their otherwise law-behaving lives.

To go back to the car analogy (hahaha. slashdot anyone?), what if the state were to, instead of requiring us to sell our cars forthwith, require us to put up a 40kUSD bond or get special [expensive] insurance if we have ever had a speeding ticket. And then ask yourself how that is not already the case (having speeding tickets on your record means you pay a LOT more for your insurance).
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  #178  
Old 07-06-2011, 6:14 PM
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Does anyone know how long the court has before they have to make a ruling in the "motion to dismiss" in this case?
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  #179  
Old 07-06-2011, 6:58 PM
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Does anyone know how long the court has before they have to make a ruling in the "motion to dismiss" in this case?
"have to"? - no limit.
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  #180  
Old 07-06-2011, 7:49 PM
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Does anyone know how long the court has before they have to make a ruling in the "motion to dismiss" in this case?
Welcome. There is a standard answer here to any question like that. I even fell for it in this thread.
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  #181  
Old 07-06-2011, 8:29 PM
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Quote:
Originally Posted by M107A1
Does anyone know how long the court has before they have to make a ruling in the "motion to dismiss" in this case?

"have to"? - no limit.
Quote:
Originally Posted by M107A1
Does anyone know how long the court has before they have to make a ruling in the "motion to dismiss" in this case?

Welcome. There is a standard answer here to any question like that. I even fell for it in this thread.
thanks, I appreciate the information. Hopefully the ruling is sooner than later!!!
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  #182  
Old 07-06-2011, 8:57 PM
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thanks, I appreciate the information. Hopefully the ruling is sooner than later!!!
Sorry for the smart &$$ answer. We have been waiting for a long time and it's agonizing.
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  #183  
Old 07-07-2011, 6:45 AM
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My hypothetical:
The Judge is looking for any way he can to justify the feds position and cant.
Lautenberg Ammendment has clearly stated in the law that there is a method and pathway for rights restoration. (Meaning it is not meant to be a lifetime ban on those who turn their life around)
Feds have no mechanism for rights restoration, so ones only choice is States mechanism.
I really dont see this ever getting to the constitutionality phase.
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  #184  
Old 07-07-2011, 5:37 PM
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Sorry for the smart &$$ answer. We have been waiting for a long time and it's agonizing.
That's OK, I am glad that you at least responded so promptly. I just found out about this case not too long ago and even for the short time that I have known about it up until now still seems like a long time. Hopefully a favorable verdict for "Pro 2A" will be well worth the wait. It looks like D. Kilmer has all the basis covered.
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  #185  
Old 07-07-2011, 5:52 PM
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Originally Posted by SunTzu View Post
My hypothetical:
The Judge is looking for any way he can to justify the feds position and cant.
Lautenberg Ammendment has clearly stated in the law that there is a method and pathway for rights restoration. (Meaning it is not meant to be a lifetime ban on those who turn their life around)
Feds have no mechanism for rights restoration, so ones only choice is States mechanism.
I really dont see this ever getting to the constitutionality phase.
Hopefully this case is a slam dunk for "Pro 2A" based on what you said. It seems that so far, the feds have skirted around and around with the restoration mechanism [18 U.S.C. 921(a)(33)(B)(ii)] and hopefully they have finally run out of rope.
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  #186  
Old 07-07-2011, 6:09 PM
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11,862 have view this thread, and want their 2A back.

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  #187  
Old 07-07-2011, 7:09 PM
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11,862 have view this thread, and want their 2A back.

"When I believe in something, I fight like hell for it."

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Imagine if they all gave a few bucks to http://www.madison-society.org/laws/litigation.htm or the calguns foundation. We would be really taking it to them.
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  #188  
Old 07-08-2011, 12:04 PM
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Enos survived the motion to dismiss. One can interpret that as Enos is very likely to prevail.

Heck of a week for gun rights.

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  #189  
Old 07-08-2011, 12:31 PM
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Originally Posted by hoffmang View Post
Enos survived the motion to dismiss. One can interpret that as Enos is very likely to prevail.

Heck of a week for gun rights.

-Gene
Whhhhooooooooooooooo!!!!!

