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The 2nd Amendment’s “Militia”
Flopping Aces ^ | 01-16-13 | CJ

Posted on 01/16/2013 5:26:45 PM PST by Starman417

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.

I know I've been talking a lot about guns, gun control, and the 2nd Amendment (2A) a lot lately. I can't help it. Our basic rights, recognized and enshrined in our Constitution, are under attack and I feel compelled to respond.

I've been reading a lot from the Federalist Papers recently. I've also been reading the debates that took place during the adoption of that amendment so that I could understand what those 27 words mean. We hear a lot of static from all sides of the aisle. Some claim that the Founding Fathers could have never envisioned the type of weapons we have today. Others say that the 2A only applies to the military.

So, what is the truth? What is the "militia" of the Constitution referring to? I'm not going to present a grammatical argument to this issue, though one would suffice alone in coming to a realization of what "the militia" is. Instead, I'm going to talk about what our Founding Fathers intended through their own words.

Interestingly, I've never heard anyone quote the ACTUAL LAW in any argument about what constitutes the militia.

(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.

Title 10, Subtitle A, Part I, Chapter 13, § 311

What I find funny is that the definition of "militia" contains the word "militia." But, it does specifically say that even if you're not in the military, you are a part of the militia.

But, that still doesn't really answer the question as it relates to the 2A.

While we were fighting for our very existence, Samuel Adams wrote the following letter to James Warren (letters are how we communicated before text messages and Facebook).


It is certainly of the last Consequence to a free Country that the Militia, which is its natural Strength, should be kept upon the most advantageous Footing. A standing Army, however necessary it may be at some times, is always dangerous to the Liberties of the People. The Militia is composd of free Citizens.

Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens. They have their Arms always in their hands. Their Rules and their Discipline is severe. They soon become attachd to their officers and disposd to yield implicit Obedience to their Commands. Such a Power should be watchd with a jealous Eye.

I have a good Opinion of the principal officers of our Army. I esteem them as Patriots as well as Soldiers. But if this War continues, as it may for years yet to come, we know not who may succeed them. Men who have been long subject to military Laws and inured to military Customs and Habits, may lose the Spirit and Feeling of Citizens.

And even Citizens, having been used to admire the Heroism which the Commanders of their own Army have displayd, and to look up to them as their Saviors may be prevaild upon to surrender to them those Rights for the protection of which against Invaders they had employd and paid them.

We have seen too much of this Disposition among some of our Countrymen. The Militia is composd of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them.

As a Soldier, I'm sure the irony of me publishing this isn't lost. How can I support in such strong terms the words of a man who said that me and brothers and sisters in arms should be "watchd with a jealous Eye?" But, he does make a good point after he makes this statement; a point that I believe is just as applicable today.

(excerpt)

TOPICS: Government; Military/Veterans; Politics
KEYWORDS: 2nd; banglist; constitution; federalistpapers; guncontrol; secondamendment
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To: Figment

I heard a debate on Hannity on the way home where two NY legislators were arguing Cuomo’s gun-grab. The Dem said something to the effect that “even Justice Scalia believes that Americans have no right to possess any gun they want.

I died a little bit right there. If our most conservative justice feels that the government can define the type of guns the people can have access to, then the intent of the Founders, being lost on people like this justice, has suffered such a papering over one wonders if it MUST come down to a fight.

21 posted on 01/16/2013 6:30:26 PM PST by MarDav
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To: Starman417
(NOTE: I do NOT believe that there are ANY plans by the government to use the military against Americans...

DREAM Act anyone? Stuff the ranks of the military with foreigners who own no allegiance to us. Refusal to obey an order would be cause to revoke their DREAM status.

Still think they don't have any plans?

22 posted on 01/16/2013 6:31:24 PM PST by Ouderkirk (Obama has turned America into an aristocracy of the unaccomplished.)
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To: Starman417
I've been reading a lot from the Federalist Papers recently. I've also been reading the debates that took place during the adoption of that amendment so that I could understand what those 27 words mean. We hear a lot of static from all sides of the aisle. Some claim that the Founding Fathers could have never envisioned the type of weapons we have today. Others say that the 2A only applies to the military. So, what is the truth?

It's clear from Alexander Hamilton's writings in the Federalist Papers that the militia was the population-at-large.

In The Federalist #8, Hamilton states the fear of having a standing army.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.

The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard.

A militia of the people, or Posse Comitatus would be a counter-balance to a standing army. In The Federalist #29, Hamilton states the need for a militia to be regulated by the States, not the Federal government:
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert; an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

Hamilton then argues that the formation of the militia by itself should be enough to prevent a standing army from forming.

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.

Hamilton now argues that it is impractical to expect a militia to act as a standing army.
``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

Hamilton then reasons that if there should be a need for a standing army, there should at least also be a disciplined militia to offset the power of the army.
"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Finally, Hamilton supposes that a militia under the control of the States would resist the temptation of a Federal authority using it for it's own purposes.
There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d'ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?

If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.


