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Thread: Common Council Meeting Agenda - Final September 16, 2008

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    Founder's Club Member springfield 1911's Avatar
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    Sponsors:
    Thomas Friedel
    J. Ordinances

    Ord.13-08
    To repeal and recreate Sec. 66-57 and to amend Sec. 66-58 of the
    Municipal Code of the City of Racine, Wisconsin relating to Possession or
    Discharge of Weaponry; Concealed Weapon - Possessing dangerous
    weapon.
    The Common Council of the City of Racine do ordain as follows:
    Part 1:
    Section 66-57 of the Municipal Code of the City of Racine is hereby
    repealed and recreated to read as follows:
    "Sec. 66-57. Concealed weapon.
    No person other than a bona fide peace office may go armed with a
    concealed and dangerous weapon, except for retired law enforcement
    officers licensed under HR 218 (Law Enforcement Officers Safety Act)."
    Part 2:
    Sec. 66-58 of the Municipal Code of the City of Racine is hereby amended
    by adding the following sentence at the end of the paragraph: "Also this
    section shall not apply to retired law enforcement officers licensed under
    HR 218 (Law Enforcement Officers Safety Act)."
    Part 3:
    This ordinance shall take effect upon passage and the day after publication.
    Passed by the Common Council:



    Below laws on the books for city of Racine


    ARTICLE III. POSSESSION OR DISCHARGE OF WEAPONRY*

    __________

    *Cross references: Carrying weapons prohibited in parks and recreation areas, § 70-79.

    State law references: Weapons, Wis. Stats. § 941.20 et seq.

    __________


    Sec. 66-56. Definitions.

    The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

    Bona fide peace officer means any person specifically employed as a law enforcement officer as defined by Wis. Stats. § 165.85(2)(c).

    Dangerous weapon means any instrument which by its capabilities of use is liable to produce death or great bodily harm. The following are dangerous per se: Blackjack; billy; sandclub; sandbag; bludgeon; slingshot; pistol; revolver; any instrument which impels a missile by compressed air, spring or other means; any weapon upon which loaded or blank cartridges are used; cross knuckles; knuckles of any metal, barbed or blade type; arrowhead; bowie knife; dirk knife; dirk dagger; any knife which has a blade that may be drawn without the necessity of contact with the blade itself but is instead automatically opened by slight pressure on the handle or some other part of the knife and is commonly known as a switchblade knife, straightedge razor or any knife having a blade three inches or longer; weapons known as kung fu sticks or chucksticks which are basically two or more pieces of wood or other material connected by a piece of chain or other material. Instruments not specifically enumerated in this definition are nonetheless dangerous weapons when they fall within the terms of this definition.

    Public place means any area in which the person does not have a reasonable expectation of privacy.

    (Code 1973, §§ 25.02.010(b), 25.02.030)

    Cross references: Definitions generally, § 1-2.

    Sec. 66-57. Concealed weapon.

    No person except a bona fide peace officer may go armed with a concealed and dangerous weapon.

    (Code 1973, § 25.02.010(a))

    Sec. 66-58. Possessing dangerous weapon.

    Unless otherwise provided by law, no person, except a bona fide peace officer, shall be found at or upon any public place in the city carrying or having within his reach any dangerous weapon, whether concealed or in plain view. "Plain view" within the meaning of this section does not include weapons carried in a case which does not permit immediate access to such weapons. Uniformed private security guards approved by the chief of police and while on duty are exempt from the prohibition against carrying weapons in plain view. This section shall not apply to persons engaged in the manufacturing of firearms under authority of a federal firearms license. Also, this section shall not apply to persons who are acting in accordance with the provisions of a plan approved by the chief of police under conditions which the chief has determined require the possession and discharge of specified weapons for a particular purpose in the interest of public safety.

    (Code 1973, § 25.02.020; Ord. No. 28-93, pt. 1, 11-16-93)

    Sec. 66-59. Discharge of weapon.

    Unless otherwise provided by law or by section 66-58, no person shall fire or discharge any air gun, pellet gun, spring gun, firearm, sling, slingshot or crossbow within the city limits, except where necessary in the manufacture or testing of weapons by a person operating under a class 1, type 6 or type 7 federal firearms license.

    (Code 1973, § 25.02.040; Ord. No. 28-93, pt. 2, 11-16-93)

    Sec. 66-60. Display of firearms.

