SCOTUS supreme court ginsburg
(AP Photo/J. Scott Applewhite, File)
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By Larry Keane

November’s elections now promise to set the direction for all three branches of government and voters concerned about protecting Second Amendment rights have much more at stake.

The news of Justice Ruth Bader Ginsburg’s passing pushed the Nov. 3 election into overdrive. The future composition of the U.S. Supreme Court hinges on the election results, just as the next U.S. president and the entire U.S. House of Representatives and a third of the U.S. Senate. President Donald Trump indicated by the end of this week he will offer a nomination for senators to take up under their duty to advise and consent. It just takes 51 votes to confirm a justice to the Supreme Court, after the Senate Majority Leader invoked the “nuclear option.”

The nuclear option was set into motion in 2013 when then-Senate Majority Leader Harry Reid (D-Nev.) lowered the threshold vote count from the filibuster-proof 60 votes for Executive Branch appointees and federal judges below the U.S. Supreme Court level to a simple majority of 51 of the 100 senators.

Former Senate Minority Leader Harry Reid, D-Nev. (AP Photo/J. Scott Applewhite)

Senate Democrats invoked a filibuster on the nomination of Justice Neil Gorsuch, prompting current-Senate Majority Leader Mitch McConnell (R-Ky.) to change the procedures to apply to Supreme Court nominees as well. Under this simple majority vote, both Justices Gorsuch and Brett Kavanaugh were confirmed.

President Trump made the Supreme Court’s composition a campaign issue to win the White House in 2016. Less than two weeks ago, he released an updated list of 20 additional originalist names for consideration. That campaign promise is now in play with six weeks until Election Day.

Duty and Responsibility

“I will be putting forth a nominee next week – it will be a woman,” President Trump announced at a North Carolina campaign stop.

president donald trump smiles
(AP Photo/Ross D. Franklin)

In fact, the president is duty-bound to nominate a justice. Article II, Section 2 of the U.S. Constitution states the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…” That nomination is referred to the Senate Judiciary Committee, chaired by Sen. Lindsey Graham (R-S.C.), who publicly stated he will move for nomination hearings. The Judiciary Committee will report out their recommendations to the Senate, which will hold a vote at a date to be determined by the Majority Leader.

Critics are dredging up Sen. McConnell’s refusal to take up the 2016 nomination of Judge Merrick Garland by President Barack Obama as a cudgel to stall or block a nomination. They point to the “McConnell Rule” previously known as the “Biden Rule.”

joe biden
Former Vice President Joe Biden (AP Photo/Meg Kinnard)

It was then-Sen. Joe Biden (D-Del.) who made a Senate speech during President George W. Bush’s final year, saying Supreme Court nominations shouldn’t be made once campaigns begin. There was no vacancy and there is no law or rule against it. It was an idea invoked to thwart President Bush. It was also supposed to only apply when one party controls the White House, but another controls the Senate.

Mollie Hemmingway, Senior Editor at The Federalist, tweeted a reminder to pundits that rule doesn’t apply this year, since both the Senate and White House are controlled by Republicans.

Opponents are also claiming there isn’t enough time. Sen. Ted Cruz (R-Texas), who sits on the Judiciary Committee and once clerked for Chief Justice William Rehnquist, debunked that assertion in a Fox News op-ed, noting 29 times Supreme Court vacancies occurred in an election year or before inauguration and each time the president made a nomination.

Still, senators are balking, including two Republicans. Sen. Lisa Murkowski (R-Alaska) said she would not support taking up a nomination before elections. Sen. Susan Collins (R-Maine) said the winner on Nov. 3 should make the nomination.

Sen. Susan Collins, R-Maine (Greg Nash/Pool via AP)

Sen. Collins is in a tight race to keep her seat and Sen. Murkowski isn’t up for re-election this year. However, since the vote is of a simple majority, no single senator can torpedo the nomination. Sens. Murkowski and Collins could vote against or abstain, dropping Republican votes to 51. That leaves just one more vote and Vice President Mike Pence to break a tie, if needed.

Leader McConnell warned in a letter to his Republican senators, “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”

Retaliation Threats

Democrats know there isn’t much that could halt nomination proceedings, but they’re making landscape-altering threats. Senate Minority Leader Chuck Schumer (D-N.Y.) said “Nothing is off the table.” That includes slowing Senate procedures to a crawl.

