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McDonald vs Chicago Review

June 29th, 2010 by Kevin

Well here we are again, trying to determine if the bastard stepchild of the Bill of Rights will finally get the respect our Founding Fathers gave it.  Finally the Supreme Court handed down their ruling on Heller – Part II (aka McDonald vs Chicago).  It\’s not quite the ruling I hoped for but it is the ruling I expected:

It’s also quite possible, that the US Supreme Court will maintain an extremely focused view of this case, and only address the incorporation issue, and leave the definition of “reasonable regulation” completely untouched.  In fact, I increasingly believe that will be the case.  Throughout it’s history the US Supreme Court has abhorred the idea of sweeping changes and landmark decisions, preferring an incremental approach to interpreting the law.  That’s not together an unwise approach to things…in fact it’s the approach Republicans are advocating right now in relation to health care reform.

So arguments begin on Tuesday, and SCOTUS has already indicated they will not release the audio of the arguments, only written transcript at the end of the day, so look for that.  And expect a very narrow ruling on this issue, that likely will not define reasonable regulation, but instead will leave that for a future case, just as Heller did.

My biggest issue with Heller was that while it declared the Second Amendment established an individual right to firearms, it also specified that some reasonable regulation was okay but did not specify what reasonable was.  McDonald vs Chicago took basically the same approach, it incorporated the right but left the degree of regulation fairly open-ended.

First of all, the right to keep and bear arms is described as a fundamental right by the majority, which invokes the idea that strict scrutiny should be applied to any legal regulation of that right.  On the other hand the court specified that this ruling should not be interpreted as ending state\’s \”experimentation with reasonable firearms regulations.\”  It\’s far from clear which standard will be applied by the lower courts….in fact in his dissenting opinion, Justice Steven declares :

Today’s decision invites an avalanche of litigation that could mire the federal courts in fine-grained determi nations about which state and local regulations comport with the Heller right….under a standard of review we have not even established.

He\’s right on both points.  This will result in an avalanche of legal challenges to local and state regulations.  And nobody has defined what standard should be applied, or even given a vague outline of what is likely to pass scrutiny.  Although the second half of this analysis actually does a fairly good job of divining how various types of regulations are likely to be interpreted.

There was also something in this decision for the legal nerds out there.  While Alito found the Second Amendment was incorporated via the Due Process clause, which was the basis for the majority opinion.  Justice Thomas also declared that Privileges and Immunities Clause applied, which is, to put it bluntly, astonishing as it overturns roughly 140 years of legal opinion, when the Slaughter-House cases smothered the Fourteenth Amendment in it\’s infancy.  It also puts the court on the road to an originalist reading of the Bill of Rights.  The fact that Thomas\’s opinion on the Privileges and Immunities Clause went unchallenged will set legal scholars into near orgasmic delight at the possibilities for the future.

In the meantime we can prepare ourselves for a almost endless stream of lawsuits as virtually ever gun-control law and firearm regulation in the country is challenged.  Far from setting the matter straight, McDonald has simply opened the flood gates for years of deliberation in the lower courts until we\’re back here for a very loose definition of what legal standard should be applied.

Cya again in a few years.

[Crossposted at True North]


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McDonald vs Chicago Oral Argument Concluded

March 3rd, 2010 by Kevin

The US Supreme Court heard oral arguments on McDonald vs Chicago, and while the transcript is 77 pages longs, it makes for an interesting read.  It seems all but certain that that court that SCOTUS will rule that the Second Amendment is incorporated via the due process clause of the Fourteenth Amendment.

In the initial pages of the transcript it appeared as if the Petitioners lawyer Alan Gura, was woefully unprepared, as he was arguing for incorporation via the Privileges and  Immunities clause of the Fourteenth Amendment, which nobody on the court seemed even remotely interested in considering.  Not just because it essentially runs contrary to about 140 years of law, but also because justices were concerned about just how many other rights would come along with that sort of incorporation.  In retrospect though, I think Gura\’s argument was more skillful framing than anything else, as it essentially made incorporation via due process seem like the measured and reasonable option.