    No person shall display a firearm in or upon any public place or in or upon any private premises without the permission of the owner. For purposes of this section, display shall mean the exhibition, showing or placing in the view of other persons and shall include displaying the entire firearm or any portion thereof. Display shall not include firearms carried in a case. This section does not apply to peace officers or armed forces or military personnel who go armed in the line of duty or to any person duly authorized by the chief of police to display firearms.

    (Ord. No. 33-95, pt. 1, 12-19-95)

    Secs. 66-61--66-80. Reserved.



    __________
    Sec. 70-79. Carrying weapons.

    No person, except a police officer or any other law enforcement officer, shall carry any firearm, slingshot, cross knuckles of lead, brass or other metal, bowie knife, dirk knife, dirk or dagger, or any other dangerous or deadly weapon or explosives upon any of the premises under the jurisdiction of the board of parks, recreation and cultural services.

    (Code 1973, § 7.05.040)

    Cross references: Regulations regarding possession or discharge of weapons, § 66-56 et seq.

    State law references: Concealed weapons, prohibited, Wis. Stats. § 941.23.



    ARTICLE II. DISORDERLY CONDUCT

    Sec. 66-31. Prohibited acts.

    No person shall, in a public or private place, engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.

    (Code 1973, § 25.01.010)

    State law references: Similar provision, Wis. Stats. § 947.01.
    http://www.youtube.com/watch?v=zJQ34JTqk0I

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    66.0409 Local regulation of firearms. (1) In this section:
    (a) “Firearm” has the meaning given in s. 167.31 (1) (c).
    (b) “Political subdivision” means a city, village, town or
    county.
    (c) “Sport shooting range” means an area designed and operated
    for the practice of weapons used in hunting, skeet shooting
    and similar sport shooting.
    (2) Except as provided in subs. (3) and (4), no political subdivision
    may enact an ordinance or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keeping,
    possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, including
    ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.

    (3) (a) Nothing in this section prohibits a county from imposing
    a sales tax or use tax under subch. V of ch. 77 on any firearm
    or part of a firearm, including ammunition and reloader components,
    sold in the county.
    (b) Nothing in this section prohibits a city, village or town that
    is authorized to exercise village powers under s. 60.22 (3) from
    enacting an ordinance or adopting a resolution that restricts the
    discharge
    of a firearm.
    (4) (a) Nothing in this section prohibits a political subdivision
    from continuing to enforce an ordinance or resolution that is in
    effect on November 18, 1995
    , and that regulates the sale, purchase,
    transfer, ownership, use, keeping, possession, bearing,
    transportation, licensing, permitting, registration or taxation of
    any firearm or part of a firearm, including ammunition and
    reloader components, if the ordinance or resolution is the same as
    or similar to, and no more stringent than, a state statute.
    (am) Nothing in this section prohibits a political subdivision
    from continuing to enforce until November 30, 1998, an ordinance
    or resolution that is in effect on November 18, 1995, and
    that requires a waiting period of not more than 7 days for the purchase
    of a handgun.
    (b) If a political subdivision has in effect on November 17,
    1995, an ordinance or resolution that regulates the sale, purchase,
    transfer, ownership, use, keeping, possession, bearing, transportation,
    licensing, permitting, registration or taxation of any firearm
    or part of a firearm, including ammunition and reloader components,
    and the ordinance or resolution is not the same as or similar
    to a state statute, the ordinance or resolution shall have no legal
    effect and the political subdivision may not enforce the ordinance
    or resolution on or after November 18, 1995.
    (c) Nothing in this section prohibits a political subdivision
    from enacting and enforcing a zoning ordinance that regulates the
    new construction of a sport shooting range or when the expansion
    of an existing sport shooting range would impact public health and
    safety.
    (5) A county ordinance that is enacted or a county resolution
    that is adopted by a county under sub. (2) or a county ordinance
    or resolution that remains in effect under sub. (4) (a) or (am)
    applies only in those towns in the county that have not enacted an
    ordinance or adopted a resolution
    under sub. (2) or that continue
    to enforce an ordinance or resolution under sub. (4) (a) or (am),
    except that this subsection does not apply to a sales or use tax that
    is imposed under subch. V of ch. 77.
    History: 1995 a. 72; 1999 a. 150 s. 260; Stats. 1999 s. 66.0409.
    This section does not prohibit municipalities from enacting and enforcing zoning
    ordinances that apply to sport shooting ranges. Town of Avon v. Oliver, 2002 WI App
    97, 253 Wis. 2d 647, 644 N.W.2d 260, 01−1851.