Sen. Ed Markey (D-Mass.) proposed dynamiting the filibuster altogether and packing the Supreme Court. U.S. Rep. Jerry Nadler (D-N.Y.) backed that idea. Axios reported Democrats are considering admitting Puerto Rico and the District of Columbia into statehood, presumably giving four more Senate seats to Democrats. Speaker Pelosi even hinted at trying to impeach President Trump if he dared to fulfill his constitutional duty.

This all means that November’s elections just became absolutely critical for gun rights. Voters are deciding the next president and the Senate, which has halted gun control legislation streaming over from the U.S. House of Representatives. The 2016 election was propelled by voters adamant their Second Amendment rights be protected and the Supreme Court be filled with justices faithful to the original meaning of the text of the law as it is written. Today’s lawmakers are charged with that responsibility to deliver on that voter mandate.

GunVote Lead

November’s voters have a chance to tell Washington, D.C. once again, their votes matter. Those votes are needed to ensure the firearm industry isn’t politically-targeted and Second Amendment rights don’t wither away. Only a president who understands that, a Senate that protects that and a Supreme Court that applies that will do.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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86 COMMENTS

  1. This is going to turn into a regular shit show, because everyone knows that they are playing for all the marbles. Gun rights, reproduction rights, and health care are all ready to appear on the Court’s docket. The Democrats will stop at nothing to block a vote in the Judiciary committee, perhaps simply be dragging out the proceedings with demands for multiple witnesses and millions of pages of documents, just like Kavanaugh’s confirmation process. The only thing that could potentially temper the process is by Trump not nominating a judge who is intent on overturning Roe v. Wade. I think the dems are more worried about that than gun rights. And there certainly will be large scale protests if Trump nominates someone who is believed to be in favor of overturning the decision. Funny thing is that the senators will hammer any nominee on this issue even though that nominee will not be able to respond. They will do so since a response will likely disqualify the justice from voting on the issue.

    I have a hard time understanding what Pelosi thinks she can impeach Trump for–it certainly will not be because he nominates someone to fill RBG’s seat, because that is a Constitutional directive. Inquiring minds want to know if she really has something up her sleeve or if these are all hollow threats.

    s

    • Technically they could impeach the POTUS for anything. The question is if they can make it stick in the Senate.

      The point here would be just to gum up the works. The Senate can’t ignore an impeachment from the House. So, the House could impeach Trump, literally, for “wearing white after Labor Day” and the Senate would have to dispense with that charge. Any time they take on that is time they’re not taking on a confirmation process for SCOTUS.

      Anything and everything to stop this because ultimately they know that a court packing scheme is a pipe-dream at this point.

      • “The Senate can’t ignore an impeachment from the House.”

        No problem. Two can play at that game. The Senate could just immediately move to confirm.

        • No, they can’t. There’s a procedure for confirmations and deviations from that procedure are limited without a 2/3rds vote to change the rules of the Senate.

          I’m not going to get really deep in the weeds here but ultimately a rule change to expedite a confirmation process, beyond the current “nuclear option” requires debate which is unlimited unless a 66 Senators agree to the rule change or 60 agree to invoke cloture on the motion to change the rules.

        • I’m not that familiar with the intricacies of Senate rules, but I thought the chairman of the committee could decide to vote at any time which would bring it to a full senate vote. If they can do that, and the dims want to play dirty, I say turnabout is fair play.

        • Committes have rules for “recognition”, just like the Senate floor. Which is where the Dems can gum that up.

          And really it doesn’t matter. The Senate’s rules essentially make an impeachment proceeding the next article of business so even if the Committee does send a confirmation to the full Senate the impeachment still has to be dispensed with first which has it’s own set of rules.

          The Senate is arcane as hell and Pelosi gets decent advice on taking advantage of that from people like Schumer who’ve been in the Senate for decades.

          If you care, which a advise you not to, I suggest Riddick’s Senate Procedures as a reading guide to the Standing Rules of the Senate.

