Reference Section: DC vs. Heller: Highlights 3-18-08

This is a discussion on Reference Section: DC vs. Heller: Highlights 3-18-08 within the Reference & "How To" Forum forums, part of the Related Topics category; Much thanks to BigEFan for posting this in the discussion thread: http://www.defensivecarry.com/vbulle...-merged-3.html These are some of the highlights from yesterdays arguments without the discussion if ...

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Thread: Reference Section: DC vs. Heller: Highlights 3-18-08

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    Reference Section: DC vs. Heller: Highlights 3-18-08

    Much thanks to BigEFan for posting this in the discussion thread: http://www.defensivecarry.com/vbulle...-merged-3.html

    These are some of the highlights from yesterdays arguments without the discussion if you just want to see what was being said.

    Quote Originally Posted by BigEFan
    Below are highlights of the arguments. Each quote block is a contiguous exchange. If I missed something you think should be highlighted, please feel free to add.

    CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?

    MR. DELLINGER: Mr. Chief Justice, I believe that the phrase "the people" and the phrase "the militia" were really in -- in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase "the people are the militia, the militia are the people."

    CHIEF JUSTICE ROBERTS: But if that's right, doesn't that cut against you? If the militia included all the people, doesn't the preamble that you rely on not really restrict the right much at all? It includes all the people.
    JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
    JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
    JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn't that correct?

    MR. DELLINGER: That is correct.

    JUSTICE ALITO: And if that was the purpose, then how could they -- how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?
    MR. DELLINGER: That is because, I think, Justice Alito, that those who wanted to retake State authority over the militia didn't get everything they wanted. Madison actually did this somewhat reluctantly and wanted to maintain national control.

    JUSTICE SCALIA: They got nothing at all, not everything they wanted. They got nothing at all. So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could, could disband the State militias.
    JUSTICE KENNEDY: But the Second -- the Second Amendment doesn't repeal that. You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?

    MR. DELLINGER: No.

    JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.
    MR. DELLINGER: Well, the different kind of right that you're talking about, to take this to the question of -- of what the standard ought to be for applying this, even if this extended beyond a militia-based right, if it did, it sounds more like the part of an expansive public or personal -- an expansive personal liberty right, and if it -- if it is, I think you ought to consider the effect on the 42 States who have been getting along fine with State constitutional provisions that do expressly protect an individual right of -- of weapons for personal use, but in those States, they have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons. And if you -

    CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?

    MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The

    CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?

    MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.

    CHIEF JUSTICE ROBERTS: The regulation -the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.
    JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people -

    MR. DELLINGER: That is -

    JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual.

    MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are -

    JUSTICE SCALIA: How many people in the country?

    MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the -

    JUSTICE SCALIA: I don't think it's common.

    MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think machine guns are more dangerous than handguns they

    JUSTICE SCALIA: Or a law on the carrying of concealed weapons, which would include pistols, of course.
    MR. DELLINGER: Let me fight back on the notion that it's a -- it's a total ban. It's not as if every kind of weapon is useful.

    CHIEF JUSTICE ROBERTS: Are you allowed to carry the weapons that are allowed? I read the "carry clause" to apply without qualification. So while you say you might be able to have a shotgun in the home, you can't carry it to get there.

    MR. DELLINGER: No. You can -- you can with a proper license. The District has made it clear that there is no doubt that it interprets its laws to allow a functioning gun. And to say that something is a total ban when you own only one particular kind of weapon would apply to a machine gun if it were or came into common use and -

    JUSTICE ALITO: But even if you have -- even if you have a rifle or a shotgun in your home, doesn't the code prevent you from loading it and unlocking it except when it's being used for lawful, recreational purposes within the District of Columbia? So even if you have the gun, under this code provision it doesn't seem as if you could use it for the defense of your home.

    MR. DELLINGER: That is not the city's position, and we have no dispute with the other side on the point of what the right answer should be.
    It is a universal or near universal rule of criminal law that there is a self-defense exception. It goes without saying. We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense.
    I'm going to reserve the remainder of my time for rebuttal.

