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The issue of the evening is a "straw purchase" from a commercial gun dealer. In this case, a gun bought by one person for another person whose identity is not disclosed to the retail gun dealer. Federally licensed gun dealers are required by law to keep a record of each transaction.

Federal laws that regulate gun commerce require federally licensed gun dealers (FFL) to record the type of gun and the actual buyer on Form 4473. The person receiving the gun must certify that they are legally eligible to buy guns and that they are buying the gun for themselves. The FFL performs a search on the buyer's in the National Instant Criminal Background Check System (NICS) at the time they transfer the gun(s) to the new owner. If there is any indication that the person is not the true purchaser, the dealer is required by law to refuse the sale.

Straw purchases hide the identity of the true purchaser, enable guns to be purchased in undetectable quantities, bypass background check laws, and make it more difficult for law enforcement to trace guns recovered during crime investigations.

The Courtroom of the Supreme Court

On Wednesday this courtroom will be full of people who care about guns.

SCOTUS will hear arguments on Wednesday in Abramski v. U.S. We covered the facts and arguments in What? Straw Purchase a Gun? Abramski v. US. What began as a small case over an ATF form has now morphed into a matter of high principle involving more than 30 states, 50 major city police chiefs and one heckuva lot of other “friends of the Court” who want to be heard. A chronology and links to the briefs can be found in SCOTUSblog, an excellent resource.

So ... what do you think the law should be?

Squiggle below with us and let's talk ...

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DISCLAIMER: What follows is general information on a law topic. Nothing in this diary constitutes legal advice and is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
At issue in this case is the turnaround sale, the purchase of a gun made for an undisclosed buyer. It is not about a general right to resell a gun privately, from one's personal collection to another person. In other words, the case is about the limits of federal law to regulate commercial sales, not the secondary market of private transactions between gun owners.

Abramski argues, in effect: There's nothing to see here. I am going to sell to a person who could legally buy this gun themselves, someone who can pass a background check ... so don't even ask. Just trust me. The logical and practical effect of this argument is that there would be no inquiry at all about a gun buyer's intent to resell a firearm. Abramski's rationale would scuttle a tool of law enforcement against straw purchases.

Possibilities for the Court. SCOTUS could do any of the following:

(1) Affirm the convictions. It could find that the rationale for barring straw purchases is within the purposes of current Gun Control statutes and the enforcement powers Congress entrusted to the ATF. Or,
(2) Allow straw purchases but require the agent/purchaser to disclose the identity of the ultimate buyer. There would have to be background checks for both purchasers. The follow-up transfer would be through a Federal dealer, assuring that the designated buyer gets the gun and the dealers' documents accurately reflect the transactions. Or,
(3) Hold the straw purchase doctrine is not justified by current law, so Congress must enact a statute to specifically cover it. Or,
(4) Declare the straw purchase doctrine dead, so lacking in justification that not even an act of Congress could redeem it.
(5) Or ...


Should the Supreme Court strike down limits on purchasing a gun for someone else?

Why not?

Originally posted to Firearms Law and Policy on Sun Jan 19, 2014 at 04:09 PM PST.

Also republished by Shut Down the NRA.


I'd like to see SCOTUS ...

37%9 votes
12%3 votes
25%6 votes
20%5 votes
4%1 votes

| 24 votes | Vote | Results

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Comment Preferences

  •  Tip Jar (10+ / 0-)

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

    by TRPChicago on Sun Jan 19, 2014 at 04:09:10 PM PST

  •  there are no straw purchases of cars, so the (2+ / 0-)
    Recommended by:
    LilithGardener, gerrilea

    analogy applies....note of course that vehicles like ATVs are exempt, although insurance-wise, helmets are usually required during operation

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013

    by annieli on Sun Jan 19, 2014 at 04:19:20 PM PST

  •  Who is Ullyses Grant Early, IV? (1+ / 0-)
    Recommended by:
    Glen The Plumber


    Looking at the SCOTUSblog list of documents, I just have to ask who the hell is that? And why do they care about this case?

    Thanks so much, for breaking this down for we plebes who want to understand this case. Is it just a hail Mary? Or did BATFE actually screw up on their rule making process, as Abramski asserts?

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Sun Jan 19, 2014 at 04:35:06 PM PST

    •  Why, USGE, IV is one of those individual... (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      ... amici, a friend of the Court whose trial in a Federal court in California was stayed when the judge thought the result in Abramski's case might settle the law, y'all ... that's who. (I'm guessing you are checking to see if I did my homework!)

