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Ninth Circuit Rules 2nd Amendment Incorporated to States
Second Amendment Foundation ^ | April 20, 2009 | NA

Posted on 04/20/2009 3:47:32 PM PDT by neverdem

BELLEVUE, Wash.--(BUSINESS WIRE)--The Second Amendment Foundation today applauded the U.S. Ninth Circuit Court of Appeals in San Francisco for ruling that the Second Amendment is incorporated against the states and local governments.

The majority opinion was written by Judge Diarmuid F. O'Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasion…That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”

Although the court found against the plaintiffs in the case of Nordyke v. King – Russell and Sallie Nordyke, operators of a gun show in Alameda County, CA – the court acknowledged that its earlier position that the Second Amendment protected only a collective right of states has been overruled by the Supreme Court’s 2008 historic ruling in District of Columbia v. Dick Anthony Heller. That was the case in which the high court ruled that the Second Amendment protects an individual civil right to keep and bear arms.

“This is a great victory for advancement of the fundamental individual right of American citizens to own firearms,” said SAF founder Alan Gottlieb. “The Ninth Circuit panel has acknowledged that the Heller ruling abrogated its earlier position on the Second Amendment, and it further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”

SAF attorney Alan Gura, who successfully argued the Heller case before the Supreme Court in March 2008, filed an amicus brief in the Nordyke case. The Nordykes sued when Alameda County banned gun shows at the county fairgrounds by making it illegal to bring or...

(Excerpt) Read more at finance.yahoo.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; Politics/Elections; US: California
KEYWORDS: 2ndamendment; 9thcircuit; banglist; california; heller; ninthcircuit; nordyke; nordykevking; secondamendment
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Second Amendment Incorporated!

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

1 posted on 04/20/2009 3:47:33 PM PDT by neverdem
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To: neverdem

The *NINTH* Circuit? Pinch me...


2 posted on 04/20/2009 3:49:32 PM PDT by Spirochete
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To: Spirochete

That’s exactly what I thought!


3 posted on 04/20/2009 3:51:14 PM PDT by joesjane (The strength of the pack is the wolf - Rudyard Kipling)
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To: neverdem
GO Diarmuid!

What a GREAT man!

I thought it was a pity that he lost his run for congress in the 70’s...

He's doing a fantastic job now!

4 posted on 04/20/2009 3:52:12 PM PDT by Leo Farnsworth (I'm not really Leo Farnsworth...)
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To: neverdem
"That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”

Yeah...terrorists. That's the ticket. That's why the framers put in that amendment....to guard against...terrorists. Right.

5 posted on 04/20/2009 3:52:56 PM PDT by Bloody Sam Roberts (I'd rather be hated for who I am than loved for something I ain't.)
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To: neverdem

There has to be a “BUT” to this, this is almost too good to be true!! And from the Ninth Circuit no less!!
Boy is Obama going to be pissed!
Jack


6 posted on 04/20/2009 3:53:08 PM PDT by btcusn
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To: neverdem

Heller ushered in this ruling. Now we can move forward and test what is or isn’t an infringement...... at least in the states within the 9th circuit. The rest will catch up soon however.


7 posted on 04/20/2009 3:53:50 PM PDT by umgud (I'm really happy I wasn't aborted)
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To: neverdem

I dont like it.Something is up.I know the 2nd A is for the protection of the people from an intrusive gubmint.Whats the deal on these judges?Anybody?


8 posted on 04/20/2009 3:57:38 PM PDT by HANG THE EXPENSE (Life is tough.It's even tougher when you're stupid.)
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To: Spirochete

Well what ya waiting for. Go get it now. The pot is simmering. None to blame if u don’t act now.


9 posted on 04/20/2009 3:58:06 PM PDT by reefdiver (How do you keep the Conservative a Conservative, in Washington DC ?)
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To: neverdem

Awesome! Thanks for posting this!


10 posted on 04/20/2009 3:59:11 PM PDT by Daffynition (Have you noticed Obama voters are having buyer's remorse?)
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To: neverdem

Sorry, I’m suspicious.

Is this a “See! We don’t want to TAKE your guns! Now go register them!” moment??


11 posted on 04/20/2009 4:00:01 PM PDT by FrogMom (No such thing as an honest democrat!)
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To: neverdem
...That we have a lawfully armed populace adds a measure of security for all of us...

There seems to be a bit of wiggle room in the word "lawfully", but perhaps I'm just paranoid of the 9th Circus.

12 posted on 04/20/2009 4:00:03 PM PDT by Oldeconomybuyer (The problem with socialism is that you eventually run out of other people's money.)
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To: neverdem

Even though it is terribly date now, every now and again I like to pull out Red Dawn.


