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Posted: 8/2/2005 1:49:25 PM EDT
When going through my March 2005 issue of American Rifleman I came across a reference to a United States Department of Justice Report that looks into whether the Second Amendment secures an individual right or a state right.

From the 106 page document's conclusion:


our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure.


Holy moses Batman! Now if we could only get the courts to agree...

Link Posted: 8/2/2005 1:52:13 PM EDT
That was when Ashcroft was AG. Ask that question today and you may get a less favorable response

I didn't like several aspects of Ashcroft, but he was a big friend to gun owners.
Link Posted: 8/2/2005 1:52:23 PM EDT
Link Posted: 8/2/2005 1:53:45 PM EDT

Originally Posted By yrlessdave:
... Holy moses Batman! Now if we could only get the courts to agree...




... If we could only get the USSC to agree to hear a case on point and issue a definitive decision.

(Next year's USSC, not last year's. )
Link Posted: 8/2/2005 1:55:17 PM EDT
And, the AG does not make law, only interprets. And, any court is free to disagree with the finding.

It is a "feel good" thing, and that is OK, but it doesn't have much bearing on day to day
court rulings. But hey, at least for now it's going our way, can't let it go back the other.
Link Posted: 8/2/2005 1:56:55 PM EDT
There are no "collective" rights.

There are only individual rights.
Link Posted: 8/2/2005 1:57:10 PM EDT
Hell yes.

coburn
Link Posted: 8/2/2005 1:57:46 PM EDT
It secures an individual right as long as we have guns and we say it does.
Link Posted: 8/2/2005 1:57:57 PM EDT
Too bad the ATF isn't under the jurisdiction of the DOJ.
Link Posted: 8/2/2005 1:59:22 PM EDT
Link Posted: 8/2/2005 2:01:40 PM EDT

Originally Posted By Ardenner:
Too bad the ATF isn't under the jurisdiction of the DOJ.



They are!
Are you being sarcastic?
Link Posted: 8/2/2005 2:05:05 PM EDT
Does the 2nd Ammend. Secure an Individual Right?

I have a natural right to protect myself and mine. The 2nd Amendment merely affirms this.
Link Posted: 8/2/2005 2:24:44 PM EDT
I believe the original intent was an individual right. Somehow it's become twisted through the legal manipulation by the courts.
Link Posted: 8/2/2005 2:37:10 PM EDT

Originally Posted By The_Beer_Slayer:
as i recall that was the current position. it seems to change frequently



The one thing that does not change is the fact that all nine of the other Bill of Rights speak exclusively of individual rights. The ones who say the 2nd Amendment addresses a collective right argue that "Well Regulated Militia" portion of the ammendment is a qualifier instead of a quantifier. Anyone who has read the Federalist Papers knows right away that this argument is a pile of steaming dingo shit but they keep at.
Link Posted: 8/2/2005 2:38:38 PM EDT

Originally Posted By The_Beer_Slayer:
as i recall that was the current position. it seems to change frequently



Yep. All depends on who's in the office at the time.

Although I do believe without a doubt it is an individual right.
Link Posted: 8/2/2005 2:39:30 PM EDT

Originally Posted By Rebel_Marine:
It secures an individual right as long as we have guns and we say it does.




Well put.
Link Posted: 8/2/2005 2:54:24 PM EDT
The second amendment was written by very good lawyers and covers both possibilities the founders feared,

1. A well regulated militia is necessary to the security of a free state.
2. A well regulated militia can also be a threat to the security of the free state and so the people have a right to be armed should the state militia exceed it's authority.

It simply affirms tyrants are rebels only.
Link Posted: 8/2/2005 2:56:58 PM EDT

Have we the means of resisting disciplined armies, when our only defense, the militia, is put in the hands of Congress? Of what service would militia be to you when, most probably, you will not have a single musket in the state? For, as arms are to be provided by Congress, they may or may not provide them. -- Patrick Henry, 3 Elliot Debates at 48


An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliment was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that is was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. -- George Mason at the Virginia Ratification Convention, June 14, 1788
Link Posted: 8/2/2005 3:00:01 PM EDT

Originally Posted By DoubleFeed:

Originally Posted By Zhukov:
There are no "collective" rights.

There are only individual rights.

How can a group of people have a right that no individual member of that group has?
Collective rights are a logical impossibility.



It's explained by the "believers" that it becomes a "collective right" when applied to the State Militias, IOW as a Militia (and only as such) you, and the other militia members, have some sort of gun rights. I guess if you had no state militia, you'd be SOOL.

disclaimer: not the opinion of this poster.
Link Posted: 8/2/2005 3:02:16 PM EDT

Originally Posted By Zhukov:
There are no "collective" rights.