      As for Abramski's argument that the ATF didn't follow administrative law procedures, the government's brief gives that one the back of its hand. The ATF didn't, but (1) it's debatable that it was required to and (2) the straw purchase doctrine has some judge-created law behind it, too. Still, it's a decent legal argument and you try to give the Court as many reasonable ways to decide a case as possible.

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

      by TRPChicago on Sun Jan 19, 2014 at 04:48:01 PM PST

      [ Parent ]

      •  No, I just found the name to be curious (1+ / 0-)
        Recommended by:
        Glen The Plumber

        Does the court continue to accept friends of the court briefs after oral arguments? Or is there a deadline. How does the Amicus Brief business work?

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Sun Jan 19, 2014 at 04:56:45 PM PST

        [ Parent ]

        •  No to late-accepted submissions. As for amici, (2+ / 0-)
          Recommended by:
          LilithGardener, Glen The Plumber

          ... you need the Court's permission to file OR the acquiescence of all parties to the case. Occasionally, the Court will invite a particular filing, most often the Solicitor General to get a view from the government.

          As best I know, that's the current procedure. A Supreme Court practitioner might have a more complete answer.

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

          by TRPChicago on Sun Jan 19, 2014 at 05:07:49 PM PST

          [ Parent ]

        •  Reading the Early brief, it's interesting (2+ / 0-)
          Recommended by:
          Pluto, Glen The Plumber

          that is a criminal case in California and they quote a Tennessee case from 1871 that relied on the Tennessee State Constitution, asserting that the 2A includes the right to purchase guns and ammo.

          It should not be controversial that acquisition or
          commerce in arms, like their possession is, should be
          protected by the SECOND AMENDMENT.
          In Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8
          (1871) – cited favorably in Heller, at 608, 614, 629 –
          the High Court of Tennessee found much in common
          between that State's guarantee of the "right to keep
          and bear arms" and the SECOND AMENDMENT when it
          The right to keep and bear arms,
          necessarily involves the right to purchase
          them, to keep them in a state of efficiency
          for use, and purchase and provide
          ammunition suitable for such arms, and
          keep them in repair. [...]
          Andrews, 50 Tenn. at 178, 8 Am. Rep. at 13

          "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

          by LilithGardener on Sun Jan 19, 2014 at 05:08:44 PM PST

          [ Parent ]

          •  Notice that the two parties to the case, Abramski (3+ / 0-)

            and the United States, did not argue Second Amendment issues.

            Only one amicus did, and it was a backhanded argument saying that if SCOTUS agreed with the ATF, it would - in effect - be making a decision with 2A implications. The point turns me off. Abramski is not a 2A case in my view.

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

            by TRPChicago on Sun Jan 19, 2014 at 05:24:01 PM PST

            [ Parent ]

            •  That's interesting (3+ / 0-)
              Recommended by:
              TRPChicago, Pluto, Glen The Plumber

              So some amicus brief's hail Mary could turn it into a 2A decision?

              It's easy for me to accept Heller/McDonald idea that the 2A right to arm oneself for the purpose of lawful self-defense (defense of hearth and home) includes a right to buy a gun and ammo.

              But I don't see how there is any reasonable claim that the 2A protects a right to buy guns or ammo for someone else.

              "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

              by LilithGardener on Sun Jan 19, 2014 at 05:54:09 PM PST

              [ Parent ]

              •  There's nothing in the antique constitution (2+ / 0-)
                Recommended by:
                LilithGardener, Glen The Plumber

                …prohibiting such purchases, or carving out a role for the Feds to monitor such things.

                Thus, the governance of such rights go to the states.

                •  Interesting you should mention states rights (2+ / 0-)
                  Recommended by:
                  Pluto, Glen The Plumber

                  New Yorkers are divided on the issue of states rights re guns. (Looks like the usual up state vs down state fault line).

                  As I'm reading the decision on the first federal court review of the NY Safe Act - Western District of New York, Opinion dated December 31, 2013.

                  I have to hand it to NYS. Requiring face-to-face ammo transactions tilts the playing field toward licensed dealers in the state. In a way the law includes a stealth sales tax.

                  I think it means that if I want to buy some obscure ammo not available locally, but available over the internet I just have to ask my local FFL to order it for me. Since an FFL has an interest in making money, I predict they will gladly order specialty items for a fee. And since they have an interest in remaining licensed they will only buy from legitimate ammo manufacturers and other licensed ammo dealers. But, it cuts out all the dudes who buy ammo bulk and sell it out of their homes over the internet.

                  And by keeping records for 2 years, they will cut some who supply the criminal markets ammo. Those conduits will have to go out of state to get ammo.

