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Louisiana's new gun rights law considered by state Supreme Court
Times-Picayune ^ | October 14, 2013 | Paul Purpura

Posted on 10/21/2013 6:43:23 PM PDT by neverdem

Louisiana Supreme Court justices are considering the residual and likely unintended effects of the constitutional amendment that voters overwhelmingly approved last year to make gun ownership a "fundamental" right. The question is whether the amended Constitution now lets convicted felons possess firearms, an act that is forbidden by the state criminal code.

Just how far Louisiana's new gun right, one of the strongest in the country, should extend was a central theme of argument that lawyers gave Monday, on the constitutionality of Louisiana's law against felons possessing firearms. As Associate Justice John Weimer of Thibodaux framed it, in weighing a public safety policy against the constitutional demands, should the state let people on probation -- even people still in prison -- have guns?

"Don't you admit there are some lines we have to draw?" he asked Colin Reingold, a New Orleans public defender who argued that the new amendment makes the the felon firearm law unconstitutional.

The issue arrived at the Supreme Court after New Orleans Criminal District Court Judge Darryl Derbigny's March 21 ruling in the state's case against Glen Draughter, 21. Convicted of attempted burglary, he was not allowed to have guns under Revised Statute 14:95.1, which bars convicted felons from possessing firearms.

His attorneys, Reingold and Jill Pasquarella, asked that the firearm charge be tossed out on constitutional grounds. Derbigny agreed, leading District Attorney Leon Canizzarro's office to appeal.

Almost 75 percent of Louisiana voters who cast ballots in November approved adding these words to the Constitution: "The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes, is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny."

Don't you admit...

(Excerpt) Read more at nola.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; Politics/Elections
KEYWORDS: banglist; guncontrol; nationalrifleassn; secondamendment; strictscrutiny

1 posted on 10/21/2013 6:43:23 PM PDT by neverdem
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To: neverdem

“Don’t you admit there are some lines we have to draw?”

No. Next dumb question...


2 posted on 10/21/2013 6:45:10 PM PDT by Dead Corpse (I will not comply.)
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To: neverdem
Actually, due process of law can suspend a convicted criminal's right to bear arms, but it must be done properly, which protects the falsely accused law abiding citizen.

Unelected bureaucrats will not be emperors in their own personal fiefdoms.

3 posted on 10/21/2013 6:52:47 PM PDT by Navy Patriot (Join the Democrats, it's not Fascism when WE do it, and the Constitution and law mean what WE say.)
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To: neverdem

Let felons have their guns. They carry them anyway, plus this might get Louisiana to reform its prisons and sentencing laws.


4 posted on 10/21/2013 6:53:55 PM PDT by 1010RD (First, Do No Harm)
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To: neverdem
Some felons are likely OK, many, not so much.

Give the future (current trend?) possibility of thought crimes, I'm not sure that being a felon would necessarily make one and poor risk for gun ownership.

5 posted on 10/21/2013 6:54:36 PM PDT by Paladin2
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To: neverdem

For the grat majority of our history, EVERYONE had the right to own a firearm. The 1968 Gun Control Act, as translated from a German Nazi law, changed that.


6 posted on 10/21/2013 6:56:48 PM PDT by Blood of Tyrants (From time to time the tree of liberty must be watered with the blood of tyrants and patriots.)
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To: Navy Patriot

Not sure it can be done properly. I’d suggest that if you’re in jail, no you can’t exercise your natural rights. If out of jail, even on parole, the gov has no business infringing. Keep it very simple so the corrupt legislature and courts can’t screw it up. Then again, I live in the PRK and our pols (and I certainly include the judges in that) are bought and paid for.


7 posted on 10/21/2013 7:00:36 PM PDT by RKV (He who has the guns makes the rules)
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To: neverdem
Up here if someone gets arrested for a felony away from his house, they do not come and search his house for weapons if no weapon was used in the felony.

Same thing in California if there was no gun in the felony -

and usually if they are searching for drugs in the house and they find the weapons, = probable cause.

My experience in New York State and California involving drug dealers is a warrant search for drugs and weapons, but if neither is involved in the felony, they do not search the house and seize the weapons.

There are people here that have been convicted for non-weapon non-drug felonies but the weapons are still there after he got released from prison coz he has his 30-06 and other rifles he uses for hunting and the local cops do not bother him...