    CHIEF JUSTICE ROBERTS: Why don't you remain, Mr. Dellinger. We'll make sure you have rebuttal.
    JUSTICE SOUTER: But wait a minute. You're not saying that if somebody goes hunting deer he is bearing arms, or are you?

    GENERAL CLEMENT: I would say that and so would Madison and so would Jefferson, I would submit. They use -

    JUSTICE SOUTER: Somebody going out to -- in the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?

    GENERAL CLEMENT: Well, I will grant you this, that "bear arms" in its unmodified form is most naturally understood to have a military context. But I think the burden of the argument on the other side is to make it have an exclusively military context. And as a number of the briefs have pointed out, that's not borne out by the framing sources.
    In one place, although it's not bearing arms, it's bearing a gun, I think it's highly relevant that Madison and Jefferson with respect to this hunting bill that Jefferson wrote and Madison proposed, specifically used in the hunting context the phrase "bear a gun," and so I do think in that context -

    JUSTICE SOUTER: But it's "arms" that has the kind of the military -- the martial connotation, I would have thought.

    JUSTICE SCALIA: Wasn't -- wasn't it the case that the banning of arms on the part of the Scottish highlanders and of Catholics in England used the term, forbade them to "bear arms"? It didn't mean that could just not join militias; it meant they couldn't carry arms.
    JUSTICE SCALIA: The freedom of speech that was referred to in the Constitution was also "the" freedom of speech, which referred to the pre-existing freedom of speech. And there were indeed some restrictions on that such as libel that you were not allowed to do. And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech, don't we?

    GENERAL CLEMENT: Justice Scalia, let me make two related points. One, even in the First Amendment context, this Court has recognized -- and I point you to the Court's opinion in Robertson against Baldwin, which makes this point as to both the First and the Second Amendment. This Court has recognized that there are certain pre-existing exceptions that are so well established that you don't really even view them as Second Amendment or First Amendment infringement.

    JUSTICE SCALIA: Like libel.

    GENERAL CLEMENT: Like libel, and I would say like laws barring felons from possessing handguns. I don't think

    JUSTICE KENNEDY: Or would you say like protecting yourself against intruders in the home?

    GENERAL CLEMENT: Well, that gets to the self-defense component and I don't know that I ever got a chance to fully answer your question on that, Justice Kennedy, which is we would say, notwithstanding the fact that the preamble makes it clear that the preeminent motive was related to ensuring that the militia remained a viable option vis-a-vis the standing army, the operative text is not so limited. And I think in that regard it's worth emphasizing that the framers knew exactly how to condition a right on militia service, because they did it with respect to the grand jury clause, and they didn't do it with respect to the Second Amendment.

    JUSTICE ALITO: If the amendment is intended at least, in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns they require, at least what the code says without adding a supposed gloss that might be produced in a subsequent case, that even as to long guns and shotguns they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

    GENERAL CLEMENT: Well, Justice Alito, let me answer the question in two parts if I can, because I think the analysis of the trigger lock provision may well be different than the analysis of the other provisions.
    With respect to the trigger lock provision, we think that there is a substantial argument that once this Court clarifies what the constitutional standard is, that there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision. And this Court could very well, applying Ashwan to prevent -principles allow for that kind of -

    JUSTICE SCALIA: I don't understand that. What would that be -- that you can, if you have time, when you hear somebody crawling in your -- your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the exception?

    GENERAL CLEMENT: If that's going to be the exception, it could clearly be inadequate. And I think that -- I mean the District of Columbia can speak to this, but it seems to me that if, for example, the police were executing a warrant at evening and had cause for doing it at evening and saw somebody with a loaded gun on their night stand, no children present without a trigger lock, it seems to me that that would be a good test case to decide whether or not their construction would provide for an exception to the trigger lock provision in that case.
    CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
    I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

    GENERAL CLEMENT: Well, Mr. Chief Justice, let me say a couple of things about that, which is to say that if this Court were to decide this case and make conclusively clear that it really was focused very narrowly on this case and it was in some respects applying a sui generis test, we think that would be an improvement over the court of appeals opinion, which is subject to more than one reading, but as Justice Ginsburg's question just said, it's certainly susceptible to a reading that it embodies strict scrutiny. In fact -

    JUSTICE GINSBURG: Well, it did. It said it's just like the First Amendment. First Amendment has exceptions, but strict scrutiny applies. It says strict scrutiny applies here too.

