Kavanaugh Supreme Court Protests
courtesy weeklystandard.com and Getty

Reader Sam I Am writes:

This blog is about guns, but sometimes we need to look elsewhere for hints about what is coming down the pike for guns, gun owners, and gun rights. For that reason, I’m resurrecting the discussion about the Kavanaugh confirmation.

Despite all the clamor, it was difficult to engage in a measured conversation about just what we were getting with Kavanaugh when he was nominated. Any caution recommended was met with scorn in no uncertain terms.

So after all the sturm und drang and now that he’s a sitting Supreme Court Justice, time has begun to bring a bit more clarity. I recommend you read yesterday’s post by Gil Gutknecht’s at Townhall.com entitled, Soutered Again?

Because many here won’t actually click over, here are some important excerpts for your consideration:

Kavanaugh –

  • Senator Collins of Maine is quite comfortable with Roe v. Wade surviving
  • Republican-nominated Supreme Court Justices were the deciding factors in decisions regarding campaign finance “reform”, Obamacare and gay marriage.
  • On 93% of cases in the lower court, Kavanaugh and Garland concurred (agreed with each other).
  • A former clerk to Justice Ginsberg (a clerk who “has argued more cases before of the Supreme Court than any other woman”), and staunch supporter of Roe thinks Kavanaugh is mainstream in his legal thinking
  • Kavanaugh thinks Marbury v. Madison (one of the cornerstones of judicial activism) is one of the four greatest Supreme Court rulings ever.
  • He told Collins that past decisions become “part of our legal framework.” He added that precedents are not merely judicial policy, not a goal, but a constitutional tenant.

Is Kavanaugh better than Obama’s candidate, Merrick Garland? Perhaps more like an equivalent, but better than another abject radical. Is he an originalist, textualist, constitutionalist, a “gun rights” activist or a squish? As in all things, time will tell us. Caveat emptor.

95 COMMENTS

    • No, the problem is that we have to discuss SCOTUS nominees in terms of political leanings. THAT is the problem. There are two groups of justices. Those who can read simple plain English and understand the meaning and those who can’t. The latter are judicial activists and work for the Democrats. They have no place in our high courts. If you have to twist the world into a pretzle to justify unconstitutional restrictions upon our rights you should be disbarred. Exactly which part of shall not be infringed is so hard to comprehend for these folks?

  1. Sam likes to argue. Even inventing personalities like 2asux to keep the argument going. Sam needs a hobby.

    Maybe this is his hobby?

  2. Lets go by what Kavanaugh actually said to Sen. Feinstein regarding firearms… he said he believes the AR-15 and rifles like it are ‘in common use’ and thus would be protected by the second amendment. Besides the Roe v Wade stuff, i think that is another reason she went after him- because she knew he would be willing to stroke down as unconstitutional any new AWB she proposes.

    • Common use is the worst term ever created. Scalia was wrong in its application. Just as he was wrong in the terms dangerous and unusual, and reasonable restrictions. No power has been granted to the Government to restrict the free exercise of our rights in any way. NONE, NADA, ZIP.

      • Speculation is that those words were included in the majority opinion in order to get Kennedy to sign on to it. Kennedy would not have concurred with an opinion of absolute RKBA.

    • Yep he actually got in a argument with her AR15’s being in common use. She bristled when he told her that AR15’s were commonly used. I think thats where she really made the decision to go after him.

      • Yep, Roe v. Wade was just for show to rile up Liberals against him.
        The real threat he poses is on #2A and they know it but they can’t say it because then they have to say “We want to ban guns”.
        Roe v. Wade, he might push it out if someone comes up with argument that “fetus” is actually a “person” with own DNA and organs and that women who want abortion should not be allowed to “CRUSH” the baby during the abortion.

