Sunday, November 25, 2007

How times change re the Second Amendment

Sandy Levinson

According to a blog published by the New York Times, Hillary Clinton has told Iowa voters, “I believe in the Second Amendment, and I don’t see any contradiction between the Second Amendment and laws that keep guns out of the hands of criminals.” The irony in this statement is that her husband did a great service to the Republican takeover in 1994 by relentlessly pushing his symbolic "assaualt weapons ban." According to Stanford political scientist Morris Fiorina, it probably cost the Democrats at least six seats in the House (including Speaker Tom Foley from Eastern Washington and Jack Brooks, the long-time Texan head of the House Judiciary Committee), not to mention dooming the candidacy of Rep. Andrews in Maine, who was running against Olympia Snowe (I believe) for the Senate. (One might be curious as to what kinds of advice she gave Bill with regard to pushing the bill so hard and forcing House Democrats to take a predictably costly vote for no political gain--and, for that matter, no real gain in public safety, either, given the basically symbolic nature of the bill). So I take Sen. Clinton's declaration of support for the Second Amendment--the next question, of course, is what precisely she "believes" the Second Amendment means in 2007--is the best evidence possible for the new-found respect it gathers, at least rhetorically, across the political spectrum. I wonder if her comment alludes to the fact that the DC gun ban that will be assessed by the Supreme Court is not directed at keeping "guns out of the hands of criminals" except inasmuch as a prohibition of private possession of handguns would, by definition, serve that purpose in addition to keeping guns out of the hands of law-abiding people as well.

I suspect this is not the last we will hear about the Second Amendment in this campaign; and, thanks to the Supreme Court, it may become one of the "values issues" shaping the election. What is interesting is that almost none of the leading candidates in either party, right now, seems particularly "authentic" holding a gun. Any such picture of Hillary or Obama holding a gun would instantly become the "Michael Dukakis in the tank" photograph of 2007. Edwards, perhaps, has actually hunted and might not look ridiculous. Romney has been exposed as an utter fraud re his devotion to hunting, and somehow I doubt that Giuliani, who might well wish to shoot his critics dead (though he might prefer to personally strangle them), has in fact spent much time actually using guns. Perhaps Huckabee has done his share of hunting in the Arkansas pines (or wherever one goes hunting in Arkansas). In any event, it should be entertaining to watch the candidates prove their bona fides with regard to their new-found respect for what used to be "the embarrassing Second Amendment."

[UPDATE: I should have thought of Fred Thompson, of course, the subject of a story in today's Times titled "Thompson Woos Gun Rights Contingent." The print version includes a splendid, and altogether plausible, picture of the candidate (p. 22 in the New England edition) holding, with seeming admiration, what looks to my completely untrained eye like the equivalent of a machine gun. I will be delighted further to update this posting if someone actually knows what kind of gun it is (and under what circumstances it would be maximally useful). The story, datelined Landon, South Carolina, leads off as follows:

Joe McCormick, a burly man over six feet tall, a World War II-era Mauser rifle at his side, said he was frightened.

“Giuliani scares me,” Mr. McCormick said of Rudolph W. Giuliani, the former mayor of New York City who is seeking the Republican presidential nomination. “What does a mayor of New York know about guns?”

I couldn't agree more that there is much about Mr. Giuliani about which to be frightened --indeed, terrified--but his knowledge, or lack of same, about guns would not be at the top of my personal list of reasons. I would expect Mr. Giuliani to be familiar, at least from his former life, with the number of New Yorkers who were killed by weapons bought in South Carolina and brought into New York, but I seriously doubt that he will choose to tell the Republican primary voters what he knows, given his new incarnation as a would-be Charleton Heston.]


Rudy may very well know more about guns than any other candidate.

Giuliani had four uncles who were police officers and his father carried a pistol as a bouncer. It is very likely that he was frequently exposed to firearms by his family.

As a prosecutor, Giuliani also had access to police firing ranges. I fired twice at police ranges as a prosecutor on Florida. Given how tight Giuliani was with the police and the FBI, I would be curious if he did the same.

In any case, my problem with Rudy is not that he is as personally clueless about firearms as say Hillary, but rather that he was willing to disarm law abiding New Yorkers in pursuit of his goal to clean up the crime cesspool in NYC.