    ETA: various emphases

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    Founder's Club Member springfield 1911's Avatar
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    Doug my problem is with these two ordinances, they don't convey that open carry is legal as long as your not restrictedfrom possessing a firearm.
    And the use of the words public place
    Public place means any area in which the person does not have a reasonable expectation of privacy.

    Sec. 66-58. Possessing dangerous weapon.

    Unless otherwise provided by law,(the right to open carry of firearms prohibits ccw from being found unconstitutional)no person, except a bona fide peace officer, shall be found at or upon any public place in the city carrying or having within his reach any dangerous weapon, whether concealed or in plain view. "Plain view" within the meaning of this section does not include weapons carried in a case which does not permit immediate access to such weapons. Uniformed private security guards approved by the chief of police and while on duty are exempt from the prohibition against carrying weapons in plain view. This section shall not apply to persons engaged in the manufacturing of firearms under authority of a federal firearms license. Also, this section shall not apply to persons who are acting in accordance with the provisions of a plan approved by the chief of police under conditions which the chief has determined require the possession and discharge of specified weapons for a particular purpose in the interest of public safety.

    (Code 1973, § 25.02.020; Ord. No. 28-93, pt. 1, 11-16-93)

    Sec. 66-60. Display of firearms.

    No person shall display a firearm in or upon any public place or in or upon any private premises without the permission of the owner. For purposes of this section, display shall mean the exhibition, showing or placing in the view of other persons and shall include displaying the entire firearm or any portion thereof. Display shall not include firearms carried in a case. This section does not apply to peace officers or armed forces or military personnel who go armed in the line of duty or to any person duly authorized by the chief of police to display firearms.

    (Ord. No. 33-95, pt. 1, 12-19-95)

    Secs. 66-61--66-80. Reserved.

    Doug all I'm thinking is that any member on this board can clairify the two ordinances why couldn't the common council ?
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    In the ashes burns an ember of liberty, We are the fuel to ignite the ember into a flame of liberty.

    The embodiment of our founding fathers will not be found in one man , But in Many.

    ****** give it away ( Our rights ) prostitutes sell it (Mandated training).

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    I don't know how a single council member could change for clarification an ordinance. It should take the action of at least the majority of the group.

    The failure here is of corporate council to allow an unconstitutional preempted ordinance to be enacted in the first place.

    It is tax money wasted and good money will chase the bad in defending/repealing the ordinance.

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    The Common Council of the City of Racine do ordain as follows: Part 1: Section 66-57 of the Municipal Code of the City of Racine is hereby repealed and recreated to read as follows: "Sec. 66-57. Concealed weapon. No person other than a bona fide peace office may go armed with a concealed and dangerous weapon, except for retired law enforcement officers licensed under HR 218 (Law Enforcement Officers Safety Act)."
    Whether this is more or less stringent than state statute in adding LEOSA and omiting 941.23 (Notwithstanding s.939.22 (22), for purposes of this section, peace officer does not include a commission warden who is not a state−certified commission warden.) is at least a matter for a court.

    Sec. 66-58. Possessing dangerous weapon.

    Unless otherwise provided by law, no person, except a bona fide peace officer, shall be found at or upon any public place in the city carrying or having within his reach any dangerous weapon, whether concealed or in plain view.
    Clearly prempted because "no political subdivision may enact an ordinance or adopt a resolution that regulates the [ ...], use, keeping, possession, bearing, transportation, of a firearm [ ...] unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute."

    Sec. 66-60. Display of firearms.

    No person shall display a firearm in or upon any public place or in or upon any private premises without the permission of the owner. For purposes of this section, display shall mean the exhibition, showing or placing in the view of other persons and shall include displaying the entire firearm or any portion thereof.
    'Display' is word-games for preempted regulation of "ownership, use, keeping,
    possession,
    ..." And that of private premises too!


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    66.0409


    no political subdivision
    may enact an ordinance or adopt a resolution that regulates
    the sale, purchase, purchase delay, transfer, ownership, use, keeping,
    possession, bearing, transportation, licensing, permitting,
    registration or taxation of any firearm or part of a firearm, including
    ammunition and reloader components, unless the ordinance or
    resolution is the same as or similar to, and no more stringent than,
    a state statute.


    In regards to this post the operative words in the above statute are: Use, Keeping, Possesion, Bearing.