  3. The unfortunate issue with the SCOTUS is that they tend to so narrowly tailor their opinions as to minimize impact. What case may be brought that will ebb the tide of the lefts erosion of rights? What would be the watershed case? Heller is deeply flawed. The entire discussion of common use and unusual or dangerous is absolute bullshit. Miller (1939) could be used to eliminate restrictions upon “weapons of war” as that decision overtly negates the NFA restrictions upon any weapon for the militia (ergo the People) of use by the military. And yet here we are 80 years later having never challenged it on that precedent. No case has been brought to SCOTUS as to end the open carry/concealed carry, right to carry arguement. And the biggest problem with this entire line of thinking is that it is all based upon the falacious foundation that the government may restrict rights in any way, they may not. The Constitution is not to be used as a limit upon the People. It grants the People nothing. What it does do, and must be interpreted as to do, is PREVENT government from creating laws which restrict the free exercise of our rights in any way. So how does one craft a case, the case, the case to end all questions, in such a manner as to force SCOTUS to admit the error of their past ways? No other enumerated right has been allowed to be restricted in any way. Certainly punishment for bad use of a right, where others are harmed, is allowable. But no other right has even been discussed in such a manner as the 2nd. Using the term “reasonable restrictions” in the same sentence as a right is an affront to everything our Constitution stands for. “Reasonable restrictions” is a term of socialism, not freedom.

      • It might be impractical, but it is true.
        Absolutism in defense of human rights is not a bad thing.
        OTOH rats are very practical.

    • I like the tone of what you are saying but like the other guy, I think its impractical blather. One political side hates guns and will do what they can to destroy the 2A- wothbthat backdrop what Alan Gura and othetrs have done is bery impressive.

    • Sorry Gman,

      Even to ardent “2A supporters” your rights and the free exercise thereof are too scary for them. So they must needs big government to corral them in and make them “safe”.

      You’re just too much of an “absolutist”. LOL

      Generations of government indoctrination in forced “schooling” has produced this. If you think you can “vote this out”…then I have a bridge in Brooklyn to sell you…welcome to the USSA, comrade.

      • Not to this ardent 2A supporter.

        You can’t start to imagine the amount of Marxism-Leninism I have been exposed to during my school age in ’80s socialist country. I moved to the U. S. of A. seeking freedom and individual human rights and responsibilities, independent of collective. (They used to be really big on collectivism. Individual is nothing, greater good to the masses is everything.)

        In last twenty years I have observed dangerous growth of the very ideas I hated so much in my youth. Gun grabbing is just one, albeit very important symptom of it.

        There is no other place left for me on this planet, if these ideas prevail and choke this noble Republic. I will work to defend what is left of it for myself, but more importantly for my children.

        Believe me, you don’t want to end up where progressives are dragging us.

        • Was Italy your initial home?

          You are right, it is creeping. All hope is not lost yet…

      • Spot on and that is why liberty will die in this “long game.” Normalization, facilitated in part by public school indoctrination, mainstream media, and social media engineering guarantee that each successive generation will know less of their unalienable individual rights. The generation that finally stands with whatever force necessary will find the fight that much harder.

        To those who poo-poo “absolutists”… Do you want minimal pain and/or bloodshed in the restoration of the exercise of individual rights? Do you want the exercise of unalienable individual rights restored? If so, then each generation has an opportunity to stand and correct the tyranny upon them. When they do not, they merely kick the can down the road and that can gets larger and more dangerous with each kick; but miraculously much more easy to kick. Doing so insures that the pain and/or bloodshed will be exponentially greater for some future generation that finally “gets it” and fights with all that the dire situation requires. You are enabling further enslavement of our descendants. It cannot be accomplished without your capitulation and arrogance. Instead of heeding this warning, we have cutesy little snippets and snide remarks. Fools, the lot of them!

        “The prudent see danger and take refuge, but the simple keep going and pay the penalty.” Proverbs 27:12

        ” And if there were a contest, and he had to compete in measuring the shadows with the prisoners who had never moved out of the cave, while his sight was still weak, and before his eyes had become steady (and the time which would be needed to acquire this new habit of sight might be very considerable) would he not be ridiculous? Men would say of him that up he went and down he came without his eyes; and that it was better not even to think of ascending; and if any one tried to loose another and lead him up to the light, let them only catch the offender, and they would put him to death.” Republic (Allegory of the Cave)

  4. Not much. At least unless RBG bites it. May issue and “awb” bans should be struck down. The issue is States like California are still going to make it very painful to own what you want.

