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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel. |
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#761
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It warms my heart...
Ha ha - I know right?
I was puzzled that 175 Republican congresscritters filed a brief with zero Senators. Glad to see some Senators filing separately. There's some other good ones referencing how critical the right to carry outside the home is critical for the self-defense of marginalized communities such as women and religious minorities in New York City. It was a nice touch pointing out how unsafe NYC is when people can't defend themselves. I'm glad that Young filed his own brief, but wish he had answered the question directly since carry permit reasons apply to his case specifically and how the 9th treated him. |
#762
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Finally, the Senators answered the question. Thank you Ted Cruz!
https://www.supremecourt.gov/DocketP...20SENATORS.pdf |
#763
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Inside
Amicus brief of California Gun Rights Foundation I found this paper quoted, "Concealed Carry Through Common Use: Extending Heller’s Constitutional Construction" Here http://www.gwlr.org/wp-content/uploa....-Rev.-284.pdf Quote:
I haven't read the amici completely , but it may use some the argument. EDIT: they didn't argue common use in that amici. Last edited by abinsinia; 07-20-2021 at 1:49 PM.. |
#764
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They squarely address the absurdity of CA9 En Banc in their treatment of both Young and Peruta, in avoiding the question. Quote:
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#765
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Reading the briefs filed in the past few days I would hope the justices take great care to note the efforts used by lower courts to subvert the language in Heller and the efforts to limit second amendment questions to Rational Basis masquerading as Intermediate Scrutiny. The Supreme Court must create a hardline test for second amendment cases or the uniform disregard for the right will continue for another decade at minimum.
Sent from my iPhone using Tapatalk |
#766
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Heller says that the founders didn't mention "bearing arms" just to protect the carrying of a pistol from the bedroom to the kitchen. They also distinctly defined "bear", in part, as being in a pocket. (Which means CONCEALED in case you couldn't figure that out on your own even though they didn't use those "exact words.") So really the reformulated question asks if a State can reduce the bearing of arms to a single mode or manner and then get to arbitrarily pick and choose who gets to exercise their rights via that mode or manner, and if doing that violates the 2A. I think the answer is pretty clear even without wishful thinking on our parts. I also think this decision is going to lead to a lot of problems for big city cops in the area of Terry v. Ohio.
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Some random thoughts: Somebody's gotta be the mole so it might as well be me. Seems to be working so far. Evil doesn't only come in black. Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise! My Utubery |
#767
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If the supreme court rules on both bearing of arms and the question of standard of review for all 2A cases that will reduce many of the headaches we endure in the future. They need to give activist judges in the lower courts as little wiggle room as possible. The only issue I see with that hope is that Kavanaugh and Barrett were big fans of incrementalism during the October 2020 term. They might try to slow walk these 2A cases and that would be bad news for us. Sent from my iPhone using Tapatalk |
#768
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Quite the history...
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And interesting approach suggesting ways they can reduce the workload so Breyer can take it easy for a few more years. |
#769
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Another good brief: https://www.supremecourt.gov/DocketP...No._20-843.pdf
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Last edited by cyphr02; 07-21-2021 at 9:04 AM.. Reason: removing line breaks |
#770
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If Mr. Rabbit is indeed right, and the Supreme Court in Heller only intended to recognize "open carry" as a right in Heller, the Amicus Curiae brief of the Independent Women's Law Center was a missed opportunity. The brief focuses on the need for a right to carry from the perspective of women. However, the brief did not specifically address concealed carry as a right.