However, this NRA member is not particularly worried that Giuliani would attempt to pass any further federal firearm legislation. It does not appear that Rudy is a firearm prohibition zealot. Rather, he viewed gun laws as simply another tool he could use to convict criminals. Rudy is no longer a prosecutor, though, and I expect that this ambitious politician will not buck the national electorate's broader view of an individual right to keep and bear arms.

The Supreme Court case will come down too late to affect the nomination process. Indeed, I expect that Clinton and Giuliani will have the nominations wrapped up before oral arguments.

If, as is likely, the Court renders a narrow decision in favor of an individual right to keep arms in ones own home, I do not expect much of a splash in the general election. Both candidates will give at least lip service in support of the ruling.

On the other hand, if the Court effectively writes the Second Amendment out of the Bill of Rights as DC asks, then there could be a major backlash ala 1994. The GOP could recapture the House and make the Senate competitive. However, I am am unsure how former gun controller Giuliani can effectively exploit this backlash.

According to a blog published by the New York Times, Hillary Clinton has told Iowa voters, “I believe in the Second Amendment, and I don’t see any contradiction between the Second Amendment and laws that keep guns out of the hands of criminals.” The irony in this statement is that her husband did a great service to the Republican takeover in 1994 by relentlessly pushing his symbolic "assaualt weapons ban."

Like most Clintonian statements, this one says nothing.

All those who support firearm limits or prohibition claim that such laws are allowed under the Second Amendment and that their targets are criminals and not the law abiding.

If Hillary continues on this tack, it will be interesting to see of the blogosphere can come up with her past statements in favor of gun control.

"It does not appear that Rudy is a firearm prohibition zealot."

I'm not at all certain how you square that with Guliani's participation in the frivolous lawsuits against gun manufacturers; That had no utility at all as a tool to convict criminals, it was a straight up effort to 'enact' nation-wide gun controls by extortion of gun manufacturers.

Yahoo has a photo of him with a shotgun and the M-1 Garand referenced in the article. If that is also the picture in the Times, he is holding a semi-automatic rifle that was the standard infantry weapon for US forces in WWII. 30-'06 caliber, gas operated, and fed with an unique eight shot clip that automatically ejected when empty. So if that is the pic, no "machine gun".

I am certain that Al is correct, and I appreciate the identification.

I would indeed like to know more about the occasions on which Rudy has held (or "possessed" a firearm). Perhaps that can be one of the question in the next round of debate: When did you last pick up a firearm and actually fire it? I'm sure that all of us, regardless of our place along the political spectrum, would find the answers illuminating.

If, as is likely, the Court renders a narrow decision in favor of an individual right to keep arms in ones own home, I do not expect much of a splash in the general election. Both candidates will give at least lip service in support of the ruling.

On the other hand, if the Court effectively writes the Second Amendment out of the Bill of Rights as DC asks, then there could be a major backlash ala 1994. The GOP could recapture the House and make the Senate competitive. However, I am am unsure how former gun controller Giuliani can effectively exploit this backlash.

Bart, you didn't address a third scenario, one that I will admit I don't think is likely. But what do you think the political implications would be if the Supreme Court issues a broad ruling that calls into question numerous federal and state gun control laws?

"I believe in the Second Amendment" is not very illuminating about how it will be interpreted. If the Supreme Court comes down with its decision prior to next fall, then let's hear from the candidates, of all parties, how much they believe in the Second Amendment as construed by the Court. Elected officials swear to uphold the Constitution, etc, but it isn't always clear what the Constitution means, especially since the meaning as construed by the Court can change from time to time. Perhaps elected officials should be permitted to have the equivalent of "signing statements" to protect them just in case the Court comes up with a different understanding.

I, for one, agree with Dillan that's an extremely unlikely scenario, for all that the legal merits would justify it.

The important thing to recognize, I think, is that even an all encompassing ruling like that would meet from enormous resistance from the jurisdictions currently invested in gun control. Lawsuit after lawsuit would have to be undertaken, against laws, against abusive enforcement of other laws.

It would be a full employment guarantee for the NRA's legal department, and I think very healthy for the organization, which would get to be seen by it's members publicly standing up for their rights.

Did Brown demoralize the civil rights movement?

dilan said...