Most of the debate seemed to center just how much jurisprudence comes with the Second Amendment in it\’s incorporation, to which both Clement (NRA) and Gura argued, that\’s of minimal concern because short of Heller, there really is no jurisprudence regarding the Second Amendment at the moment.  It\’s difficult to gauge how much traction that argument got, because the argument generally seemed to focus on several other points.

On one hand Heller essentially related strictly to the use of a handgun in self-defense in ones home, so does incorporation just relate to that narrowly defined definition of the Second Amendment or a broader understanding of what it means to keep and bear arms.  To that end, it seemed pretty firmly established by even the liberal bloc of the court that the rights to keep and bear arms and of self defense preceded the Bill of Rights and would exist even absent a Second Amendment. Despite several Justices demonstrating some discomfort with incorporating a broad view of the Second Amendment, the point was made several times that it would be unwise, and contrary to court history, to establish a Federal understanding of the Second Amendment, and then a watered down version that applies to the States.

The lawyer, Feldman, representing the city of Chicago was worse than ineffective in the argument, with even the liberal bloc of the court, stopping just short of openly mocking his arguments.  It was clear that Feldman was never really able to argue his point because he was continuously interrupted by Justices pointing out flaws in the basis for his arguments.  In fact at several points, Feldman seemed to try to revist Heller and argue against it\’s findings…a position that did not find any support amongst the Justices.  Even Justice Kennedy, whose support is critical to any pro-gun-control victory, seemed a little irritated by the suggestion that Heller might not say that the right to self-defense was not a fundamental right.

Eventually, Feldman\’s arguments seemed to eventually boil down to \”Sure I\’m wrong, but guns are icky\”.  A viewpoint which was roundly dismissed by Scalia who pointed out that this case shouldn\’t be decided on the basis of statistics, but rather determining what the minimum constitutional right was and everything above that is up to the States.

To be quite honest, it was sort of hard to gauge the thoughts of the liberal bloc of the court, since the argument of Feldman was such a disaster that none of the more liberal Justices really had a chance to argue for their likely view of the issues.  Trying to navigate Feldman\’s ramblings was futile and counter-productive to trying to make a statement for a gun-control approach to the issue.

In summary, it seems that incorporation is a slam dunk via the due process clause.  How much of the Second Amendment is codified by this ruling is probably the point of dispute at this point.  While it seems likely that SCOTUS will find a Second Amendment broader than that defined in Heller is incorporated, it remains to be seen how broad that is.  In fact, Chief Justice Roberts seemed to revel in the mystery  of that, pointing out several times that they\’ve never said anything of the content of the Second Amendment beyond what is in Heller.

The issue of \”reasonable regulation\” was barely touched, and seems destined to not be addressed by this case.  It seems likely that the eventually finding will cite a very loose definition of the Second Amendment as it\’s incorporated against the States, and leave it to lower courts to define what constitutes reasonable, as there is existing case law defining \”reasonable regulation\” for other rights.

I would expect this to be one of the last cases decided by SCOTUS, because while there was broad agreement on the overriding issue, the details seemed to be a source of a lot of speculation by the Justices.  Of course, I could be wrong on that last point, because like I pointed out, getting a read on the liberal bloc of the court was exceedingly difficult.

[Crossposted at True North]


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Posted in SCOTUS, This Is My Rifle, This Is My Gun, True North | Comments Off on McDonald vs Chicago Oral Argument Concluded

Heller Part II : McDonald vs Chicago

March 2nd, 2010 by Kevin

For those of us who are passionate about the Second Amendment, Tuesday, March 2nd, 2010, is the day we\’ve been waiting for since June 27th, 2008.   For years, the Second Amendment has been the forgotten and neglected step child of the Bill of Rights, until that day when the Supreme Court declared that, just like every other right detailed in the Bill of Rights, the Second Amendment referred to individuals, not the military.  And while, Heller vs DC alone was a great victory for the Second Amendment and US Citizens, it also had one noticeable shortcoming, which may very well have been intentional.  As I, and others, observed at the time

My one major disagreement with the decision, and part of the focus of Breyer’s dissent, is that the majority doesn’t really indicate what degree of regulation states can use on the use of firearms. It would be nice to have some sort of guideline or I fear that we’ll be right back in this same spot in the future.

