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Thread: McDonald verdict implications

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    McDonald verdict implications

    If I understand it correctly no govt entity can make a law prohibiting my RTKABA. Assuming a person has no CHL and isn't governed by those rules and regs. he could conceivably OC (the bearing part comes into play here) as long as he hasn't and doesn't intend to commit a crime.

    I know under current Tx law he would still be charged with a crime but wouldn't he get off eventually? If so, does this mean the state can be hit with a civil suit? Not to mention the agency effecting the arrest?

    Also, what are the chances of getting the charges dropped during the first trial as opposed to having to go thru the appeals proccess?

    If someone knows the right lawyer who will do this pro-bono or on a contingency I'll volunteer to be the test case. After my bills are paid all money won from the lawsuit will be given to some sort of charity.

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    Campaign Veteran skidmark's Avatar
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    If I understand it correctly no govt entity can make a law prohibiting my RTKABA.
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texicans, the law prohibiting OC is good law, even under McDonald.

    Keep pushing for a change in the legislation.

    stay safe.

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    Quote Originally Posted by skidmark View Post
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texicans, the law prohibiting OC is good law, even under McDonald.

    Keep pushing for a change in the legislation.

    stay safe.
    I don't know, but I'm not sure prohibition qualifies as a reasonable restriction on a right. I think, with the correct lawyers, it might make for an interesting case. It would be expensive, that's for sure.

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    alot of people are trying to say that the CHL is a reasonable restriction, however, there is supreme court precedent that tells the states that they may not charge a license, fee, or tax for a right that is protected by the constitution.

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    Quote Originally Posted by skidmark View Post
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texans, the law prohibiting OC is good law, even under McDonald.

    Keep pushing for a change in the legislation.

    stay safe.
    Specific cite to Heller/McDonald please. The Brady Campaign et al would have us believe that 'reasonable restrictions' on the excercise our 2A rights are permissible under Heller/McDonald (beyond being a prohibited person, concealed carry, and in certain 'sensitive government' places).

    I don't believe that to be the case with respect to OC outside the home. The Heller Decision was very narrowly focused on specific questions of law leaving OC outside the home undecided. The Heller dicta, however, strongly hinted that bearing arms for self-defense (i.e. OC outside the home) was also part and parcel of the core right. The Court just didn't specifically say so in their holding (which is the legally binding part of the decision).

    A word of caution to the original poster . . . don't OC in Texas. You will be arrested and probably not have the Gura all-star team come to your rescue. 'Keep pushing for legislation' is indeed the best advice. It could take years of litigation before the Supreme Court answers the question of whether or not bearing arms outside of the home is protected. Meanwhile, the quickest fix to the OC problem in Texas is the legislative process.
    Last edited by OC4me; 12-03-2010 at 12:39 PM.

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    McDonald cite...


    We made it clear in
    Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying
    of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
    Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.
    (pg. 39-40 Majority Opinion of Alito)

    This quote from the majority is and will be the crux of many lawsuits against states and cities. It is my opinion that SCOTUS left only these three areas available for state/municipal regulation. (Also, please note, no where does it say 'reasonable regulation'. It would be to the gun owners side to correct anyone who uses the word reasonable with the above cite.)

    Therefore, the prohibition of OC in Texas should be struck down, either by legislative means because it fails to meet one of the three criteria above or by an avenue through the courts. Albeit, a battle through the courts would be more costly and always risks an outcome that is undesired and may have unforseen consequences. Unless you have SAF and Alan Gura available it would be unwise to OC in Texas at this time.
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    Quote Originally Posted by skidmark View Post
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texicans, the law prohibiting OC is good law, even under McDonald.