Bart, you didn't address a third scenario, one that I will admit I don't think is likely. But what do you think the political implications would be if the Supreme Court issues a broad ruling that calls into question numerous federal and state gun control laws?

In that case, I would salute the Court with a beer in utter amazement. However, there is no way I can see Kennedy, or indeed Roberts, proceeding that boldly.

As for the affect on the election, I do not see that many outraged gun control true believers out there who will not already be voting Dem.

This issue really only cuts against the Dems. There are hundreds of thousands of folks who normally vote Dem who hunt and/or who own firearms for self defense and oppose gun control laws. However, there are very few Republicans who cut the other way. This is why the Dems have run from this issue like scalded cats after they lost Congress in 1994.

“I believe in the Second Amendment, and I don’t see any contradiction between the Second Amendment and laws that keep guns out of the hands of criminals.” -- HRC

Since in her mind, all gun owners are criminals, there is no conflict of opinion here at all.

It didn't take long for folks to dig up Hillary's past statements on gun control laws:

In Hillary Clinton’s book, “Living History,” she writes about her outrage at Congress’ failure to, “…close the so-called gun-show loophole and to require child safety locks on guns.” She goes on talking about how Congress lacked the will to, “…buck the all-powerful gun lobby and pass sensible gun safety measures [which] made me think about what I might be able to do, as a senator, to pass common sense legislation. In an interview in May, I told CBS anchor Dan Rather that, if I ran for the Senate, it would be because of what I learned in places like Littleton -- and in spite of what I had lived through in Washington.”

I am sure there is much more in this vein a good opposition researcher could find.

Of course, as Obama and Edwards found out, pointing out Mrs. Clinton's various flip flops is not permitted because it is unfair for boys to beat up on a girl...

My problem with the 2nd Amendment debate is that it is all so phony. None of the debate participants acknowledge that the debate is really about the right to bear "fire arms" not "arms". I have yet to hear anyone involved argue that the 2nd amendment gives someone the right to possess WMD, so they have already accepted the principle that the government can limit what 'arms' the people can bear. So we are now down to debating if "fire arms" are so militarily insignificant that the government can not limit the right of the people to bear them.

So get over it! This is just another "issue" to get the voters all hot and bothered so they'll vote for your candidate and not pay any attention to the real issues in the election.

MY problem with the 2nd amendment debate is people who keep bringing up that WMD strawman, even though there's scarcely a thread of any length on this topic where it isn't demolished.

To wit: It says "arms", not "weapons", and "arms" actually has a meaning in the context of "keeping and bearing": Those weapons an ordinary soldier is expected to be equipped with.

Any time the federal government wants assault rifles to stop being "arms", they can stop handing them out to their own solders. But "weapons of mass destruction" won't be "arms" until the day grunts out of boot camp are issued their own personal backpack nuke.

I have heard this definition before an to date have yet to be given a sitation, so could you be so kind as to provide one. In any case I shall withdraw the WMD and just ask for a M72 LAW or a FIM-92 Stinger which are currently issued to "ordinary soldiers" the last time I looked at the TO&E of the USA & USM. An while the LAW can lousely be called a "fire arm" and I do think a SAM safely falls out of the definitiion.

I would further refine what Brett offered. Arms which can physically borne by an individual citizen can at most be small arms. That rules out everything from heavy crew served weapons up to ICBMs. It includes individual firearms and cutting weapons.

The only difficult question I see here is whether rifles and pistols capable of automatic fire are covered by the Second Amendment right.

The preliminary clause of the Second Amendment noting that the purpose of the right of the people to keep and bear arms was to provide a ready general militia for the Republic argues that the right reaches small arms usually carried by soldiers, which includes those with automatic fire capability.


Explosives and anti tank rockets were arms commonly provided by the state and not those carried by citizen militia.


I really, really do not want to start debating TO&E nor who supplies the "arms" in question. My goal is to point out the problem of just what "arms" means. It is all too easy for us to get sidetracked into debates on semantics and meanings.

My point is as simple as it is difficult. All participants start with the conclusion they want and then interpret the words to achieve their goal. The problem we really need to address is that the 2nd Amendment is a "hot button" issue that is being used by politicos to get "us" the voter to ignore the real issues that truly matter here and now.