The origin of this law predates the Constitution as the govt was not allowed to seize the weapons of a released felon because his family would starve in wintertime for lack of game meat-

PRECEDENT+ ,

8 posted on 10/21/2013 7:06:36 PM PDT by bunkerhill7 ((("The Second Amendment has no limits on firepower"-NY State Senator Kathleen A. Marchione.)))
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To: Navy Patriot

A false claim of domestic abuse will get your guns taken the next day in Louisiana - under the federal Brady act


9 posted on 10/21/2013 7:15:21 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Navy Patriot

A false claim of domestic abuse will get your guns taken the next day in Louisiana - under the federal Brady act


10 posted on 10/21/2013 7:15:21 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Paladin2

They are making so many crimes a felony in order to kill gun rights.


11 posted on 10/21/2013 7:16:08 PM PDT by LevinFan
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To: bunkerhill7

Wrong. All it takes is a domestic violence claim.


12 posted on 10/21/2013 7:16:17 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Dead Corpse

Guilt until proven innocent?

Here is the new assault on the people.

-— ... -— Repeal Uniform Child Abduction Prevention Act (UCAPA). Www.ucapa.us. The law (first signed by Sebelius off course; now law in 15 plus States - Repeal Uniform Child Abduction Prevention Act (UCAPA). Www.ucapa.us.


13 posted on 10/21/2013 7:17:28 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: RKV
You have an irrefutable point, that no Constitution, no matter how perfect, can survive a completely corrupt government and courts. With compromised rule of law, the question is simply decided by might, and the side that wins writes the history as patriots, while the side that loses goes to their death as criminals.

You might note my tagline.

14 posted on 10/21/2013 7:17:56 PM PDT by Navy Patriot (Join the Democrats, it's not Fascism when WE do it, and the Constitution and law mean what WE say.)
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To: neverdem

fundamental right means they have to have due process to take the right away.


15 posted on 10/21/2013 7:20:58 PM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: Pikachu_Dad
under the federal Brady act

We be discussing the Louisiana Constitution, not Federal statute.

16 posted on 10/21/2013 7:28:21 PM PDT by Navy Patriot (Join the Democrats, it's not Fascism when WE do it, and the Constitution and law mean what WE say.)
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To: neverdem

Interesting case. FWIW, I’m no fan of taking away the right to bear arms from convicted felons, at least those who are not in prison. To me these sort of laws beg a more fundamental question: if this person is so dangerous that we have to make it a crime of their merely touching a gun, then why pray tell are they out of prison in the first place?

Another implication that probably hasn’t been litigated yet is that the state of Louisiana would apparently no longer be able to require a permit to carry a concealed firearm. Or be able to regulate the types of firearms possessed.


17 posted on 10/21/2013 7:31:35 PM PDT by RKBA Democrat (Power disintegrates when people withdraw their obedience and support)
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To: Paladin2
Some felons are likely OK, many, not so much.

The "many" have them anyway.

18 posted on 10/21/2013 7:45:30 PM PDT by E. Pluribus Unum (Who knew that one day professional wrestling would be less fake than professional journalism?)
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To: Navy Patriot

So? When the Sheriff comes to take your guns, they are gone.

And I a talking about a Louisiana law that enables the Sheriff to come take your guns.


19 posted on 10/21/2013 7:45:36 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Navy Patriot

I have a friend in Livingston. He lost his guns for four months because his ex made a false complaint.

While the complaint was quickly dropped, they had to jump through hoops fortheSheriffforfour moremonthstogettheguns back.

If not for the tenacity of his dad, he would have probably given up.


20 posted on 10/21/2013 7:48:18 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: LevinFan

Here are the steps to take someone’s gun in Louisiana.

All nice and spelled out by the judicial branch.

http://www.lasc.org/court_managed_prog/lpor/filing_steps.asp

Quote ,”
Louisiana Protective Order Registry (LPOR)
Filing Steps

LPOR Home
After Filing
Security
These are the steps a petitioner takes to get a restraining order:

STEP ONE: INTRODUCTION TO FILING
STEP TWO: DETERMINE ELIGIBILITY AND VENUE
STEP THREE: FILL OUT FORMS
STEP FOUR: FILE PETITION

STEP ONE: INTRODUCTION TO FILING

Useful definitions

A person seeking protection may ask the court for protection by filing a petition for a restraining order.