      • Impeachment can only be had for “high crimes and misdemeanors.” The first go round flopped because it was not based on any evidence of wrongdoing–it was completely political. Then again, so was the impeachment of Johnson and Clinton, and the vote in those cases was entirely along party lines. If the Dems take the Senate, but Trump is re-elected, they are sure to try again–but removing Trump will give us President Pence, who of course could stand for re-election.

        • Clinton actually committed the crime of perjury, and even had his law license suspended, was fined, and was held in contempt of court. It was an actual crime and it was disgraceful. The entire episode was an embarrassment for this country and probably cost Gore the election in 2000. Was it worth impeachment? I don’t think so.

        • Trump was impeached. He wasn’t convicted. Ditto Clinton.

          The House impeaches the Senate convicts or acquits. What Pelosi is talking about is having the House impeach (which can be done for literally anything because “high crimes and misdemeanors is undefined) to force the Senate to hold a trial rather than a confirmation hearing.

          Yes, in theory she can do that. It’s a gross abuse of process but it can be done.

          And yes, in theory the Senate can convict and remove the President for anything for which the House has already impeached him. If the House impeaches for wearing white after Labor Day and the Senate somehow agrees by voting to convict then the POTUS is removed because, again, “high crimes and misdemeanors” is undefined which means that if Congress wants fashion a faux pas to be a “high crime or misdemeanor” then it is by virtue that a POTUS was impeached, tried, convicted and removed for it.

      • “…because ultimately they know that a court packing scheme is a pipe-dream at this point.”

        Because you believe it’s moot if Trump wins the electoral college in November?

        If he does, that likely means he’ll benefit down-ballot by holding on to the Senate, and maybe re-taking the House in the bargain…

        • It’s a pipe dream because it’s such an obvious power grab that it would delegitimize the Party for the vast, vast majority of Americans.

          The entire point of our system is that people can respect the system even if they don’t agree with the outcome. That’s what “Rule of Law” is all about, literally ALL it’s about. If Democrats lose by running shitty dementia ridden puppets and far-Left loons and respond by changing the system when they can do so then they will be spitting on the very concept of the Rule of Law and that’s going to come with a huge price.

        • “The entire point of our system is that people can respect the system even if they don’t agree with the outcome. That’s what “Rule of Law” is all about, literally ALL it’s about.”

          Looks like we’re long past that now.

          It wasn’t long ago SCOTUS pics were confirmed with a near-unanimous vote in the affirmative. On or two might ‘protest’ vote, but the rest went along with the majority.

          Now, we’re hyper-politicized to a near goose-stepping party-line vote. ‘Respect’ is pretty much toast now…

        • True to some extent but remember Bork was back in ’87.

          Regardless, the confirmation process can be a ringer but it’s a process. Again, people may not like an outcome but they can respect the process and therefore the institution(s) involved.

          Kinda like a referee. People will tolerate outcomes they don’t care for provided that they can see that the outcome is part of a generally fair and impartial process. When you fuck with the process you undermine respect for it and that’s the start of a death spiral.

          It’s an area where people will tolerate mistakes, even big ones, but they won’t tolerate tomfuckery which is designed to make the system itself fundamentally unfair. Which is what’s being discussed here.

          FDR “got away” with this so far as he did because 1) he never actually did it after winning Wickard, 2) he was already wildly popular and 3) Pearl Harbor changed everything in the US political landscape in literally two days.

    • “Gun rights, reproduction rights, and health care are all ready to appear on the Court’s docket.”

      What 2A cases are on deck, or soon to be on deck for consideration of cert.?

        • Nope, those are *gone* forever. Cert. denied means dead, no re-spawn.

          That’s why it is important to keep the lawsuit pipeline as full as possible with good, solid cases, to take advantage of changes in court political balances when they pop up, like right now…

      • A steady stream of 2A cases comes from California and now Hawaii, with numerous cases awaiting decision by the Ninth. One of those cases, an open carry case, has been delayed since before Peruta held that there is no right to a CCW several years ago. A case called Young v. Hawaii is a right to an open carry permit will be heard next week. (By way of reference, Hawaii police chiefs had interpreted its carry licensing law for open carry as applicable only to security guards, and Hawaii has not issued a concealed carry permit in over 20 years.) On October 8, Rupp v. Becerra will argue the validity of California’s newest AW ban. Whether or not a panel decision holding that California’s mag limits are unconstitutional will be granted en banc review will be determined in 30 to 60 days. There is also a third Circuit case upholding an AW ban (New Jersey’s I seem to recall) that will likely be appealed further.

