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Thread: Mandatory to show ID when OC

  1. #1
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    Mandatory to show ID when OC

    I open carry and have my CHP. I am having trouble finding exactly what the law in Virginia is. If a LEO asks for ID while OC'ing, do you have to show it? I always inform the officer when I am pulled over that I am carrying, but since OC is perfectly legal you shouldnt have to show ID unless suspected of committing a crime? A little help!

    Thanks guys

  2. #2
    Regular Member Fallschirmjäger's Avatar
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    Does Virginia law mandate that you carry identification with you?
    Last edited by Fallschirmjäger; 02-16-2013 at 06:19 PM.

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    Regular Member papa bear's Avatar
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    just letting you know that the showing of ID is a 4thA thing you don't have to do anything.

    you may still be arrested but it won't stick.
    Luke 22:36 ; 36Then said he unto them, But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment, and buy one.

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    i you call a CHP a CCW then you are really stupid. period.

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    Campaign Veteran skidmark's Avatar
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    The CONCEALED CARRY law says you must show your CHP to a LEO on demand, and that you must carry a government-issued photo ID with you and your CHP when you are CCing.

    There is no law about open carry, which is why it is the default condition.

    Virginia does not have a law (state level) requiring you to ID on demand. Some cities/counties do, but most of them have conditions such as "during the hours of darkness" or the like.

    A LEO conducting a non-consensual investigatory stop can demand that you identify yourself, but there is no requirement to produce an ID cocument. Stating your name and place of residence (usually such as X City or Y County) meets the requirement. You may refuse to ID yourself, but you may be invited to visit the local cop shop while they run your fingerprints - and if you had refused to ID yourself they an do that.

    A LEO conducting a consensual encounter may ask you to ID yourself, just as they may ask you for the answer to the ultimate question of life, the universe, and everything. You have no obligation to tell them who you are or that the answer is "42". You may walk away from them without saying anything.

    There is a lot of commentary and case law that needs to be understood to get beyond this very simplistic response. It has been discussed. The search function, wonky as it is, is your friend - especially if you use the "advanced search" option.

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    Re: Mandatory to show ID when OC

    Quote Originally Posted by Fallschirmjäger View Post
    Does Virginia law mandate that you carry identification with you?
    My under standing, is that you only show your I'd, if you are actively ccing, and the cop requests I'd/driving. A cop has to have reasonable ras to have you produce your I'd.

    It is also my understanding, you don't need your I'd or chp, when your Ocing. I'm not a lawyer though, so I may have it wrong.

    Sent from my DROID RAZR using Tapatalk 2

  6. #6
    Campaign Veteran marshaul's Avatar
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    The previous posters have it right.

    Unless you are engaging in licensed behavior (where you must usually show the license and/or photo ID to prove this fact), you don't even need to possess ID, much less show it.

    I don't even have a CHP, and I would never think to allow an officer to see my D/L if I weren't driving. Heck, I "sterile carry" from time to time – carry with no documentation of any sort, whatsoever.

    I'm glad you asked this question rather than making assumptions, but I always wonder where the mentality that one must alway have ID comes from. I remember being really annoyed at the prospect of having identification documents on me once I learned how to drive; I had already learned to appreciate not possessing such things.

    The default state is no documentation of any sort (no ID, no D/L), and no permission needed to exercise your rights.

    Heck, I get annoyed when people try to ID me for alcohol (or tobacco when I used to buy). I'll frequently walk out rather than show ID to buy alcohol, which there is no legal requirement whatsoever that I do (or they ask).
    Last edited by marshaul; 02-16-2013 at 07:34 PM.

  7. #7
    Accomplished Advocate peter nap's Avatar
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    Good question. Skid hit it although I disagree on some fine points.

    Virginia is a Dillon rule state and has no provision requiring ID other than CHP's, Driving, Etc. so any locality that has a Muni can't enforce it. That said, this isn't a perfect world and sometimes it takes time, money and a good lawyer to remind them of that.

    There is a common law that says you must state your name and place of residence (Not address) if demanded by a police officer AFTER DARK.

    There is an easy solution though. User kindly wrote a brillient letter that some of us carry that solves the problem. The Cop won't like it (Which usually gives me a great deal of amusement) but it's hard for him to get around it.


    To Law Enforcement Officers:

    I have been instructed by my attorney not to discuss the facts of any case with anyone other than my attorney unless and until I am given the opportunity to consult with and be advised by my attorney, and to have my attorney present for any statement to be given or interrogation to be conducted: I shall not answer any questions other than for identification. This applies regardless of the nature or duration of the detention or arrest. I do not wish to evade or interfere with any legitimate investigation, nor does my refusal to answer represent any disrespect for you or your office.