                  "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                  by LilithGardener on Sun Jan 19, 2014 at 06:46:53 PM PST

                  [ Parent ]

              •  Same here. (1+ / 0-)
                Recommended by:
                It's easy for me to accept Heller/McDonald idea that the 2A right to arm oneself for the purpose of lawful self-defense (defense of hearth and home) includes a right to buy a gun and ammo.
                My objection begins about two seconds after this "core principal" is reinforced--where others quickly go with it.
                (To the porch, to the garage, to the front yard...then to public places.)

                It's been five years since Heller, look what happened:
                Castle doctrine = shoot first.  It's a short leap from that to...

                Stand Your Ground = shoot anywhere.

                It seems to me that we humans take turns being dummies.

                by reasonablegunsplz on Sun Jan 19, 2014 at 09:31:55 PM PST

                [ Parent ]

                •  You're describing J. Posner's 7th Circ. decision (1+ / 0-)
                  Recommended by:

                  ... in Moore v. Madigan, for that's where the judge quickly went.

                  From the opinion:

                  Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk than in his apartment on the 35th floor of the Park Tower.
                  This opinion - which was not appealed by the state of Illinois! - caused the legislature to open up concealed carry. Just now, a year after the decision, we are starting to cope with applications, processes, locations disallowed (there are many), etc.

                  The NRA reportedly regarded this as a huge win for its interests. I agree. J. Posner channeled Scalia in Heller:

                  A gun is a potential danger to more people if carried in public than if left at home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.
                  We now hope that J. Posner correctly read public sentiment ... and our criminals turn timid.

                  2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Mon Jan 20, 2014 at 05:05:51 AM PST

                  [ Parent ]

  •  I think there should be civil liability (4+ / 0-)

    It seems the 2nd amendment people have won, so I think anyone purchasing a gun should have civil liability if the gun is used in any act of violence.

    If people want to buy and sell assault weapons they should be prepared to pay restitution for the rest of their lives for failure to be responsible with their "right" to bear arms.

    •  Fair, assuming the shooter was negligent, willful, (2+ / 0-)
      Recommended by:
      Glen The Plumber, LilithGardener

      ... or otherwise culpable. And in many states, that is likely the law today.

      As for assault weapons - being mindful that the term is tricky to define - I believe most are military firearms and those, I would bar from the civilian market (while grandfathering those currently held IF having them complies with Federal and state law).

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

      by TRPChicago on Sun Jan 19, 2014 at 05:18:57 PM PST

      [ Parent ]

  •  Your initial Diary on this was (2+ / 0-)
    Recommended by:
    LilithGardener, Glen The Plumber

    …really fascinating reading.

    •  Thanks, Pluto, I do like these cases. (4+ / 0-)

      Much as I might term them "silly" or "misguided," these cases are about real people in real jeopardy. And SCOTUS only hears, say, 80 cases or so a term out of more than 8000 it is asked to review. So each is of interest not only to the parties, but for guidance to courts across the land even if they do not seem to involve the major policy issues that occupy that should occupy that might occupy Congress.

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

      by TRPChicago on Sun Jan 19, 2014 at 05:13:23 PM PST

      [ Parent ]

  •  By the way, the earlier diary on Abramski ... (4+ / 0-)

    ... had a number of expert commenters on the case, leading me to want to do a follow up later thus week after the arguments before the Court. We'll see how close the justices' questions come to the points made on our FLAP diaries on straw purchases and background checks.

    There is disagreement over how influential the oral arguments are, as opposed to the written briefs and the record of the case. I believe they can be somewhat influential, especially when a lawyer clarifies a muddled point or so drops the ball that it undermines something one of the judges thought might be important.

    In any event, I've always believed that when a judge asks a question, you have his/her Honor's attention for at least the next 10 or 20 seconds ... and that can be very valuable "quality tiime."

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

    by TRPChicago on Sun Jan 19, 2014 at 05:03:35 PM PST

  •  Up to a couple of months ago (2+ / 0-)
    Recommended by:
    LilithGardener, Glen The Plumber

    …straw purchases were legal if you buy in the name of an LLC. In other words, no background check required. For all I know, they still are legal. An Executive Action came down recently on this matter that may or may not have been enacted yet by ATF.

    Anyway:  My analysis and prediction:

    1. States rights have been faring pretty poorly at the high court levels lately -- ie. Obamacare -- and this case, at heart, is about the Confederates verses the Yankees.

    So that trend pointing to the Feds prevailing.

    2. Gun rights and weapons trafficking (what the United States does for a living) have become increasingly rogue and sacrosanct, domestically and internationally, in and out of courts. Guns-R-US police state and prison industry.

