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DC Circuit strikes down DC gun law
How Appealing Blog ^ | 03/08/2007 | Howard Bashman

Posted on 03/09/2007 8:10:02 AM PST by cryptical

Edited on 03/09/2007 10:38:14 AM PST by Admin Moderator. [history]

BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.

According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."

Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

Update: "InstaPundit" notes the ruling in this post linking to additional background on the Second Amendment. And at "The Volokh Conspiracy," Eugene Volokh has posts titled "Timetable on Supreme Court Review of the Second Amendment Case, and the Presidential Election" and "D.C. Circuit Accepts Individual Rights View of the Second Amendment," while Orin Kerr has a post titled "DC Circuit Strikes Down DC Gun Law Under the 2nd Amendment."

My coverage of the D.C. Circuit's oral argument appeared here on the afternoon of December 7, 2006. Posted at 10:08 AM by Howard Bashman


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; US: District of Columbia
KEYWORDS: 2ndamendment; banglist; devilhasiceskates; districtofcolumbia; firsttimeruling; flyingpigs; frogshavewings; giuliani; gunlaws; hellfreezesover; individualright; rkba; secondamendment; selfdefense
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To: RKBA Democrat
There are several elected Democrats who are pro-gun.

Announced presidential candidate NM Governor Richardson is pro-gun rights. As governor of NM he has to be pro-gun or face the NM voters with a big strike against him.

701 posted on 03/09/2007 10:16:52 PM PST by epow (If I'm wrong about whoJesus is I lose nothing when Idie, if the atheist is wrong he loses everything)
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To: cryptical
So is this dissenting judge saying that Constitutional rights do NOT extend to the people in DC, since it's not a state? That brings up some very interesting ideas...

Mark

702 posted on 03/09/2007 10:26:17 PM PST by MarkL (When Kaylee says "No power in the `verse can stop me," it's cute. When River says it, it's scary!)
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To: robertpaulsen
My position is the constitutional position -- the government can regulate the interstate commerce of everything

The SCOTUS disagrees with you.

US v Lopez.

Also US v Morrison

You wouldn't know a Constitutional position if it walked up to you, introduced itself, and smacked your dumb behind silly.

L

703 posted on 03/09/2007 10:29:25 PM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Seruzawa; All

"Second Amendment's protections...do not extend to the District of Columbia because it is not a state."

By her logic then the Amendment (I forget the number) that provides for an income tax should also not apply to the District of Columbia because it is not a State. Oh joy, oh joy, DC residents should demand to get all the federal taxes they have paid over the years returned. Now they no longer have to be one of the highest taxed jurisdictions in the country!!!


704 posted on 03/09/2007 10:32:20 PM PST by gleeaikin
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To: evad; All

"This isn't scrappleface is it??"

No, it is not. The metropolitan DC TV new has been reporting it all day. Not in the Washington Post for Friday. Will look on Saturday.


705 posted on 03/09/2007 10:34:20 PM PST by gleeaikin
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To: robertpaulsen

You, sir, appear to be nothing more than a troll. I thought it an extreme assessment when others were saying it earlier, but now I see that they're right. It's my fault for falling for your bait once again, but that's the end of that. Have fun doing what you do.


706 posted on 03/09/2007 10:37:49 PM PST by NinoFan
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To: Lurker
The SCOTUS disagrees with you.

No quote, naturally.

The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.

707 posted on 03/09/2007 10:50:38 PM PST by Mojave
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To: gleeaikin
By her logic then the Amendment (I forget the number) that provides for an income tax should also not apply to the District of Columbia because it is not a State.

Nope. The 2nd Amendment was a declaratory restriction on federal powers, the 16th Amendment extended federal powers.

708 posted on 03/09/2007 11:10:05 PM PST by Mojave
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To: Mojave
Thanks for posting the quote.

But I figured if I just gave our Statist friend RP a link it would occupy him elsewhere for a while.

L

709 posted on 03/09/2007 11:55:14 PM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Lurker
Thanks for posting the quote.

Glad you enjoyed being refuted.