    My attorney has also instructed me never to consent to a warrantless search of my person or property, and has instructed me to tell you that there will be absolutely no waiver of the right to see and be served with a warrant in proper form prior to any such search.

    My attorney has warned me, and I understand that, you may determine that this is a situation in which you feel you need to make an arrest; I understand that you may make such an arrest regardless of anything I may tell you. I have further been instructed to submit to your authority fully in the event you do elect to make an arrest. My submission, however, is for the purpose of avoiding unnecessary confrontation, and is neither a waiver of, or done with prejudice to, my rights under applicable civil and criminal laws.

    I am represented by the attorney named below, and that am the client of this attorney for all issues related to the detention, search and seizure of me and my property. I ask that you contact my attorney promptly upon taking me into custody, before any search of my property, and before making any attempt to question me about the facts of any case. Unless you feel you have probable cause to place me into custody at this time, I respectfully request that you advise me that I am free to leave right now.

    My name is: __________________________________________________ ____

    I reside at: __________________________________________________ ______

    My attorney’s name is: ______________________________________________

    My Attorney’s telephone number is: __________________________

  8. #8
    Regular Member Thundar's Avatar
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    Sterile Open Carry

    Back when many police departments in the Commonwealth (especially Norfolk) tried to dissuade open carry activists from open carrying, we did some thing called sterile open carry. It is the act of open carrying a firearm without carrying ID.

    Police could demand all they wanted, but we could not give them what we did not have.

    Be aware that some localities in Virginia have stop and identify laws on the books. This does not mean that you have to carry ID. It means that when a LEO stops you and asks you to identify yourself, you verbally give your name, and in some localities, your address. That does not include your social security number, your facebook account, where you work, or any other stuff they often ask for. I do not think any of these stop and identify laws are legal under the Virginia Constitution, but like I said they are on the books.

    There are specific activities for which ID is required (hunting, fishing driving, etc.). Obviously you must produce your permission slip when engaged in that activity if so asked by LEO.
    Last edited by Thundar; 02-16-2013 at 08:12 PM.
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  9. #9
    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by peter nap View Post
    ...place of residence (Not address)...
    What's the difference?

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    Regular Member Fallschirmjäger's Avatar
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    "My name is Carter Pewterschmidt from Paunxatonny" rather than "Carter Pewterschmidt of 1234 Peon Avenue."
    Last edited by Fallschirmjäger; 02-16-2013 at 08:56 PM.

  11. #11
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    I'm a bit disappointed about the lack of cites in this thread. I expect that from the Michigan or Wisconsin subforum. We're better than that here in VA. C'mon, guys.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

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    Quote Originally Posted by peter nap View Post
    SNIP There is a common law that says you must state your name and place of residence (Not address) if demanded by a police officer AFTER DARK.
    After dark, before dark, if the cop thinks he can arrest you for refusing identity, he's gonna do it.

    Personally, that old common law is repugnant to the Fourth Amendment and void. That common law applied to constables at a time when most folks went to bed at dark. According to attorney User, a current VA statute invests police with the powers of old time constables. But, no statute can transfer an unconstitutional power. Be that as it may, like I said, if the cop wants to arrest you and thinks he can, he's gonna arrest you. This stuff about the common law and constables is gonna be for the pre-trial hearing.
    Last edited by Citizen; 02-16-2013 at 09:24 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  13. #13
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Citizen View Post
    I'm a bit disappointed about the lack of cites in this thread. I expect that from the Michigan or Wisconsin subforum. We're better than that here in VA. C'mon, guys.
    Welllllll...since there are no legitimate stop and ID laws in Va (CHP< DRIVING< ETC aside)

    I can't cite what ain't there.
    But what most Cops try to charge is Obstruction of Justice, so:
    In VA Attorney General Opinion 02-082;
    http://www.vaag.com/Opinions/2002opns/oct02ndx.htm
    in part presents;

    Law-enforcement officer conducting lawful stop to investigate alleged criminal activity may not arrest for obstruction of justice suspect who refuses to identify himself to officer. Depending on circumstances, suspect may be detained for purpose of determining his identity.

    You ask whether a law-enforcement officer, who is engaged in a valid investigative stop of the kind permitted by Terry v. Ohio,1 may arrest a person for obstruction of justice under § 18.2-460(A), when such person refuses to provide information concerning his identity to the officer.

    Section 18.2-460(A) provides:
    If any person without just cause knowingly obstructs a … law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such … law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

    In interpreting a former statute involving the obstruction of an officer performing his duty, the Supreme Court of Virginia has distinguished that which constitutes "obstruction":
    [T]here is a broad distinction between avoidance and resistance or obstruction.… "To constitute obstruction of an officer in the performance of his duty, it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action.… It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed."