    Keep pushing for a change in the legislation.

    stay safe.
    You are correct to a point. But McDonald incorporated my right to BEAR arms. If I'm not CCing then my right to OC is now protected 100% is it not?
    Quote Originally Posted by Notso View Post
    I don't know, but I'm not sure prohibition qualifies as a reasonable restriction on a right. I think, with the correct lawyers, it might make for an interesting case. It would be expensive, that's for sure.
    This eludes to a thought I had late last night. There is a very rich man that loves to fight for the rights of the people and piss off as many crooked polititions as possible. This man has been in and out of jail for years because of it. Admittedly he's more of a 1st amendment kinda guy and I'm not sure what his take on gun control is considering he's wheelchair bound due to a lone gunman but has anyone thought about writing Larry Flynt to see how interested he'd be in helping?
    Quote Originally Posted by DKSuddeth View Post
    alot of people are trying to say that the CHL is a reasonable restriction, however, there is supreme court precedent that tells the states that they may not charge a license, fee, or tax for a right that is protected by the constitution.
    He speaketh the truth.

    Quote Originally Posted by gogodawgs View Post
    (pg. 39-40 Majority Opinion of Alito)

    This quote from the majority is and will be the crux of many lawsuits against states and cities. It is my opinion that SCOTUS left only these three areas available for state/municipal regulation. (Also, please note, no where does it say 'reasonable regulation'. It would be to the gun owners side to correct anyone who uses the word reasonable with the above cite.)

    Therefore, the prohibition of OC in Texas should be struck down, either by legislative means because it fails to meet one of the three criteria above or by an avenue through the courts. Albeit, a battle through the courts would be more costly and always risks an outcome that is undesired and may have unforseen consequences. Unless you have SAF and Alan Gura available it would be unwise to OC in Texas at this time.
    I again refer to the BEAR ARMS part. You sir put my thoughts down much better than I could word it.

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    Campaign Veteran skidmark's Avatar
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    @gogodawgs - thanks for pulling up the cite.

    Unfortunately, the issues and places mentioned are not the only circumstances/places where restrictions can be imposed.

    At this time the government can state a "reasonable" reason and show that there are other, alternative means of exercising the right. Such as Texas allowing concealed carry but not allowing OC.

    And mea culpa for using that word "reasonable. See what can happen if you hear some lie often enough? I will administer 2 lashes with a wet noodle as pennance. OK?

    @notso - I think you read my comment backwards. I agree that a complete prohibition on RKBA is not allowed. but at this time it appears that "some" restriction is still considered permissable.

    @DKSuddeth - Are you suggesting that there is a "right" to a CHL? Or are you suggesting that since CCW is the only way for Texans to execise their RKBA that the "tax" imposed is unconstitutional?

    stay safe.

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    Quote Originally Posted by skidmark View Post
    @gogodawgs - thanks for pulling up the cite.

    Unfortunately, the issues and places mentioned are not the only circumstances/places where restrictions can be imposed.

    At this time the government can state a "reasonable" reason and show that there are other, alternative means of exercising the right. Such as Texas allowing concealed carry but not allowing OC.

    And mea culpa for using that word "reasonable. See what can happen if you hear some lie often enough? I will administer 2 lashes with a wet noodle as pennance. OK?
    No, SCOTUS left only those 3 items subject to restriction. You will be able to pull up no further cites from all 214 pages of McDonald.

    While the scope of McDonald is limited, the next set of cases that come to the Court under the McDonald banner will determine the scrutiny in which a state or local law must meet to pass muster. Those of us on the side of firearms will surely hope for 'strict' scrutiny as it limits the government the most. It is likely that this will be the case as the majority as penned into stare decis the aspect that using a firearm for self protection is a fundamental right to the nations ordered scheme of liberty.
    (McDonald pgs. 5, The Court is correct in describing the Second Amendment right as "fundamental" to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and "deeply rooted in this Nation’s history and traditions," Washington v. Glucksberg, 521 U. S. 702, 721. )


    Examining the 1st Amendment and other fundamental rights (race, sex) that the Court has deemed fundamental, the use of strict scrutiny is the only conclusion that the court can use.