710 posted on 03/09/2007 11:57:39 PM PST by Mojave
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To: Mojave
Perhaps you need to reread, assuming you can of course, Mr. Paulsens original assertion.

Just zip back up the thread and find it. Feel free to move your lips if you like.

He said that Congress can regulate 'anything' in the name of Interstate Commerce.

SCOTUS disagreed.

Next time try actually reading what was said in the thread. It may help prevent you from looking the fool. Nothing could prevent that entirely of course, but help it may.

L

711 posted on 03/10/2007 12:01:26 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Lurker
Perhaps you need to reread, assuming you can of course, Mr. Paulsens original assertion.

He said that the government can regulate the interstate commerce. The court said that the possession of a gun in a local school zone was NOT an economic activity and did NOT have substantial effect on interstate commerce.

I read through your misrepresentation a mile away.

712 posted on 03/10/2007 12:05:53 AM PST by Mojave
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To: Seruzawa

Well, what would really be helpful about her opinion would be that nobody in DC, including the media and the politicians, have a First Amendment right. :)

But seriously, I wonder if it occurred to her that, since there is a Circuit Court of Appeal in and for D.C.. and its purpose is in large part to decide constitutional issues for D.C., that maybe, just maybe, the U.S. Constitution and the Bill of Rights apply to the people within the jurisdiction of her court. If not, there would be no need for her court, now would there? That aspect of her opinion is actually comical.


713 posted on 03/10/2007 12:09:39 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: All
I looked around a bit and couldn't find a good copy of the opinion in HTML, so I made my own.

For those who prefer html to pdf, see Parker v. D.C.  

Freepmail me with errors if you'd like. I'll be doing more cleanup on it tomorrow.

 Z
 

714 posted on 03/10/2007 12:13:57 AM PST by zeugma (MS Vista has detected your mouse has moved, Cancel or Allow?)
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To: Mojave
He said that the government can regulate the interstate commerce.

English is obviously not your strong suit. Do take your time with this.

My position is the constitutional position -- the government can regulate the interstate commerce of everything.

552 posted on 03/09/2007 4:37:27 PM CST by robertpaulsen

SCOTUS disagreed. From US v Morrison: "The Court explained that the need to distinguish between economic activities that directly and those that indirectly affect interstate commerce was due to "the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority."

Congress can not regulate the interstate commerce of 'everything'. They, and apparently you, like to think they can. But the Court said it must directly (it's a small word so you shouldn't have much trouble looking it up) affect interstate commerce.

Now off with you or I shall taunt you again.

L

P.S. Your father smelled of elderberries.

715 posted on 03/10/2007 12:15:55 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: NewJerseyJoe
I love it how liberals complain about judicial activism when the courts rule AGAINST them. Anyway, the Brady Group is dead wrong - the rights of the people cannot be countermanded by the electorate. They admit of no popularity contest or the received opinion of the day. Liberals cannot ban guns outright because that would be popular or because they think guns no longer have a place in American society. The Constitution protects gun rights as nearly absolutely under the Second Amendment as it protects freedom of speech rights under the First Amendment.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

716 posted on 03/10/2007 12:16:05 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: FreedomPoster

...and how said it is that we are so excited to hear the same "news" that our forefathers recited to us over two-hundred years ago.


717 posted on 03/10/2007 12:17:51 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Lurker
...the government can regulate the interstate commerce of everything...
The court said that the possession of a gun in a local school zone was NOT an economic activity and did NOT have substantial effect on interstate commerce. The possession of the firearm was NOT deemed to be interstate commerce.

Poor you.

718 posted on 03/10/2007 12:20:23 AM PST by Mojave
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To: MarkL

And one might wonder what she and her brethren are doing there in the first place if the constitution doesn't apply to D.C., lol!