There are only individual rights.



Endowed to me by my creator!
Link Posted: 8/2/2005 3:03:26 PM EDT
Ashcroft for SCOTUS!!!!!
Link Posted: 8/2/2005 3:04:26 PM EDT
[Last Edit: 8/2/2005 3:04:52 PM EDT by danco]

Originally Posted By nightstalker:
It's explained by the "believers" that it becomes a "collective right" when applied to the State Militias, IOW as a Militia (and only as such) you, and the other militia members, have some sort of gun rights.



The Second Amendment says:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

If the Second Amendment applied only to the Militia and Militia Members, it would read:

"A well regulated Militia, being necessary to the security of a free State, the right of the Militia to keep and bear Arms, shall not be infringed."

But it doesn't.

—Dan
Link Posted: 8/2/2005 3:09:34 PM EDT
Link Posted: 8/2/2005 3:12:52 PM EDT
As far as any of the non-delegated rights in the Constitution, they are individual, and the only legitimate argument is whether they are unalienable or inalienable.
Link Posted: 8/2/2005 3:16:18 PM EDT
There's an easy way to illustrate the individual right POV, to people who's skulls are a little on the "thick" side:

A well schooled Electorate, being necessary to the security of a free State, the right of the people to keep and read books, shall not be infringed.

Ask them to explain how only those who are "well schooled" would be allowed to keep and read books, based on the above. Ask them if that means that SOME books could be banned, because of their content. Ask them if banning the possesion of Mein Kampf would be "common sense" book control, based on the above.

Let them talk their way out of that one. If nothing else, it's entertaining.
Link Posted: 8/2/2005 3:20:32 PM EDT
[Last Edit: 8/2/2005 3:21:15 PM EDT by happycynic]
I took several political philo classes in college, and IIRC the concept of a "collective right" would be somewhat absurd to the generation of the founding fathers. Locke, et al always talked about rights as being inherent in the individuals, who then delegate certain powers, and place certain restrictions on those rights in order to secure good government. IMO, anytime the Constitution speaks of a "right" it should always be interpreted as belonging to an individual.

Link Posted: 8/2/2005 3:24:06 PM EDT
[Last Edit: 8/2/2005 3:25:13 PM EDT by The_Macallan]

Does the 2nd Ammend. Secure an Individual Right?

"By calling attention to 'a well regulated militia', the 'security' of the nation, and the right of each citizen 'to keep and bear arms', our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason, I believe the Second Amendment will always be important."
~ John F. Kennedy,
April 1960.


"The current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms."
~ U.S. Solicitor General Theodore Olson,
May 8, 2002. Emerson v. United States


"While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise."
~ John Ashcroft,
US Attorney General in letter to NRA, 2001.


"The conclusion is thus inescapable that the history, concept, and wording of the 2nd amendment to the Constitution of the United States, as well as it's interpretation by every major commentator and court in the 1st half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
~ Report of the Subcommittee on the Constitution of the Committee on the Judiciary,
, United States Senate, 97th Congress, Second Session, 2/82


"Congress finds the following:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms."
~ In US Senate Bill S.397,
passed 65-31 on July 29, 2005.


"It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect."
~ U.S. Supreme Court,
Presser v. Illinois, 1886.


"While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
~ U.S. Supreme Court,
U.S. v Verdugo-Urquidez, 1990.



Does that answer the question?
Link Posted: 8/2/2005 3:32:26 PM EDT

Originally Posted By danco:

Originally Posted By nightstalker:
It's explained by the "believers" that it becomes a "collective right" when applied to the State Militias, IOW as a Militia (and only as such) you, and the other militia members, have some sort of gun rights.



The Second Amendment says:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

If the Second Amendment applied only to the Militia and Militia Members, it would read:

"A well regulated Militia, being necessary to the security of a free State, the right of the Militia to keep and bear Arms, shall not be infringed."

But it doesn't.