    It is my opiniuon that only Racine's orinances 66-57 Prohibition of concealed weapons, 66-59 The discharge of weapons. and 66-31 The disorderly conduct ordinance are enforcable. 66-57 is questionable in that it makes an exception for retired cops whereas the SSC has ruled that the state statute prohibiting concealed weapons applies to active duty cops. The SSC also commented that there are no legislature allowed exceptions to the prohibition of concealed weapons. The courts will have to decide if Racine's exception of retired cops is less restrictive than State Law and if HR-218 provides a legitimate legislative exception to 941.23.

    66.58 is definitely not enforcable for at least two reasons. First it is a restriction on the possesion, use and bearing of a firearm in violation of ss66.0409. Second: It prohibits both concealed and visible carry of a firearm which is in total disregard of the SSC ruling in Hamdan that the state must provide a manner of carry as constitutionaly required by Article I section 25.

    66-60 is unenforcable for the same possesion, use and bearing restrictions as listed in my comments concerning 66-58.

    70-79 is unenforcable because it adds locality restrictions that do not appear in State statutes.




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    Lammie-

    Could you expand on your comment that the CCW prohibition applies to active duty cops? Do you mean that the exception applies to active cops? I'm just curious, as I think I missed your point.

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    Sorry for the confusion. What I was trying to convey is that The concealed weapon statute applies only to active peace officers. that is those engaged in law enforcement as a profession and currently active in it. Retired cops have no more law enforcement authority than a private citizen and in my opinion are are not entitled to any special firearm carry privleges just because they are ex-cops.

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    So eliminate the infringement of training. Follow the money.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    Can you, will you perform the separation as concisely as you assert it?

    The COTUS BoR 2A says "shall not be infringed" WiC I, 25 says "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Neither yap about training or money, QED.

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    Re 'teacher' and 'profession'; "Them what can, do. Them what can't, teach."

    It has nothing to do with enriching. It has nothing to do with what 'you know', child. It has nothing to do with the privilege of motorcycling. It has nothing to do with the nasty repugnant ass.

    It has to do with the principle, "shall not be infringed.' It has to do with equality.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    Pointman wrote:
    The argument from those who support LEOSA is the officers must keep up on their training and qualifications after retirement. The thought is free training will be part of their retirement package, where as non-officers would have to pay the department in order to get the training and take the qualification, at approximately six-month intervals, IF they allowed non-officers to get the training in the first place (they don't). So it becomes an officer-only plan.

    The truth is that WI police departments choose not to issue the LEOSA identification cards (which most officers don't seem to know about for some reason). The officers therefore can't carry a concealed weapon, because they have no ID. This becomes a situation where you have a privilege while you're a government employee, but not when you retire. Unfortunately for the retired officer, should someone they arrested and testified against see them, they'll be defenseless. This creates a high-risk situation for an older generation. Of course, the argument to that is that the entire population of WI gets placed in the same type high-risk situation by not being able to defend themselves either.

    So a person would think that officers would support open carry, and push for concealed carry. The ones I talked to worry about not being able to carry because of ex-wives filing restraining orders against them (and therefore disarming them), and once I mention the lack of LEOSA ID cards, they are noticeably concerned. Like the bus drivers, their solution is to get another exception for themselves only, "because the rest of society can't be trusted to have guns," to which I reply, "Hmmm. That's worked for disarming the criminal element, hasn't it?"
    Are you saying that no Wisconsin police departments issue the LEOSA cards?

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    Here is a letter that may be of interest.

    Letter:
    May 23, 2005
    Senator Dave Zien
    Senator Dale Schultz
    Senator Tom Reynolds
    Representative Don Friske
    Representative Mike Huebsch
    Representative Scott Gunderson
    Representative Scott Suder
    Representative Mark Gundrum

    Dear Senators and Representatives:

    I received what appears to be your formal position on the implementation on HR 218 (the Law Enforcement Officers Safety Act of 2004). Your letter and the memo from Ronald Sklansky from the Legislative Council is in agreement with the positions that I identified in my original letter to the Legislature in November of 2004. In that letter, I indicated that "this Act’s preemption of state and local concealed carry prohibitions is self-executing and can take effect without any action by state or local officials, as long as the individual police officer or retiree in question meets all the requirements of the Act, including possession of the required credentials."
    The issue with the implementation of this Act in a fair and equitable manner to all individuals involved is not whether an agency is authorized to issue the credentials. Clearly they are, and I have said that since its inception. The issue is that local jurisdictions might well not provide the training and issue necessary credentials, as they will be concerned about potential liability. If this is left, as you have suggested, without state legislation or direction some agencies may chose to comply but many will not upon the sound advice of their legal counsel.
    Your letter suggests that you are requesting that I advise the appropriate officials to comply with federal law. I am surprised that you would take the position that this burden ought to be shifted to local law enforcement. I’m further astonished that you would feel that the Attorney General or any other elected state official could compel compliance with a Federal law, especially one that doesn’t appear to compel any action whatsoever.
    It continues to be my position that this Federal Act ought to be implemented in Wisconsin in a fair and equitable fashion. To accomplish that, legislation is needed to allow for development of a state level training standard for retired officers, authorize a state level agency to issue permits, and provide for funding for the program. Without these actions or some method of addressing the liability concerns of local jurisdictions, it is not likely that HR 218 will be implemented in Wisconsin in a consistent fashion that will be fair to all retirees.