719 posted on 03/10/2007 12:21:55 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: longtermmemmory
"The silence of the MSM is deafening. How does former Proseutor Guiliani stand on this ruling? How does lawyer Hilary Clinton stand on this? "

It didn't take them long to comment on the Libby decision.

yitbos

720 posted on 03/10/2007 12:22:08 AM PST by bruinbirdman ("Those who control language control minds." -- Ayn Rand)
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To: Congressman Billybob
The Court should have taken judicial notice of the fact many state constitutions accord even greater protections to gun rights and self-defense than the federal Constitution does. It is indisputable in American history that from the earliest times onwards, the states were concerned to emphasize the individual character of the RKBA. This has never been changed anywhere.

"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus

721 posted on 03/10/2007 12:22:36 AM PST by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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To: Jezebelle
...and how said it is that we are so excited to hear the same "news" that our forefathers recited to us over two-hundred years ago.

Because it's been just about 200 years since the constitution actually held any sway over the laws of the land. Nice to see a microscopic and even though temporary reversal of the trend.

It won't last, but for today it's nice for a change.
722 posted on 03/10/2007 12:23:04 AM PST by Dr.Zoidberg (Mohammedanism - Bringing you only the best of the 6th century for fourteen hundred years.)
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To: Lurker

I see some things just never change. Why do you bother? He's a total moron.


723 posted on 03/10/2007 12:23:20 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: bruinbirdman

It will also be interesting to see where the Republican presidential candidtaes come down on the decision. I'm guessing Rudy won't like it.


724 posted on 03/10/2007 12:29:51 AM PST by Mojave
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To: Jezebelle
He's a total moron.

What's truly sad is that he apparently thinks he's some kind of 'conservative' when it's painfully obvious from the position he's arguing that nothing could be further from the truth.

Ah well. There's another poster who has a tagline which describes this situation most succinctly.

"Free speech makes it easier to spot the idiots."

That's never been more true than in his case.

L

725 posted on 03/10/2007 12:30:23 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Mojave
I'm guessing Rudy won't like it.

You need to guess at this?

This decision kind of blows a giant hole in his "regulate consistent with the 2nd Amendment BS."

Rudy is a fraud.

I'm going to enjoy watching him lose the primary.

L

726 posted on 03/10/2007 12:31:50 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Lurker
You need to guess at this?

He might also stand mute.

I'm going to enjoy watching him lose the primary.

Knock wood.

727 posted on 03/10/2007 12:35:02 AM PST by Mojave
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To: Mojave

The point is that the commerce clause does not give the feds the right to regulate everything, the USSC has said this, and not everything falls under the purvue of that clause anyway.


728 posted on 03/10/2007 12:35:05 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Jezebelle
The point is that the commerce clause does not give the feds the right to regulate everything

Everything isn't interstate commerce.

729 posted on 03/10/2007 12:36:12 AM PST by Mojave
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To: oceanview

Well, that line just got moved a whole lot further back in the sand.


730 posted on 03/10/2007 12:38:23 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Mojave
Everything isn't interstate commerce.

Not according to Congress.

L

731 posted on 03/10/2007 12:41:16 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: NinoFan

It's hard to say about Kennedy. It may be that with a stronger constitutionalist contingent on the court, he may be willing to do something to stop the madness. On the other hand, geriatric leftism could set in and he may view himself as the new equalizer now that O'Connor has left.

My hope is that Stevens leaves the court soon, one way or the other.


732 posted on 03/10/2007 12:42:17 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Lurker

The court overruled Congress in Lopez.


733 posted on 03/10/2007 12:44:13 AM PST by Mojave
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To: KAUAIBOUND

It isn't even logical. There would be no DC circuit if the constitution didn't apply.

This dumb broad probably thinks the constitution applies to Gitmo prisoners but not DC residents. I'm not joking.


734 posted on 03/10/2007 12:45:59 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Lurker

"Free speech makes it easier to spot the idiots."

ROFLMAO!! Sounds like Mark Levin or Ann Coulter.


735 posted on 03/10/2007 12:48:09 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: zeugma

Have you seen this?

http://www.cato.org/pubs/legalbriefs/gunsuit.pdf


736 posted on 03/10/2007 12:50:47 AM PST by Mojave
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To: Mojave

That's true. The USSC has said, in the simplest terms, "Mind your own business, which is not everything you'd like it to be or may think it is" to the feds.