When the authorities cited in Heller discussing the right to open carry were issued, it was a much different world. It was well accepted women did not have the same rights as men (e.g., the right to vote). As such, the view that the right to carry was limited to open carry would have been viewed from a man's perspective. Concealed carry, in particular, is more important to women than men. A risk of open carry always prevalent is that a predator will seek the disarm the person carrying a firearm. As a general rule, men are physically stronger than women, and this puts women at a disadvantage vis-*-vis men. In addition, women's clothing and accessories, which include dresses and purses, is much better suited to concealed carry than open carry vis-*-vis men. So, failing to recognize concealed carry as a right particularly infringes upon women's second amendment protections. It is disappointing this brief did not point this out. |
#771
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I do appreciate the Black Guns Matter et al brief. There are now plenty of briefs to set up a good oral arguments session with a discussion about how NY’s scheme protects or disadvantages marginalized groups. If NY claims the police will protect them, I hope that one of the justices asks, “But didn’t you defund the police? Isn’t that contributing to the rise in hate crimes?”
And with equal protection concerns, once self defense for marginalized groups must be allowed as adequate cause, then everyone else would need it, too. Do any of the anti 2A briefs address the racist history of NY’s law and the need for marginalized people groups to defend themselves? |
#772
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There is a better argument with respect to the argument that the police are there to protect you (as posited by the Ninth in Young); the courts have long held that police only have a general duty to protect "the public" and maintain order, but not a duty to any individual member of society. As to that, you are on your own. As many have said, the police are there after the fact to take pictures, obtain evidence, and clean up the mess, and maybe track down the person or persons responsible. The police have no duty to (and realistically cannot) prevent crime. |
#773
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Many states that are now "shale issue" were "no issue" before they changed the laws. The police somehow did not mass murder the citizens, nor was there any sort of mass murder. Except maybe for preconceived notions, that died a nasty death.
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#774
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There have historically NEVER been any "equal protection concerns", where oppressive 2A laws are concerned. How much do retired LE PAY IN FEES for their COAST TO COAST LEOSA permits? The RIGHT TO VOTE. Is not enumerated in the BoR. Or even mentioned in the Constitution. Yet POLL TAXES or ANY FEES associated with the Right to Vote are ILLEGAL. The 2A has never been treated AS A RIGHT. But as a privilege to be parsed, and doled out to the advantage of political groups. WHO GREATLY PROFIT FROM IT!. I've always used the default example of; A law abiding single Mom with 2 kids and 2 jobs. Trapped in LOW RENT DISTRICTS. [read ghetto] By financial restraints. As a US CITIZEN. Wants the ability to defend herself/family/ and property. Which was GUARENTEED IN THE B of R. But she can't afford the exorbitant TAXES associated with the right to self defense. Even if "SHALL ISSUE". Is mandated by SCOTUS ETA................. IMHO, if ConCarry is not recognized as the LAW OF THE LAND. Due to the 2A. And the Gov in any form, is ALLOWED to levy financial requirements before a CITIZEN can exercise their 2A RIGHT. THEN THAT GOV SHOULD FOOT THE BILL FOR THEIR REQUIREMENT. Last edited by pacrat; 07-22-2021 at 7:57 PM.. |
#775
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Your narrow focus skips over the logical predicates necessary to determine the "actual" question posed. One cannot decide if discretionary issuance is constitutional until one first decides: 1) there is a right to bear outside the home; 2) that the right to bear is available equally to all citizens, and 3) only then whether the government in the context of an enumerated right can deny the right to some (or most) but grant it to others merely on the whim of a governmental functionary. If the court were to agree with the Ninth that there is no right to bear outside the home, the case ends at the first step, and so forth. When viewed against the backdrop that discretionary issuance has a long history of invidious discrimination against racial and immigrant groups, there is a powerful argument that discretionary issuance of a permit is unconstitutional under the 14th Amendment, separate and apart from the issue of whether the government can limit/control the presence of firearms in the community at large.
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#776
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They did narrow it...