Turns out that that was a rather prophetic statement, as indeed we are right back where we were.  We have no idea what constitutes reasonable regulation and local governments have claimed the ruling didn\’t apply.  So once again, we\’re back to a similar question….does the Second Amendment, like every other right detailed in the Bill of Rights, apply to state and local governments via the 14th Amendment?  We\’re about to get our answer in McDonald vs Chicago….whose oral arguments start today….actually by the time most of you read this, they will have already started.

So what\’s going to happen?  Well, it seems incredibly likely that the court will rule that incorporation applies to the Second Amendment, as I noted five months ago

Already the Brady campaign is openly accepting that the Second Amendment is likely to be incorporated.  Instead, the contention seems to be falling along the same lines as Heller did.  Both sides are conceding the fundamental question and are instead debating the details, basically what consists of reasonable regulations.

Essentially this case will take the two extremes of the debate out of the equation.  Outright bans and unrestricted ownership/possession will be out.  Even Scalia in Heller noted that while outright bans were certainly unlawful, reasonable regulation had to be allowed.  That same standard will likely apply.  It will come down to the question of what regulation is reasonable.  Essentially what is the Second Amendment equivalent of shouting “Fire!” in a crowded theatre?

I don\’t see anything that would significantly change any of that.  Heller pretty adamantly declared that outright bans were verboten, but then again, even Scalia conceded some regulation was okay.

It\’s also quite possible, that the US Supreme Court will maintain an extremely focused view of this case, and only address the incorporation issue, and leave the definition of \”reasonable regulation\” completely untouched.  In fact, I increasingly believe that will be the case.  Throughout it\’s history the US Supreme Court has abhorred the idea of sweeping changes and landmark decisions, preferring an incremental approach to interpreting the law.  That\’s not together an unwise approach to things…in fact it\’s the approach Republicans are advocating right now in relation to health care reform.

So arguments begin on Tuesday, and SCOTUS has already indicated they will not release the audio of the arguments, only written transcript at the end of the day, so look for that.  And expect a very narrow ruling on this issue, that likely will not define reasonable regulation, but instead will leave that for a future case, just as Heller did.


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Posted in SCOTUS, This Is My Rifle, This Is My Gun, True North | 2 Comments »

Quote Of The Day

October 11th, 2009 by Kevin

This is one of many reasons why I love Justice Scalia :

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.


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Posted in Quote of the Day, SCOTUS | 1 Comment »

What Comes After Incorporation?

October 1st, 2009 by Kevin

A little over a month ago, I wrote how the US Supreme Court was considering three different cases that would again address the Second Amendment, this time on the issue of incorporation.  Today we get word that SCOTUS has officially agreed to hear one of those cases, McDonald v. Chicago (Docket # 08-1521).

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).

In this case, SCOTUS will finally solve the question of whether incorporation applies to the Second Amendment, like it does for every other right listed in the Bill of Rights.  This would mean that the same restrictions placed upon the federal government by DC vs Heller, would also apply against state and local governments.

So what\’s the likely outcome?  While nothing is certain, it seems increasingly likely that SCOTUS will rule that the Second Amendment is incorporated against the states by the Fourteenth Amendment.  All the other rights have been explicitly incorporated already, so there is little reason that the Second Amendment should be either.  Sotomayor\’s addition to the court shouldn\’t present much of a change.  She replaced Souter who already would have voted against incorporation.