—Dan



I favor a strict interpretation, word for word, of the entire BOR and Constitution. One also has to look at the history of the militia. Originally, they were groups of ordinary citizens (able-bodied, armed white men of military age) who banded together for the common defense of towns and cities. Given this, I think everyone who is eligible for the draft qualifies as a member of the unorganized militia. I also happen to think it should include women in today's world (I also think women should be required to register for the draft), but perhaps I am alone in that thought. The National Guard today has more in common with a standing army than with the concept of the militia that was existant during the Revolution. Just some facts to keep in mind. The militia was originally intended to refer to all able-bodied white men of military age, but given the modern political climate and the 14th amendment, I believe it includes all citizens and most definitely those who are eligible and registered for the draft. I think all Americans should have it within themselves to come together for the common defense, it's sad that many of us don't.
Link Posted: 8/2/2005 3:35:13 PM EDT
I consider myself to be a member of the unorganized militia, under the militia act of 1792, and I believe that I have a personal right to keep and bear military arms, and I will not suffer fools who tell me otherwise.
Link Posted: 8/2/2005 3:40:34 PM EDT

Originally Posted By Bob1984:
I think all Americans should have it within themselves to come together for the common defense, it's sad that many of us don't.



National Militia Standards, basic standards that allow all people to be able to coordinate and cooperate with one another for their own defence.

Many do train, equip and communicate with each other as well as public education efforts.
Link Posted: 8/2/2005 7:46:13 PM EDT
The "collective right" theory has only been around for about 25-30 years. This "theory" has not been touted all along since the founding of this country. It is an invention to try to lawyer away the Second Amendment by twisting the meanings.
Link Posted: 8/2/2005 10:09:48 PM EDT

Originally Posted By A_Free_Man:
The "collective right" theory has only been around for about 25-30 years. This "theory" has not been touted all along since the founding of this country. It is an invention to try to lawyer away the Second Amendment by twisting the meanings.



It seems to be working, smaller number own military arms all the time and virtually none train together as a well disciplined force.
Link Posted: 8/3/2005 9:26:57 PM EDT
the constitution was written for the people not for lawyers to debate in the future, decide for yourself. the words are black and white, no gray areas.
Link Posted: 8/3/2005 9:42:15 PM EDT

Originally Posted By Mauser101:

Originally Posted By Rebel_Marine:
It secures an individual right as long as we have guns and we say it does.




Well put.



Well said. I still can't find where it says "The state has the right to bear arms...and shall not be infringed" in the BOR. Can someone with better eyes help me?

ben
Link Posted: 8/3/2005 9:59:19 PM EDT
" On every question of construction ( of The Constitution) let us carry ourselves back to the time when The Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squezzed out of the text, or invented against it, conform to the probable one which it was passed."
Thomas Jefferson, 1823
Link Posted: 8/3/2005 10:17:24 PM EDT
[Last Edit: 8/3/2005 10:18:35 PM EDT by serixx3241]
ok i just want to say this...


I't the "BILL of RIGHTS"

some say it is in the wording and some say it is a way of thinking,

But the right to free speech and the the right to keep and bare arms are #1 and #2 for a reason when #1 is not working anymore we the people can use #2. Our fore fathers knew that this was what we needed to keep our rights.
Link Posted: 8/3/2005 10:29:52 PM EDT
tag
Link Posted: 8/4/2005 5:46:02 AM EDT

Originally Posted By serixx3241:
... But the right to free speech and the the right to keep and bare arms are #1 and #2 for a reason when #1 is not working anymore we the people can use #2. Our fore fathers knew that this was what we needed to keep our rights.



Have you got something against long sleeves?

(I agree with your sentiment - just pickin' on you. )
Link Posted: 8/4/2005 5:53:36 AM EDT
Link Posted: 8/4/2005 6:13:59 AM EDT
THE VPC, HCI and others have touted the collectivist theory, and say that Ashcroft overturned 60 years of the collectivist rights theory when he affirmed the Second Amendment as an individual right.

Last I looked, the US is 239 years old, so we had over 170 years of an individual right.....Doesn't seem that after that much time, it would suddenly change.

One premis for the collective right issue is the belief that the Second Amendment is open to regulation.

People like Sara Brady say that it is open to regulation, and in turn, the regulation can be used to ban firearms, due to the issues laid out in US v. Miller, and she is right.

But what ca nbe regulated are firearms with no intrisic militia value.

Every time a thread like this comes up, I mention US v. Miller.
How many people here have read the Decision?

I'll make it easy this time...
Here is the damn decision....

ANd to be honest, I could live with this type of decision, because it would mean the end of the NFA, and the end of the stupid '86 MG ban, and the removal of the '89 EO banning the importation of firearms like AK-47's, FAL's, VEPER's.