    The Court of Appeals of Virginia has held that "obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person’s conduct merely renders the officer’s task more difficult but does not impede or prevent the officer from performing that task."4 In applying § 18.2-460(A), the Court has also determined that providing inconsistent information, even if the information has the effect of frustrating the investigation, is not sufficient to warrant a conviction for obstructing justice.5 Similarly, the Court has held that providing false information is not grounds for a conviction for obstruction of justice.6

    Accordingly, it is my opinion, under the specific facts you have presented, that a law-enforcement officer conducting a lawful investigative stop may not arrest a
    suspect for obstruction of justice under § 18.2-460(A), when the suspect refuses to identify himself to the officer. Depending on the circumstances, however, there may be justification to detain a suspect for the purpose of determining his identity.

    And from the Highly Regarded, Dan Hawes:


    http://forums.opencarry.org/forums/s...p-and-ID/page5

    Originally Posted by Stafford_1911
    Stafford’s ID requirement falls under the loitering ordinance. Specifically Sec 17-7 subsection c http://library.municode.com/index.as...eName=Virginia

    (c) It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself, by name and address, at the request of a uniformed law-enforcement officer or a properly identified law-enforcement officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

    (e) Any person violating any provision of this section shall be guilty of a class 1 misdemeanor.

    Unfortunately it doesn’t seem to imply that RAS necessary outside of being in a publicly accessible place. Just my opinion…..



    There is no authority for that provision, except for the common law requirement that a person "at large in the night-time" identify himself to the "constable". That requirement originated in a statute of Edward I in the early Thirteenth Century, and was modified during the Fifteenth Century as part of the anti-vagrancy campaign necessitated by unusually hard times. What's that got to do with us, you ask? There's a statute that says that a police officer (note that it's specific to police officers, does not include LEO's generally, or the sheriffs in counties that have no police dept.*) has all the powers of the high constable as at common law. The common law of England as it existed in 1607 (third year of the reign of James I - founding of Jamestown) is the basis of Virginia law - Va Code §§ 1-200 & 1-201.
    Now you ask, "What does some musty old English Law have to do with Virginia?"

    The start of the Code of Virginia:
    Code of Virginia:

    § 1-200. The common law.

    The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.

    (Code 1919, § 2, § 1-10; 2005, c. 839.)

    § 1-201. Acts of Parliament.

    The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly.

    (Code 1919, § 3, § 1-11; 2005, c. 839.)
    Last edited by peter nap; 02-16-2013 at 09:37 PM.

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    Re: Mandatory to show ID when OC

    Quote Originally Posted by Citizen View Post
    I'm a bit disappointed about the lack of cites in this thread. I expect that from the Michigan or Wisconsin subforum. We're better than that here in VA. C'mon, guys.
    Just used what I found out doing the search function.

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    Regular Member TFred's Avatar
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    From Peter Nap's quote of a cite of the Stafford County ordinance above:

    "if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification."

    To the best of my knowledge, each and every local Stop and ID ordinance has this or a substantially similar provision. Unfortunately, you as a person walking down the street may not be aware of these reasonable surrounding circumstances, and the LEO is not obligated to share them with you, but for what it's worth, I don't believe any locality in Virginia permits a LEO to arbitrarily stop you and demand that you identify yourself. Of course, this is a loophole big enough to drive a truck through... but such is the nature of law enforcement today.

    The only cite to this is the full set of local ordinances from each county, city and town in Virginia, which would take a significant amount of time to sift through for a definite answer. I've looked at about a half a dozen Stop and ID ordinances, and each one I've seen has the "surrounding circumstances" type provision.

    TFred

    ETA: Of course.... if you are being a good little OC'er, then you have your digital voice recorder running during the entire encounter, and there is certainly no reason you cannot ASK the LEO what their "surrounding circumstance for public safety" is that requires you to identify yourself... I'd doubt they would be prepared to answer that, and a recording of the dialog may very well indicate that they are making stuff up. This would certainly make itself useful in communicating the situation to the officers superiors.
    Last edited by TFred; 02-17-2013 at 01:46 AM.

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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    Does Virginia law mandate that you carry identification with you?
    No.

    Are there states that do this? What happens if you are jogging or swimming, or just talking a walk through your neighborhood?
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    Regular Member USNA69's Avatar
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    On Foot ... Or in a Vehicle?

    Fellow OCers,

    Much good advice has been given regarding identifying oneself while OCing on foot.

