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The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm. Here's the discussion by Magistrate Judge James C. Francis IV (of the Southern District of New York) (some paragraph breaks added):

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release.... [But, given D.C. v. Heller, t]o the extent ... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest [for Due Process Clause purposes]. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.

Again, the next step in the analysis is to apply the Mathews v. Eldridge balancing test. The private interest at stake is paramount: the right to possess a firearm is constitutionally protected. In Heller, the Court made clear that there is no hierarchy of constitutional rights: "[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon." The remaining Mathews factors play out much as they did in the analysis of the curfew requirement.

First, there is a serious risk that, in the absence of an individualized determination, an accused person will wrongly be deprived of his Second Amendment rights. Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm. Second, providing the defendant with an opportunity to be heard with respect to the appropriateness of this condition would reduce the potential error rate without creating a significant burden. And, finally, the Government's interest in ensuring the safety of the community would not be undermined by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed bail condition.

Accordingly, the Adam Walsh Amendments [the name of the statute involved here -EV] violate due process by requiring that, as a condition of release on bail, an accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community. Because the Amendments do not permit an individualized determination, they are unconstitutional on their face. The Government's application to impose as a condition of bail that Mr. Arzberger not possess a firearm is therefore denied....

[Footnote:] The determination that the mandatory imposition of each of the conditions requested by the Government violates procedural due process does not preclude the Government from renewing its application provided that it is prepared to proffer a basis for requiring any or all of these conditions in Mr. Arzberger's particular circumstances.

This is formally a Due Process Clause holding, but it rests on a conclusion about the Second Amendment. Recall that the Due Process Clause (sometimes) entitles people to hearings only when there's a legally relevant factual dispute to be resolved. Persons "who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme," or are made relevant by the Constitution.

If Congress were constitutionally allowed to ban all gun possession by people who have been indicted for possessing child pornography, whether or not those people are found to pose a special risk of gun violence, then no hearing would be required. That's why the excerpt I quoted begins with the sentence "A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release." If Congress could categorically do this, then there'd be no factual issue to resolve at the hearing. All the evidence in the world that this person is unlikely to pose a danger of gun violence will be irrelevant under the statutory/constitutional scheme.

The hearing is required only because at least some such indictees still have the "constitutionally protected" "right to possess a firearm" — presumably those indictees as to whom "such a [no firearms] condition is reasonably necessary in [their] case[s] to secure the safety of the community," which is to say those who don't pose any special risk of misusing their guns. (I say "special risk" because obviously just the general risk that any gun owner may misuse his guns can't be enough: If it were, no hearing would be needed, since such a risk is present for everyone.)

In any case, this is an important decision, though just from a magistrate judge. For other cases in which the Second Amendment has been relied on in a claimant's favor, see here, here, and here. But none of these cases involved a holding that a gun control law was unconstitutional, even as applied to a particular claimant.

For other views on gun possession by indictees, see State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981) (upholding a categorical ban on gun possession by indictees, though noting that it imposes only a "temporary limitation," with provision for relief "[s]hould the temporary limitation work an undue hardship upon the indicted party"), overruled on other grounds, State v. Frederick, 1989 WL 80493 (Ohio Ct. App.); State v. In, 18 P.3d 500, 503 (Utah. Ct. App. 2000) (also stating that such a ban is constitutional, but without a detailed explanation). Compare State v. Spiers, 79 P.3d 30, 34-35 (Wash. Ct. App. 2003) (ambiguous on whether a categorical ban on gun possession by certain kinds of indictees was constitutional, or on whether such a ban was constitutional when there was a finding that the indictee "poses substantial danger").

Related Posts (on one page):

  1. Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
  2. The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:
Thief (mail) (www):
A judge taking a Constitutional Amendment seriously? When did this start?
1.12.2009 11:22am
Bart (mail):
Excellent! I have been waiting for just such an opinion to challenge the automatic denial of possession of firearms through pro se restraining orders.

I have serious doubts that our courts will find the statutes providing authority for these restraining orders facially unconstitutional for not providing for hearings, but it is good precedent for requesting such a hearing as a prerequisite for a suspension of Second Amendment rights.
1.12.2009 11:33am
methodact:
One of the more insideous aspects of the Big Lie that was sold in the run-up to these child pornography laws, was that people in possession "have no rights, they have forfeited all rights". Yes government money illegally helped sell this message.

Politicians and others, droned this particular mantra hours on end in long continuous loops, over cable and on air. It served as part of that Manchurian Candidate-type conditioning, demonizing and dehumanizing a class of people and in effect setting up a virtual open season upon this class of fellow humanity, deemed as monsters. Deplorably, this sad history in the run-up to these wicked laws, is but one of government's crimes against humanity.