  5. What bothers me about Kavanaugh is that he is the co-author of the “Patriot Act”. That abomination stripes American of the fourth and fifth amendment protection of the Bill of Rights. While he is semi-correct on the Second Amendment ruling of “common use” I have to wonder when push comes to shove just how strong he will be concerning the rest of the Constitution. As a Libertarian, had I been a sitting senator I would have voted AGAINST his confirmation although I also believed Dr. Ford lied. The American people deserve better than someone who doesn’t follow the original intent of the Bill of Rights.

    • How much of a second amendment will they let you keep when there is a police/military state being created? With Homeland Security, TSA, ICE, FBI, ATF and all that.

      Let’s be realistic about Brett. Don’t be hoodwinked by the sham that occurred.

    • The Bush administration whipped out the bill for the Patriot Act about thirty seconds after he stopped reading to those kids in Florida.

      That act has a thousand fathers from both parties who have contributed to that statist wish list of goodies for decades. They were all just waiting for the chance to ram it through. They got a lot with its post-OKC bombing predecessor, the Antiterrorism and Effective Death Penalty Act of 1996, but that wasn’t quite a big enough event to get everything. Congress balked on Clinton’s demands for expanded wiretap authority and increased access to personal records. Then came 9-11.

      K may have cut and pasted together the latest version at the time, as he was paid by his employer to do, but the bill was hardly his baby. Besides, to lay the whole thing at his feet is to ignore the fact that the act and its has been renewed, repeatedly by Bush and Obama and Congress under both parties’ control.

      • The final bill was 342 pages long and changed 15 existing laws. If you think it was made up in 30 seconds and not completely concocted and agreed upon as the ideal outcome then really, there’s no use arguing.

        It was another, just like the pre-determined healthcare bill, you gotta pass it before you read it affair.

        • Yeah that’s right. Everything is a fuckin conspiracy. 9/11 was just like the Riechstag fire to make Bush Furher of the Fourth Reich and the Iraq war was launched to fuel his new Nazi army to conquer the world. And that’s the truth to why we now live in a world dominated by Bush as he rules over us all with an iron fist.

        • @@CA, slow clap for the text book example of using Godwins Law when you’re out of troll material and you’re unable to credibly reply to truthful statements. Troll 101.

        • Ya I read on the internets they melted the structural steel with some mandatory hooping cough vaccine.

      • I read somewhere that the original Patriot Act was written by Colonel Ollie North while Reagan was President…

    • May as well get used to it, since it’s not going anyplace for the next couple generations at least. Unless there is some kind of successful revolution, and the outcome of that is not guaranteed to appeal to anyone – except perhaps to a few lucky warlords who might survive.

  6. I think it’s extremely unlikely that Kavanaugh will turn out to be another Souter (or Blackmun). One of the biggest things since the Bork debacle has been the development of the Federalist Society and all the grooming / vetting it has done over the past two decades of potential GOP judicial nominees. We didn’t have that back when Bush the Elder went with Souter over Edith Jones (which he has subsequently admitted was one of his biggest mistakes as President). The Federalist Society loves Kavanaugh, which ought to tell you something.

    Kavanaugh’s record on the USCA has been pretty good, especially on 2A issues. The fact that he has sided with Garland over 90% of the time proves nothing — most of the cases that go up to a USCA are easy cases (garden variety criminal appeals, social security appeals, pro se prisoner cases, last ditch immigration appeals, etc.) that are pretty straightforward / controlled by precedent and thus don’t present any ideological issues. I don’t see him doing a 180 on what appears to be a pretty well-established originalist mindset.

    To me, the bigger question is whether Kavanaugh will become another Roberts (i.e., pretty good but willing to cave to the conventional Beltway thinking when the going gets really tough), or whether he’ll be another Thomas (who truly could not care less what the Georgetown smart set thinks). Time will tell, but especially after what Kavanaugh just had to go through (as well as, like Thomas, he’ll always be persona non grata among the Beltway journalistic and virtue-signaling classes), my money’s on the latter.

    • “…or whether he’ll be another Thomas…”

      Agreed.

      What they did to him in those hearings was a naked political assassination attempt and he’s now motivated for payback.

      You try and soil my character, I’ll go to the ends of the earth to hunt your ass down.

      I *hope* Thomas invites him into his chambers for some bourbon and a fine cigar…

  7. not sure why Marbury v Madison is reason to believe we’ve been Soutered. Heller and McDonald are examples of judicial review of gun control laws.