Fuck the 'hunting' crowd. YOu can hunt with a FAL, an AR, or an AK with no problems......
Link Posted: 8/4/2005 6:44:11 AM EDT
[Last Edit: 8/4/2005 6:44:41 AM EDT by senorFrog]
Isn't strange how so many take an anti-gun viewpoint on a pro-gun website.
Link Posted: 8/4/2005 6:47:50 AM EDT
Link Posted: 8/4/2005 7:06:55 AM EDT
I'll get flamed to hell but I don't think the 2nd Amendment says much about "individual" rights.

My (non-expert but not blindly biased either) reading says that the intent of the 2nd Amendment was to make sure the government could not prevent citizens from organizing into militias or any other armed group that any other government would see as a threat.

My take on the individual right aspect is that it was never even considered that there would be people who were not armed and/or who wished to disarm other citizens based the ridiculous grounds the anti-gunners stand on today. At the time of writing our nation's farming and ranching were not yet industrialized. A goodly portion of citizens survived by the barrel of the gun. Want to BBQ? Go bag a deer. There was no supermarket. There weren't yet large-scale feed lots and meat market setups, especially farther west than the very few colonies of the time. Everyone had a gun. It would be like imagining people today eventually not having cell phones.

I don't think individual rights were mentioned, or dealt with, because they were not imagined to have been in jeapordy. Our forefathers were brilliant men but they were not perfect. I do wish they could have been a little more clear, though, in this one matter.
Link Posted: 8/4/2005 7:46:30 AM EDT

Originally Posted By ArmedAggie:
I'll get flamed to hell but I don't think the 2nd Amendment says much about "individual" rights.

My (non-expert but not blindly biased either) reading says that the intent of the 2nd Amendment was to make sure the government could not prevent citizens from organizing into militias or any other armed group that any other government would see as a threat.

My take on the individual right aspect is that it was never even considered that there would be people who were not armed and/or who wished to disarm other citizens based the ridiculous grounds the anti-gunners stand on today. At the time of writing our nation's farming and ranching were not yet industrialized. A goodly portion of citizens survived by the barrel of the gun. Want to BBQ? Go bag a deer. There was no supermarket. There weren't yet large-scale feed lots and meat market setups, especially farther west than the very few colonies of the time. Everyone had a gun. It would be like imagining people today eventually not having cell phones.

I don't think individual rights were mentioned, or dealt with, because they were not imagined to have been in jeapordy. Our forefathers were brilliant men but they were not perfect. I do wish they could have been a little more clear, though, in this one matter.


damn, to me it clearly does say it's an individual right and not a state right to organize militias. besides the clumsy wording and grammar of the amendment are the writings of the people who wrote it as well as the fact that, of the first 10 amendments to the constitiution, called the "bill of rights", why would the founding fathers make NINE of them INDIVIDUAL rights but ONE of them a state right? it's just kinda logical that they meant for all 10 amendments to be individual rights. at least to me.
Link Posted: 8/4/2005 7:54:36 AM EDT

Originally Posted By senorFrog:
Isn't strange how so many take an anti-gun viewpoint on a pro-gun website.



Must be talking about me...

Let me clue you in.... the average hunter doesn't give a damn about gun control, unless it will take their deer or turkey gun.
I don't want to have to give up any firearms, but according to the very decision that the grabbers use to promote gun control is the very one that actually affirms that I can own an M-16, without government interferance.

Did you even read the fucking decision? OF course not. It requires you to LEARN.
Link Posted: 8/4/2005 7:55:11 AM EDT

Originally Posted By hardcorps1775:

Originally Posted By ArmedAggie:
I'll get flamed to hell but I don't think the 2nd Amendment says much about "individual" rights.

My (non-expert but not blindly biased either) reading says that the intent of the 2nd Amendment was to make sure the government could not prevent citizens from organizing into militias or any other armed group that any other government would see as a threat.

My take on the individual right aspect is that it was never even considered that there would be people who were not armed and/or who wished to disarm other citizens based the ridiculous grounds the anti-gunners stand on today. At the time of writing our nation's farming and ranching were not yet industrialized. A goodly portion of citizens survived by the barrel of the gun. Want to BBQ? Go bag a deer. There was no supermarket. There weren't yet large-scale feed lots and meat market setups, especially farther west than the very few colonies of the time. Everyone had a gun. It would be like imagining people today eventually not having cell phones.

I don't think individual rights were mentioned, or dealt with, because they were not imagined to have been in jeapordy. Our forefathers were brilliant men but they were not perfect. I do wish they could have been a little more clear, though, in this one matter.


damn, to me it clearly does say it's an individual right and not a state right to organize militias. besides the clumsy wording and grammar of the amendment are the writings of the people who wrote it as well as the fact that, of the first 10 amendments to the constitiution, called the "bill of rights", why would the founding fathers make NINE of them INDIVIDUAL rights but ONE of them a state right? it's just kinda logical that they meant for all 10 amendments to be individual rights. at least to me.