And if one class of humanity can be successfully made to be perceived as non-persons, others can too.
1.12.2009 11:46am
Al Maviva:
This is a good start. Maybe the real benefit of Heller is that it will get conservatives thinking harder about procedural due process, something the Administrative State is often quite short of, in spite of generous appeal rights to the agency that denied a right in the first place...
1.12.2009 12:07pm
Jim at FSU (mail):
I am both pleased and worried by this.

I'm pleased because a judge is taking a constitutional right seriously. It's a refreshing change after all these hand-wavy opinions that hide behind the dicta of Heller while ignoring its central holding.

I'm worried because accused pedophiles do not make for sympathetic test cases and this might be an underhanded attempt to undermine Heller.
1.12.2009 12:07pm
ThreeSheets:
I wouldn't want to bet this helps a defendant. I can just imagine going into court on the next detention hearing and arguing that the judge can't impose that condition of bond. What I imagine is the AUSA no longer agreeing to pre-trial release and/or the judge denying bond.
1.12.2009 12:42pm
Sean M.:
I'll second ThreeSheets that this may not help criminal defendants as much as they might like. Presumably, even if the restriction is unconstitutional, the DOJ will still want the substantive protection of the provision. This means extracting an agreement from the defendant to waive the firearm possession right as a condition of pre-trial release or presenting a contested detention hearing.

Refusing to agree to the firearms condition will annoy an AUSA who may now be less inclined to plea bargain as a way to "send a message" to the criminal defense. In addition, a contested detention hearing reduces a defendant's value as a cooperator because the hearing can be used to impeach the defendant if he is a witness at some later trial. ("How can you ask the jury to believe you? Even the U.S. Attorney thinks you're dangerous! He said so at your detention hearing!") Less value as a cooperator means less willingness to deal.

In short, I'd be very careful if I was a defense attorney looking considering making this argument on behalf of my client.
1.12.2009 12:55pm
Bruce_M (mail):
I'm pleased by this ruling (though I bet it will be overturned on appeal). But assuming this reasoning is correct, then I think 18 USC 922(n) is a per se violation of due process:

(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Of course, all firearms are automatically shipped/transported "in interstate or foreign commerce" so it applies to all guns. If you're under indictment, you can't buy a gun. No individualized determination.

This statute has always troubled me - nobody should automatically lose a constitutional right merely because a prosecutor convinced a grand jury to hand down an indictment. If not buying/possessing a gun should be a condition of bond, then let the parties make their arguments and let a judge decide. Defendants charged with felonies may very well be in danger and need a weapon for protection from other co-conspirators who are afraid they may flip and rat them out for a plea deal. Happens every day.
1.12.2009 1:33pm
AOracle (mail):
Question 11-b, on ATF Form 4473 (5300.9) Part I, Revised 8/08 asks:
Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?

I you answer "Yes", the FFL must decline request for sale/transfer.
1.12.2009 1:45pm
Bruce_M (mail):
AOracle: exactly - that's because of 922(n). I have always felt this statute is unconstitutional, and now there is a realistic basis for such a holding. If the decision in the case made the basis of this thread is affirmed, then I think 922(n) must be held a violation of due process.
1.12.2009 2:13pm
Right-Wing-Extremist (mail) (www):
This is great news. The judge is actually following the law and requiring a conviction before making the accused turn over or transfer ownership of firearms.
1.12.2009 2:37pm
Oren:
ThreeSheets is right -- if this is successful the requirement will be moved from statute to bail agreement and nothing more.
1.12.2009 2:46pm
Dilan Esper (mail) (www):
I once represented a prominent client who was a criminal defendant in a trial which received a lot of press attention, and who had been placed under the same gag order that the lawyers to the case had been placed under. Under the order, she was not allowed even to go before the press and state that she was innocent. It was eventually overturned.

But that case taught me something about the difference between being charged and being convicted. And the legal system is often too quick to strip people who have merely been charged of various rights.