        • “A case called Young v. Hawaii is a right to an open carry permit will be heard next week.”

          It makes me wonder if the 9th may realize where the winds are now blowing and choose to ‘fall on their own sword’ to slow down the inevitable outcome, kinda like how DC got somewhat shall issue carry permits rather than letting the SCOTUS make a national ruling…

  2. Blood will flow over this one. With another committed conservative on the bench, it won’t matter whether Roberts rolls over for the left.

    • There are four votes in favor of gun rights–but Roberts is wishy washy, so the four will not vote to take a case they may lose. Put a fifth vote in, and things will change.

      • This will be interesting to see if any alleged pressure the Left was applying to Roberts (in his position as a potential swing vote) will be nullified and made moot because in a 6-3 Court there is no definite “swing vote Justice”.

        With whatever dirt and/or threats the Swamp had on him rendered useless, his conservative side might grow some gonads.

        Or maybe not…he might simply be a jellyfish no matter what. But the hope endures nevertheless…

  3. Democrats: Current president shouldn’t be allowed to nominate a justice, and the current congress shouldn’t vote on it, because that’s just letting the president and congress pick a justice when clearly the only fair thing to do is to wait to see if Biden wins so democrats can nominate a justice and a democrat congress can vote on it.

    If the roles were reversed, of course, it would be their DUTY to the American PEOPLE to ensure they remain in power, at least judicially.

    They’re not even pretending any more. You: bad. Them: good. Everybody else: Cattle.

    • Yes, they are all on record flip flopping on the issue. Even Ginsburg said years ago that the POTUS had a duty to nominate and the Senate a duty to due its duty, but in later years, she told her granddaughter just the opposite. It all depends on which party controls the Senate, since in these days of division and divisiveness, control of the Senate decides which party gets the seat for a theoretically nonpartisan position.

      • “Even Ginsburg said years ago that the POTUS had a duty to nominate and the Senate a duty to due its duty, but in later years, she told her granddaughter just the opposite.”

        Ginsburg also stated that the SCOTUS should not be expanded.

        And who wants to do that?

    • It’s just the current excuse. Imagine if republicans waited and Trump won a second term. Okay, do you honestly think they would confirm a Justice next year without a fight? It would be Kavanaugh 2.0.

    • t the democrats as master planners, mcconnell doomed this opportunity two years ago. you know rommny is going to vote against this , that brings the vot to a standstill at 5050. in 2018 mitch McConnell and the GOP establishment organized and funded Doug jones democratic senate campaign to defeat republican roy moore . he won by 1% of the vote and will now be able to prevent McConnell from this done.

    • The thing is their roles WERE reversed in 16 (aside from not controlling the senate) and they brayed like the mules they were/are (pun intended) about not confirming Obama’s pick. This situation is like watching the tea party in Alice and Wonderland when the mad hatter shouted for everyone to change places.

  4. The Constitution requires the President to nominate and the Senate to advise and consent. That’s it. Everything else the two idiot parties invent for themselves. Tricks to deny the opposition their say or shift the balance of court opinion this way or that way. Endless infighting and shitnanigans.

    There is little to no honor left in the Congressional Zoo.

    • You are correct that there are no Constitutional guidelines on the issue, but instead only “policies” by the Senate that are not binding on that body. There certainly is no Senate rule on the issue. It is also clear that the Senate cannot prevent the President from making a nomination, because it has no authority to limit his Constitutional powers. All it can do is vote or not vote on a candidate, an issue determined by the majority.

      • Very true, I agree.

        The Un-Consitutional thing the Senate did on Obama’s last nominee was flat out refusing to perform their “advise and consent” role. It is one thing to reject a nominee per procedure they have long applied, it is quite a different shiTnanigan to completely refuse to do their damned job.

        Politics too have consequences. They should have followed their normal practices, not made shit up about why they didn’t want to do their Constitutional Duty, and gone all the way to a vote on consent or not consent.

        And then lived with the results of their decision.