    • Heller and McDonald are two more examples of what is wrong with our SCOTUS and high courts. The Government has NO AUTHORITY to restrict the free exercise of our rights in any way. We seem happy we “won” and forget we lost before they were even argued. SHALL NOT BE INFRINGED

      Pretty simple words. Just as simple as:
      1. Congress shall make no law
      4. shall not be violated

      There is no discussion about resaonable restrictions on thoughts, words, speech, or religion. Why then would we accept such restrictions upon our right to keep and bear arms?

      • Playing devil’s advocate for a moment, if the founders wanted the 2nd Amendment to prevent Congress from passing any and all laws regarding arms, they could have simply said, “Congress shall make no law regulating arms”. After all they used exactly those words in regards to religion in the 1st Amendment.

        In reality, the next great issue in regards the 2nd Amendment law is what level of scrutiny or protection SCOTUS will assign to it. If SCOTUS determines that “strict scrutiny” is the proper level of protection, which is the case will all other rights belonging to “the people”, then 90% or more of US gun laws will fall.

        In order for the government to regulate a right protected by strict scrutiny, the following tests must be passed:

        1) The government must be “compelled” to act. Compelled is a very strong word. It means that government has no choice but to act. This is a very high bar.

        2) The method or regulation must be the least intrusive possible that meets the compelling need. In other words, passing test one does not result in a “blank check” to pass any gun laws they wish.

        Kavanaugh is as sure a vote for strict scrutiny as we will ever get – and that is a good thing.

    • “This assumption of power took place first in 1794 when the Supreme Court declared an act of congress to be unconstitutional, but went largely unnoticed until the landmark case of Marbury v Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review. Since then, the idea that the Supreme Court should be the arbiter of constitutionality issues has become so ingrained that most people incorrectly believe that the Constitution granted this power to the federal judiciary.”

      http://constitutionality.us/SupremeCourt.html

  8. I’m hopeful the Constitution gets something of Kavanaugh,that said he wouldn’t have been my first choice,this is a case where I’m grateful to be proved wrong.

  9. Another part of this equation is that “conservatives” push for Constitutionalists. Leftists push for, well, leftists. This means that even when we “win,” we’re starting out in neutral.

    I can’t even begin to imagine the outrage by the left if a president ever appointed a conservative justice equally motivated in activism, but opposite in ideology to Ginsburg, Kagan, or Sotomayor.

    • The right push for endless war to reconfigure Asia to their liking. Their religion comes before country. They love their crusade and don’t mind the blow back it brings to innocent people.

        • I could be wrong, but my guess is he meant the Middle East, not Asia, and by religion he is referring to Zionism.

        • Probably from the same place the Republicans pulled out weapons of mass destruction from theirs.

          A lot of my generation is not a fan of what they did. It wasn’t cool to see pictures of people you know on reports of KIAs. It’s still not past us, it still torments them into suicide, which people like to ignore because it doesn’t help their political goals.

          That’s not important. What is important is letting Trump bomb Syria again and arming Saudi Arabia regardless of the terrorism, assassinations or executions they do. Let him continue to send troops into suicide missions and illegal covert operations.

        • yes, because not doing any of that during Clinton’s term (well, at least not publicly) worked out SO well, didn’t it?

        • Ok CZ… please quit the “there were no WMDs in Iraq” bullshit. There were entire warehouses of chemical weapons in Fallujah that magically went missing. They latter turned up in IEDs or buried out in the desert.

        • @CZ, there’s little doubt the US’s actions in the ME following 9/11 were done to push Israel’s dominance in the region.

        • What a load of leftist bullshit. Should we have invaded Iraq? No. But there aren’t waves of mellenials tormenting themselves to suicide over it. And as recently pointed out very well by JWT, stats on veteran suicide are extremley misleading.

        • Ah, the trolling CA trying to mold every topic into the fake left vs right paradigm….you’re an amateur troll CA.

    • If even one got rammed down their throats (pun intended), they might be far more amenable to traditional constitutionalists.

  10. He’ll support all existing gun legislation because it’s “traditional”. He stated in the Heller ruling people love to selectively quote but are loathe to publish the full thing that “By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.”

    Hopefully Ginsberg, Breyer, Kagan, Sotomeyer leave soon and we can get a justice that actually respects the Constitution as the supreme law of the land.