In that light, while I could certainly see a circumstance where a specific showing is made that a particular indictee is in fact dangerous and should not be permitted to roam free with a gun, I want that showing made and I want it to be specific. Otherwise, we are going to end up depriving people of important constitutional rights and the ability to protect themselves based on nothing more than a police informant's say-so.
1.12.2009 2:58pm
Clayton E. Cramer (mail) (www):
Now, what if the accused were prohibited from possession of cameras or computers pending trial? That would seem to have a clear connection to the crime charged in a way that gun possession does not.
1.12.2009 3:24pm
Kirk:
I could certainly see a circumstance where a specific showing is made that a particular indictee is in fact dangerous and should not be permitted to roam free with a gun...
All well and good, but if the indictee is that dangerous, why are they being released on bail at all? There are plenty of ways to harm others w/o using firearms.
1.12.2009 3:37pm
chrism (mail):
the same ruling should also be held for the Lautenberg amendment.
1.12.2009 3:55pm
PlugInMonster:
Dilan - guilty until proven innocent, particularly if they are of a minority race.
1.12.2009 3:58pm
molonlabe28 (mail):
This is an excellent case.

Summary revocation of liberties should bother us as much as our Second Amendment rights.
1.12.2009 4:32pm
whit:

This statute has always troubled me - nobody should automatically lose a constitutional right merely because a prosecutor convinced a grand jury to hand down an indictment.


or because a judge issued a no-contact order pursuant to an arrest for DV, etc.
1.12.2009 4:54pm
Chuck (mail):
From the judge:

... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose,...
Nope -- try again: the 2d Amendment ensures the individual right to possess a firearm unrelated to any military purpose.

The existence of a Militia is predicated on the existence of an armed populous. The Militia arises as needed in response to crisis (riot, disaster, etc.) or upon request by authority (a'la old west posse). Self defense is implicit.
1.12.2009 4:57pm
Kirk:
Chuck,

Make that populace, please. Though it helps if the populace is populous, too--"quantity has a quality all its own" and all that.
1.12.2009 5:33pm
Bruce_M (mail):
Whit: I agree, but at least the restrained spouse had a hearing to argue about whether a no-contact order was proper, though some may be issued on an preliminary, ex parte basis. Moreover, some showing likely has to be made in order to get a judge to issue a no-contact order, though I'm sure that varies state to state. Finally, there is some plausible, though very tenuous, nexus between spouses fighting a bitter divorce/custody case and violence by one spouse against the other. So it's a little bit different, though not much, and it should not be enough to restrict one's liberty vis a vis the 2nd Amendment.
1.12.2009 6:11pm
Micha Elyi (mail):
The name of a little kid on a law is prima facie evidence that this is a bad law. If the law bears a girl's name, the presumption that this law is based on a bad idea from hysteria-mongers is practically unrebuttable.
1.12.2009 6:40pm
J. Aldridge:
The line "that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose" would be more honest if it read, "that the United States Supreme Court has created an individual right to possess a firearm unrelated to any military purpose."
1.12.2009 6:56pm
cognitis:
Several of the Federalist papers dispute both the nature and role of a militia in the Union, most directly Paper 29. In Paper 29, Hamilton first exposes the subject:

"THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy."

Hamilton later describes the need for regulating the militia by Congress:

"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security."

Now, compare Hamilton's "...well-regulated militia be the most natural defense of a free country..." with Second Amendment's first clause, "A well regulated Militia, being necessary to the security of a free State...". That the meaning of the Second Amendment comes directly from Hamilton's description of a militia in Paper 29 is indisputable. The Second Amendment's militia is now embodied in the National Guard; in no way could one interpret the Amendment as granting individuals the right to both bear and own guns; especially since Hamilton argued for the need of uniformity in arms, which uniformity would expede supply to militia (perhaps ammunition and rifle's spare parts.

If you wish to repel invasions or disperse lawless mobs or give aid to natural disasters' victims, join the National Guard.
1.12.2009 7:04pm
Chuck (mail):
Kirk -- Thank you! (darn spell checker...)
1.12.2009 8:35pm
RAH (mail):
Cognitis,

Your comment,"no way could one interpret the Amndment as granting individuals the right to both bear and own guns" is incorrect. SCOTUS did interpret that a prexisting right to bear and own guns which was protected under the 2A belonged to individuals.

I am very happy that a judge did agree that any law that without due process or conviction that takes away a protected right under the Constitution is beyond the authority of Congress, executive or judicial branch. I am glad it pertained to 2A but happy the concept that any constitutional protected right can not be summary taken away.
1.12.2009 9:05pm
cognitis:
Clearly you didn't read the disputed post carefully. How about this: since the Amendment gives citizens the right to bear arms in order to repel invasions, why does SCOTUS infringe on my right to bear 25mm autoloading cannons, 150mm howitzers, tactical nuclear warheads, armored helicopter gunships? When disputing with some, one must use tactile examples instead of principles.
1.12.2009 9:25pm
arbitraryaardvark (mail) (www):
Good decision. I hope the case will get extensive amicus support if it gets further litigated.
I've been in a situation like that of plaintiff. I'd been falsely charged with a felony. It took over a year to get the charges dropped. A condition of bond was that I not have a gun. Meanwhile there was a guy with a gun out there trying to kill me. He's in prison now, 99 years for killing a couple of people. It was a difficult time for me. I might not have prevailed at a hearing about whether I could have a gun while out on bail, but at least it would have given me more due process than I got at the time.
1.12.2009 10:08pm
J. Aldridge:
RAH said: "SCOTUS did interpret that a prexisting right to bear and own guns which was protected under the 2A belonged to individuals."

