THE most significant flaw in the militia-only interpretation of the 2nd Amendment is...

Discussion in 'Gun Control' started by BryanVa, Jul 12, 2017.

  1. TOG 6

    TOG 6 Well-Known Member

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    Yes -- you wish you could ignore it. But you can't
    Not in the slightest - in fact, you recognize fully that it is in your way.

    In fact, the 2nd was written with people like you in mind.
    Working as intended.
     
  2. TOG 6

    TOG 6 Well-Known Member

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    You haven't heard or read someone suggest a regulation and thought "this violates the constitution"?
     
  3. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Once again, I read the ENTIRE 2nd amendment and take note of the fact that the militia is no longer necessary to our security as free people, since we are now defended by undoubtedly the most powerful Army that has ever actually existed. The 2nd is moot, a few words of empty rhetoric signifying nothing
     
  4. 6Gunner

    6Gunner Banned

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    So long as it is part of the Constitution is it not rhetoric but law. You want to repeal the 2nd, go through the process of repealing it. YOU CAN'T IGNORE THE CONSTITUTION BECAUSE YOU FIND IT INCONVENIENT.
     
  5. TOG 6

    TOG 6 Well-Known Member

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    You know this is irrelevant.
    And so, it is clear you do not believe any restriction on the right of the law abiding to keep and bear arms violates the Constitution.
    You are exactly the reason we have the amendment -- thank you for validating it.
     
  6. TOG 6

    TOG 6 Well-Known Member

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    The constitution only means something to him when it suits his political agenda.
     
  7. BryanVa

    BryanVa Well-Known Member

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    I see this as the argument for absolute government. It first concedes that the Bill of Rights did place restrictions on the government. But there is no need to waste the time and expense involved with the amendment process, or to even involve the people in the process at all. Why? Because what we have is a self-amending constitution which allows the government to destroy a restriction on its power by creating a condition that allows it to claim that restriction is no longer needed. This is what the argument really is—and when you view it in its proper light you can see how dangerous it is.

    The greatest tragedy is just how unnecessary this argument is, Alexander. If we accept your interpretation of the 2nd Amendment, then there is no need for any of this. If the Amendment only protects militia arms in militia service, then the Amendment was rendered moot the day it was drafted. Congress was already in possession of (and still is) all the power over the militia organization and what arms, if any, the members may have and use.

    I understand your interpretation better than you do. The problem is not that you read the entire amendment. The problem is you interpret the Amendment to be a nullity from its inception. You use the militia preamble—a mere statement of political principle—to shackle the RKBA and deliver it entirely to Congress. And having artificially limited the RKBA to deny the right you wish to destroy, you have now created a right that does not exist—an amendment that does nothing, and protects nothing, from the very government whose power it was intended to limit.

    This is the best proof of the illegitimacy of the "militia only" interpretation—no one can tell you what it does and how it works.

    Don’t you see? Your “it’s now moot” argument has absolutely no validity unless you can show—through your interpretation—that there was actually something—some right of the people—a right that was placed beyond the control of government—but which is now rendered moot and unnecessary by this subsequent creation of a powerful standing army.

    So what is it? What “right of the people” has been rendered moot?

    This is the question you claimed to be able to answer: If the 2nd Amendment is a militia only right, then how does it work? What does it protect that is beyond the reach of Congress?

    The validity of every argument you make is based upon the ability to answer this question. I do not believe you can answer it, and so I predict you will ignore it (along with your earlier claim that you could answer it) again.
     
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  8. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Post deleted
     
    Last edited: Oct 16, 2017
  9. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    That appears obvious to me, the right rendered moot by the existence of a large standing Army is the right of the people, (actually a duty) to defend themselves FROM FOREIGN ENEMIES WITH A MILITIA. I put that in caps because it is NOT the right to defend themselves as individuals, (which is the first of the Natural Rights from Locke and inalienable from people as it is inherent in our nature) nor is it the "right" of the people to defend themselves violently from the government (which doesn't exist, unless you think that after all the elections are over you still have the right to go and murder the opposing candidate if they won anyway despite all your efforts)

    I think I answered your question, now answer mine. If the Founding Fathers meant the first sentences of the 2nd Amendment to be totally ignored then why did they put them in anyway? Again, these were lawyers, they parsed words for living, so the idea that they would place a meaningless "statement of principle" into the body of a very important directive doesn't really wash to me. If they truly meant the right to bear ANY arms be completely and totally uninfringed why didn't they say just that and no more?
     
    Last edited: Oct 16, 2017
  10. TOG 6

    TOG 6 Well-Known Member

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    3. Relationship between Prefatory Clause and Operative Clause

    We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

    https://www.law.cornell.edu/supct/html/07-290.ZO.html

    I think I answered your question, now answer mine:
    Have you ever heard or read someone suggest a form of gun control where you thought 'this violates the constitution'?
    If so, what was it?
     
    Last edited: Oct 16, 2017
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  11. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    No, I've never seen any form gun control where I thought that it violates the Constitution.
     