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But after reading all these briefs, I can see them raking NY attorneys over the coals on hate crimes and demanding to know how NY will protect people. Their current policies are detrimental. So they can write an opinion that cites hate crimes in NY as a reason that all jurisdictions accept “self defense” as an adequate reason for everyone. That doesn’t disrupt any of the months-long background checks, interviews, fee structure, etc. In places like California this will still limit permits to the affluent who can navigate the bureaucracy. The cities will do other things to resist of course. Cities like NY that rely on public transit will likely ban carry on the Subway if they haven’t already. But maybe it will help people who walk places. In any case it will be an incremental change that may shock the system in certain states but won’t disrupt most of the country. It wasn’t that long ago when Texas was against concealed carry. So this is a process that takes time to change attitudes. I’m almost certain that the Court will use hate crime risk combined with equal protection to rule that self-defense is an adequate reason for every non-felon. |
#777
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You don't get to permits without first acknowledging that they involve the bearing of arms and whether the State has the authority to regulate or limit the bearing of arms. If the State's permits involve the bearing of arms and is subject to denial at whim; then the question arises on whether said bearing of arms is a Right of the people, or merely a privilege being awarded via a permit to the deserving. The question even sets this up. 1. Whether the State's denial of petitioners' applications... 2. for concealed-carry licenses... 3. violated the Second Amendment.
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Some random thoughts: Somebody's gotta be the mole so it might as well be me. Seems to be working so far. Evil doesn't only come in black. Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise! My Utubery |
#778
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#779
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This was not something I expected to read in MSM. I think the title is misleading.
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#780
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Is that the fact that the petitioners are prohibited by law from being able to open carry not relevant to that question?
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#781
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I just think you're missing something in the overall picture, that's all. You don't get to "concealed carry" without "carry" in the first place. You also don't get to "carry" a firearm "concealed" without "permit" and the petitioners don't get a permit because it was denied and they have no other option for "carry." Further, the current question more closely fits the facts than the looser "carry only" originally presented and puts this squarely in conflict Constitutionally with Blue States which have onerous gun laws and bans, defacto or otherwise, against carrying them. States where this issue keeps cropping up and which have appellate courts which aren't following Heller. You can say this is a concealed carry case all you wish, but it BEGINS with "carry" and progresses from there to answering the certified question. The reformation of the question could also be a signal that "this court" is willing to take on the issues presented in Peruta and possibly be dispositive of Nichols/Young/et al at the same time. We can hope this is so and also hope that the Supremes will finally get off their comfy benches and add some much needed clarity and firm instruction to the lower courts. In the end, none of us know and all of this hot air (and electrons) is meaningless and it's not worth giving yourself a stroke or alienating friends over.
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Some random thoughts: Somebody's gotta be the mole so it might as well be me. Seems to be working so far. Evil doesn't only come in black. Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise! My Utubery Last edited by rplaw; 07-23-2021 at 2:39 PM.. |
#782
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Just as Heller had to discuss the prefactory clause in order to determine the intent and meaning of "keep" at the time of ratifying the 2nd Amendment, so too will this court have to discuss whether there's a RTBA at all before it can get to deciding what to do about petitioners' permit denials. My best guess is that the SCOTUS will go with the minimal infringement on States' Rights and toss the ball back to them to decide which manner of "bear" is acceptable to their citizens and legislatures. That will lead to different schemes in different States, but as long as they allow the people to bear arms in some manner, there is no Constitutional infringement.
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Some random thoughts: Somebody's gotta be the mole so it might as well be me. Seems to be working so far. Evil doesn't only come in black. Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise! My Utubery Last edited by rplaw; 07-23-2021 at 2:49 PM.. |
#784
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Stephen P. Halbrook is a senior fellow with the Independent Institute in Oakland, Calif., and the author of 10 books, including the recently released, “The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?” His work was cited by the U.S. Supreme Court in both District of Columbia v. Heller and McDonald v. City of Chicago.
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"Never! Jesus Christ, what dont you understand about never?" -Sen. Joe Manchin on eliminating the filibuster |
#785
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Concealed carry is not a right under the Second Amendment. Petitioners should have challenged New York's prohibition on open carry instead. You lose, so sorry, too bad. Last edited by LonghornBob; 07-23-2021 at 4:19 PM.. |
#786
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It may be helpful to see what SCOTUS did in some other cases that were also granted cert for the upcoming term. Were questions re-written into the bare facts or did they allow them to stand as extremely broad? And this may be in the weeds but who re-writes the questions? The whole court? A majority of the court? A clerk? |
#787
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Weeding...