Actually they interpreted it both ways. "But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”

See D.C. v. Heller: Was Scalia Honest with the Facts?
1.12.2009 11:23pm
RAH (mail):
The limitations on what arms a citizen may own is not the question here. However you may be surpised and the variety of arms that citizens do own from motars, howitzers, tanks, fighter planes etc.

The true limitation on what a person can own are economic. Can you afford it and the land to store or use it? I doubt that many Americans can afford nuclear arms so this issue is just abstract. But private owners do own armed ships just like they did during revolutionary times.
1.13.2009 7:53am
Clayton E. Cramer (mail) (www):

How about this: since the Amendment gives citizens the right to bear arms in order to repel invasions, why does SCOTUS infringe on my right to bear 25mm autoloading cannons, 150mm howitzers, tactical nuclear warheads, armored helicopter gunships? When disputing with some, one must use tactile examples instead of principles.
Look into the meaning of "bear arms" at the time: it referred to weapons that you could pick up and carry.
1.13.2009 9:26am
Melancton Smith:
Cognitis wrote:

Clearly you didn't read the disputed post carefully. How about this: since the Amendment gives citizens the right to bear arms in order to repel invasions, why does SCOTUS infringe on my right to bear 25mm autoloading cannons, 150mm howitzers, tactical nuclear warheads, armored helicopter gunships? When disputing with some, one must use tactile examples instead of principles.


Repelling an invasion is not the sole purpose of the militia system. True we now have the dreaded standing army (including the National Guard---a 'select' militia and not a true militia in the 2A sense).

However, another compelling reason for militia is to maintain firearms skill in the pool from which the standing army and any called-up militia my be drawn. You can read a Heller amicus brief by a group of Generals regarding how useful it was during WWII that many recruits had experience with using their private arms.

It serves the people's interest that they retain the skill of arms usage.

There is also the other aspect of 2A...that as a check on tyranny.
1.13.2009 9:40am
Clayton E. Cramer (mail) (www):

Repelling an invasion is not the sole purpose of the militia system.
And to my surprise, when reading the documents of the time, not even the primary one to many of the Founding period. It was to maintain the capacity to overthrow a tyrannical government--an increasing concern with the new more powerful federal government. I'm always amazed at how the crowd that believed that Bush was going to cancel the 2008 elections to stay in power would want the only armed people to be government employees.
1.13.2009 11:53am
cognitis:
Clayton:

Thanks for confirming my argument. SCOTUS errs so far from the Second Amendment, that one could only conclude SCOTUS to have political reason.
1.13.2009 2:00pm
Dilan Esper (mail) (www):
It is quite true that the framers believed in an armed citizenry in part because of the desire that there be a potential well of effective resistance if the government became tyrranical. They had recent experience with such a regime, after all. And so much of the Bill of Rights deals with the abuses of the British against the colonies (e.g., quartering soldiers, general searches, imprisonment without trial). The Second Amendment is no different.

That said, this is one respect in which not only am I not an originalist (I basically am never one) but neither will any of the members of the Supreme Court ever be originalists. You are not going to ever see a constitutional right of revolution recognized by any American court.

I do not, however, believe that this in any way defeats the right to keep and bear arms. The framers believed in the benefits of an armed populace, and they installed a constitutional provision to ensure one. That's enough reason to protect it.
1.13.2009 2:07pm
Fidelity (mail) (www):
^^^ "You are not going to ever see a constitutional right of revolution recognized by any American court." If only Jefferson wasn't in France....
1.13.2009 4:36pm
Kristopher (mail) (www):
Ermmm ... individuals did own cannon at the time. The most common use was to arm American merchant ships against piracy ... a use that is very relevant today.

That fracas at Lexington Green was started because the British Governor had learned that a Mr. John Hancock had donated a pair of cannon to the town militia commander.

The Brits did not get the cannons, btw ... the tubes were buried in a corn field before they arrived.
1.13.2009 4:52pm
Michael Ejercito (mail) (www):

Given Heller, and maybe even without Heller, one wonders how the D.A.'s office would be able to justify a complete ban on ownership of firearms (as opposed to carrying them while on the job) as a condition of employment.