23 posted on 01/16/2013 6:31:55 PM PST by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: 353FMG
"Are you trying to use the law and logic? It won’t work in the 21st century, simply because it is not supported by Congress. The Constitution also states eligibility rules for POTUS but those were conveniently ignored. Do you now know the reason that we are in such a mess? Ignore the Constitution and you might as well not have a viable society."

Finally someone who gets it.

24 posted on 01/16/2013 6:44:00 PM PST by Godebert (No Person Except a NATURAL BORN CITIZEN!)
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To: Godebert

Oh man, don’t be so condescending.

I got it long before you were born when I served under Eisenhower.

25 posted on 01/16/2013 6:53:19 PM PST by 353FMG ( I refuse to specify whether I am serious or sarcastic -- I respect FReepers too much.)
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To: 353FMG

That explains that.

26 posted on 01/16/2013 6:58:36 PM PST by Godebert (No Person Except a NATURAL BORN CITIZEN!)
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To: MarDav

I believe Scalia meant that there were limits to the effect of citizens cannot own drones etc. I think he was parsing out the words of what Scalia actually meant.

27 posted on 01/16/2013 7:00:03 PM PST by Red in Blue PA (When Injustice becomes Law, Resistance Becomes Duty.-Thomas Jefferson)
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To: Red in Blue PA

I hope that’s what Scalia said. The current debate right now seems to have a starting point that assumes certain things are already settled like: the 2nd Amendment is to protect hunters’ rights...or we’re going to reduce the size of a clip from 10 rounds down to 7. This is madness. I don’t see anywhere that it says I can’t own a hundred round clip (for instance) or that government has the “right” to determine what I can own.

What I see is that government has the responsibility to ensure that my right to own guns, any guns, lots of gun (if I so desire) is not trampled upon.

28 posted on 01/16/2013 7:07:35 PM PST by MarDav
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To: combat_boots


29 posted on 01/16/2013 7:45:06 PM PST by Blue Collar Christian (Pray for revival. <BCC><)
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To: Starman417

Thank you for posting. The absolute best article I have read on the second amendment. It is heavy on information. This is one for the archives.

30 posted on 01/16/2013 8:20:41 PM PST by joshua c (Please dont feed the liberals)
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To: Starman417

hell. I know what the militia is

Actually, in fact, this right to bear arms stems from the Dutch tradition and regulations, Dutch LAWS in New York State dating to 1643,45,46. The English conquerors of New Netherlands never invalidated these written rights of the Dutch to bear arms nor confiscated their firearms, but actually kept them on as a ready-made frontier militia, [e.g., Saratoga blockhouse 1690`s] as a buffer against incursions of the French and their Native American allies. The civilian Dutch were recorded as having firearms under the English as late as 1753 just before French began reinforcing their fortified positions on the New York/Canada frontier

Militia 1650

“In this way he is taxed to build and support churches and schools ; to maintain preachers and schoolmasters; to erect public buildings in cities and villages ; to construct and repair all highways and bridges ; to support governors, magistrates, constables, and other officers of justice ; and to pay the several officers of the militia.”

O`Callaghan, Hist. of New Netherland, p.153

Militia 1659 New Netherlands

“Nothing could overcome the reluctance of the burghers. “ The one disheartened the other; the more violent maintaining that they were obliged to-defend only their own homes, and that no citizen could be forced to jeopardize his life in fighting barbarous savages.” Discouraged and almost deprived of hope by this opposition, the Director-general again summoned the city magistrates; he informed them that he had now some forty men, and expected between twenty and thirty Englishmen from the adjoining villages. He, therefore, ordered that the three companies of the city militia be paraded next day in his presence, armed and equipped, in order that one last effort be made to obtain volunteers.”
ibid. p.399

1710 July “...each member of the 1709 expedition to Canada might keep as his own forever the Queen`s musket that would be furnished to him. [”On the next day appeared a proclamation from the governor announcing the aforesaid “encouragements,” calling on last year’s soldiers to enlist again, promising that all should return home as soon as Port Royal was taken, and that each might keep as his own forever the Queen’s musket that would be furnished him.”] “-Parkman, “Half”, Vol. I, p.144