    And that trend points to inherent gun rights prevailing.


    I choose #2

    Because it's the only one that makes a shit-ton of money for the corporations.

    Same way I predicted the Roberts decision on the PPACA.

    ymmv but mine hasn't yet.

  •  Straw purchase is how legal guns become crime guns (8+ / 0-)

    One way, any way. And it would be a moot point if there was universal registration of firearms.
    Because the transfer of ownership would be recorded as part of the registration. The straw buyer would not be so likely to buy for a criminal if their name was on the title as the current owner.

    If I ran this circus, things would be DIFFERENT!

    by CwV on Sun Jan 19, 2014 at 05:38:08 PM PST

    •  Agreed. Universal registration makes complete... (5+ / 0-)

      ... sense to me. Gun registration need not be burdensome to comply with and it would assist all law enforcement jurisdictions.

      User registration involves different standards. With only a little thinking through, I can see room for state-by-state variations in the requirements for user training, licensing, etc. This would be a good subject, I believe, for an extended good faith conversation, perhaps one without the traditional DK time periods expiring and maybe with some extra moderation to focus discussion.

      I get the slippery slope pushback, but to those advocates, EVERYthing seems to be a slippery slope.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sun Jan 19, 2014 at 05:57:15 PM PST

      [ Parent ]

    •  Not necessarily. (1+ / 0-)
      Recommended by:
      Straw purchase is how legal guns become crime guns
      The numbers don't support that to a significant degree.

      Most guns used in (non-family-member) crimes are private sales of already owned guns or stolen guns.


      In this straw purchase case, both men qualified for the purchase. The buyer got it at a special discount for his uncle, who did not live locally.

      •  46% -"Follow the Gun" ATF study from 1996-1998 (3+ / 0-)
        Recommended by:
        TRPChicago, Pluto, Glen The Plumber

        According to the Law Center for Prevention of Gun Violence:
        Straw Purchases Policy Summary

        According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), straw purchasers “represent a significant overall crime and public safety problem.”4 When a person with a clean background intentionally buys firearms for prohibited persons, she or he thwarts the background check requirement and allows firearms to be funneled to criminals, domestic abusers and gangs.5

        In June of 2000, ATF published a study of 1,530 firearms trafficking investigations conducted during the period July 1996 – December 1998. That study, Following the Gun: Enforcing Federal Laws Against Firearm Traffickers,6 found that straw purchasing was the most common channel of illegal gun trafficking, accounting for almost one-half (46%) of all investigations, and associated with nearly 26,000 illegally trafficked firearms.7

        Gun shows and flea markets are a “major venue for illegal trafficking”8 and thus have been the target of law enforcement trafficking and straw purchasing investigations. During ATF’s investigations of gun shows, the agency found that FFLs committed numerous federal crimes at shows, including facilitating straw purchases.9 Subsequent ATF investigations at gun shows from 2004 – 2006 uncovered “widespread” straw purchasing at shows, where guns were diverted to “convicted felons and local and international gangs.”10

        Curiosity lead me to footnote 6:
        See, e.g., United States v Nelson, 221 F.3d 1206 (11th Cir. 2000), cert. denied, 531 U.S. 951 (2000) (upholding conviction of actual purchaser who hired “straw purchaser” to purchase a firearm for him under theory of aiding and abetting violation of 18 U.S.C. § 924(a)(1)(A), since statute includes identities of “actual buyers” in information required to be kept by licensed gun dealers); and United States v Howell, 37 F.3d 1197 (7th Cir. 1994) (upholding conviction under 18 U.S.C. § 924(a)(1)(A) as evidence was sufficient that defendant made false statements on ATF form where she was not involved in selection of revolver, could not have held weapon in her hand because it was too large, was present to complete paperwork after decision to purchase had been made, and did not take possession of gun after purchase). [↩]

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Sun Jan 19, 2014 at 06:21:12 PM PST

        [ Parent ]

        •  Drat. I just looked it up elsewhere (2+ / 0-)
          Recommended by:
          LilithGardener, Glen The Plumber

          A different analysis of the statistics and the meaning of the word "crime" in this context.

          That's why I wrote

          Most guns used in (non-family-member) crimes ...
          I'm working the murder-suicide beat, which is at epidemic levels in the US, especially for children. When I strip out family, lovers, kids -- those straw purchase numbers don't hold. When a wife uses her husband's gun to kill the entire family, all the kids, the husband, and herself (which happened three or four times last week -- twice in Utah) the numbers get skewed.

          Was it a stolen gun?