Great news.
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  #190  
Old 07-08-2011, 12:37 PM
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Originally Posted by hoffmang View Post
Enos survived the motion to dismiss. One can interpret that as Enos is very likely to prevail.

Heck of a week for gun rights.

-Gene
I'm on my phone so I just skmmed through. On line 12, is the court saying that only enos was not dismissed and the other defendants were?
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  #191  
Old 07-08-2011, 12:45 PM
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I'm on my phone so I just skmmed through. On line 12, is the court saying that only enos was not dismissed and the other defendants were?
Uhm, most of the plaintiffs were dismissed -- so Yes, but it will be pretty easy to amend to keep those plaintiffs in the case. They just have to go out and get denied a gun purchase.
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  #192  
Old 07-08-2011, 12:45 PM
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Yes, but Don can include them in the ordered amended complaint as long as he can provide for their standing. Only the 1A, 5A, and 10A claims were dismissed with prejudice.
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  #193  
Old 07-08-2011, 12:59 PM
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Originally Posted by Lex Arma View Post
Uhm, most of the plaintiffs were dismissed -- so Yes, but it will be pretty easy to amend to keep those plaintiffs in the case. They just have to go out and get denied a gun purchase.
That was my next question. Would it be a straw purchase if I bought one of them a gun?

Great work.
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  #194  
Old 07-08-2011, 4:10 PM
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That was my next question. Would it be a straw purchase if I bought one of them a gun?

Great work.
Lol
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  #195  
Old 07-08-2011, 4:11 PM
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That was my next question. Would it be a straw purchase if I bought one of them a gun?

I would think so. Great news for Enos, but it amazes me that one must violate the law to be able to fight the law. The two plantiffs that were dismissed earlier in my opinion and 9th circuit precedent shouldnt have been denied purchases in the first place. But hey look at Gunwalker, Feds dont have to obey the laws anyway
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  #196  
Old 07-08-2011, 5:18 PM
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Default Grrrrrrreat News!!!!

Hopefully, most if not all of the remaining plaintiffs are able to go get denied so Don can amend within the twenty days. What would be the advantage of having the remaining plaintiffs get denied as opposed to just having Enos as the only plaintiff? At least the case is still alive. That is grrrrrrreat news!!! After the leave to amend, what would be the next step? Does there still need to be oral arguments or can the judge just decide the case with only documentation provided from both sides?
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  #197  
Old 07-08-2011, 5:33 PM
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Originally Posted by SunTzu View Post
That was my next question. Would it be a straw purchase if I bought one of them a gun?

I would think so. Great news for Enos, but it amazes me that one must violate the law to be able to fight the law. The two plantiffs that were dismissed earlier in my opinion and 9th circuit precedent shouldnt have been denied purchases in the first place. But hey look at Gunwalker, Feds dont have to obey the laws anyway
This is part of the reason why "bad plaintiffs" dominate most 2nd amendment cases.
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  #198  
Old 07-08-2011, 5:48 PM
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http://www.archive.org/download/gov....15824.24.0.pdf

In case anyone wants to read the denial of MTD.
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Old 07-08-2011, 5:59 PM
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Originally Posted by RyanAnchors View Post
http://www.archive.org/download/gov....15824.24.0.pdf

In case anyone wants to read the denial of MTD.
Is anyone else suprized that they spend much of their limited free time reading legal documents and court rulings?

What's even more amusing is when one of the people I look up to, and who is a leader in our RKBA fight, answers me on this forum.

This RKBA thing has to be the most grassroots movement around.
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Old 07-08-2011, 6:19 PM
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Originally Posted by anthonyca View Post
Is anyone else suprized that they spend much of their limited free time reading legal documents and court rulings?

What's even more amusing is when one of the people I look up to, and who is a leader in our RKBA fight, answers me on this forum.

This RKBA thing has to be the most grassroots movement around.
RKBA is grassroots because it has to be to survive. The political elites in both parties (mostly) are frightened by the philosophic implications of the Second Amendment.

On the Enos case, the more I reread it, the better I like our chances. This was a good day.
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