    To pass strict scrutiny, the law or policy must satisfy three prongs:

    First, it must be justified by a compelling governmental interest. While the Courts have never brightly definded how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

    Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

    Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

    There is no compelling government intrest to preserve CC only in Texas. This will merely be struck down based on the 43 states that allow OC. Remember that the 2A is now incorporated against the states. Texas law simply prefers CC to OC.

    It will be an easy argument to make that forcing a citizen to carry only concealed will not be the least restrictive means. There are numerous strong arguments for Texas; i.e. heat, clothing that factually conclude that it is more restrictive than OC.


    Last edited by gogodawgs; 12-03-2010 at 02:10 PM.
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    Quote Originally Posted by mustangkiller View Post
    but wouldn't he get off eventually?
    The notion that, in America, justice will eventually win out is comforting, traditional, pervasive, and entirely without justification or merit. It directly causes reverence of and deference to law enforcement, expansion of government power, and stupid people having children. This sentiment, that the American justice system is effective at protecting the innocent, used to be the greatest danger to liberty in America. It isn't anymore, because liberty in America has already been destroyed by it.

    Take just a few moments to really consider what you're proposing: that you will be protected from being found guilty of violating a law that is un-Constitutional by the people who continue to defend and uphold the law that violates the Constitution. Merriam-Webster would like a word with you. (pun for the win)
    Last edited by ()pen(arry; 12-03-2010 at 02:40 PM.

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    Quote Originally Posted by ()pen(arry View Post
    The notion that, in America, justice will eventually win out is comforting, traditional, pervasive, and entirely without justification or merit. It directly causes reverence of and deference to law enforcement, expansion of government power, and stupid people having children. This sentiment, that the American justice system is effective at protecting the innocent, used to be the greatest danger to liberty in America. It isn't anymore, because liberty in America has already been destroyed by it.

    Take just a few moments to really consider what you're proposing: that you will be protected from being found guilty of violating a law that is un-Constitutional by the people who continue to defend and uphold the law that violates the Constitution. Merriam-Webster would like a word with you. (pun for the win)
    Yeah, look at the example of the fellow from a western state traveling through NJ and found with 2 legally owned firearms, encased and locked in his vehicle and sent to prison for 7 years. How ridiculous is that?

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    Quote Originally Posted by skidmark View Post
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texicans, the law prohibiting OC is good law, even under McDonald.
    Keep pushing for a change in the legislation.

    stay safe.
    That does not logically follow.

    Try this:
    "Thus, for you Texans, the law prohibiting OC has not been scrutinized post-McDonald, and may or may not be deemed as "reasonable."
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Quote Originally Posted by gogodawgs View Post
    (pg. 39-40 Majority Opinion of Alito)
    We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying
    of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

    This quote from the majority is and will be the crux of many lawsuits against states and cities. It is my opinion that SCOTUS left only these three areas available for state/municipal regulation. (Also, please note, no where does it say 'reasonable regulation'. It would be to the gun owners side to correct anyone who uses the word reasonable with the above cite.)

    Therefore, the prohibition of OC in Texas should be struck down, either by legislative means because it fails to meet one of the three criteria above or by an avenue through the courts. Albeit, a battle through the courts would be more costly and always risks an outcome that is undesired and may have unforseen consequences. Unless you have SAF and Alan Gura available it would be unwise to OC in Texas at this time.
    What are these "three areas" that you refer to? The references in that quote are simply statements that "these are not denied by Heller." That does not mean they are upheld either.
    Last edited by wrightme; 12-03-2010 at 03:49 PM.
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    Quote Originally Posted by wrightme View Post
    What are these "three areas" that you refer to? The references in that quote are simply statements that "these are not denied by Heller." That does not mean they are upheld either.
    The court gives assurances to the regulations that currently exist regarding the following. At this time until a compelling argument that passes some sort of scrutiny exists they are held as legal by the Court.

    1) "prohibitions on the possession of firearms by felons and the mentally ill"

    2) "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" (I personally think that this one is vague and will be argued greatly. Some states allow carry in schools and clearly some government buildings are not sensitive places.)