Accused pedophiles are innocent until proven guilty.

There are defenses against child pornography charges (the people in the pictures are adults who look very young, the pictures are not photographs of real people). It is up to the courts to determine if the charges are proven.
1.13.2009 6:05pm
J. Aldridge:
Melancton Smith wrote: "You can read a Heller amicus brief by a group of Generals regarding how useful it was during WWII that many recruits had experience with using their private arms."

You will also find in fact that all people able to bear arms were required by law to drill with arms. The truth neocons refuse to accept is there can be no effective fighting force without training and organization. An armed general public with private arms is useless as a defense.
1.13.2009 6:57pm
zippypinhead:
The mandatory nature of the Adam Walsh amendment's requirement that conditions of release include a firearms ban is, of course the issue. Under the general (non-Adam Walsh amendment minor victim) terms of 18 U.S.C. §3142(c)(1)(B), the court is to fashion "the least restrictive further condition, or combination of conditions, that . . . will reasonably assure . . . the safety of any other person and the community, which MAY include the condition that the person . . . (viii) refrain from possessing a firearm . . ." (emphasis added).

While not possessing firearms is on the boilerplate conditions of pretrial release forms in the Districts I'm familiar with, so are a host of other conditions that magistrates have discretion to routinely strike out in appropriate cases, such as the requirements for drug testing, etc. which are routinely waived for white collar defendants. The firearms clause should be handled the same way, either upon request of counsel, or even sua sponte by the court. Thus one could argue that the general terms (not the Adam Walsh amendment part) of §3142 as drafted may not on its face violate the Second Amendment.

What's more curious is that the discretionary nature of §3142 conflicts with the mandatory post-indictment firearms prohibition in 18 U.S.C. §922(n). And §922(n) is mandatory for all Federal felonies, regardless whether the defendant is subject to conditions of release, is out on personal recognizance, or hasn't even been summoned or arrested yet (provided he's on notice of the existence of the indictment, of course). Of most concern, §922(n) is even mandatory for the handful of Federal felonies that do NOT disqualify convicted defendants from possessing firearms, such as Sherman Act §1 antitrust crimes. See §921(a)(20) (explicitly excluding, inter alia, "antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices").

The most sympathetic defendant for a challenge to mandatory post-indictment firearms prohibition under §922(n), therefore, is probably a businessman who's been indicted for Sherman Act bid-rigging and objects to the firearms prohibition as a condition of pretrial release.
1.13.2009 8:37pm
RCT:
The most depressing piece of the quote was the judge saying that Heller creates an individual right. In other words he does not seem to believe that the Bill of Rights enumerates right we already have. If that is his opinion we are in more serious trouble than I had thought.
1.15.2009 5:29pm
Dilan Esper (mail) (www):
The most depressing piece of the quote was the judge saying that Heller creates an individual right. In other words he does not seem to believe that the Bill of Rights enumerates right we already have. If that is his opinion we are in more serious trouble than I had thought.

I am seeing a lot of this style of argument, and I think it goes back to false things that conservatives have been telling themselves about judicial power since at least Roe v. Wade and maybe even Brown v. Board of Education. You guys really need to grow up.

Yes, I know that the Second Amendment is in the Constitution. Yes, I know that the best reading of the clause is that it protects an individual right to keep and bear arms. Had I been on the Court, I would have joined Scalia's opinion.

Nonetheless, if you decide to get upset every time that anyone says that Heller created or recognized an individual right, prepare to get really upset. The reality is that ever since Marbury, it has been the province of the judiciary to say what the law is. And that doesn't mean that they write the Constitution-- it does mean, however, that whatever the Constitution says, until the judiciary recognizes the existence of a right, the right exists only on paper, because without judicial enforcement there isn't much you can do.

Saying this does not in any way denigrate the originalist position about the Second Amendment. It just states a reality about the role courts have in our system.

Before Heller, the governing case was Miller. And while gun rights advocates have told themselves a story about Miller too, the reality is that lower courts almost universally interpreted Miller as rejecting the conception of a right to bear arms argued for by gun rights advocates. So that was the law. Heller changed the law. It didn't change the Second Amendment. But it overturned the prevailing interpretation of that provision that had been recognized in numerous courts of appeals and district courts across the country. And people who, the day before Heller, could not have sucessfully mounted a challenge to gun prohibitions woke up the day after Heller with the ability to do so.

That is what happened. You guys have to stop arguing meaningless semantics and simply accept that Heller changed something because judicial interpretations matter.
1.16.2009 1:57pm

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