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Having a gun is not sufficient - the bearer of arms must be ready


Justice Ginsberg articulated what "bear arms" means and Justice Scalia* agreed; the bearer is ready to use the firearms in lawful interpersonal conflict.
District of Columbia v. Heller,

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]:  ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

*author of the majority opinion

I'm not a constitutional law scholar. Hell, I'm not even a lawyer. But I believe that the meaning of "bear arms", as articulated by Justices Ginsberg and Scalia, implicitly includes a training requirement. Having a gun, and carrying a gun is not sufficient. The bearer of arms must also be ready.

Let me be clear. I'm not talking about the prefatory clause, "A well-regulated militia being necessary..." I'm talking about the right to keep and bear arms, the individual freedom and responsibility, and the moral hazard of intending to express one's second amendment right to defend oneself with a gun. Firearms in the hands of people who have not been properly trained are hazards both for that person and for others. People who do not have the mental alertness, focus and discipline, create hazards for others when they drop their gun, forget their gun, forget their gun was loaded, or handle their gun when under the influence of drugs or alcohol. Unsecured firearms create hazards for the gun owner and for others.

There is no Second Amendment right to create a menace with a gun.

How can a person be ready to use one's own personal firearms for lawful interpersonal conflict without any training? We don't even require a vision test for guns, as we do for driving. How did it ever become "reasonable" to expect that someone who may not necessarily hear or see very well can just shoot in the general direction of a perceived threat, without creating a menace to others?

How can a person be ready to bear arms safely, unless they have passed an adequate course in safety training?

How can a person be ready to bear arms safely, unless they have sufficient attention to detail to notice where the open end of the barrel is pointed at all times.

How can a person be ready to bear arms safely, unless they are proficient in shooting straight and target selection?

How can a person be ready to bear arms lawfully, unless they have studied the lawful use of force and proven that they have mastered core concepts?

I'm talking about licensing.

Why not?


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The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law or policy please send us a Kosmail.

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The Lautenberg Amendment has been postponed. Many apologies.

(My diary on the Lautenberg Amendment got eaten by the Daily Kos diary writing tool. Ha! How many times have I reminded writers to make an off-line backup for anything they can't redo quickly? Well. I'll learn this lesson again sometime, unless I've really learned it this time.)

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Comment Preferences

  •  Tip Jar (14+ / 0-)

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 08:20:53 PM PST

  •  All gun ownership should be licensed (7+ / 0-)

    This has 2 key benefits: (1) ability to track where the guns are, and (2) we'll find out exactly who is resistant to licensing, which should tell us who has something to hide. If someone gives the police a hard time about being licensed for their gun, we'll know they have a likely nefarious intention for their gun and the police can keep a special watch, keeping the public safer.

  •  SAFE Act gun total declared off limits (6+ / 0-)

    Brought to my attention by WakeUpNeo, This does not seem like a sign of a healthy democratic government. Can any of you think of the rationale for this?

    SAFE Act gun total declared off limits

    By Rick Karlin
    Published 9:53 pm, Friday, November 8, 2013 (Albany)

    Provision in law says state isn't required to disclose how many assault weapons are registered

    A major component of Gov. Andrew Cuomo's NY SAFE Act gun control law is a state secret.

    Almost a year after the Secure Ammunition and Firearms Enforcement Act was passed by lawmakers and signed by the governor, state officials say they aren't required to reveal how many people have registered assault weapons with the state.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 08:46:29 PM PST

    •  The rationale might be that the gun lobby might... (4+ / 0-)

      ... have been able to kill it otherwise. After all, they've opposed studies and statistics-keeping about firearms by other governmental agencies.

      I think this aspect of information keeping, analysis and public disclosure should be the easiest kind of gun law to get passed. By itself, stand alone, as a way of establishing the base set of facts about gun ownership and use. That it isn't, yet, is an embarrassment in a democracy that cherishes transparency.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sun Nov 10, 2013 at 09:10:23 PM PST

      [ Parent ]

  •  Angelique Kidjo and Buddy Guy - Voodoo Child (4+ / 0-)

    2003 Radio City Music Hall

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 08:55:53 PM PST

  •  The 2nd Amendment was written in 1789. (5+ / 0-)

    In the 1900s  the theory of interchangeable parts came into use.