        Grown-ups have to do that every day of their lives. Toddlers, and members of the US Congress … not so much.

        • “They should have followed their normal practices, not made shit up about why they didn’t want to do their Constitutional Duty”

          Why aren’t you blaming your boy Joe Biden? They call it the Biden rule for a reason you know. Why isn’t the media calling democrats hypocrites for doing a 180 on that? Hmm…I think we know why.

        • Biden is not my boy. He is what is available to use in attempting to remove a traitor from the Oval Office. Four years and out is the hope, with a Senate in opposition to him all the way. If we are lucky, could go the other way in November or in the mid terms two years later. The point is to oppose Trump, not to trumpet anything about Biden other than he ain’t the traitor that Trump is.

          I don’t care if Biden did or did not dream this up long ago. Two wrongs make no more of a Right than a dozen of them do. One failure to obey and perform the duties designated for the Senate by the Constitution does not forgive a repeat performance.

          Presidents nominate. The Senate is to advise and consent. All else is lies, bullshit and posturing that are all completely alien to the Constitution.

          And just as you Republicans refuse to hold your own side accountable to the Constitution so too do the Democrats ignore the vile behaviors of their side.

          You both lie about it, but you both do it constantly.

          Fuck all political parties. You people are no longer American citizens, you have become PARTY MEMBERS, citizens of your party far more than your country.

          Not unlike Chinese Communist indoctrinated Party Members.

        • “Biden is not my boy.”

          You know, you’re right. You’re his boy. That’s why you link him with your name, like a good little soldier.

          “Traitor”

          Apparently you missed out on the circus your preferred political party put this country through for three years. Wake up and smell the coffee. The democrats, including the Obama Biden administration are the real traitors.

          “Presidents nominate. The Senate is to advise and consent.”

          And what do you think the Senate advised in 2016? Listen to yourself. Maybe take your own advice from time to time. Oh, and you’ve been outed as a troll. You pretend like you don’t really support democrats, yet you’re bitter over Obama not being able to nominate a Justice.

  5. I just love how Democrats get a pass that it is just to be exepcted that not a single Democrat will join the Republicans to pass the nominee.

    WTF justifies them not having to explain their NO vote when they don’t even know who the nominee is.

    I will remind folks that this automatic NO voting ny the emocrats is NOT done in reverse when the president is Democrat. The record shows that there regularly are 5-15 Republicans at least that vote for the Democrat nominee. All this fucked up solid block NO vote from the opposition party is entirely on the Democrat side.

    But of coarse the MoFo Media never tells this story and our feckless Republicans don’t either.
    And of coarse this whole poisoned well started with the Borking by Democrats.

    https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm

    • McConnell sold us out 2 years ago. you know Romney will join Collins and murkowski and stop this . in 2018 mitch McConnell and the GOP establishment organized and funded Doug jones democratic senate campaign to defeat republican roy moore . he won by 1% of the vote and will now be able to prevent McConnell from this done.

  6. Whoever they are. If the nominee does not explicitly support the Second Amendment as written I will not support that candidate.

    • Literally anyone Trump picks will be better than RBG and no one Biden might pick would be as good as a Trump pick. Write your Senators demanding they vote for the nominee, the Senate needs to feel the heat!

      • HA! My senators are Feinstein (who I haven’t heard a word out of in some long while) and Kamala Harris. Needless to say, I won’t waste my time.

      • I live in Kentucky and Mitch is all I need. No need emailing him. Rand Pail, in Kentucky can be a flip-flop kind of guy… Beginning to wonder if Rand is a RINO……

        • wayne, maybey you should think back to what mcconnell did in 2018 . he wrecked this then . in 2018 mitch McConnell and the GOP establishment organized and funded Doug jones democratic senate campaign to defeat republican roy moore . he won by 1% of the vote and will now be able to prevent McConnell from this done. you know rommney will join murkowski a and collins to block this , and thanks to mitch’s aid to the dems, it won’t get done.

  7. “the Importance of #GUNVOTE”

    Some will vote with their ballots (more than once and some even after they are dead); some will vote with their feet (the exodus from NY is in process); but only the brave will vote with their guns.

