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cassandra&sarasdaddy
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Posts: 26691
Loc: hartwood
Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1674909 - 02/16/12 12:08 PM (76.120.213.58)

Quote:

Alright, let's assume that the right to carry, open or concealed, a loaded arm in public is the starting point.

After that, governments are the ones who restrict it and the judiciary upholds or overturns.

How is she not to legally assume that the government is in its capacity to prohibit the carrying of loaded, accessible handguns in public when precedent and the SCOTUS says that it is?

And, cpop, please. Just, don't. So you're admitting that you failed to put together a jeopardy case? Twice?




not quite junior
walter lost twice but the angle i found is what got him out

ironically in another case he lost a judge let him being the only brother in a lineup stand

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under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1674913 - 02/16/12 12:23 PM (155.178.4.10)

You have it bass ackwards.

The assumption is that anyone can carry any weapon they like anywhere they go. It is firmly established that governments can restrict that, when they have a compelling interest.

What she found was that the laws embody the state's compelling interest in protecting public safety. She compared the laws to precedent. That really didn't add much, but they absolutely do not provide a basis for overturning the laws, if we believe the state can legitimately restrict gun rights. So she finds the balance to be fair, that restricting gun carrying is not too onerous in certain locations.

You do actually agree with that. But in this case, you are questioning (nay, denying) the state's determination of their own interests. I see the justification along the lines of "your right to flail your fists about ends where they contact someone else".

The state believes that the chance that Joe Gunowner will cause public mayhem is greater than the chance that he will safely defend himself. It is the exact same rationale that is applied to other venues. If the determination is that restricting the 2nd amendment right is verboten, then why can we restrict it in courtrooms and statehouses and airports? If the determination is that states can address their compelling interests by restricting 2nd amendment rights, then they can restrict the 2nd amendment rights. Can you have it both ways? Bans where the interest meets cc's threshold, unfettered carry everywhere the interest doesn't meet your threshold?

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Have you the brain worms?!?!


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Sipowitz
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Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1674934 - 02/16/12 01:36 PM (140.147.233.105)

http://verdict.justia.com/2012/01/06/wha...he-coming-years

http://verdict.justia.com/2012/01/20/the...over-gun-rights


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citycop
Super FUG


Reged: 11/11/04
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675021 - 02/17/12 04:27 AM (71.63.66.118)

Again, if you had read the ruling you would understand that interest balancing alone is not sufficient to restrict a constitutional right,

Quote:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people...




The bar for restricting a constitutional right is much higher than just interest balancing. Interest balancing alone is sufficient for something like seat belt laws, (or to put it in an 18th century context, health & safety standards for sailing ships), because those things do not directly restrict a freedom enshrined in the Bill Of Rights. As Scalia points out, the interest balancing was already done by the people when they enumerated the right in the Constitution.

In other words, the interest must be far more compelling than, "It would be better to do it than not." It has to have a more sense of, "It would be disastrous if we didn't do it." Whether or not the Illinois law meets that criteria is not my point, (though the experience of states with less restrictive gun laws casts serious doubt that it does). My point is that the judge in Moore did not apply the higher standard as required by Heller.

It's not as if the 2nd Amendment says, "the right of the people to self-defense shall not be infringed", and the government can regulate the mode of self-defense like traffic laws or FAA regulations. Heller puts all firearm regulation in an entirely new context: the individual constitutional right to keep and bear a firearm. That doesn't mean all firearm restrictions are unconstitutional, but it does mean they have a much higher bar to meet.

I don't think you or Sip truly understand what a constitutional game changer Heller really is. Just as Brown v. Board of Education raised the practice of segregated schools from a regulatory issue to a civil rights issue, Heller raises firearms restrictions on individuals from a regulatory issue to a civil rights issue.

One may debate whether or not that was the wisest thing to do, but that's precisely what it did.


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citycop
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Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1675022 - 02/17/12 04:28 AM (71.63.66.118)

Hmmm. Perhaps if they took the time to read the ruling rather than opinions about the ruling, there wouldn't be so much confusion.

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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675025 - 02/17/12 06:49 AM (66.87.85.15)

Because the officer on the beat knows better than the judiciary how to be a jurist.

--------------------
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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675026 - 02/17/12 06:58 AM (66.87.85.15)

What did he write about traditional restrictions, keeping in mind the traditional bans on guns in towns? He made exceptions for that, which didn't clarify anything.

I still see this as you disagree with her threshold. And really, I wanted to poke you about being so cautious and circumspect about police actions and so unrestrained here. I don't recall you ever getting to "officer pepper spray screwed up", but this ruling was silly, not just wrong, from the get go.

--------------------
Have you the brain worms?!?!