737 posted on 03/10/2007 12:50:53 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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To: Mojave
The court overruled Congress in Lopez.

Yes, I know.

So it appears that 'interstate commerce' is what SCOTUS says it is and not what Congress says it is.

Bizzare.

L

738 posted on 03/10/2007 12:53:58 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: Lurker
Bizzare.

Check and balances.

739 posted on 03/10/2007 12:55:17 AM PST by Mojave
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To: flashbunny
YOU RUDY HATERS ALWAYS FIND A WAY TO ATTACK HIM NO MATTER WHAT THREAD YOU'RE ON!!!! YOU'RE JUST A BUNCH OF RIGHT WING EXTREMISTS!!!!!!! POLITICS OF PERSONAL DESTRUCTION!!! POLITICS OF PERSONAL DESTRUCTION!!!

Errr... Don't you hate Rudy? If people simply click on your profile and see what you've posted in the past two months or so, they can see that you are, in fact, a 'Rudy hater'. What is this business of pretending to be a Rudy's supporter and bashing 'Rudy haters'?

740 posted on 03/10/2007 1:31:36 AM PST by paudio (WoT is more important than War on Gay Marriage!)
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To: Oztrich Boy

741 posted on 03/10/2007 1:41:58 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink)
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To: robertpaulsen

Procedurally, Miller stands for the proposition that the second amendment is an individual right since Miller was successfully able to challenge the law all the way up to SCOTUS on grounds of a violation of his second amdendment rights.

Miller was not a "militia" member, yet SCOTUS reached the merits of the argument, therefore SCOTUS determined Miller had standing to bring the case. (Since Miller disappeared his side never briefed its case, so much of the Miller decision is based on only the government's arguments and is patently wrong - but that isn't the issue, Miller's standing is.)

Miller's procedural posture stands for the refutation of your position.


742 posted on 03/10/2007 3:08:00 AM PST by Abundy
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To: PeskyOne

;)


743 posted on 03/10/2007 4:20:02 AM PST by patton (Sanctimony frequently reaps its own reward.)
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To: Ken H
"It is misleading to say that everyone would "then" have no protection against such infringments on the RKBA."

Technically you're correct. Perhaps it would be more correct to say, "everyone would then be on notice by the U.S. Supreme Court that they have no protection against such infringments on the RKBA."

You will agree that property grabs by state and local governments have increased since Kelo despite the fact that, as you say, there was no protection before Kelo? Funny how that works, huh?

Let's not gloss over my main point with your technicality. State and local RKBA abuses would increase with a Kelo-type decision on gun rights by the U.S. Supreme Court if incorporated.

744 posted on 03/10/2007 4:22:27 AM PST by robertpaulsen
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To: MileHi
"That is covered pretty well in the decision."

True enough. It's also covered pretty well in the plethora of decisions concluding a collective right.

I was curious, therefore, why the poster concluded that "it is clear as a bell that the 2nd Amendment is about the right of the individual to bear arms".

Since you're not that poster, and since you really have nothing to add to the discussion (other than some vague reference to the decision), I think we're done.

745 posted on 03/10/2007 4:32:08 AM PST by robertpaulsen
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To: paudio

Post 36 is a parody.


746 posted on 03/10/2007 4:37:47 AM PST by sig226 (see my profile for the democrat culture of corruption)
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To: Lurker
Both of those decisions involved Congress' attempt to control a local activity that affected interstate commerce.

I would suggest you save your insults until you're sure of your facts.

747 posted on 03/10/2007 4:39:39 AM PST by robertpaulsen
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To: robertpaulsen
I would suggest you save your insults until you're sure of your facts.

Why? You never do.

L

748 posted on 03/10/2007 4:40:38 AM PST by Lurker (Calling islam a religion is like calling a car a submarine.)
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To: NinoFan

Adios. Go insult someone else. On another thread.


749 posted on 03/10/2007 4:42:17 AM PST by robertpaulsen
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To: robertpaulsen; All

750 posted on 03/10/2007 4:45:37 AM PST by Pharmboy ([She turned me into a] Newt! in '08)
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