    3) "laws imposing conditions and qualifications on the commercial sale of arms."
    Last edited by gogodawgs; 12-03-2010 at 03:55 PM.
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    Quote Originally Posted by gogodawgs View Post
    Please read my first posting in this thread, quoting the McDonald decision.
    I did. And?

    Those examples do NOT limit such, nor do they assure such.

    They merely as quoted by SCOTUS "did not cast doubt" upon. Given subsequent court case, they still MIGHT be cast down.


    Heller did not affirm those restrictions. Neither did McDonald.

    Had that been the intent of SCOTUS in either of those cases, I have NO doubt that they would have worded it that way.
    Last edited by wrightme; 12-03-2010 at 04:00 PM.
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    Quote Originally Posted by wrightme View Post
    I did.
    I responded to it. And?
    I read to quickly and edited my post...oops.
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    Quote Originally Posted by gogodawgs View Post
    I read to quickly and edited my post...oops.
    So did I. And then edited it needlessly. But added more.
    Last edited by wrightme; 12-03-2010 at 04:04 PM.
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    Quote Originally Posted by gogodawgs View Post
    The court gives assurances to the regulations that currently exist regarding the following. At this time until a compelling argument that passes some sort of scrutiny exists they are held as legal by the Court.

    1) "prohibitions on the possession of firearms by felons and the mentally ill"

    2) "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" (I personally think that this one is vague and will be argued greatly. Some states allow carry in schools and clearly some government buildings are not sensitive places.)

    3) "laws imposing conditions and qualifications on the commercial sale of arms."
    No, the court did not "give assurances to the regulations that currently exist regarding the following." They merely state that the opinion does not "cast doubt" upon those items. Had SCOTUS intended the opinion to affirm, the opinion would have stated such. And they restated "the assurances that they did not 'cast doubt upon.'"
    Last edited by wrightme; 12-03-2010 at 04:08 PM.
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    Campaign Veteran gogodawgs's Avatar
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    Quote Originally Posted by wrightme View Post
    No, the court did not "give assurances." They merely state that the opinion does not "cast doubt" upon those items. Had SCOTUS intended the opinion to affirm, the opinion would have stated such.
    "We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms." (pg 40 of Alito's majority opinion)

    Yes the court, Alito writing for the majority, did repeat those assurances. The word 'assurances' is precisely what was held as the majority opinion.

    As to the Court affirming an opinion as to any law that was not in front of them, they certainly did not do that, that is not how our courts work.
    Last edited by gogodawgs; 12-03-2010 at 04:13 PM.
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    Quote Originally Posted by gogodawgs View Post
    "We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms." (pg 40 of Alito's majority opinion)

    Yes the court, Alito writing for the majority, did repeat those assurances. The word 'assurances' is precisely what was held as the majority opinion.

    As to the Court affirming an opinion as to any law that was not in front of them, they certainly did not do that, that is not how our courts work.
    "do not cast doubt upon all" is not the same as "affirm all." You read too much into it. And are avoiding the context of the "assurances."
    Last edited by wrightme; 12-03-2010 at 04:15 PM.
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    Quote Originally Posted by skidmark View Post
    @DKSuddeth - Are you suggesting that there is a "right" to a CHL? Or are you suggesting that since CCW is the only way for Texans to execise their RKBA that the "tax" imposed is unconstitutional?

    stay safe.
    good luck on your issue you have going, skid.

    what i'm suggesting is that currently 46.02 prohibits carrying a handgun, period. The CHL law provides a way to carry if you pay a license fee. Heller confirmed the 2nd Amendment as an individual right and Mcdonald applied that to the states. Murdock v. commonwealth of pennsylvania holds that no state may charge a license, fee, or tax for a right protected by the US constitution, therefore the CHL law, as it stands now being the ONLY way to carry a handgun, is invalid and unconstitutional.