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Sipowitz
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675030 - 02/17/12 08:08 AM (140.147.233.105)

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan E. Brownstein is Professor of Law and the Boochever and Bird Chair for the Study and Teaching of Freedom and Equality at the UC Davis School of Law (King Hall). Before becoming a professor, he clerked for Judge Frank M. Coffin of the United States Court of Appeals for the First Circuit. He serves on the legal committee of the ACLU of Northern California. He received a B.A. in Political Science and Psychology from Antioch College in 1969 and a J.D. from Harvard Law School in 1977.


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cassandra&sarasdaddy
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Reged: 06/27/03
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Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1675068 - 02/17/12 02:42 PM (76.120.213.58)

http://www.law.cornell.edu/supct/pdf/07-290P.ZO bottom of page 54 for what scalia actually wrote need help ask

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under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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Sipowitz
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Re: Illinois Gun Law Upheld [Re: cassandra&sarasdaddy]
      #1675069 - 02/17/12 03:15 PM (140.147.233.105)

Don't need to tell me, Jr. cadet. I've already read it.

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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1675088 - 02/17/12 07:29 PM (76.120.213.58)

a strange new world
http://blogs.philadelphiaweekly.com/phil...rights-activist

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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citycop
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675116 - 02/18/12 12:25 AM (71.63.66.118)

Quote:

Because the officer on the beat knows better than the judiciary how to be a jurist.




That speaks to the quality of her decision more than my ability. Kind of sad, huh?


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citycop
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675118 - 02/18/12 12:29 AM (71.63.66.118)

Quote:

What did he write about traditional restrictions, keeping in mind the traditional bans on guns in towns? He made exceptions for that, which didn't clarify anything.




Have you read the ruling yet? All restrictions ("traditional"? or otherwise) must now be viewed in light of the explicit constitutional right of the individual to keep and bear arms. If they meet that bar, fine. If not, they gotta go.

I believe the bulk existing laws restricting firearms in sensetive places, restricting the types of firerarms that can be sold on the civilian market, requiring registration, licensing and background checks, will withstand the test. Broad restrictions like the Illinois law won't. I also have doubts about waiting periods meeting the standard.

Quote:

I still see this as you disagree with her threshold. And really, I wanted to poke you about being so cautious and circumspect about police actions and so unrestrained here. I don't recall you ever getting to "officer pepper spray screwed up", but this ruling was silly, not just wrong, from the get go.




It's not about the wrong conclusion based on the right threshold; it's about using the wrong threshold, which inevitably leads to the wrong conclusion. I'm not grasping your point about "officer pepper spray", what's the connection?


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citycop
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Re: Illinois Gun Law Upheld [Re: Sipowitz]
      #1675120 - 02/18/12 01:03 AM (71.63.66.118)

Quote:

Alright, let's assume that the right to carry, open or concealed, a loaded arm in public is the starting point.

After that, governments are the ones who restrict it and the judiciary upholds or overturns.

How is she not to legally assume that the government is in its capacity to prohibit the carrying of loaded, accessible handguns in public when precedent and the SCOTUS says that it is?




Any precedent that contradicts the standard establsihed in Heller is now moot, or highly suspect at the very least. It is much in the same way any precedent that contradicted the standard established in Brown v. Board of Education became moot or tainted.

To put it another way, Plessy v Furguson is indeed precedent, but the Court eventually reversed itself with Brown v Board of Education. The Court may refer to Plessy to establish precedent regarding jurisdiction, venue, or some other legal point, but not as precedent as it relates to the question of segregation itself.

That doesn't necessarily mean existing firearms laws don't meet the standard established by Heller or all firearms precedent is now moot, but it does mean Heller raised the standard the judges must use from now on when such laws are challenged. The judge in Moore not only failed to apply the standard, she makes the incredulous argument that it doesn't even exist.

I do not believe the Illinois law would withstand the Heller standard because of the blanket prohibitions are too broad and the legal fiction of loaded vs unloaded guns, but that's beside the point. The point is firearms restrictions must now be viewed as a civil rights issue and that affects the relative weight of precedent.


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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675127 - 02/18/12 09:12 AM (66.87.85.15)

What makes a place more sensitive than another? All these restrictions on venue are either ok or they are all forms of prior restraint. They are all the same restriction. What defines "sensitive"? Some people think that's schools. Some people think it's airports. Some people think it's state houses. Some people think it's population centers. It's no different once you can establish that restrictions on venue are acceptable. It boils down to what one thinks is a sensitive location.




PS I was talking about the pepper spray incident at UCD. Officer Pike blasting passive protestors with pepper spray and then the lies in backtracking. Remember, the cops felt so threatened they decided to piss off the menacing crowd even more?