The person in need of protection is the petitioner , the person against whom the petition is filed (the abusive person) is the defendant .

Costs

There are no filing fees and court costs for this process.

Representation

It is not necessary to have an attorney to file the petition or to represent the petitioner at court. Petitioners may get forms and assistance from this website, from the parish Clerk of Court’s office, or from victim advocates at the local battered women’s program or district attorney’s victim assistance program.

Go to Top

STEP TWO: DETERMINE ELIGIBILITY AND VENUE

Eligibility

Eligibility for the two most commonly used statutes differs. Read each carefully to decide which one to use.

Domestic Abuse Assistance Act
La. R.S. 46:2131, et seq.

Can be filed by or on behalf of a person who has experienced domestic abuse.

The relationship between the abuser and the person asking for protection must be one of the following:

family member (spouses, former spouses, parent/child, stepparent/stepchild, grandparent/grandchild)
household member (persons of opposite sex presently or formerly living together as spouses)
parent, adult household member, or district attorney on behalf of minor child(ren) or an adult who is incompetent to act in his/her own behalf
former or current dating partners
This statute may provide more opportunities for protection than the “generic” restraining order (for example, in addition to prohibiting any contact by the abuser, this order may also include ordering temporary child custody, financial support, and use of property to the victim in order to ensure safety).

Injunction Against Abuse (”Generic” Restraining Order)
La. Code of Civil Procedure Article 3601, et seq.

Can be filed by anyone seeking protection

Relationship between parties is not defined in this statute, therefore people who are not eligible for protection under the Domestic Abuse Assistance Act may use this avenue to get court ordered protection instead.

The person filing for protection must post a bond.

Venue

There are several possibilities of venue under each of the statutes mentioned above.

Under the Domestic Abuse Assistance Act, you can apply to the court in the parish where the abuse happened, in the parish where the petitioner and defendant lived together, in the parish where the defendant is living now, or in the parish where the petitioner is living now. If those parishes are not the same, you must select one in which to file the petition. Once the order has been granted, it will be good throughout the state.

To file a “generic” restraining order you may apply in the city or parish where the defendant lives, or in the city or parish where the abuse you are trying to prevent MAY occur. Once the order has been granted, it will be good throughout the state.

Go to Top

STEP THREE: FILL OUT FORMS

Fill out the necessary forms.

There is a section of the petition where you will swear to the truthfulness of the information you have provided.

This section requires your signature to be notarized, so you must sign it in front of a notary public. The Clerk of Court’s office can usually provide the services of a Notary.

PETITIONS
If you want to file a petition under the Domestic Abuse Assistance Act (La. R.S. 46:2131, et seq.), you will use Petition LPOR B.

If you want to file a petition under the Children’s Code (La. Ch. C. Art. 1564, et seq.), you will use Petition LPOR C.

BUT! If you are filing a petition against your spouse under this statute, and your spouse has already filed for a legal action which has not yet been finalized (such as a divorce or a protective order against you, or other legal actions), you will use Petition LPOR BR, or Petition LPOR CR instead of LPOR B or LPOR C. This circumstance is called filing in reconvention.

NOTE: If you filed the legal action, such as a divorce, you can use Petition LPOR B or LPOR C - only use Petition LPOR BR or LPOR CR if the person you are filing against was the one who filed the legal action.

TIP: To help you fill out Petition LPOR B, Petition LPOR BR, Petition C. or Petition CR print out LPOR A- Instructions.
If you want to file a petition for a “Generic” Restraining Order (La. Code of Civil Proc. Article 3601, et seq.) you will use Petition LPOR O.

TIP: To help you fill out LPOR O, print out LPOR Z - Instructions.
OTHER FORMS
In addition to filling out a petition, there are several supplemental forms you can fill out as well.

LPOR H - Information for Service of Process Form

The abuser must be served by the sheriff’s office with a certified copy of the order and notice to come to court on the assigned day of the hearing. To assist the sheriff’s office in locating the defendant, fill out this form as completely as possible. This form can be used with any of the petitions.

LPOR F - Confidential Address Form

Available under the Domestic Abuse Assistance Act only. Your address will be kept private by the court and the abuser will not receive notice of where you are currently living if you submit this form with your petition. Use this form only with LPOR B, or LPOR C.