The issues of the 2nd Amendment are not going to be solved now because we, the american people, have yet to com to a consensus on what it means. Until we come to a consensus very little, if anything, will be resolved. Therefore I say lets set this issue aside and talk about issues that can be solved and are of a more immediate concern. Issues like Habeus Corpus and unreasonable search and seizure.

Lets tell anyone and everyone who brings up this issue, "What kind of fool do you take me for? Stop with all the 'smoke and mirrors' and get down to the real issues."

Although it was a good attempt at the time, Bill's push to decrease crime was not that successful. However, Hillary may know more that people think about guns. Just because she was in the shadow of Bill at the time, she has proven that she has her own strategy and position on certain issues that her husnad did not. Who knows, she could have a valid point, but I agree that we need to know how she inteprets the 2nd Amendment in 2007. We need to hear more on her position to make that judgement.



Defining what is meant by arms is not very difficult. There are about a dozen cases in the 19th Century which explored this issue. The majority consensus was that the right extended to firearms suitable for militia use.

Moreover, it is difficult to see what issue is currently more important than restoring the right that Justice Story called the palladium of the liberties of a Republic.

I disagree any attempt to distinguish the treatment of full auto individual firearms from other individual firearms.

The historical discussions I have reviewed seem to indicate that the Founders explicitly intended the 2nd Amendment to provide a check against government tyranny. If the government makes fully automatic infantry weapons available to its military but restricts civilians to semi-automatic weapons, then the government has significantly handicapped the civilians.


Once agian I say, "Please site your sources". Without sources all you are doing is giving us an opinion, not a fact. An no-matter how valid an opinion is, it is still just an opinion and not a fact. I'm looking for facts, I need facts. So please site your sources. Just saying that there are "...about a dozen cases in the 19th Cent...." and "...historical discussions I have reviewed seem to indicate..." are just not enough to go on. Don't think I'm doubting your veracity, I'm not, it is just that I've gotten tired of hearing opinion and not facts.



Hey, all of you law professor types: one of you ought to join in the discussion over at Glenn Greenwald and Atrios and the Anonymous Liberal and Firedoglake concerning Joe Klein's idiocy over at the Time Magazine Swampland blog regarding the FISA legislation before Congress.

In a column to be published in Time Magazine, he utterly mischaracterized the FISA legislation and then slammed the Democrats for being weak on national security based on his mischaracterization. He actually accuses them of giving foreign terrorists the same rights as Americans. As Greenwald said:

"The most obvious and harmful inaccuracy was his claim that that bill "would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court" and that it therefore "would give terrorists the same legal protections as Americans." Based on those outright falsehoods, Klein called the House Democrats' bill "well beyond stupid.""

Why doesn't one of you join in the criticism of Joe Klein for his idiocy? His piece is slated to be published in the next issue of Time Magazine, helping reinforce among millions of readers the stereotypical critique of the Democrats as being soft on terror.

Klein refuses to make an honest correction and admits that he got his interpretation from a Republican congressional staffer. He appears not to have consulted any Democrats or, say, this web site or any of the others that could have explained the facts to him.

He deserves to be made an example of -- to take a shot across the bow of the media whores to let them know that they are not going to sabotage another Democratic election unchallenged.

A trenchant analysis of exactly how wrong Klein is -- and why and how inexcusable his "error" is -- coming from one of you would be very powerful.

Beau, here's your reading assignment:

That ought to bring you up to speed.

Please read Saul Cornell's "A Well Regulated Militia" to get a good understanding of the Second Amendment's original meaning/understanding. Cornell is a historian who has considered the Second Amendment in a direction different from constitutional law scholars who focus on the individual versus collective right that separates them. Also, read the writings of these constitutional law scholars. There are no Cliff Notes (nor bumper stickers) that will provide good or easy answers to a serious matter.

What is it about asking for citations that is so difficult to grasp? You make a quote, you tell where the quote comes from.

Example: "A well regulated Militia..." (U.S. Constitution, 2nd Amendment)

What is so hard about this?

While I always like getting new sources of information and new histories to read, they are not citations.

'brett', 'shag from brookline' I feel you are doing your position(s) a disservice here. You are giving the impression that you really can't give the information asked for. At best you could be just parroting someone else, and a worst you are "creating out of whole cloth" the quotes. I would suggest that this is not the impression you want to make or leave your readers with.