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    Quote Originally Posted by skidmark View Post
    Correct, as far as you have gone. but you havve omitted the part in McDonald which followed the decision in Heller that clearly stated that the government cannot prohibit RKBA but may place resonable restrictions on how and where you exercise that right.

    Thus, for you Texicans, the law prohibiting OC is good law, even under McDonald.

    Keep pushing for a change in the legislation.

    stay safe.
    No sir. The law prohibiting OC is not a good law. The year long research I have been conducting has prooven susccessful to my goal. The reasoning behind Texas gun laws has a lot of dirt.

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    Quote Originally Posted by gogodawgs View Post
    (pg. 39-40 Majority Opinion of Alito)

    This quote from the majority is and will be the crux of many lawsuits against states and cities. It is my opinion that SCOTUS left only these three areas available for state/municipal regulation. (Also, please note, no where does it say 'reasonable regulation'. It would be to the gun owners side to correct anyone who uses the word reasonable with the above cite.)
    I disagree.

    The court did not leave only those three areas for regulation, and if you correct a smart anti who uses the term "reasonable regulations", they'll just replace it with the term "longstanding regulatory measures", which is what Alito used.

    What Alito said is that the court did not "cast doubt on" "longstanding regulatory measures" such as the three areas listed. But "such as" introduces a list of examples which is not presumed to be exhaustive. What Alito said is that gun regulations that have been around for a long time aren't threatened by incorporation. How old does a regulation have to be to qualify as "longstanding"? Alito didn't say, but he did give some examples that he considers longstanding, so we can use the age of those regulations as a guideline.

    So, how long has it been illegal for felons to possess firearms? For firearms to be banned from schools and government buildings? For restrictions to be placed on the commercial sale of arms?

    Well, in analyzing the "longstanding" nature of a given state law per this standard, we'd probably have to look at laws in those three categories at both the state and federal levels, but just looking at the federal law it looks like a law doesn't have to be very old to be "longstanding".

    The regulation of commercial sale of some arms (especially machine guns) goes back to the National Firearms Act of 1934. That's fairly old. The federal law prohibiting felons and mentally ill persons from possessing firearms is the Gun Control Act of 1968, which also significantly increases commercial regulation. But the worst is that the law banning guns in schools is from 1990, only 20 years old. Of course, that law was found unconstitutional, and its 1995 successor may be as well. But the many state gun-free school zone acts are mostly more recent than the federal law, so it appears that any regulation older than maybe 15 years can be argued to be "longstanding". And certainly anything as old as 1968 is "longstanding" -- except, of course, that the Chicago law struck down my McDonald is younger than that!

    The net, I think, is that this section of Alito's opinion really doesn't tell us much of anything about what sorts of regulations may be constitutional. It just says that some regulations which have been around for a while aren't in danger of being called unconstitutional, and gives three examples. We can suppose that regulations that fit into those three categories are safe, but the possibility that regulations outside those categories may be permissible as well is still wide open, and we didn't get much guidance on what those categories are, other than that complete bans aren't permissible.

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    The following was taken from the nra amicus brief signed by the AG of Texas. They don't think that their laws are unconstitutional.

    State and local experimentation with reasonable firearms regulations will continue under the Second Amendment. As noted in Heller, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 2816. Many firearms regulations would plainly survive Second Amendment scrutiny, such as “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places
    such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 2816-17. For example, in Nordyke, the Ninth Circuit applied the Second Amendment to the States, but nonetheless upheld an Alameda County, California ordinance prohibiting firearms on county property. 563 F.3d at 457, 460. As “independent sovereigns in our federal system,” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), the amici States are particularly concerned when the Court engages in constitutional or statutory interpretation that
    implicates federalism issues. The incorporation of the Second Amendment presents no such concerns. Denying local governments the power to nullify the Amendment will not increase federal power, mandate any state action pursuant to federal directives, or preclude reasonable state and local regulation of firearms.

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