Already the Brady campaign is openly accepting that the Second Amendment is likely to be incorporated.  Instead, the contention seems to be falling along the same lines as Heller did.  Both sides are conceding the fundamental question and are instead debating the details, basically what consists of reasonable regulations.

Essentially this case will take the two extremes of the debate out of the equation.  Outright bans and unrestricted ownership/possession will be out.  Even Scalia in Heller noted that while outright bans were certainly unlawful, reasonable regulation had to be allowed.  That same standard will likely apply.  It will come down to the question of what regulation is reasonable.  Essentially what is the Second Amendment equivalent of shouting \”Fire!\” in a crowded theatre.


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Posted in SCOTUS, This Is My Rifle, This Is My Gun | 2 Comments »

Incorporation Of The Second Amendment On The Horizon?

August 27th, 2009 by Kevin

Without a doubt Heller vs DC was a pivotal case for the Second Amendment.  Really for the first time the Supreme Court confirmed that the Second Amendment was an individual right rather than a collective right.  Which permanently put an end to that silly \”militia = National Guard\” argument.  But as important as Heller was, it was also somewhat limited, in that it primarily applied to Federal laws.  Unlike every other right in the Bill of Rights, the Second Amendment has never been \”incorporated\” against the states via the Due Process Clause of the Fourteenth Amendment.

In fact on the issue of incorporation, there is a circuit split, with the ninth deciding in favor of incorporation and the second and seventh deciding against.  Incorporation essentially states that the restrictions on actions of the federal government, also apply to state and local governments.  Technically while DC cannot ban guns, the state of  Minnesota could, since DC is under federal law, while Minnesota is it\’s own state.  Incorporation would place the same restrictions on all the states.

Incorporation is the next step in the battle for the Second Amendment, as arguably just as critical, if not more, than Heller.  And we may get to see it decided in this next term of the Supreme Court.  There are three separate cases essentially regarding the same issue currently on the Supreme Court docket.   National Rifle Association v. Chicago and McDonald v. Chicago both challenge the Seventh Circuit Courts decision that incorporation does not apply against the states for the Second Amendment.  Maloney v. Rice challenges the same decision by the Second Circuit Court.

Interesting factor is that Sotomayor has already ruled on the Maloney vs Rice case, when she was part of the Second Circuit court so she would be required to withdraw from the case.  However, the same requirement does not hold for the other two cases, which makes the selection of which cases to consider an important decision for Chief Justice Roberts.  Although, since Sotomayor replaces Souter, who was part of the dissenting opinion on Heller, it\’s unlikely her addition to the court will make much of a difference.

Whether incorporation is likely is up for extreme debate.  On one hand, in the most recent case, Heller, they stated that the Second Amendment represented a pre-existing individual right to possess and carry firearms, a right not dependent upon the Constitution.  On the other hand, there are a long string of court cases, Miller v. Texas (1894); Presser v. Illinois (1886); United States v. Cruikshank (1875), that argued against incorporation.  However, in all of those cases different standards for incorporation were applied and the court makeup, while much different from 1894, is essentially the same as it was for Heller.

There also exists the potential for the Supreme Court to offer an opinion on what exactly defines a reasonable gun control regulation, an issue that Heller barely touched, which has made the battle over DC\’s gun control laws drag on to this day.

Lately the NRA has been rather inept in the promotion of their cause.  Let\’s hope that they\’ve simply been keeping their powder dry for this absolutely critical battle in the courts.  Our Second Amendment rights may very well depend on it.


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Posted in SCOTUS, This Is My Rifle, This Is My Gun, True North | 2 Comments »

Minnesota Apparently Unrepresented In The Senate

July 15th, 2009 by Kevin

Not sure why there was such a hurry to seat Franken in the Senate.  It\’s not like he\’s much of an improvement over one….or rather given Klobuchar\’s performance today, none.  Here we are vetting for one of the most important positions in the federal government, a position that will affect every Minnesotan\’s life for decades to come and what do our two intrepid Senators have to offer?
Well basically they discussed what was on TV.