  8. This impeachment crap coming out of nutsy pelosi is nothing but hot air….Obviously she is RuthLess and desperate.

    Can’t wait to hear who the USSC Nominee will be and can’t wait to proudly vote again for TRUMP/PENCE.

    • “Obviously she is RuthLess and desperate.”

      Ruth-less…

      Nice play, Deborah… 🙂

  9. Trump will nominate at the end of this week and the Senate will approve before the election. Grassley and Gardner are on board. Even if Romney, Collins and Murcowski vote no, the votes are there with Pence the tie breaker.

    The fake rape claims will be tougher this time with a female nominee.

    • If I were McConnell, I might be inclined to put the confirmation vote off until after the election. It would not be the first time a nomination was voted on by a lame duck Senate. Lame duck or not, they have all the power they need by invoking the nuclear option, limiting debate to two hours, and voting. That avoids this hurried crap and all of the threats of violence…It seems the Democrats and their supporters have forgotten that Trump is President, even if Biden wins, until January 20, and all of the Senators keep their current seats, even if the party name of the majority changes on November 3, until January 3. And there ain’t shit that the Democrats can do about it.

      • There’s no such thing as a “lame duck Senate.” The Senate is a continuing body with only 1/3 of its members up for election every two years.

    • I hope you are correct , but I believe the dems will find the pictures to force one more gop into stalling this . but really , mcconnell will be to blame if it doesn’t happen, in 2018 mitch McConnell and the GOP establishment organized and funded Doug jones democratic senate campaign to defeat republican roy moore . he won by 1% of the vote and will now be able to prevent McConnell from this done. so now this may come back to haunt them .

  10. The big question is whether the nominee will be able to handle the unbridled hate and vitriol from the Dems, the mainstream media, and the useful idiots in the general public. Even if the nominee is completely virtuous they will come after her. Slander and libel will abound.

    • If Barbara Lagoa gets the nod, they’d better tread lightly. Currently an 11th Circuit Court of Appeals judge (confirmed by an 80-15 vote), this Cuban-American female was former Justice of the Florida Supreme Court. Go after her hard and the Dems may lose Florida completely, and maybe a lot of Hispanic voters elsewhere.

      • Which is one of several reasons I expect Lagoa to get the nod. Anything they do to attack her just brings in more Republican Votes in South Florida.

        And Daughter of Refugees from a Communist Dictatorship plays well across middle America

  11. I think we should all thank Harry Reid for starting the process of healing the nation. Had he not done what he done. We would not be here at the cusp of getting an actual conservative majority in the SCOTUS. (Roberts doesn’t count).

  12. Keep in mind, members of the Senate Judiciary Committee MUST be present 100% of the time, or they cannot vote. If the committee is convened ASAP & runs to the election, Harris, who is a member of the JSC, has a choice to make: character assassination of the nominee, OR campaigning. She can’t do both! With Biden lost in his basement, election over! LOL Can’t spell triumph without TRUMP!

  13. McConnell announced at the time that the Dems would regret changing the rules to allow a simple majority to confirm Supreme Court nominees.
    He even said regret would come “sooner than they think”.
    I can’t believe the Dems thought they would never be voted out.

    I suggest that Trump now propose enlarging the Supreme Court.
    Then packing it with conservative judges

  14. Maybe I’m wrong, but I thought it only took 50 votes. The VP as president of the Senate throws the deciding vote in case of a tie.

  15. Larry,
    Why are we not seeing any analysis of the 2A voting records of the potential SCOTUS picks? I haven’t seen one gun org, including NSSF, NRA or GOA, put out any background on these potential female appointees.

    • The reason is that there’s not a lot of 2A jurisprudence out there among the female candidates. Coney Barrett has had a single case — she wrote a dissent in support of 2A. Lagoa hasn’t had a 2A case — her most important case was upholding the firing of Scott Israel by Gov. DeSantis. Some of the male candidates have solid 2A records, but none of them are going to get the job this time around.

  16. Speaker Pelosi even hinted at trying to impeach President Trump if he dared to fulfill his constitutional duty.

    That’s been tried once. Didn’t work then, why does she think it would work now, or does that matter.

  17. 5 million new gun owners didn’t buy them to give them to lobotomy joe! 25 million guns bought this year, and billions of rounds of ammo, come and take it! Or just try!

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