    People took better care of their guns in the olden days.

    My grandson did a report on guns. I was surprised to learn that antique guns are not valued unless they actually fire. Your gun isn't worth less because you rubbed off the patina and made it work.

    Now I hear gun collectors, gun collectors. I don't think it's what we think it is.

    Why is it easier to buy a gun than it is to register to vote in most states?

    by 88kathy on Sun Nov 10, 2013 at 08:56:34 PM PST

    •  One thing I read recently that's piqued my (6+ / 0-)

      curiosity is that the important date for application of the 2A to the states is the year the 14th Amendment was ratified (or passed - I can't recall which).

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Sun Nov 10, 2013 at 09:13:23 PM PST

      [ Parent ]

      •  The 14th Amendment was adopted in July 1868. (4+ / 0-)

        Enough states ratified it that month (despite controversy from one or two states who wanted to renege) to formally adopt it.

        In McDonald v. City of Chicago, decided on June 28, 2010, SCOTUS applied the Second Amendment to states and cities via the 14th Amendment. (The Bill of Rights explicitly applies only to the Congress and the Federal government. The 14th amendment is the vehicle the Court typically uses case-by-case to apply other amendments to states and localities.)

        The City of Chicago's very strict registration requirements across a pattern of ordinances were tantamount to a ban on handguns. The bottom line decision in McDonald was to find the array of Chicago's registration requirements unconstitutional. The case has a profusion of separate opinions including a plurality opinion by J. Alito but no "majority opinion".

        Which specific registration requirements will pass muster was left undecided and unclear, as was the legal standard for judging their constitutionality in the future.

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Sun Nov 10, 2013 at 09:59:50 PM PST

        [ Parent ]

        •  Chicago is a hot mess! (2+ / 0-)
          Recommended by:
          88kathy, WakeUpNeo

          (I've just wanted to have an excuse to say that!)

          I started reading Exell v. Chicago where days after Mcdonald (IIRC) they passed training requirement and promptly banned gun ranges for civilians.

          The judge has some really good zingers in there. "The city was too clever by half..."

          And example of what NOT to do, and why we always need a strong opposition party. They only reason they could try that is they are toooooo secure in their dysfunction (kind of like Albany).

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Sun Nov 10, 2013 at 10:05:12 PM PST

          [ Parent ]

    •  Interchangeable parts came in the 1800s (3+ / 0-)
      Recommended by:
      a2nite, 88kathy, LilithGardener

      A basis of the industrial revolution

      Happy just to be alive

      by exlrrp on Mon Nov 11, 2013 at 04:06:09 AM PST

      [ Parent ]

      •  From the Wikipedia article I read the 1800s (1+ / 0-)
        Recommended by:
        LilithGardener

        innovation were wow stories, like 3D computer MFG today.

        Eli Whitney  
        snip
        In July 1801 he built ten guns, all containing the same exact parts and mechanisms,
        snip
        The catch was that the Whitney's guns were costly and handmade by skilled workmen.
        snip
        Whitney was never able to design a manufacturing process capable of producing guns with interchangeable parts.
        snip
        During these decades, true interchangeability grew from a scarce and difficult achievement into an everyday capability throughout the manufacturing industries
        Interchangeability is no small thing. The whole thing rests completely on tooling. And now if you want to hear something scary, I walked around an aircraft tooling factory that was completely empty of tool and die machines, and tool and die workers (who need 12 years to train up). Yes it was huge and bare cement floors and when I left they turned out the lights.

        Interchangeability is deceptively simple. It shows that we haven't changed much. Interchangeability in the US started with guns and 3D manufacturing is now starting with guns. We're still crazy after all these years.

        Why is it easier to buy a gun than it is to register to vote in most states?

        by 88kathy on Mon Nov 11, 2013 at 09:21:05 AM PST

        [ Parent ]

  •  Leo Kotke recalls when he met Bob Dylan (4+ / 0-)

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 08:56:37 PM PST

  •  You make a set of strong arguments. (5+ / 0-)

    I'd quibble, however, about that phrase "ready to use the firearms in lawful interpersonal conflict." Hunters, shooters in ranges and gun collectors may not have any interpersonal conflict in mind at all. These other uses suggest a case for preparedness and safety training, for example, as compelling as uses for self defense.