I said nothing about any state rights. And I also disagree that all others are explicitly written as individual rights. I think the individual aspects were never an issue anyway. I agree with someone else who said that the individual rights were a given. But I don't think that "state" rights are in the 2nd Amendment either, not specifically. I think it was meant to apply to ANY group. A central federal government could be spooked by any group, be it a group of neighbors or a state-sponsored militia. Seems to me that the 2nd Amendment was making sure that the right of any of these groups to get together, arm, train, whatever, was being guranteed despite how a central government might feel.

In the end it doesn't matter anyway. I understand my right regardless of the wording or interpretation of the 2nd Amendment.
Link Posted: 8/4/2005 7:58:42 AM EDT

Originally Posted By ArmedAggie:
In the end it doesn't matter anyway. I understand my right regardless of the wording or interpretation of the 2nd Amendment.


amen to that!
Link Posted: 8/4/2005 8:03:37 AM EDT
often overlooked

10 U.S.C. 311

§ 311. Militia: composition and classes



(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

I am clearly a member of the unorganized "Militia"


Link Posted: 8/4/2005 8:08:58 AM EDT
Does someone have a link to the underlying trial court decision in EMMERSON?

That had probably the best argument I've seen in support to an Individual right.
Link Posted: 8/4/2005 8:17:48 AM EDT

Originally Posted By Hydguy:
THE VPC, HCI and others have touted the collectivist theory, and say that Ashcroft overturned 60 years of the collectivist rights theory when he affirmed the Second Amendment as an individual right.

Last I looked, the US is 239 years old, so we had over 170 years of an individual right.....Doesn't seem that after that much time, it would suddenly change.

One premis for the collective right issue is the belief that the Second Amendment is open to regulation.

People like Sara Brady say that it is open to regulation, and in turn, the regulation can be used to ban firearms, due to the issues laid out in US v. Miller, and she is right.

But what ca nbe regulated are firearms with no intrisic militia value.

Every time a thread like this comes up, I mention US v. Miller.
How many people here have read the Decision?

I'll make it easy this time...
Here is the damn decision....

ANd to be honest, I could live with this type of decision, because it would mean the end of the NFA, and the end of the stupid '86 MG ban, and the removal of the '89 EO banning the importation of firearms like AK-47's, FAL's, VEPER's.

Fuck the 'hunting' crowd. YOu can hunt with a FAL, an AR, or an AK with no problems......



It could also mean the end of legal handgun ownership. If a sawed off shotgun is not suitable for military use, is a handgun? (actually, I say yes - but the court may not)

Taking your logic to the extreme, it could mean that instead of a hummer, I buy a bradley with a 40 mm cannon for fun. RPGs, handgrenade, claymoores (do they use these anymore?) all sorts of arms are now used for military purposes. Hell, I've be eying a nice F-18 to patrol my neighborhood
Link Posted: 8/4/2005 8:58:06 AM EDT

Originally Posted By Hydguy:
THE VPC, HCI and others have touted the collectivist theory, and say that Ashcroft overturned 60 years of the collectivist rights theory when he affirmed the Second Amendment as an individual right.

Last I looked, the US is 239 years old, so we had over 170 years of an individual right.....Doesn't seem that after that much time, it would suddenly change.

One premis for the collective right issue is the belief that the Second Amendment is open to regulation.

People like Sara Brady say that it is open to regulation, and in turn, the regulation can be used to ban firearms, due to the issues laid out in US v. Miller, and she is right.

But what ca nbe regulated are firearms with no intrisic militia value.

Every time a thread like this comes up, I mention US v. Miller.
How many people here have read the Decision?

I'll make it easy this time...
Here is the damn decision....

ANd to be honest, I could live with this type of decision, because it would mean the end of the NFA, and the end of the stupid '86 MG ban, and the removal of the '89 EO banning the importation of firearms like AK-47's, FAL's, VEPER's.

Fuck the 'hunting' crowd. YOu can hunt with a FAL, an AR, or an AK with no problems......



Actually if you go further back you will find that Congress recognised that they could not ban weapons of any kind but they could levy taxes on them hence the NFA. They subsiquently applied the same logic to MaryJ, which was legal during Prohibition, with a little twist. It took till 1970 for SCOTUS to rule that law unconstitutional and a new drug law was enacted. The 86 ban is clearly Unconstitutional and it's just a matter of time & money before it's declared so.
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