LPOR FR - Confidential Address Form (In Reconvention)

Available under the Domestic Abuse Assistance Act only. Use this form when the abuser is your spouse and has filed a legal action that has not yet been finalized. Your address will be kept private by the court and the abuser will not receive notice of where you are currently living if you submit this form with your petition. Use this form only with LPOR BR, or LPOR CR.

Go to Top

STEP FOUR: FILE PETITION

The petition and accompanying forms are filed in the Clerk of Court’s office. The Clerk will present the forms to the judge for review. If the judge agrees that immediate court protection is necessary, s/he will grant a Temporary Restraining Order (TRO) with a date to come back to court for a hearing. The TRO will contain some or all of the requests made in the petition, and will be in effect until the date of the court hearing, up to 20 days if filed under the Domestic Abuse Assistance Act (LPOR B, BR, C, or CR) or 10 days if filed under La. Code of Civil Proc. 3601, et seq. (LPOR O).

The clerk should provide the petitioner with a copy of the petition, a certified copy of the TRO, and the date and time of the court hearing. The clerk will also give a copy of the petition and TRO to the sheriff’s office to serve to the defendant. The defendant will be notified to be present at court on the date of the hearing.

NOTE: The petitioner should keep a copy of the TRO at all times. The petitioner may also want to make copies of the TRO to be kept in the car, at work, with a friend or other safe place, at children’s daycare or school, or other places it may be needed.

The petitioner should call law enforcement if the defendant violates the terms of the order.

Go to Top

The Louisiana Protective Order Registry is a project of the Office of the Judicial Administrator, Supreme Court of Louisiana”


21 posted on 10/21/2013 7:52:42 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: E. Pluribus Unum

And here are the forms the Louisiana Supreme Court requires and provides free to ever Parish. note the back door use of the Brady law to disarm people.

http://www.lasc.org/court_managed_prog/LPOR/Index_&_Forms_1-21.pdf


22 posted on 10/21/2013 8:00:03 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: RKBA Democrat

Hee is the warning to the defendant.

The court only has to give you ‘opportunity to be heard’ .

Then the judge issues the protective order. The order does not have to ban you from owning a gun.

Then federal law 922(g)[8] kicks in. The existence of the protective order bars youfrom owning guns.

Are they not sneaky?

PURSUANT TO 18 U.S.C. § 922 [g][8], AFTER NOTICE AND OPPORTUNITY FOR A HEARING, THE DEFENDANT IN AN ORDER THAT EITHER INCLUDES A FINDING BY THE JUDGE OR BY ITS TERMS EXPLICITLY PROHIBITS CERTAIN BEHAVIOR MAY BE PROHIBITED FROM PURCHASING OR POSSESSING FIREARMS OR AMMUNITION FOR THE DURATION OF THE ORDER IF THE PROTECTED PERSON(S) IS RELATED TO THE DEFENDANT AS A CURRENT OR FORMER SPOUSE, CURRENT OR FORMER COHABITING INTIMATE PARTNER, CHILD, HAS A CHILD IN COMMON WITH THE DEFENDANT, OR IS THE CHILD OF DEFENDANT AND/OR DEFENDANT’S CURRENT OR FORMER INTIMATE PARTNER.


23 posted on 10/21/2013 8:07:04 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Navy Patriot

Federal aw says...

“(8) is subject to a court order that

restrains such person from harassing, stalking, or threatening an intimate partner of such person

or child of such intimate partner or person,

or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,

except that this paragraph shall only apply to a court order that -

(A) was issued after a hearing of which such person
received actual notice,
and at which such person had the opportunity to participate;

and (B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child;

or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

or - See more at: http://codes.lp.findlaw.com/uscode/18/I/44/922#sthash.8sxP79LA.dpuf


24 posted on 10/21/2013 8:12:09 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: neverdem

That article is alarmist and pointless, the author concocts imaginary issues where there really are none.

Consider that it is utterly, completely, totally immaterial whether or not a state-level law prohibits convicted felons from owning firearms. A state-level law will not, and can not, change the federal prohibition against this.

Any person harping on about a state constitutional provision that supposedly grants felons gun rights is either so amazingly ignorant that he or she shouldn’t be allowed to vote in the first place, or is simply making hyperbolic comments in order to rile up the ignorant and easily swayed fools that make up the low-information-voter block.

Most of the other issues raised in the article are equally absurd and unfounded.