    Last edited: Oct 16, 2017
  12. TOG 6

    TOG 6 Well-Known Member

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    And so, nothing in your book constitutes an infringement on the right to keep and bear arms.
    Again, you only demonstrate the 2nd was written with people like you in mind. Well done.
     
    Last edited: Oct 16, 2017
  13. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    Glad to help.
     
  14. TOG 6

    TOG 6 Well-Known Member

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    And I thank you for your constant reminder of why the 2nd was ratified.
     
  15. Turtledude

    Turtledude Well-Known Member Donor

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    then you clearly don't understand the constitution
     
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  16. BryanVa

    BryanVa Well-Known Member

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    You didn’t. I do believe you correctly note your interpretation is in reality a “duty” because it is not a right at all. A “right” is a liberty interest that you control free from government interference. A “duty” is an obligation you owe the government at its command.

    What “right”—what freedom do I have that is not controlled by but instead must be respected by the government do I have in the 2nd Amendment? Your above answer is there is no right at all.

    Do you have any source—any at all from the era—from any founder—that says the 2nd Amendment was entitled to enshrine a duty to participate in a militia to defend the new nation from foreign enemies?

    We have to agree the amendment reads “the right of the people.” I say there is no right to participate in the militia. Congress controls the organization of the militia. You have no right to be in a militia. Congress alone gets to decide how many, and who can, and who cannot, be members (with the exception of officer appointments controlled by the states). Once allowed by Congress into the militia, you have no right to have any weapon. Congress must choose to arm you, and if it does so then Congress completely controls when and how you train with it, and when called for service to resist foreign threats the government tells you when and how to use the weapon it provides you with—or when and where to dig with the shovel it provides you with.

    There is no right here, period.

    Your interpretation is illegitimate because it cannot define a right of the people that exists outside the total control of the government.

    You may think you have answered the question, but you have not.

    I still don’t think you are understanding the issue the founders were dealing with. The “free state” they are talking about is one that is not ruled by a tyrant. Yes, they were worried about foreign threats. But the whole purpose of the militia was to have an effective force against foreign threats that would also be incapable of becoming a tyrannical threat of its own. The whole purpose of giving the militia power to Congress—all that power which eliminates the possibility of any “right of the people” to have arms in a militia—was to allow the central government to organize a militia that would uniform and capable of defending against foreign threats, which would in turn lessen the need to have a permanent standing army—which however laudable you believe it is today, was universally feared as the engine of despotism by the men who wrote our Constitution.
     
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  17. BryanVa

    BryanVa Well-Known Member

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    OK….I apologize now for multiple posts, but the topics are not suitable to a twitter feed discussion.


    The question starts with a false premise. No one—certainly not me—is suggesting that anything be ignored.


    For the same reason they put the identical phrase into the state Constitutions I cited to you earlier—which you ignored.

    Please read post #177 in this thread.

    See also a couple of the many sources I could cite:

    “[T]hat a well-regulated militia, composed of gentlemen and yeomen, is the natural strength and only security of a free government.” Speech of Patrick Henry in R. Meade's Patrick Henry, p. 28 (1969).

    "It has been asserted by the most respectable writers upon government, that a well-regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people. Tyrants have never placed any confidence on a militia composed of freemen." John DeWitt, The Anti-Federalist Papers, p. 75 (M. Borden ed. 1965)
     
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  18. BryanVa

    BryanVa Well-Known Member

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    Exactly. And I believe they knew the difference between the phrase “right of the people” and “duty the people owe to their government.”

    They also knew how to use the phrase “the right of the people” to talk about an actual individual right. I know this because they used it more than once.

    They used it in the 1st Amendment to define a right this way:

    the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    They used it in the 2nd Amendment to define a right this way:

    the right of the people to keep and bear arms

    And they used it in the 4th Amendment to define a right this way:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

    The exact same phrase does not mean an individual right to assembly and petition free from government interference in the 1st Amendment, only to become magically transformed into a government controlled duty we owe to protect the nation in the 2nd Amendment, only to be re-transformed back into an individual right to be free from unreasonable searches and seizures in the 4th Amendment.

    If you are going to parse words, then please understand the Constitution was a document to be read as a whole, and the same phrase cannot mean two different things.

    Here is a question you can try to answer: How do you justify reading the exact same phrase differently—merely because you do not like the particular right being referred to?
     
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  19. BryanVa

    BryanVa Well-Known Member

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    Continuing, I believe they also understood the words they used in Article I section 8 that says:

    The Congress shall have power… To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

    And they understood they made that power absolute (from Article VI):

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

    See this explanation of the Supremacy Clause:

    “The Federal Government holds a decided advantage in this delicate balance: the Supremacy Clause. U.S. Const., Art. VI. As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991):

    Our founders knew this. This is why they knew, when they wanted to make an exception to the powers granted to Congress, they had to state the exception specifically. This they did in Article I section 9 (where sadly, for example, they specifically prohibited Congress from granting either of us a title of nobility….).