13 posted on 04/20/2009 4:01:19 PM PDT by RobRoy (Sorry for typos. I get the cast off Wednesday.)
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To: neverdem
The majority opinion was written by Judge Diarmuid F. O'Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasion

First, it is astonishing that the Ninth Circus . . . . . er, Cicuit made this ruling. Second, while I disagree with the foundation of the ruling justice's opinion (that the right to bear arms was a bulwark against external invasion), they still made the right decision. In point of fact, the Second Amendment was written to balance the power of the people against the power of a strong central government. It still remains (IMO) possible that we may exercise our Second Amendment rights in exactly the manner that the Founding Fathers envisioned.

14 posted on 04/20/2009 4:01:29 PM PDT by DustyMoment (FloriDUH - proud inventors of pregnant/hanging chads and judicide!!)
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To: neverdem
The majority opinion was written by Judge Diarmuid F. O'Scannlain, with a concurring opinion from Judge Ronald M. Gould, who wrote, “The right to bear arms is a bulwark against external invasion…That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.”

Pyrrhic victory. This judge is a pinhead. An armed citizenry does help make us more difficult to invade. And a band of terrorists, even a hundred bands of terrorists, isn't a threat to our country. They are a threat to the unlucky people who happen to be in their midst.

No. The Second Amendment was put in place to protect us from our own politicians, thought of as "usurpers" by the Framers who would subvert the Constitution they had agreed upon. Hamilton got it right:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. -- Federalist No. 28
But why should a Federal judge cars about the Federalist Papers? That would be way too restrictive on his power.

ML/NJ

15 posted on 04/20/2009 4:02:05 PM PDT by ml/nj
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To: Spirochete
The *NINTH* Circuit?

I know...I read that and scrolled back up to make sure this wasn't Scrappleface.
16 posted on 04/20/2009 4:02:16 PM PDT by LostInBayport (When more than 98% of the Republicans on Capitol Hill vote against a bill, it is not bipartisan.)
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To: neverdem; Carry_Okie

While I see some ground for celebration here, I am curious to know how badly the ruling against the gun show will hurt us.

The Ninth Circuit Court simply does not give ‘the right’ gifts, without taking twice as much away.

I am also curious to know how the 14th Amendment ‘aware’ Freepers view the inclusion of comments referring to that Amendment in the case for the majority on this decision.


17 posted on 04/20/2009 4:02:49 PM PDT by DoughtyOne (Pres__ent Obama's own grandmother says he was born in Kenya. She was there.)
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To: Spirochete

Really - the 9th circuit? OMG - I have lived long enough to die!


18 posted on 04/20/2009 4:03:51 PM PDT by majormaturity
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To: Oldeconomybuyer

>>There seems to be a bit of wiggle room in the word “lawfully”, but perhaps I’m just paranoid of the 9th Circus.<<

There are a lot of reasons for the word “lawfully”. For one thing, removing that specific would imply that even those that are “unlawfully” armed are included in the spirit of the comment. It is the way lawyers talk: try to be specific.


19 posted on 04/20/2009 4:04:06 PM PDT by RobRoy (Sorry for typos. I get the cast off Wednesday.)
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To: freedomwarrior998; zeugma
Be careful what you wish for!

Supervisor Mary King didn't want this result, IMHO.

http://www.gurapossessky.com/news/

There's nothing from Alan Gura so far.

freedomwarrior998, thanks for the original thread & pdf link!

20 posted on 04/20/2009 4:05:05 PM PDT by neverdem (Xin loi minh oi)
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To: Spirochete
The *NINTH* Circuit?


21 posted on 04/20/2009 4:05:29 PM PDT by callisto (It's the three T's, stupid: Too Many Taxes, Trillions in Debt, and Transparency)
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To: RobRoy

I don’t see it as all that dated. With the pot boiling down in Mexico, the names may change, but we’re not out of the woods by any means. In ten years Russia may be replaced by China. It will still be the same Marxist subversives, Cuba Nicaragua or some other South American entity, pulling the strings in the long run.

Our border is such a mess, this thing is primed to blow at some point. All it needs is the right catalyst.

The cartels will be more than happy to play along. And with a milk toast like Carter or Obama, hell, they’d surrender before two weeks were up.


22 posted on 04/20/2009 4:07:19 PM PDT by DoughtyOne (Pres__ent Obama's own grandmother says he was born in Kenya. She was there.)
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To: neverdem
“The Ninth Circuit ... further clarified that the Second Amendment is incorporated to the states through the Fourteenth Amendment through the due process clause.”