    And as for "the lawful use of force," we have examples of what shooters thought was a lawful use of a weapon in conflict situations which turned out not to be. I'm thinking here of Marissa Alexander in Florida who fired a warning shot to scare off an abusive husband, was convicted for it and sentenced to 20 years! Yes, the conviction was tossed out but last we read, the prosecutor was going to retry her next spring.

    I'm also thinking of George Zimmerman's situation. Whichever side one takes about that particular case, there was an understandably strong public reaction and significant police concern as well, over armed Neighborhood Watch volunteers confronting suspicious persons.

    There are potential collisions between Stand Your Ground laws and the Heller case's right to self defense. In an SYG state like Florida, it might be difficult to write that set of explanatory materials about the lawful use of force!

    Nothing I'm suggesting undercuts the notion of licensing. To the contrary, I think factors such as these make licensing vital.

    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Sun Nov 10, 2013 at 08:58:35 PM PST

    •  Indeed - somewhere in the Heller decision (3+ / 0-)

      I think it says, "and other lawful purposes."

      Hunting and shooting sports are not confrontational. I certainly agree.

      One thing I seldom hear discussed is that relief for Mr. Heller involved registering his gun and getting a DC license for it, which has a training requirement. Now, I now that case didn't address licensing and registration. But don't you think that if those were unconstitutional that the court would have gone further?

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Sun Nov 10, 2013 at 09:10:39 PM PST

      [ Parent ]

      •  Absolutely. J. Scalia in Heller took pains ... (4+ / 0-)

        ... to reiterate this kind of language:

        … "[N]othing in our opinion should be taken to cast doubt on 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."

        And an accompanying footnote:

        "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive".

        I have no doubt that the Heller case majority would never have put this in its order in the case if it meant to overturn DC's licensing requirements:
        "Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District [of Columbia] must permit him to register his handgun and must issue him a license to carry it in the home."

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Sun Nov 10, 2013 at 09:25:29 PM PST

        [ Parent ]

        •  What I have in mind (4+ / 0-)

          is that people would start out with a learner's permit. Where they could spend some time in a classroom and the initial training would start with principles of self defense and de-escalation. And after they pass the classroom portion they have a license that allows them to practice at a range for beginners, a place where they would receive adequate supervision as they learn to shoot straight and to properly clear the gun every time, where they would learn what to do when the gun jams. And would practice disassembling the gun for cleaning, and reassembling the gun.

          Good safety habits don't imbed in an afternoon, or a weekend, or a even in a few evenings over several weeks. They need practice with supervision to avoid installing bad habits.

          And then after they pass level 1 range training they can keep it in their home, and another 6 months - 1 year later, and lots more practice they can pass another written test to see if they still remember lawful use of force rules, and only then can they apply for a public carry license.

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Sun Nov 10, 2013 at 09:34:16 PM PST

          [ Parent ]

          •  I understand that most people (2+ / 0-)
            Recommended by:
            LilithGardener, Glen The Plumber

            live in cities, and that gun violence in cities is endemic. If it's not 'crazy loners' shooting up gatherings for no discernable reason, or gangs 'busting caps' to prove their dubious manhood, it's 'roided-out Robocops murdering suspected disturbers of the peace and/or dropping innocent civilians right and left because they can't aim straight.

            Definitely a situation that needs dealing with. Proper training and licensing for CC permits is an excellent idea. Requisite securing of firearms in homes where felons are released to while still banned from having guns. This could be 'lockers' at a repository or something, since gun safes and locked displays won't stop a 'crazed loner' from getting and using the guns if they're around (think Newtown). Actually destroying guns confiscated from criminals once they've served their evidence purpose would be a great idea, too many end up back in the hands of lawless killers because there's quick cash to be made.