Brett: Thanks for the link for the DC Gun Case. I will add it to my list of sources on this very important and interesting case. I'm quite interested in seeing how this case is decided and the reasoning and I look forward in seeing who writes the majority opinion.

Shag from brookline: I have never read anything by Soul Cornell and I'll be l


It will be interesting to see who writes the decision.

Hopefully, it will be either Scalia or Thomas providing a strong analysis of the text and history of the Second Amendment to provide the springboard for future decisions.

Kennedy or perhaps Roberts can be very narrow, incremental and non committal.

Obama has jumped aboard the 2d Amendment bandwagon in least for us hicks in the country:

“We should be able to combine respect for those traditions with our concern for kids who are being shot down. This is a classic example of us just applying some common sense, just being reasonable, right? And reasonable would say that lawful gun owners – I respect the Second Amendment. I think lawful gun owners should be able to hunt, be sportsmen, protect their families.

“And by the way, Michelle, my wife, she was traveling up, I think, in eastern Iowa, she was driving through this nice, beautiful area, going through all this farmland and hills and rivers and she said ‘Boy, it’s really pretty up here,’ but she said, ‘But you know, I can see why if I was living out here, I’d want a gun. Because, you know, 911 is going to take some time before somebody responds. You know what I mean? You know, it’s like five miles between every house.’

This man has no clue about firearms or rural America.

I doubt that the folks in rural Iowa even need to lock their doors at night. They call 911 for medical emergencies. They use firearms for hunting and vermin control.

Its places like D.C. where folks need a firearm for self protection from the various human vermin preying on that city.

Okay, you don't want to read a whole book on the subject. Surely you wouldn't be satisfied with a bumper sticker reading:


But then again, you might.

Cass R. Sunstein has a book review/essay on Mark V. Tushnet's book "Out of Range" (Oxford Univ. Press) in The New Republic, November 12, 2007, available on the Internet (free). Printer/friendly it comes to 7 pages single spaced. Perhaps you might read this to get a myriad of views on the subject. And you just might want to read Tushnet's book, or even that of Saul Cornell that Sunstein mentions.


I see you have been misslead by my typo in my last posting. The last part of my respose to you was left off. My bad. I will be adding Saul Cornell's "A Well Regulated Militia" and some of his other works to my reading list. It may take me a little while to get to it, I've just had added several new works on WWI and Napoleon that were recomended to me.

As far as your other recomendation, I think I'll pass. I have less than lively respect for the book reviews of "The New Republic". Over the years they've got more interested in the view point of the book and less interested in the quallity of the writing or the reasoning of the book. Personal opiniion this, but what the hey?

Beau, while reading Saul Cornell's work, keep something in mind: He heads up the "Second Amendment Research Center", a propaganda mill funded by the Joyce foundation. No doubt he figures he's working in a good cause, but you can't ignore the fact that if he ever concluded the 2nd amendment guaranteed a meaningful individual right, he'd be fired from a very cushy job.

Which is not to say that he's not worth reading, because he is, if only as a guide to what passes for legal scholarship among gun controllers. Just think of him as running the constitutional scholarship equivalent of the Tobacco Institute, and be on your guard.

With your your comment on Cornell just recently as well as your earlier comment, can I take it that you did read his book? If so, have you critiqued it? Can you point to major flaws in his approach? And are you really questioning his integrity? Or perhaps you have not read his book.

I subscribed to the New Republic back in the 1960s and early 1970s when it was a decent magazine. Marty Peretz with his wife's Singer Sewing Machine fortune financed his acquisition of the magazine, which he finally had to give up because it was failing financially and intellectually. I understand the new owners (from Canada, I think) have been restoring some of its lost credibility. In any event, Cass Sunstein is well recognized in legal literature and the legal academia. He has published just about everywhere. So take the time, read the 7 pages of his review/essay. It may advance your knowledge on the Second Amendment.

I haven't read that particular book, no, but I've read plenty of his shorter writings. Enough, I think, to take his measure, and it's not one I admire.