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So there’s a clear circuit split. And the Court is trying to get all the interested parties to grapple with the question. And as we can see many of the stakeholders in this policy discussion can’t think outside the box of their pet arguments. The Black Legal Aid society in the Bronx also filed a brief asserting that the NY law had disparate outcomes when it came to prosecuting gun crimes in NY. https://www.wsj.com/articles/progres..._copyURL_share Note that the organization is in the news for other reasons. https://bariweiss.substack.com/p/a-w...2wdewWGNIgE3J0 |
#788
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You know, Missouri’s brief on behalf of several states is very good at answering the question. I like their construction comparing objective-issue to subjective-issue. They have plenty of empirical data to show that objective-issue does not create a public safety risk. That makes it even easier for the Court to find that NY, CA and HI have no data to back of their position that permit holders are extra dangerous.
And they filed their brief back before cert was granted. The case was distributed for conference several times afterward. Now I would conclude that their brief triggered the re-writing of the question, which asked all parties to weigh in on this subjective vs. ibjective issuance idea and, essentially, whether a subjective issuance policy is unconstitutional. Last edited by Foothills; 07-24-2021 at 6:03 AM.. Reason: Objective vs. Subjective Issuance |
#789
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The problem with your analysis here is that Heller isn't being obeyed by the lower courts because it wasn't clear. Cataeno is a perfect example of how Heller is being disobeyed and how much the court didn't like it. The thing is, the court still isn't being obeyed even though Cataeno was more than perfectly clear. The court needs a vehicle to clarify what they meant in Heller and tried to tell the States in Cataeno. Pre ACB, there wasn't enough judicial will to do that in the cases that were being presented to the SCOTUS. There is now. Corlett is actually fairly perfect if the intent of the court is to chastise the lower courts and establish that they "mean what they said in Heller." Which is that the 2a is an individual Right and States don't get to restrict the right without a really, really good reason that's narrowly tailored in the least restrictive manner possible to address the perceived problem. They can also articulate clearly this time that the test isn't the two-step BS that the lower courts are using to rubber stamp Blue State infringements on the 2a. But you don't get there without actually saying that the people have the Right to bear arms in public. They can't imply it in dictum like they did in Heller, they're going to have to actually come out and say it. Once they do, they can say that the manner of bearing those arms can be left up to the individual States, but they cannot restrict the manner of bearing arms to the point that the people cannot exercise their Right. This is Corlett. Interestingly enough, the parties in Corlett may not get what they want even if the decision goes their way. I can see at least 1 scenario where NY gets told to allow it's citizens to bear arms which results in the appellants not getting CCW permits. So a "win" for Corlett isn't necessarily going to get them permits. Not that I believe for a nanosecond that's what appellants really want.
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Some random thoughts: Somebody's gotta be the mole so it might as well be me. Seems to be working so far. Evil doesn't only come in black. Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise! My Utubery Last edited by rplaw; 07-24-2021 at 6:06 AM.. |
#790
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The cases in the Black Public Defenders brief paint a grim picture if the way NYPD applies the licensing laws in a discriminatory way. It actually blends well with the Republican congresscritters who pointed out that NY only grants licenses to the elitists.