            But for the minority of people who still live outside of cities, in areas where wild carnivores still roam and still dine on livestock, where herds of deer need to be thinned because predators don't do it anymore, where home invasion violence happens far from neighbors and law enforcement ability to intervene, there's no particular reason to disarm the populace. Or to 'register' them and their guns, or to force them to go back to school to learn how to use guns they've been using since they were 12.

            Yes, this is a two-tiered regulatory system. But the situations in cities and countryside are different and should be treated differently. What makes sense in Chicago or Baltimore about controlling gun violence doesn't make sense for a cowboy/girl out in New Mexico riding fences miles from the nearest public road and maybe encountering the carnivore(s) that keep killing the cattle. Or sheep. Or chickens. Or whatever.

            Anyway, just thought I'd mention that.

            •  You are at the core of gun rights contention! (2+ / 0-)
              Recommended by:
              Joieau, Glen The Plumber

              What makes sense on a farm or a ranch or probably most rural areas makes very different sense, if any, in crowded bars a few blocks from densely populated residential areas.

              Proposals made by gun activists on both sides often impact the other side. And the NRA, for example, aggressively seeks to obliterate state and city boundaries by such proposals as having the least restrictive state law on firearms control who gets to transport and carry guns in all the others.

              I'm concerned, though, that laws which deal with gun violence and crimes with guns should not be different between, say, urban and rural settings.

              That's why I can accept the Heller decision on self-defense grounds but be unwilling to take it as a sweepingly absolutist right. A right so broad, for example, that there cannot constitutionally be reasonable safety requirements, licensing, regulations applying to transfers and sales of firearms and ammunition, statistic gathering on incidents involving firearms, etc.

              Your comment suggests a place to start talking constructively. Thank you so much for that!

              2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Mon Nov 11, 2013 at 08:46:58 AM PST

              [ Parent ]

            •  Welcome to the Firearms Law and Policy Group (2+ / 0-)
              Recommended by:
              Joieau, Glen The Plumber

              Joieau, thanks for stopping by. You've come to the right place.

              We were conceived as a study group because we desperately need to understand the unique features and realities in other parts of the country. We wanted to open up space to look at current law and policy, where we could dare to state our beliefs and why we think what we do, examine our assumptions, and collaborate with each other to untangle them.

              Our first diary: Introducing a new Group: Firearms Law and Policy - Glossary of Resources

              Our Group Profile

              As I started reading judicial opinions myself (a slow process since I am not a lawyer) I was really surprised to find that hundreds of laws had been challenged and the majority have been upheld in the lower courts, with judges giving states wide latitude to address local problems. I do think though that some laws should be national because guns travel easily across state lines from their first legal buyer into criminal markets in other states.

              A few laws are shot full of holes if there is no uniform national standard. E.g. Background checks, domestic violence misdemeanants still have easy access to guns despite being prohibted by federal law.

              And my recent discovery that fewer than a dozen states require reporting lost or stolen guns to the police... that was a stunner to me. It ought to be a no brainer that if a gun owner loses control of their gun, for any reason, that heightened menace is a matter for public policy to address.

              "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

              by LilithGardener on Mon Nov 11, 2013 at 01:44:27 PM PST

              [ Parent ]

            •  Reconsider "endemic" (1+ / 0-)
              Recommended by:
              Glen The Plumber

              I'm reccing your comment even though I disagree with much of it, because we need to be willing to talk to each other openly, and you have introduced the issues as you see them. Thank you for that.

              Reconsider your label of us city folk and our urban environment as endemically violent. I think I know what you mean but the broad brush really bristles.

              en·dem·ic
              adjective en-ˈde-mik, in-\
              : growing or existing in a certain place or region
              : common in a particular area or field

              Full Definition of ENDEMIC
              1
              a :  belonging or native to a particular people or country
              b :  characteristic of or prevalent in a particular field, area, or environment
              2
              :  restricted or peculiar to a locality or region
              — en·dem·i·cal·ly adverb
              — en·de·mic·i·ty noun
              — en·de·mism noun

              I grew up with guns, in the country. Now I live in NYC unarmed. Violence is no more endemic to NYC than poverty is endemic in Appalachia. Gun skills are not lifetime skills like speaking or walking. Unless they are maintained through practice and use, safe gun habits are "use it or lose it." The other problematic issue with that stance is that people can be skilled with guns, but unskilled as teachers. Gun ownership does not confer some magical ability to pay attention to detail, or some special ability to supervise children above and beyond other adults. A study (admittedly old) found that about 30% of hand gun owners did not know that removing the magazine was not sufficient to clear the gun of ammunition.