    Regarding Congress’ power over the militia, they created a specific exception to Congress’ domination of the militia when they wrote in the power of the state to appoint militia officers.

    Beyond this, however, they did not create any specific exception to Congress’ control over the militia organization, or training, or arms.

    The reason is simple. The federalists wanted a strong and centrally organized militia system that could be relied upon, and any amendment which repealed that unifying power by, for example, creating a right of the people to bring and use whatever private arms they wanted to in militia service—or by granting the citizen a right to reject the proffered arm (if any) and instead choose one more to his personal tastes—would destroy that goal of giving Congress the power to create a unified and effective militia structure.

    There is no right associated with a militia. Why? Because the federalists who won the constitutional debates (and wrote the amendments) did not want anyone or anything being capable of interfering with the Congress’ control over the organization, training, or arming of the militias. The battle for control over militia arms was fought and won (or lost) long before the 2nd Amendment was ever drafted, and nothing about that amendment changes the outcome of that battle.
     
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  20. BryanVa

    BryanVa Well-Known Member

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    What is it in the state constitutions then?

    In any event neither you nor I were around at the time, and so they did not ask for our ideas or permission when they put quill to paper. All we have is what they wrote.

    Here is what I suggest we know from what they wrote:

    -They believed this principle was important, because they first wrote identical statements of this principle in several of the state constitutions.

    -They wrote a constitution that gave all power over the militia organization, its membership (save officer appointments), what if any arms a militia member may have, and when and how the militia member may have access to and use these arms—to Congress.

    -They did not define any right within the militia system within Article I section 8. We know they did this because wanted Congress to have all of this control.

    -They had a chance to change the newly created system of giving all the militia power to Congress so it could create an effective and unified militia system—they knew that any such change would require them to be very specific if they did so—and they did not do so.

    -They copy/pasted the anti-federalist approved—and universally accepted—statement of principle that we should whenever possible rely upon the militias to safeguard the nation. They enshrined the pre-existing individual RKBA outside that militia structure. This preserved the desired goal of congressional control over militia arms while ensuring that this control was not also the power to destroy the original source of those arms.

    Now I also know you believe differently. You believe the 2nd Amendment never had anything at all to do with an individual right to keep and bear private arms, or that it had anything to say about or to do with protecting against domestic tyranny. Instead, you believe the right is merely a duty you owe to your government to help it fend off a foreign enemy:

    Let me cite you one of my sources—showing how the amendment was described as it was presented to the public for ratification:

    "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear private arms." Tench Coxe, Remarks on the First Part of the Amendments to the Federal Constitution. Published under the pseudonym, "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 Col. 1.

    Where is there any mention that this is a right to obey the commands of Congress as it tells you to fight against a foreign power? Where is your source for this?

    Who said anything about a right to bear ANY arms? Who said the RKBA is a right whose scope is unlimited? I understand you get a lot replies from many sources, but please don’t ascribe words to me that I have never said.
     
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  21. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    [
    You deserve kudos for very well-written and researched rebuttal. However, I must return to my plaint that you have not really answered my question. If the Founding Fathers meant the first part of the Amendment to be ignored why didn't they just leave it out altogether? Particularly since it is written in a way that at least SEEMS to argue it is the most important part, the part of which the famous "shall not be infringed" is a dependent clause of.

    I dunno, I have to admit that I'm not nearly as smart as some people here, could someone answer my question in a way that is simple and understandable by the average layman, not a Constitutional scholar?
     
    Last edited: Oct 17, 2017
  22. TOG 6

    TOG 6 Well-Known Member

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    Hmm. Sure seems like I addressed this already. But, no worries!

    Relationship between Prefatory Clause and Operative Clause
    We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.
    https://www.law.cornell.edu/supct/html/07-290.ZO.html

    There you go.
     
  23. Chester_Murphy

    Chester_Murphy Well-Known Member Past Donor

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    I believe the most significant flaw is that we fell away from those beliefs and no longer have an armed and trained militia with store houses of arms and ammunition. We no longer believe in our Constitution as it was written, with a few exceptions which were rightly added or changed.
     
  24. Aleksander Ulyanov

    Aleksander Ulyanov Well-Known Member

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    In re the bolded:

    Indeed it does suggest that was the only purpose the FF intended, and it was clearly written with that intention, otherwise it would have said, "the right to keep and bear arms is a necessary right if we are to have a militia, and a militia is and always will be necessary to the security of a free people, the existence of any other means of defense notwithstanding ", (or suchlike, the FF were eloquent masters of the written word and i feel very presumptuous with this revision but I do it only to support my supposition that they meant the Amendment to MEAN what it said, and it clearly said that the right to bear arms was DEPENDENT on the necessity of a militia, NOT the other way round)

    I support Justice Breyer in this, minority opinions remain as considerable , ( I think)
     
  25. Rucker61

    Rucker61 Well-Known Member

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    "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
    Original text of what was to become the Second Amendment, as brought to the floor to the first session of the first congress of the U.S. House of Representatives"

    http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227
     

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