By phrasing the question as they did, the Court changes this from a historical 2A case to an equal-protection case. And the remedy for a long history of using discretion in a racially discriminatory way is to take away that discretion and require the issuing agency to change to the objective issuance that so many other states use. Honestly they’ve done the best job so far of answering the question directly. Last edited by Foothills; 07-24-2021 at 9:05 AM.. |
#791
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If we get a good decision, and this case equals, or nearly so, the level of historical analysis of Heller, we should expect the following (hopefully not all in dicta):
• Analysis of historical norms of firearms carried outside the home and for what purposes • Analysis of historical norms of how weapons were carried, what laws were upheld in restricting time, place and manner. • Analysis of historically prevented groups denied their constitutional rights to carry (in whatever means) • Analysis of historically sensitive areas that may be denied carry • Analysis of the near majority of states that have decided to eliminate permitting and proceed to constitutional carry, without significant increase in crime • And, finally, analysis of how concealed carry has become the dominant mode of carry A lot of that analysis was already performed in Heller, so can readily be cited. A possible outcome of such a set of analyses, such as above, might deliver: • A right exists, that can not be legislated to zero • The right allows individuals to carry outside their home, except in a limited number of sensitive areas, including limited time restrictions for certain events • The right can not be denied arbitrarily and in violation of the 14th amendment • The right must encompass open-carry if any curtailment of the right is placed upon concealed-carry, noting that concealed-carry brings with it the inability to identify a weapon and approach a situation differently, such that the state is within means to deny the ability to those that have had their 2A rights removed, which might otherwise be more easily identified with open-carry • Which then ultimately sets the scene to properly answer the appellant’s question: does the restriction of concealed-carry for self-defense violate 2A. Fingers crossed for a good read! |
#792
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SCOTUS Concealed Carry Case — NYSRPA v. Corlett — CERT GRANTED, 4-26-21
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“In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases,” the brief says. It notes that for a defendant, separately having ammunition makes a gun loaded—and that possessing a “loaded” gun without a permit, even if not used, is a “violent felony” that carries a 3.5 to 15-year prison sentence. While the plaintiffs in the case mainly attack New York’s gun “carry” rules, the defense lawyers also argue that their indigent clients have been wrongfully punished for having guns at home. |
#793
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I wish my browser didn’t log me out…
Lagomorph, as ALWAYS, you ignore the purpose of the court and basis of Heller and the role that the court will play. Only SCOTUS can re-interpret SCOTUS, and they are an end unto themselves in our Constitution. What you describe as problems are their domain to flesh out how they see it comport with the Constitution. What you cite from Heller is reasoning and not judgement. Thankfully you are not a Justice, and shall remain on ignore. |
#794
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"The right to keep and bear arms . . . is not the only constitutional right that has controversial public safety implications. -- Justice Alito, McDonald v. Chicago |
#795
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It only becomes a heightened scrutiny scenario if the equal protection involves a constitutional right. Public carry is either protected under the 2A or it isn't. There's almost always going to be a rational basis argument for restricting public carry short of accepting only last names beginning with certain letters or only accepting applicants who applied on Tuesday, exc. |
#796
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Why not both?
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They might even get a unanimous decision for equal protection demanding a change to objective issue even if it’s 5-4 for strict scrutiny. I could see Breyer writing a concurring opinion that once a state decides it’s going to issue permits at all, then they need to be objective and not limit it to favored demographic groups/corrupt issuance. |
#797
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Ok, not a lawyer but grew up in New York State. (not city)
Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment. OK, As I understood the law in NYS if you didn't have a Pistol Permit you are not allowed to touch a pistol. Not at the range or have one in your home! If you are denied then you are out of luck and no pistol for you. So looking at the question posed then....a denial of permit then it has violated your right to a pistol. Yes even to touch one. I would take this as a 2nd amendment violation. This single fact should be enough to kill the NY law. In all of the briefs has anyone brought this up? Doesitgobang |
#798
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The 14th Still Matters
It's standard for equal-protection cases to tie to another amendment, right or power in the Constitution. It can violate their 2nd Amendment rights because the way their permit scheme is implemented, and has historically been implemented, it denies those 2nd Amendment rights to anyone not an elitist. You can always make the equal protection argument that it is the lack of equal protection resulting in a Constitutional right being denied or abridged.
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#799
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Oh, and that premise permit will take you well over a year if not two to get
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When seconds count 1911 > 911 is correct numerically as well "Sometimes I wonder whether the world is being run by smart people who are putting us on, or by imbeciles who really mean it." -Mark Twain |
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