While I'm glad the panel acknowledged this, the Second Amendment doesn't need the fourteenth to incorporate it to the states. Unlike the First Amendment, the Second Amendment does not contain the words "Congress shall make no law" anywhere in it. The second amendment says "... the right of the people to keep and bear arms SHALL NOT BE INFRINGED. It doesn't say "... shall not be infringed by Congress" or "... shall not be infringed except at the discretion of the states" or anything else that would apply that it restricts the federal government but not states.

23 posted on 04/20/2009 4:12:14 PM PDT by VRWCmember
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To: neverdem
The second amendment was written to protect us from governmental powers. The courts for example, such as -this very same ninth circuit- when they do things like illegally rewriting law according to their judical activist whims.

When they illegally rewrite laws which force their personal wishlist upon the population, such as forcing sodomite marriage and abortion into the law based upon their reckless whims (overturning four hundred years of history, all without any consent from the citizens)

24 posted on 04/20/2009 4:14:14 PM PDT by OriginalIntent (undo all judicial activism and its results)
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To: ml/nj

stretching here...

from a ‘state’ view point the federal government is an ‘external’

... very terrorizing at the moment too.

:-)


25 posted on 04/20/2009 4:15:09 PM PDT by kpp_kpp
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To: Spirochete; All

Doesn’t this mean that the 2nd amendment is a federal issue and state laws cannot circumvent federal law. That means individual states have no say in gun laws. The only power the feds have over guns is the interstate commerce clause.

More so if the federal govt decides to implement “common sense” laws then the states can do nothing.

But then I’m not a lawyer.


26 posted on 04/20/2009 4:15:34 PM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: RobRoy
There are a lot of reasons for the word “lawfully”.

Agree with your lawyer reference, but "laws" can be changed so I would prefer if the 9th Circuit wrote "constitutionally armed" in their opinion. Again, just paranoid.

27 posted on 04/20/2009 4:19:34 PM PDT by Oldeconomybuyer (The problem with socialism is that you eventually run out of other people's money.)
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To: btcusn
Boy is Obama going to be pissed!

This just gets better the more I think about it.

28 posted on 04/20/2009 4:28:33 PM PDT by FormerLib (Sacrificing our land and our blood cannot buy protection from jihad.-Bishop Artemije of Kosovo)
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To: Spirochete

The ninth has got a couple rulings right lately. Wow!


29 posted on 04/20/2009 4:30:24 PM PDT by AuntB (The right to vote in America: Blacks 1870; Women 1920; Native Americans 1925; Foreigners 2008)
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To: FrogMom

“Sorry, I’m suspicious.”

Ditto!

As I mentioned on an earlier post re this decision:

From the article:
“This brief survey of our history reveals a right indeed ‘deeply rooted in this Nation’s history and tradition.’”

Technically, that half-truth could be a misdirection.
The right is substantially more that “deeply rooted”.
The right was preexisting and thus predates our Nation’s history and culture.

(Hey, Mom, is that you ? ;^) )


30 posted on 04/20/2009 4:32:43 PM PDT by frog in a pot (Socialism is inconsistent with the Constitution and is one of the "domestic enemies".)
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To: umgud

The test will come soon. Obama and his goon squad will require serial numbers on every single bullett sold.

You can keep your gun, bulletts will be unaquirable.


31 posted on 04/20/2009 4:33:34 PM PDT by Para-Ord.45
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To: neverdem

Whaaa ... ?? They got something right for a change?


32 posted on 04/20/2009 4:34:44 PM PDT by Fast Moving Angel (There are no points for second place.)
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To: Para-Ord.45

Then there will probably be a thriving underground market for home loads.


33 posted on 04/20/2009 4:37:12 PM PDT by Fast Moving Angel (There are no points for second place.)
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To: imahawk

They secretly own guns and they fear a dangerous situation should California completely collapse?


34 posted on 04/20/2009 4:41:52 PM PDT by benjibrowder (I keep praying for hope and change, but I open my eyes and Obama is still President.)
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To: neverdem
The 2nd states, “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.”

Here's the other shoe dropping: The Ninth specifically addresses a “lawfully armed populace” as opposed to what the 2nd states, “a well regulated Militia”. In other words, not that I'm a lawyer, is sounds like they're allowing local law enforcement personnel and those citizens who have registered and have their paperwork in order to be armed. However, that doesn't mean they can't make registering next to impossible. Though I don't see how they can infringe on and interpret laws concerning the rights of the States.

35 posted on 04/20/2009 4:43:22 PM PDT by bgill (The evidence simply does not support the official position of the Obama administration)
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To: frog in a pot

Son! Get yer hoppy arse out of that pot!