    • It sucks that lawyers have taken a role of overthrowing the power of the people via their reinterpreting of the law and their personal opinions/judgments/rulings being used as gospel.

      What honorable people.

    • “He’ll support all existing gun legislation because it’s ‘traditional’.”

      Wow, you’re quite the mind reader, aren’t you.

      So tell me what I’m thinking now.

      • “He’ll support all existing gun legislation because it’s ‘traditional’.”

        Ralph, ‘traditionally’, semi-autos have never been regulated. So we’re safe there. Traditionally, gun registration has never been mandatory, nation-wide. So we’re good there.

        Traditionally, full-auto was never banned outright. It was *taxed*, with a registry. By tradition, we can get that registry re-opened.

        I think ‘tradition’ will do us just fine for gun rights. Not perfect, but 95 percent of the way…

  11. Kavanaugh will be a much better Justice than anyone you might have been nominated by the Hildebeast. For that, I will always be grateful.

  12. This article didn’t have enough of a premise to warrant publication, and the final question in it is easily answered, i.e., “Is he an originalist, textualist, constitutionalist, a “gun rights” activist or a squish?”

    Kavanaugh himself accepted the textualist approach and expressly wrote in Heller II that Heller I requires Courts to “assess gun bans and regulations based on text, history, and tradition, not by balancing tests such as strict or intermediate scrutiny,” Heller v. District of Columbia, 670 F.3d 1244, 1271 (D.C. Cir. 2011)

    Moving on.

    • You can still buy adverts in the form of a physical magazines or “electronic” magazines if you want to see only gun content. I can’t buy a lot of those guns or carry them because politics.

      I hope you are not middle age to elderly, rather just young and dumb. I’m not a fan of previous generations of “Americans” who threw rights in the trash for us to sift through to find what is left.

      There is another gun blog that focuses on mostly advertising. I wish I could buy any of those guns they advertise. The Youtube videos they make, of guns I can’t own, lets me experience what I am missing out on.

  13. Abortion is murder. And its OK to murder your own child in America. That is not going to change. Libertarians Liberals and the Left like it that way. Birth rates are dropping in the country. But illegal immigrants, and their children, are allowed to flood into this nation. And the three L’s support it. They don’t believe in national borders.

    Schools are closing in San Francisco because the people in that city can’t and don’t reproduce. Major cities schools are closing. Student populations are falling. except in county areas. The same areas where you will still find rifle teams in rural schools.

    Keeping my 2A rights is a check on the people who support murdering children. Because those same people want the rest of my rights as well.

    Judge Kavanaugh is not perfect. And neither was Scalia. They both don’t support Machine gun ownership. Except for the rich. And neither do many on TTAG or the rest of the “gun community”.

    Bump Stocks???

  14. 1: I’d to know what Roe v Wade has to do with this site’s focus.
    2) “caveat emptor”?? Let the buyer beware?? Who’s buying?
    I’m pretty sure he’s been bought, but not by 2A votes. He’s owned by the mega rich. We won’t be seeing CC reciprocity from him, his owners are allergic to it.

    • “1: I’d to know what Roe v Wade has to do with this site’s focus.”

      What is ‘touchable’, and what is *not* ‘touchable’ concerning fundamental rights?

      Clear enough?

  15. Frogs and dinosaurs share 93% of the same dna. I don’t think that makes them near the same.

    Most case law will be decided the same bc that’s what the law is. Usually Only subtle issues diverge.

    He’s most probably more like a Roberts. To the right of Kennedy but no Scalia.

    • I’m banking on the *treatment* he was given by the Leftists in those hearings will mold him into Thomas’s line of thinking…

  16. One of the better reforms in Australia was changing our Supreme Court from life terms to compulsory retirement at 70 back in 1977. Still some strange rulings but at least more turnover.