I'd say he's a soul mate to Bellesiles, only one with enough sense not to perpetrate obvious frauds. Which is not to say that he's above committing frauds, if he thinks he won't get caught. Check this out:

Shag, a link would have been nice, but I found it anyway. It's not the most unbalanced essay I've ever read on the topic, to be sure. Not that that's saying much. ;)

I found the discussion of Miller to be rather lacking in context. Both it's coming after the "switch in time that saved Nine", and the fact that it was a trial in absentia; Think of it, seventy years of 2nd amendment jurisprudence balanced like an inverted pyramid on a case where only one side was argued, after the Court had been bullied into giving up on enforcing Constitutional limits on federal power, and that side STILL only managed to win by default. Amazing.

And his assertion that we have trouble putting ourselves into the mindset of the time... Well, he does, anyway. I think there's substantial evidence that this isn't a handicap everyone suffers under.

The bottom line for me, is that it says, "right of the people". The Supreme court damned well better find that it guarantees a right, of the people, or there will be hell to pay, and that's no exaggeration.

As an exercise in constitutional interpretation, perhaps we should go through the entire Constitution as amended to identify and focus upon the word "people" each time it is used to weigh and consider whether it relates to each and every individual or perhaps collectively. Should the word "people" be interpreted with some consistency?

Thanks for the link. I need more time to review it but it looks quite interesting and civilized.

Shag, the founding fathers had many failings, but collectivism is a modern intellectual perversion. There are no "collective rights" in the Constitution. The very notion of a "collective" right is a 20th century invention, devised for the purpose of denying a right to every particular person who might claim it, while pretending you're respecting it in general.

Shag, the founding fathers had many failings, but collectivism is a modern intellectual perversion. There are no "collective rights" in the Constitution.

Offered without comment:

"that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

We have all been commenting on Sandy's post on the Second Amendment. I should note that in Cass Sunstein's review/essay he makes reference to Sandy:

"The Second Amendment revolution has been influenced by an intensely committed social movement with political and legal arms. But it is also true that for many decades lawyers and law professors paid hardly any attention to the Second Amendment. Sanford Levinson, a well-known liberal legal scholar, produced the key papter in 1989, called 'The Embarrassing Second Amendment,' which took the pro-gun position seriously. Levinson started a kind of academic avalanche, in which other scholars, with varying legal positions, helped move the individual rights position from the margin to the mainstream."

Sandy's avalanche continues. Perhaps Sandy might have some thoughts on Sunstein's review/essay as the rocks continue to pile.

Sandy's article 'The Embarrassing Second Amendment' was one of the inspirations for my law school article submission to the law review discussing how to actually apply the Second Amendment. In fact, this was one of the most cited articles at the time and arguably started much of the interest in legal academia on this subject.

Unfortunately, the Second Amendment was already a moderately popular subject at our Law Review and they declined my article because they had published another 2d Amendment piece a few months before.

However, all that work was not lost. NRA actually runs a law student writing contest with cash awards. The five grand I received winning that contest with my article sure helped my wife and I while I was not working in law school. Things have a way of working out.

Bart's position on small arms doesn't work because it makes the whole right depend on miniaturization technology. It would seem to me that under Bart's analysis, I would have the right to keep and bear a "Davy Crockett" nuclear warhead, if I could build one, because it is small enough to fit on a sidearm.


You are correct that technology has a way of presenting new questions on how to apply the Bill of Rights. The case law concerning speech and searches is replete with such emerging issues.

The Second Amendment's text suggests that arms to which the People have a right to keep and bear must be portable by an individual and suitable for militia military service.

At the time the Constitution was ratified, this meant firearms and cutting weapons like knives, hatchets and swords. Explosives from grenades to mines were not owned and carried by militia members at that time. Such weapons were provided to the militia by the States and later the Federal Government.

Therefore, I would suggest that a future court applying the original meaning and intent of the Second Amendment to miniaturized nuclear explosives could reasonably hold that the Second Amendment does not apply to this class of arms.

Our small arms technology has advanced somewhat since then, but we are still basically talking about firearms and cutting weapons and my suggested test for what arms enjoy protection still applies well.

Perhaps someday technology will advance such that our gunpowder powered small arms will be replaced with the energy beam or accelerated particle small arms of our science fiction. The Courts at that time will have to deal with the Second Amendment issues raised by these new technologies as they have when applying other rights.

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