--------------------
Have you the brain worms?!?!


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citycop
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675237 - 02/19/12 08:48 AM (71.63.66.118)

The same high degree of judicial scrutiny applied to other restrictions on constitutional rights must be applied to 2nd Amendment rights.

For example, the restrictions on freedom of speech during a court proceeding would pass the test, while the same level of restriction on freedom of speech on a public sidewalk would not. Likewise, the level of restriction on firearms in a courthouse would pass the test, while the same level of restriction on a public sidewalk would not.

It's not a subjective standard, in that you may believe a place is too sensitive to excercise a particular right and I may not. Rather, the Court uses an objective "reasonable person" standard. That is, would a reasonable person find the same level of speech restriction imposed in a courtroom be reasonable to impose on a public sidewalk?

Judicial scrutiny of government restrictions on individual rights is not a novel practice; that's how we've done it for two centuries. What's different is the same high level of scrutiny applied to restriction on other constitutional rights must now be applied to restrictions on the individual right to keep and bear arms.

Still not getting the connection between the UC Davis incident and the constitutional principle under discussion, unless of course you mean that both the officer at UC Davis and the judge in Moore misanalysed the situation and took the wrong course of action.


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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675244 - 02/19/12 11:07 AM (66.87.85.15)

You still have the same exact issue of restricting a right. The fact that identical locations get different treatment (state houses, for example) shows there is no reasonable person standard, or it varies wildly. Either of those cases means the restrictions are arbitrary.

The UCD incident has nothing to do with constitutional interpretations. I contrast ypur great reluctance to make a call in that case with your eqgerness to make one in this case. The police error case I would expect a LEO to have a well informed opinion, as I think you have, but aren't willing to show. In this case it is outside your realm of expertise (like we other non-jurists), but you are willing to launch into your opinion with gusto. So what I am sure you know, you won't speak of, but outside your realm you won't stop talking. Get it?

--------------------
Have you the brain worms?!?!


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675264 - 02/19/12 01:38 PM (76.120.213.58)

irony thy name is bobby

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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citycop
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675291 - 02/20/12 04:58 AM (71.63.66.118)

I was reluctant to make a call in the UC Davis case because I did not have enough information to arrive at an informed opinion. I did, however, share my suspicion of what I believed may have happened, but clearly stated that it was just my own speculation. If the findings of the UC Davis are made public with sufficient detail and I take the time to study those findings, then I may have enough information to arrive at an educated conclusion.

On the other hand, much like in the UC Davis matter, ir appears you rushed to a conclusion without having sufficient knowledge of the subject matter. It was clear you neither read nor understood the rulings under discussion, but immediately based your position on whether you sympathized with the agenda of those who supported or opposed those rulings. Now once again you find yourself in an untenable position and are thus forced to argue the absurd either out of boredom or reluctance to admit your error. To wit,

Quote:

You still have the same exact issue of restricting a right. The fact that identical locations get different treatment (state houses, for example) shows there is no reasonable person standard, or it varies wildly. Either of those cases means the restrictions are arbitrary.




That statement reflects the misunderstanding of a fundamental principle upon which our constitutional form of government is based. The Constitution does not establish how much freedom may reasonably be permitted to the people; it establishes how much restriction may reasonably be imposed by government. Because a restriction may be reasonable to impose does not mean that it must be imposed.

For example, it is not unreasonable to restrict people from entering a prison for the purpose of passing out political fliers in the housing units because that would place an unreasonable burden on the prison's resources (i.e. the manpower it would take to safely escort dozens of people a day through the housing units, the potential for people to sneak contraband into the prison, the potential for people to use it as a pretext to formulate an escape, etc).

However, that does not mean it is unreasonable to permit such a practice if the people are willing to provide the prison with the resources needed to make it happen. In other words, it's kind of a "minimum standards" thing. The state must meet the minimum standard to restrict a freedom, but may also go above the minimum standard to avoid imposing the restriction.

You also make the logical error of equating the consistency of the standard with the relativeness of the circumstances. As an illustration, say you and I are standing on the beach and we see a person in the water who appears to be drowning. I may consider my ability as a swimmer, the distance to the person in distress, the strength of the current, and conclude that I cannot safely attempt a rescue. That is reasonable.

On the other hand, you may consider the same factors and conclude that you can safely attempt a rescue. That is also reasonable. We both applied the reasonable standard to relative circumstances (our ability as swimmers), and just because we came to different conclusions does not mean one of us was being unreasonable.

Even if I believed I had a reasonable chance of saving the drowning person, I am not legally obligated (as opposed to morally obligated), to risk my own life to save another person. I can go above and beyond that "minimum standard" if I so choose, but I'm not legally obligated to do so. That's where self-determination comes in, and it also applies to the constitutional separation of powers between state and federal government.