              "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

              by LilithGardener on Mon Nov 11, 2013 at 01:54:29 PM PST

              [ Parent ]

    •  inapt phrase, IMHO, purely subjective (1+ / 0-)
      Recommended by:
      LilithGardener
      confronting suspicious persons

      That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

      by enhydra lutris on Mon Nov 11, 2013 at 12:44:18 PM PST

      [ Parent ]

  •  Everybody who ever hunted (or who never hunted) (3+ / 0-)
    Recommended by:
    Glen The Plumber, WakeUpNeo, a2nite

    would do well to drop by Mark Maywurtz's personal diary about this first day of deer season, yesterday. Comments are also worth a read. N00bs? It's a chance to step into the shoes of an ethical approach to hunting, and see a glimpse of what hunting is really like without any of the false braggadocio that is all to evident in the press about hunting and shooting sports.

    Nerves

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 09:38:22 PM PST

  •  Tagxedo - h/t JekylnHyde helped me learn (4+ / 0-)

    how to make word images with tagxedo. Let me tell, easy way to suck up time! http://www.tagxedo.com/

    You supply a url or text and then the program spits out possibilities...It's a little like a kaliedascope for the internet.

    Accidental Gun Deaths Undercounted
    You've probably heard that the gun lobby successfully opposed safe-storage laws meant to keep firearms away from young children. Michael Luo and Mike McIntyre at  The New York Times started investigating the data in five states and uncovered a startling pattern. Daniel Case digs even deeper in his diary Accidental gun deaths of children greatly undercounted.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Sun Nov 10, 2013 at 09:46:51 PM PST

  •  sorry your diary got eaten... (3+ / 0-)
    Recommended by:
    TRPChicago, LilithGardener, WakeUpNeo

    but really like this one...thank you for breaking this down.

    We are not broke, we are being robbed...but we can fight back...#KosKatalogue

    by Glen The Plumber on Sun Nov 10, 2013 at 09:56:00 PM PST

  •  "There is no Second Amendment right to create (2+ / 0-)
    Recommended by:
    TRPChicago, LilithGardener

    a menace with a gun."  Amen.

    "The light which puts out our sight is darkness to us." Thoreau

    by NancyWH on Mon Nov 11, 2013 at 04:57:07 AM PST

  •  SCOTUS Oral Arguments Tuesday 10AM (0+ / 0-)

    "I Didn't Know the Gun ... !" SCOTUS to Hear Rosemond v. US

    The Courtroom of the Supreme Court
    Tomorrow this courtroom will be full.

    For decades, state and Federal criminal laws have imposed heavier penalties on crimes where a firearm is in play. What about accomplices who may not have had anything to do with the gun? What does a prosecutor have to show to prove a perp is guilty of the armed offense? This is the question to be argued before the Court in Rosemond v. US tomorrow (Tuesday) at 10am.


    The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment.

    In case you missed our diaries on GUN LAWS petitioning the SUPREME COURT, TRPChicago has kicked our SCOTUS coverage up a couple notches. His terrific analysis of the Schrader v. Holder case is covering material that no one is reporting on. Even the attorneys writing at SCOTUSBlog could not be bothered to write about Schrader's case. IMO the case is a mini civics lesson in itself and provides a point on which Dems really could get together at the intersection of civil rights/gun rights, and find common ground across the "gun culture divide." Tom really brought that tension out very well.

    60 Cases and Counting: What Gun Case Will SCOTUS Take Next?
    SCOTUS Declines to Hear Navy Vet's Gun Rights Appeal
    Concealed Carry Law Petitions SCOTUS - Woollard v. Gallagher DENIED cert

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Nov 11, 2013 at 03:11:28 PM PST

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