    Very truly yours

    Peggy A. Lautenschlager
    Attorney General

    cc: Wisconsin Professional Police Association
    Badger Sheriffs Association
    Wisconsin Chiefs of Police Association
    Wisconsin Troopers Association
    Wisconsin District Attorney’s Association
    Milwaukee Police Association


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    My interpretation of what the AG is saying in the letter I posted is:

    There is no State level oversight of HR-218 (LEOSA) in regards to qualifications, training, licensing and funding. Those issues rest with local law enforcement. Many local law enforcement departments are not issuing LEOSA ID Cards because of fear of legal litigation. Also because the establishment of qualification, training, licensing and funding rests with LLE there is no standarization of those requirements. The AG is also saying that legislative activity is needed to provide State level standards. The AG also comments that if the legislature does not provide standarization it is unlikely that HR-218 can be effectively implemented.

    To me there are a number of questions regarding the implementation of HR-218. Most important is the concealed weapon prohibition statute 941.23. The AG says that it is preempted by HR-218. I disagree with that. In Hamdan the State Supreme Court stated that the legislature has made 941.23 a strict liability statute with no exceptions, including even the activities contained in the constitutional amendment Article I section 25. In other words in the eyes of the SSC only a peace officer can carry a concealed weapon. It would seem to me that the legislature would have to declare retired cops as peace officers or modify 941.23 to include retired cops.

    Next is a jurisdiction problem. For instance: If two bordering law enforcement agencies have different procedures concerning LEOSA. One has a training program, list of qualifications and issues licenses and the other agency does not because of fear of liability. Is a retired cop that is issued an ID card in the first locality authorized to conceal carry in the second locality? The AG says that LEOSA is administered by local law enforcement. Therefore one can't presume that an LEOSA ID issued by one agency is valid statewide.

    HR-218 says that active and retired cops must have an ID card issued by the State they reside in. Wisconsin has no such ID issuing capability at the state level so does an ID card issued by a local law enforcement agency meet the requirements under federal law for a state issued ID card?

    These are just a few of the questions I have.

    Interesting State by State info on LEOSA can be found at
    http://www.handgunlaw.us Scroll down to CCW/Carry related links

    Hawaii is especially interesting.

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    It sure would be nice if there was an easier way to become aware of something like this before they happen... I had no idea this was happening, not that this ordinance seems to change anything for a normal citizen... but still, it happened in less than 3 weeks from start to finish. There was no talk of discussion with the PD (maybe there was)...

    Proposed to Common Council on 9-16-08, Referred to Public Safety and Licensing Committee (bottom of page 27)

    08-2697 Recommended for Approval on 9-22-08 (top of page 4)

    08-2697 Voted on and Approved on 10-7-08 (bottom of page 15)


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    I guess membership really DOES have privileges...
    I aim to misbehave

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    Gold Cards. Gold Card privileges.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    They can codify locally to their heart's content.

    66.0409 is the arbiter as to whether it was worth their time or not.

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    It depends on if an extra-legal prosecution is, for you, worth fighting. You can be cited and prosecuted under a local and pre-empted ordinance and you won't be allowed IANAL to argue it.

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    Doug Huffman wrote:
    It depends on if an extra-legal prosecution is, for you, worth fighting. You can be cited and prosecuted under a local and pre-empted ordinance and you won't be allowed IANAL to argue it.
    Not sure I quite follow your syntax... Surely you're not saying that I couldn't contest that in municipal court; that's not the case.

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    I am not a lawyer but I think that you will be allowed to only argue the present facts and evidence. The law and its application belongs to the judge and jury.

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    If you could argue State preemption, could you argue the State Constitution, could you argue the Second Amendment. What is the rule that would allow arguing law beyond the jurisdiction of the particular court?

    "Argue" meaning 'defend with'.

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