A state legislature may consider various factors such the rate of gun violence in the state, their constituents' attitudes toward firearms, their constituents' familiarity with firearms, existing state laws regulating firearms, the cost of security, the location and layout of their statehouse, etc. and conclude that allowing firearms in the statehouse is an unreasonable risk.

Another state legislature may consider the same factors relative to their circumstances and find that allowing firearms in the statehouse is not an unreasonable risk. The reasonable standard is constant, but the circumstances to which it is applied are relative.

Even if the other state legislation found that it was reasonable to impose a restriction, that does not mean it would be constitutionally obligated to do so. The Constitution does not obligate government to impose every restriction that is justified; it obligates government to justify every restriction that is imposed.

In the end, it is the restriction imposed by government that must pass the reasonableness test and not the unalienable rights "endowed by their Creator" to the people. The fundamental constitutional principle you're missing really boils down to this: a freedom doesn't need to be justified; the restriction imposed by government does.


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True_Bob
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Re: Illinois Gun Law Upheld [Re: citycop]
      #1675426 - 02/21/12 08:18 AM (155.178.5.10)

So what makes a location "sensitive"?

Nothing you wrote makes me wrong. Guess what you incorrectly will about my sympathies and my understanding of rights, but I originally got into this based on your leap that the ruling was "silly". As it works out, the logic for banning weapons in a school or court or state house is the same exact logic that is followed to ban open carry in city limits. The decision is the same. Why do you accept it unquestioningly for so many other venues, but not in this case? A restriction is a restriction is a restriction. If Joe Gunowner carries a gun into an airport, is he more likely to open fire then if he were on the street?

You just laid out how different locations come to different conclusions as to what is sensitive. So what is sensitive in one state is not in another. There is no effective overarching reasonable standard for "sensitive". Anything or any place can thus be restricted, as much as the state chooses, until it is overturned by a court. You have no standing nor expertise to tell Illinois what restrictions they can make and which they cannot. You cannot judge "silly", silly.

You seem to deny that the state has the authority to restrict as they choose (never did I indicate an obligation). But your arguments above support my assertion - if a state thinks, in their considered opinion, that the right needs to be restricted in place X, they have that authority. So they restrict it from airports, and nobody complains. They restrict them from schools, state houses, whatever, and nobody complains. But they do the exact same action in a larger area, and your hair catches fire. Not consistent for those who suddenly find something to complain about, because the restriction is the same. The supporting rationale is the same.
So either all restrictions, including in state houses and airports, are silly, or they are all acceptable. I lean towards "silly" for them all. Even you mentioned evidence that more carry means less crime - we want less crime in airports, don't we? So it's silly to restrict weapons from airports or airplanes. Do we or don't we have the right? If the government can "legitimately" restrict it, we have it where government deigns to permit it - as we do now. Like "free speech zones". Or no guns in airports.

It's the same restriction that you accept without a concern in so many other places. Why the consistency fail?

--------------------
Have you the brain worms?!?!


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citycop
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Re: Illinois Gun Law Upheld [Re: True_Bob]
      #1675554 - 02/22/12 06:03 AM (71.63.66.118)

Wow, this is really going over your head. Let's see if we can't get your bean wrapped around the concept at the heart of the matter...

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

By what standard do we measure whether a search or seizure is unreasonable?


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld update in md case [Re: citycop]
      #1676410 - 03/05/12 03:44 PM (76.120.213.58)

http://ia700501.us.archive.org/1/items/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.52.0.pdf


its getting better and better

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld update in md case [Re: cassandra&sarasdaddy]
      #1676412 - 03/05/12 04:03 PM (76.120.213.58)

http://baltimore.cbslocal.com/2012/03/05/md-gun-law-found-unconstitutional/

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld update in md case [Re: cassandra&sarasdaddy]
      #1676432 - 03/05/12 06:51 PM (76.120.213.58)

"A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights," Legg wrote. "The right's existence is all the reason he needs."

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld from colorado [Re: cassandra&sarasdaddy]
      #1676496 - 03/07/12 10:24 AM (76.120.213.58)

http://www.denverpost.com/breakingnews/ci_20104814

oh no! guns on campus

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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cassandra&sarasdaddy
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Re: Illinois Gun Law Upheld from colorado [Re: cassandra&sarasdaddy]
      #1676741 - 03/10/12 02:47 AM (76.120.213.58)

http://lansdale.patch.com/articles/lansdale-gun-rights-advocate-gets-25k-settlement-from-philly

--------------------
under the name of liberalism they will adopt every fragment of the socialist program until one day America will be a socialist nation without ever knowing how it happened.


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