  17. we likely at a minimum got a guy that sees the hate and death threats toward himself and other conservatives and if anything that has steeled his resolve about the 2nd amendment

    if were lucky we got a guy that now hates the left at least half as much as they hate him and he will take that into consideration every time he has to rule on a case that has anything to do with anything that resembles one of the lefts sacred cows

    i personally want to see him channel his inner khan

    that being revenge is a dish that is best served cold

    the left is at war with us

    its been like that for a while now

    its time we started acting like it

    just like everythings fair in love and war im ok with activist judges on the scotus now

    unfortunately kavanaugh and his family are going to require a security detail 24/7 for the foreseeable future

    especially if the dems win big next month and or 2020

    • I think the need for a security detail will be worse if the Dems lose. Recent history shows that they don’t know how to deal with defeat except to throw violent tantrums. They have obviously become unhinged in the last two years and that will get worse if they continue to lose their grip on power.

  18. I think Kavanaugh believes that anything semi-auto or less (revolvers, muzzleloaders, etc.), Including the AR-15, are protected by the 2nd Amendment and can’t be banned.

    I think he’d probably strike down magazine capacity regulations for the same reason he believes the semi-auto pistol and rifles are protected.

    I think he would also have issues with suppressor regulations and any ban on bump stocks for a multitude of reasons.

  19. Most SCOTUS decisions are noncontoversial so to say x justice agrees with y justice 90% of the time is a meaningless statement.

    If anybody thinks Kavenaugh was going to vote to overturn Roe he/she is delusional. It won’t be overturned with a 5-4 majority, at least as long as Roberts is Chief Justice. He will want it 6-3 so if Kavenaugh would vote to overturn Roberts won’t. Only the extremists on both sides of the issue hoped/feared that Kavenaugh would be the 5th vote.

    Justice Kavenaugh has a solid record on gun rights. The Democrat that best understands him as a threat to gun control isAndrew Cuomo. He will vote overturn weapons class bans and most likely support shall issue and/or open carry. He will not overturn the NFA or apply Oberfell to CHLs.

    • We’re glad you recognize that Andrew Cuomo is the biggest threat to Second Amendment rights in the United States. We have been told that Cuomo is preparing a long gun registry/permitting system scheduled to be voted on in January. New Yorker gun owners are not taking the Cuomo threat seriously. He is a man with malicious intent to harm our rights.

  20. Marbury v. Madison inot a cornerstone of “judicial activism;” rather, Marbury is a cornerstone of our Republic. Judicial review is a necessary condition to enforcing constitutional guarantees and limitations. Marbury is certainly one of the greatest Supreme Court decisions ever written.

  21. right of the people…shall not be infringed…
    love to see roll-back of NFA…or at least loosening
    you can do an instant check and get a gun…but it takes 8 months to get a muffler for it? WTF?!

    • I think Kavanaugh would likely rule that suppressors don’t belong in the NFA because it is counter to public safety (having them in the NFA does nothing to prevent crime but does increase the risk to hearing).

      They all seem to lean towards keeping machine guns in the NFA but not anything else.

      I think, eventually, the SCOTUS will go for requiring Constitutional carry and/or shall issue with reciprocity.

  22. Yeah whatever. I’m not convinced. Cry about too much winning all you want. Me? I’ll continue to enjoy racking up the wins. I think some of you like losing.

  23. This is a stupid article. Oh wow, garland and Kavanaugh were on the same side of a decision 93% of the time. Who cares. 1st lower courts must follow SCOTUS previous decisions, so they don’t have leave to do what they want in many cases.

    And Clarence Thomas and ginsburg are on the same side of a decision 70% of the time most SCOTUS terms. Last year there were 60 decisions by SCOTUS which were unanimous, there were less than 20 which were 5-4.

    Most SCOTUS cases are stuff most don’t care about thus the 9-0 decisions, the hot button gun cases, affirmative action, abortion, etc., those cases are often 5-4

    You know who else said past decisions become part of our frame work, etc. Gorsuch. This past June he was part of the majority in the Janus decision which overturned the 35 year old Abood decision on public sector unions.

    Kavanaugh was great pick, the original poster here is full of BS

  24. Do I know what’s gonna happen?!? Nope…and neither does the author of this diatribe. After reading most of the whiny responses I’d say we’re DOOMED. But we’re NOT. Lock & Load POTG…

  25. I’ve often wondered where the expression “down the pike” originated.

  26. I knoe time will tell. But i would have liked a Sportsman who likes to Hunt and Fish, some Ornery firebrand for America, gun rights and for the Founding Documents.
    Im sure we can find 1 Judge who fits the bill, if not i would like to settle for …. Ted Nugget getting nominated. ; -)

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