1775 April 19? Connecticut do. do.

[431]” And be it further enacted by the authority aforesaid, That each inhabitant so inlisted shall be furnished with good fire-arms, and that the fire-arms belonging to this Colony, wherever they are, shall be collected and put into the hands of such inlisted inhabitants as have not arms of their own ; and that each inlisted inhabitant that shall provide arms for himself, well fixed with a good bayonet and cartouch box, shall be paid a premium of ten shillings ; and in case such arms are lost by inevitable casualty, such inhabitant providing himself as aforesaid shall be allowed and paid the just value of such arms and implements so lost, deducting only said sum of ten shillings allowed as aforesaid: said premum of ten shillings to be paid as soon as such inhabitant shall provide such arms as aforesaid. That where the aforesaid provision fails, sufficient arms shall be impress’d, compleatly to arm and equip said inhabitants: the said impress to be limited only to the arms belonging to house-holders and other persons not on the militia roll; and in case any householder or other person shall voluntarily furnish any inlisted inhabitant, not able to procure arms for himself, with a good, gun, well fixed with a good bayonet and cartouch box, shall have and receive a premium of ten shillings, and in case of loss shall receive the value thereof, deducting the said ten shillings as aforesaid ; and also that every person from whom any gun shiill be impress’d, as aforesaid, shall be paid for the use of such gun the sum of four shillings, and in case of loss shall be paid the just value of such gun, deducting the sum of four shillings aforesaid ; and that a particular account be taken of the arms that may be used, and the same be all apprized by indifferent judges; and that if any inlisted inhabitant through negligence shall lose or damage the arms found for him, as aforesaid, such loss or damage shall be deducted out of his wages.” “The public records of the colony of Connecticut [1636-1776”,p.418

1777 July Private Joseph Pulsifer, Company of militia commanded by Lt. Col. David Webster (Plymouth) marched to reinforce garrison at Ticonderoga on Alarm of July

`XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of EVERY MAN who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.` [NY 1777 Constitution] (my caps)


§ 59. Militia
The inhabitants of this State shall be trained and armed for its defense, under such regulations, restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the Legislature of this State, shall direct.`

New Hampshire Constitution of 1784

``Act of Congress requiring every citizen between 18 and 45 years of age to be enrolled in the militia, and armed and equipped at his own cost.``
-Harper`s Book of Facts, # 9 of 34, search entry ``citizen``

1812 During the War of 1812, settlers in the Adirondacks asked the New York Militia for help against raiding N.A.s. They were told to fend for themselves. (My G-G-Great-grandfather Amos had 3 muskets used to defend against raiding Canadian Indian allies of the British [Family Tradition; other sources; Coolidge, Watson, Crockett?.]

1814 September 4: 700 Militia [with own weapons rallied from Essex and Clinton [rallied] counties [NY] had assembled at Plattsburgh and were immediately placed on the front line first picket. They attacked the British first across the river, not waiting for the U.S. Army regulars to decide what to do. Crockett, p.268 , Crockett, Wm. H., “A History of Lake Champlain”. Hubart J. Shanley & Co., 1909, Crown Collection, New York State Library

The Plattsburgh Daily Republican [NY]Oct (20th?) 1861

“The military strength of our Government was designed by its founders to rest on the militia of the States, which should comprise the whole body of citizens between eighteen and forty-five years of age. For many years after the Revolutionary War, this theory was carried out, and it was reinforced considerably by the war of 1812. But a long peace and universal prosperity made the militia by degrees unpopular, and the laws of the States were modified so as to release the Citizens from their obligations to maintain a vigorous military organization.—

Virginia militia in the Revolutionary War: McAllister’s data
By Joseph Thompson McAllister pp7-9

Digest of the militia laws of Massachusetts: and extracts relating to the ...
By Massachusetts Adjutant General Dearborn, 1851

Militia laws of the United States and of the commonwealth of Massachusetts ...1840, ibid.

Observations on the militia system: addressed to the citizens of pennsylvania..., Volume 1
, Part 1 enoch lewis, 1845

31 posted on 01/16/2013 8:31:36 PM PST by bunkerhill7 ( Lend a friend a gun)
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To: Starman417

Just an aside....most states extend the membership in their state “unorganized militia” to 65 or even 67 years of age. Some go downward to 16 or lower...lots of variations.

States also usually have their National Guards, State Defense Forces (SDF’s) and Naval Militias encoded under the “enrolled or organized” sections of their laws. The balance of the age bracketed men not enrolled are defined as “unorganized”.

The Guard and those citizens falling under the Federal unorganized militia limits are obviously subject to Federal call up by the Prez....the SDF’s and state naval forces....and left over state “unorganized” citizens are not.

Kind of confusing....but basically, if you got a gun or not....someone will expect you to show up somewhere when the poo hits the fan as long as you can fog a mirror.

32 posted on 01/16/2013 9:01:04 PM PST by Lowell1775
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To: Starman417
I think, eventually, Obama will call his Homeland Security FEMA Corps 'the one and only Militia'. Everything he does is part of a long term plan. Remember this in 2008....

33 posted on 01/16/2013 9:12:50 PM PST by potlatch (~)
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To: Starman417

the militia is made up of the people.

34 posted on 01/16/2013 11:54:01 PM PST by Secret Agent Man (I can neither confirm or deny that; even if I could, I couldn't - it's classified.)
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To: Blue Collar Christian

I agree. I have no problem with that position at all and believe you are correct, especially now that I see the military coming under the control of homosexual moonbats, who hold the general public in contempt.

35 posted on 01/17/2013 5:44:17 AM PST by Candor7 (Obama fascism article:(
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To: Starman417

nice post.

leftists tell me “well-regulated” means ‘lots of regulations’ on guns. they make me laugh.

36 posted on 01/17/2013 9:44:07 AM PST by TurboZamboni (Looting the future to bribe the present)
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