    However, I am not sure that the OP was asking about that. Recall that he wrote:
    "I always inform the officer when I am pulled over that I am carrying, but since OC is perfectly legal you shouldnt have to show ID unless suspected of committing a crime?"


    "... when I am pulled over ..." implies that he was asking us what he should do about identifying himself during a vehicle stop while OCing.

    Did I misread his question?

  18. #18
    Regular Member HearseGuy's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    "My name is Carter Pewterschmidt from Paunxatonny" rather than "Carter Pewterschmidt of 1234 Peon Avenue."
    High five for the Family Guy reference!!!!!!!!

  19. #19
    Accomplished Advocate user's Avatar
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    Regardless of abstractions of law or what may be good arguments in defense, my general advice is, never pull out any kind of documentation unless you're doing something that requires it (fishing, driving, being a legal immigrant, etc.); however it is always best to go ahead and identify yourself, which means tell them your name and where you live. I would volunteer the street address, though it's not required.

    There are some criminal offenses for which one might be arrested and taken to jail if he refuses to give his name and address; but if he does supply his name and address, he can, and must, be released on a summons. The statute that says that does not say that one must produce documentation. Va. Code § 19.2-74.
    Last edited by user; 02-17-2013 at 10:27 AM.
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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Accomplished Advocate user's Avatar
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    Quote Originally Posted by USNA69 View Post
    Fellow OCers,

    Much good advice has been given regarding identifying oneself while OCing on foot.

    However, I am not sure that the OP was asking about that. Recall that he wrote:
    "I always inform the officer when I am pulled over that I am carrying, but since OC is perfectly legal you shouldnt have to show ID unless suspected of committing a crime?"


    "... when I am pulled over ..." implies that he was asking us what he should do about identifying himself during a vehicle stop while OCing.

    Did I misread his question?
    I tell people never talk about the gun; make no reference to it, don't touch it, don't gesture towards it, don't call any attention to it, and treat it the same as any other part of what one is wearing. That's my suggestion whether one is OC or CC. And naturally, if one is driving, he has to produce an operator's permit and registration card, but that's because he's operating a motor vehicle, not because of the gun. (And one must also produce proof of insurance for the vehicle involved in a collision upon demand of the investigating officer or within thirty days thereof.) If one is hunting, he must produce a hunting license; fishing; etc.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by USNA69 View Post
    Fellow OCers,

    Much good advice has been given regarding identifying oneself while OCing on foot.

    However, I am not sure that the OP was asking about that. Recall that he wrote:
    "I always inform the officer when I am pulled over that I am carrying, but since OC is perfectly legal you shouldnt have to show ID unless suspected of committing a crime?"


    "... when I am pulled over ..." implies that he was asking us what he should do about identifying himself during a vehicle stop while OCing.

    Did I misread his question?
    I think this has basically already be accounted for.

    Yes, driving does add the requirement that you must present a driver's license when asked. That's it, though. It doesn't mean you have to have, or show, a CHP, for instance. You can OC in your car in Virginia, with no permit, and it's not necessary to say a word about it to an officer.

  22. #22
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by marshaul View Post
    I think this has basically already be accounted for.

    Yes, driving does add the requirement that you must present a driver's license when asked. That's it, though. It doesn't mean you have to have, or show, a CHP, for instance. You can OC in your car in Virginia, with no permit, and it's not necessary to say a word about it to an officer.
    One thing that hasn't been mentioned and something my wife starts her "Who is this man" backpeddle when someone asks for my drivers license as ID....

    A Drivers License is a License to Drive, not ID! DMV does sell an ID but I don't have one. When someone insists I show ID, I give them my General Assembly ID which is issued by THE Government.
    That always causes some confusion.

  23. #23
    Regular Member paramedic70002's Avatar
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    Politely inquire, "Am I being detained? Am I free to leave?"

    Repeat as necessary. Absent an affirmative answer to the first question or a negative answer to the second, feel free to walk away.
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

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    Paramedics With Guns Scare People!

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    Quote Originally Posted by paramedic70002 View Post
    Politely inquire, "Am I being detained? Am I free to leave?"

    Repeat as necessary. Absent an affirmative answer to the first question or a negative answer to the second, feel free to walk away.
    In a non-consensual encounter, you are being detained, so ask "Why am I being detained?".
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

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    Quote Originally Posted by 2a4all View Post
    In a non-consensual encounter, you are being detained, so ask "Why am I being detained?".
    Also, we've seen a number of reports of cops dodging that question.

    I'm a big fan of throwing the legal onus on them. "Officer, no offense. I know you're just doing your job; but I do not consent to an encounter with you." From that point forward, they must have legal justification to make you stay.

    If they continue the encounter, I plan on repeating, "Officer, I wish to be released from this detention immediately."
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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