Sotomayor, a native of New York, was asked by Minnesota Democrat Amy Klobuchar if she\’d tuned in to the game. The judge said only that she\’d turned it on \”for a little while.\”

Sotomayor is a Yankee fan, and Klobuchar wanted to make sure she knew that shortstop Derek Jeter was in the game and she noted that Joe Mauer, a catcher for the Minnesota Twins, got a key hit. Baltimore\’s Adam Jones drove in the winning run with a sacrifice fly.

Heh, at least Klobuchar\’s topic had relevance to her home state.  Franken was even more incompetent, as he\’d rather discuss old Perry Mason episodes.  I\’m starting to think he\’s not taking his position very seriously.  Good to know he thinks the future direction of the Supreme Court is a big joke.

Although, to be fair, perhaps they did intend to ask some more substantive questions, but after watching Sotomayor refuse to directly answer questions for the last couple days, they figured why bother.


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Sotomayor Doesn\’t Put Immigration Off The Table

May 27th, 2009 by Kevin

Ok I think there is concensus that Sotomayor is technically qualified for the Surpreme Court, but she\’s certainly not the most qualified person for the position.  And it\’s probably not a gross oversimplification to say that she\’s an affirmative action hire, that\’s designed more to fill a political quota than be a promotion of one of our most brilliant legal minds.  But with lots of different quotas that could have been filled instead, so have asked why this one?? And yet others have theorized that this is a sign that Obama is taking immigration reform off the table and is using this pick to appease Hispanics who might otherwise be disgruntled by that.

Since Sotomayor is likely to be confirmed regardless of what the GOP does, that would be good news, as at least something good comes of her appointment.  Unfortunately reality does not bear it out.  Even before the appointment the Obama administration and his Democrat cronies have indicated they intend on going full-speed ahead on immigration reform.

Despite Obama\’s promise of an open and transparent government Obama is going to be holding a closed door summit to discuss plans for upcoming immigration reform legislation.

On June 8, President Barack Obama will meet with Congressional leaders to discuss immigration reform legislation.  (Politico, May 20, 2009).  In the past, President Obama has supported \”comprehensive immigration reform,\” which has included amnesty for the more than 12 million illegal aliens who are living in the United States.  (Luuliyo Online, May 20, 2009).

And Democrats are already laying down a smokescreen to convince the public that they did what they promised they\’d do.

Schumer opened the hearing by claiming that the American people would only accept an amnesty \”if they can be convinced that their government is serious about drastically reducing the number of illegal immigrants entering the United States.\”  The subcommittee chairman stated that true immigration reformers opposed to amnesty for illegal aliens \”have continually promised that they\’ll engage in conversation about immigration reform once Congress showed it was serious about securing the border.\” Schumer then attempted to argue that this \”showing has clearly been made,\” and claimed that \”almost the whole border fence has been built.\” (Senate Judiciary Committee Subcommittee on Immigration, Border Security and Citizenship Hearing, May 20, 2009).

Fortunately Senator Sessions and former Arizona Congressman J.D. Hayworth was there to refute that pack of lies, not that Schumer could be bothered to be there to hear it.  But the fact remains is that Democrats are already laying the groundwork for a full-court press on immigration reform.  They are raising and knocking down strawman left and right.  They are organizing to for the effort and all signs point towards another showdown.

If Sotomayor was truly a pick to appease Hispanics, the Obama adminstration apparently doesn\’t believe she\’ll be enough to appease anyone.  And that speaks ill of her competence just as much as anything else.  But at least she might have paid her taxes.

[Crossposted at True North]


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Posted in Immigration, SCOTUS, The Messiah, True North | Comments Off on Sotomayor Doesn\’t Put Immigration Off The Table

It\’s Easy To Be Smart If You Make It Up As You Go

September 10th, 2008 by Kevin

It seems like only just the other day (actually it was!) that I was reading an article debunking the frequently cited myth that liberals are smarter than conservatives.