          Every municipality reports the crime differently (many places don't open a "murder" investigation in these tragedies, to keep the crime rate down). They list the gun used in different ways. "Straw" is a good way to list dad's gun when a 14 yo uses it to kill his entire family, then himself.

          Just sayin. I tend to over think it.

          That's why I dropped out the "family members."

          •  Also, keep in mind that the overwhelming (3+ / 0-)

            …of people who are shot, are shot by someone they know.

            •  ^^^^ This - I keep reminding people of this (2+ / 0-)
              Recommended by:
              Pluto, Glen The Plumber

              It's your neighbor, your short tempered brother-in-law, you former bff that pose much bigger risks with a gun than the potential home invader.

              (half snark)
              Maybe gun safety training should include a section of "friend&family skills" for gun owners.
              (/half snark)

              "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

              by LilithGardener on Sun Jan 19, 2014 at 07:19:53 PM PST

              [ Parent ]

              •  That statistic is easily misread... (3+ / 0-)
                Recommended by:
                LilithGardener, FrankRose, KVoimakas

                By far, (over 80%, IIRC,) of those victims and perpetrators know each other through mutual involvement in other criminal activities... Overwhelmingly drug sales.

                Ending drug prohibition would cut our murder rate by at least 2/3rds, almost instantly. There isn't any other policy decision we could make that would come even close to having the same impact.

                Eliminating the violence around the black market in drugs would leave us with a murder rate somewhere in the vicinity of Liechtenstein.


                "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
                "Dissent is patriotic. Blind obedience is treason." --me

                by Leftie Gunner on Mon Jan 20, 2014 at 09:54:15 AM PST

                [ Parent ]

  •  Now with my apologies, I need to be gone ... (2+ / 0-)
    Recommended by:
    LilithGardener, Glen The Plumber

    ... for about an hour.

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Sun Jan 19, 2014 at 05:58:26 PM PST

  •  The problem is, if you break this shit down (3+ / 0-)
    Recommended by:
    Pluto, Glen The Plumber, liberalguy

    into small enough pieces, you invariably wander into NRA/RKBA territory. That's their mainstay.

    The tactic of groups like Brady, etc. is to push big, fight like hell for all of it, and accept the fallout. You're never any worse off than by not trying, and there always are, and always will be windfalls.

    Short of a Constitutional rewrite (which is where the only possible real answers lie, by the way), full on, flat out, upfront warfare is the only possible way to get even small victories.

    Just saying!

    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

    by oldpotsmuggler on Sun Jan 19, 2014 at 07:18:46 PM PST

  •  Pink. Guns for immediate resale should be pink. (4+ / 0-)
    Recommended by:
    Pluto, LilithGardener, DavidMS, gerrilea

    What's at the core of the Abramski case is someone (a relative) saying:

    "Can you get me this at wholesale"?  Neither person was a prohibited person at the time of the transaction.

    Abramski doesn't appear to have a history of repeated resale, so he's not "engaged in the business" and violating the GCA '68 requiring dealer licensing.

    The other "facts" surrounding Abramski appear to be mired in inter-agency lack of cooperation, and some generalized fumble-numbing.

    I'll assume, Abramski was a cop as he didn't pass muster in some fashion.
    Anger issues?  Decision-making issues? Other badge-related issues, such as wearing your uniform or displaying your badge in an effort to obtain a discount or advantage from a retailer?
    Undergarments left in your patrol car, or video tape of in-uniform conduct unbecoming, like that putz in New Mexico.

  •  We need to legalize straw purchases. (1+ / 0-)
    Recommended by:

    Basically, only selling a gun to someone who can't legally possess it should be illegal.  Maybe there should be an intent requirement on that too... maybe not.

    Reselling is an essential part of the concept of private property.  It's not something that should just be ignored for the convenience of law enforcement. Someone should be free to decide to resell their personal property, either 8 years or 8 seconds from when they came into possession of it.

    (The above is my personal opinion, as to the legal result we'll see, I have no idea.  I'm surprised the court decided to hear this case at all.)

    •  In principle (0+ / 0-)

      I 100% agree with you. However, I have some flexibility on it just because we firearms are a special case where some deviation from any other property makes sense in some limited cases.

    •  So, you two are arguing to allow all resale, ... (1+ / 0-)
      Recommended by:

      ... whether there's an agreement in advance for a fast turnaround (the straw purchase) or not. But you also want to assure that guns are not resold to people who cannot pass a background checks.

      How? What mechanism accomplishes that? I think that's the dilemma the ATF faces. Do you accept Abramski's "trust me" approach?

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Mon Jan 20, 2014 at 02:53:40 PM PST

      [ Parent ]

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