25 posted on 10/21/2013 9:08:33 PM PDT by jameslalor
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To: Pikachu_Dad

And the discussion died. Bah.


26 posted on 10/21/2013 9:08:42 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: neverdem

I assume reference is made to convicted felons that have served or satisfied the sentences or fines imposed by a court of law; i.e., have paid their debt to society.
If such be the case, for what reason are they described as convicted felons? I have not been able to understand why a citizen that had paid the penalty imposed for a felonious offense should for the rest of his/her live be denied possession of a firearm for defense of self and others. This is particularly unreasonable, in my opinion, when the felonious act was not one of physical, life-threatening or lethal violence against a person.


27 posted on 10/21/2013 9:32:00 PM PDT by Elsiejay
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To: neverdem

Felon restrictions should only be for violent crimes and/or those involving a firearm. “Misuse it, and you lose it” is not unconstitutional, especially when a person deliberately misused a tool that - let’s not kid ourselves, folks - is built from the ground up to intimidate or kill a human being.

But denying 2nd Amendment rights to, say, someone who’s crimes were all white-collar and would barely swat a bee in self-defense is just ludicrous.


28 posted on 10/22/2013 6:03:51 AM PDT by Me1onCollie
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To: jameslalor

Interesting. My copy of the 2nd mentions nothing about State vs. Fed.

However, those IN prison (felons) can and do have their Rights ‘disabled’ while serving their term.

The EX-felon, being again a Free Citizen, has the enjoyment of their Rights, fully restored.

The issue, as in most instances, is the twisted, pretzel logic used by gov’t to further erode Rights. Either one is FREE, and thus has the same Rights as all Citizens, or one is still a danger to themselves and/or other Citizens that they should have not been released. Otherwise, there are 2+ sets of Citizens, and Equal Protection is out the window.


29 posted on 10/22/2013 7:18:50 AM PDT by i_robot73 (Give me one example and I will show where gov't is the root of the problem(s).)
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To: Pikachu_Dad

Mine would never be found.


30 posted on 10/22/2013 8:53:15 AM PDT by Resolute Conservative
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To: neverdem

I have always thought that after being released a felon, after set amount of time has passed, should be allowed to have firearms just like anyone else. If you don’t think they are “rehabilitated” don’t let them out.


31 posted on 10/22/2013 8:55:43 AM PDT by Resolute Conservative
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To: neverdem

What if you don’t have health insurance and don’t pay the penalty? Felony?


32 posted on 10/22/2013 9:02:28 AM PDT by mom.mom
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To: longtermmemmory
longtermmemmory said: "Fundamental right means they have to have due process to take the right away."

I think that is a necessary but not sufficient requirement.

33 posted on 10/22/2013 10:27:23 AM PDT by William Tell
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To: Me1onCollie
Me1onCollie said: "Felon restrictions should only be for violent crimes and/or those involving a firearm."

I suggest that you tighten up your requirements a little.

The People's Republik of Kalifornia has over sixty-eight pages of guns laws. It's a gun crime to have a pistol grip on otherwise legal rifles. It's a gun crime to purchase a handgun which has not been approved by the state as being "not unsafe". It's a gun crime to supply your sister with a firearm without having the transfer approved by the state. SIXTY-EIGHT PAGES of this nonsense.

34 posted on 10/22/2013 10:34:50 AM PDT by William Tell
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To: RKBA Democrat
if this person is so dangerous that we have to make it a crime of their merely touching a gun, then why pray tell are they out of prison in the first place?

A question I have long been asking and I have never gotten a good answer. Maybe there is none.

35 posted on 10/22/2013 10:58:12 AM PDT by Harmless Teddy Bear (Proud Infidel, Gun Nut, Religious Fanatic and Freedom Fiend)
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To: Pikachu_Dad

I thought that is a law for which senator dead Lautenberg is responsible. I suggest that once we end the political careers of Zero and about 7 to 10 Rats in the Senate, we mount an FR push to repeal that law just to honor Lautenberg for making life on the other side miserable


36 posted on 10/22/2013 8:16:20 PM PDT by Postman (Flies get too litle credit. They know!)
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To: William Tell

No requirements are tight enough for a state that has gone past the line of utter insanity at Mach 5, I’m afraid.


37 posted on 10/23/2013 10:27:12 PM PDT by Me1onCollie
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