36 posted on 04/20/2009 4:46:46 PM PDT by FrogMom (No such thing as an honest democrat!)
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To: DoughtyOne
Once a right is incorporated under the Constitution against the States under the 14th, the Feds acquire the power to define the extent of that right, the degree to which they may infringe. So, for example, background checks, back door registration, and regulation of the manufacture and sale of ammunition are all on the table.

This may be a reaction to Alaska's assertion that Federal law does not apply to arms and ammo manufactured in-state.

37 posted on 04/20/2009 4:46:59 PM PDT by Carry_Okie (It's time to waterboard that teleprompter and find out what it knows.)
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To: Spirochete

Even a broken clock finds a nut once in a while.


38 posted on 04/20/2009 4:55:34 PM PDT by omega4179 (Damn the world apology tour!)
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To: omega4179
Even a broken clock finds a nut once in a while.

it must be an Onion story, or maybe a misprint. SAF must have meant to print 'Fifth' circuit instead of 'Ninth'.

39 posted on 04/20/2009 5:07:07 PM PDT by Spirochete
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To: FormerLib
Quoting from NORDYKE v. KING Cal 9th US Courts

GOULD, Circuit Judge, concurring:

I concur in Judge O’Scannlain’s opinion but write to elaborate my view of the policies underlying the selective incorporation decision.

First, as Judge O’Scannlain has aptly explained, the rights secured by the Second Amendment are “deeply rooted in this Nation’s history and tradition,” and “necessary to the Anglo-American regime of ordered liberty.” The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.

Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

Third, while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. All weapons are not “arms” within the meaning of the Second Amendment, so, for example, no individual could sensibly argue that the Second Amendment gives them a right to have nuclear weapons or chemical weapons in their home for self-defense. Also, important governmental interests will justify reasonable regulation of rifles and handguns, and the problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.


I tend to agree with Judge Gould on both his first and second reasons for concurring with judge O'Scannlains opinion. After all, who can argue that having an armed population of citizens is not a good defense against both foreign and domestic enemies. It is his third reason that bothers me.

Being of the independent type, I have to question how any possible important governmental interests could ever trump "Shall Not be Infringed".

40 posted on 04/20/2009 5:14:05 PM PDT by An Old Man (Use it up, Wear it out, Make it do, or Do without.)
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To: FrogMom

Don’t worry, Mom, you taught us well.
A lot of us realize the water is getting hotter every day. Armed with that knowledge, we will not hang around long enough to get boiled.


41 posted on 04/20/2009 5:14:27 PM PDT by frog in a pot (Socialism is inconsistent with the Constitution and is one of the "domestic enemies".)
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To: Carry_Okie
Once a right is incorporated under the Constitution against the States under the 14th, the Feds acquire the power to define the extent of that right, the degree to which they may infringe.

Bull


42 posted on 04/20/2009 5:20:03 PM PDT by An Old Man (Use it up, Wear it out, Make it do, or Do without.)
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To: An Old Man
Wishful thinking is never positive.
43 posted on 04/20/2009 5:34:58 PM PDT by Carry_Okie (It's time to waterboard that teleprompter and find out what it knows.)
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To: ml/nj

Nice quote from the Federalist. I hadn’t seen that one before, but with your permission I’ll keep it for further use.


44 posted on 04/20/2009 5:57:23 PM PDT by ALPAPilot
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To: neverdem

These “Judges” have no business giving Americans the OK to Rights that are inherent.

They should have refused comment and ignored the case.


45 posted on 04/20/2009 6:01:42 PM PDT by Radix (We seek Liberty......They give us Debt.)
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To: DustyMoment
...the Second Amendment was written to balance the power of the people against the power of a strong central government.

That is also covered in the opinion.

46 posted on 04/20/2009 6:15:01 PM PDT by Clinging Bitterly (I hope he fails.)
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To: ALPAPilot
with your permission

You hardly need my permission to quote from The Federalist. Just remember that Hamilton was writing before the Second Amendment was proposed.

ML/NJ

47 posted on 04/20/2009 6:16:45 PM PDT by ml/nj
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To: neverdem

WOW!


48 posted on 04/20/2009 6:26:37 PM PDT by Mad_Tom_Rackham (What did Obama's Teleprompter know, and when did it know it...)
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To: RobRoy
Good flick in a cheesy sort of way.

It is one my list of “Movies to watch when the wife is out”.

49 posted on 04/20/2009 6:31:15 PM PDT by redgolum ("God is dead" -- Nietzsche. "Nietzsche is dead" -- God.)
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To: ml/nj

Good one.


50 posted on 04/20/2009 6:46:41 PM PDT by I got the rope
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