Liberals wish. Democrats like to think that voters who sympathize with their views are smarter than those who vote Republican. But a 2007 Pew survey found that the knowledge level of viewers of the right-wing, blustery \”The O\’Reilly Factor\” and the left-wing, snarky \”The Daily Show\” is comparable, with about 54 percent of the shows\’ politicized viewers scoring in the \”high knowledge\” category.

Ok fair enough, we\’re equally smart, we just differ in opinion. I can live with that. Oh happy world, what a wonderfully balanced utopia we live in

[That screeching sound you hear is reality interjecting itself.]

Wait…what\’s this?

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

Um, what?? Seriously? Only 29% of Obama\’s supporters believe the Supreme Court should rule based upon the Constitution??? And a full 49% believe they should just pull their opinion out of their ass??? Really!???

[Checks calendar and notices today is in fact not April 1st.]

Wow.

I\’m a little bewildered. I\’m not sure what angle to approach this from. Because this is a concept I\’m pretty sure was covered in my elementary school social studies/civics classes….if not then, certainly by Junior High. How could only a small number know that a SCOTUS justic rules by the Constitution? Otherwise how could a reasonable adult, most of whom probably tied their own shoes that morning, admit to a pollster, they are a complete and utter dumbass??

[Crossposted at True North]


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Heller Review

June 30th, 2008 by Kevin

Okay during my more lucid moments this weekend I had the chance to read through all 157 pages of the Heller vs DC decision that was handed down by the US Supreme Court last week. A lot of my initial questions have been answered so at the very least it was worth the effort for that reason alone.

My initial reaction was shock at the fact that the decision was a 5-4 decision. Certainly reading through the oral arguments made it sounded much more one-sided argument than would be explained by 5-4. However, it appears as if both sides simply ceded the individual right argument and instead argue both the scope of the issue and what constitutes reasonable regulation.

My one major disagreement with the decision, and part of the focus of Breyer\’s dissent, is that the majority doesn\’t really indicate what degree of regulation states can use on the use of firearms. It would be nice to have some sort of guideline or I fear that we\’ll be right back in this same spot in the future.

However, on the plus side the majority did state unequivocally that any law that impeded the ability for law-abiding responsible to use weapons, in common use at the time, for the use of self-defense of home and hearth, would be unconstitutional. That\’s a fairly solid unassailable legal footprint from which to fight back the hordes imposing gun control on everyone.

I had originally thought that the dissenting opinions would be more interesting to read through than the majority but I was very very wrong. First they essentially ceded the individual rights point, and tried to making a stand on minor issues but tried to do so from within the construct of Steven\’s majority opinion.

Breyer\’s dissenting opinion essentially builds upon Stevens by making another dissenting point. While I think he had a point to make it was quickly lost in the complexities of his argument. Essentially he argued technicalities for about 50 pages in an effort to have it come together at the end with some sort of effect. FAIL.

Steven\’s dissenting opinion was just plain painful. Most of Steven\’s arguments require you to just accept his assumptions and definitions at face value, rather than providing any sort of legal support. Arguments concentrate mostly on the drafting history of the Second Amendment. Basing your argument on things there were left OUT of the final draft seems less than intelligent from my point of view.

Of course, I\’m not a lawyer (to my credit) and I\’m not overly experienced at reading legal opinions (to the credit of my social life) but I get the sense that Justice Stevens wasn\’t a real good lawyer. I get the sense that the other Justices don\’t think so either because in the majority decision, Justice Stevens is absolutely trounced throughout.

End result is that the Second Amendment appears quite safe for awhile for personal uses of firearms at home. However, it does leave the regulation door wide open and that is going to be a target of eternal vigilance for all Second Amendment activists. It also does nothing to address the civic aspects of firearms at all. So this isn\’t the landmark decision that many had hoped for, but then again I don\’t think anyone in even their most hopeful moment, thought it might be.


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