    GENERAL CLEMENT: I -

    JUSTICE SCALIA: But that opinion also, it didn't use the militia prologue to say it's only the kind of weapons that would be useful in militia, and that are commonly -- commonly held today. Is there any Federal exclusion of weapons that applies to weapons that are commonly held today? I don't know what you're worried about. Machine guns, what else? Armored bullets, what else?

    GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.

    CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one -- narrower one directed solely to machine guns?

    GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it is an arm, then it is not open to the District to ban it.
    Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre -pre-law machine guns, and there is something like 160,000 of those.

    JUSTICE SCALIA: But that passage doesn't mean once it's an arm in the dictionary definition of arms. Once it's an arm in the specialized sense that the opinion referred to it, which is -- which is the type of a weapon that was used in militia, and it is -it is nowadays commonly held.

    GENERAL CLEMENT: Well -

    JUSTICE SCALIA: If you read it that way, I don't see why you have a problem.
    MR. GURA: Okay. I'd like to respond -certainly, Justice Scalia. I'd like to respond to the point about the -- the District of Columbia's position over the years with respect to the functional firearms ban.
    The Petitioners have had two opportunities to urge courts to adopt this so-called self-defense exception which they construed in the amendment. The first opportunity came in 1978 in McIntosh versus Washington, where the petitioners urged the Court of Appeals of the District of Columbia to uphold the law because it was irrational in their view to prohibit self-defense in the home with firearms. They deemed it to be too dangerous, and this was a legitimate policy choice of the City Council, and they actually prevailed in that view.
    The second opportunity that the Petitioners had to urge this sort of self-defense construction was actually in this case in the district court. We had a motion for summary judgment and we made certain factual allegations in this motion, and on page 70a of the joint appendix we see portions of our statement of undisputed material facts. Fact number 29, which was conceded by the District of Columbia, reads: The defendants prohibit the possession of lawfully owned firearms for self-defense within the home, even in instances when self-defense would be lawful by other means under District of Columbia law. The citation for that is a functional firearms ban, and that point was conceded.
    Certainly the idea that people can guess as to when it is that they might render the firearm operational is -- is not a one that the Court should accept, because a person who hears a noise, a person who perhaps is living in a neighborhood where there has been a spate of violent crimes, has no idea of when the District of Columbia would permit her to render the firearm operational. And, in fact, there is a prosecution history not under this specific provision, but certainly other under gun prohibition -- laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.
    JUSTICE BREYER: Well, I didn't read -- I read the two military briefs as focusing on the nature of the right, which was quite a pretty good argument there that the nature of the right is to maintain a citizen Army.
    And to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States. But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

    JUSTICE SCALIA: You want to say yes.

    JUSTICE BREYER: Now, why?

    JUSTICE SCALIA: That's your answer.

    JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

    MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver. And the First Circuit accepted, as a matter of judicial notice, that proficiency in use and familiarity with the handgun at issue would be one that would further a militia purpose. And so
    JUSTICE STEVENS: Let me ask this question: In answering yes, do you attach any significance to the reference to the militia in the Second Amendment?

    MR. GURA: Yes, I do, Your Honor.
    JUSTICE STEVENS: You think that is -- to understand the amendment, you must pay some attention to the militia requirement?

    MR. GURA: Yes, Your Honor, we must -

    CHIEF JUSTICE ROBERTS: So a conscientious objector who likes to hunt deer for food, you would say, has no rights under the Second Amendment. He is not going to be part of the militia. He is not going to be part of the common defense, but he still wants to bear arms. You would say that he doesn't have any rights under this amendment?

    MR. GURA: No, Your Honor. I think that the militia clause informs the purpose -- informs a purpose. It gives us some guidepost as to how we look at the Second Amendment, but it's not the exclusive purpose of the Second Amendment. Certainly, the Founders cared very much about
    MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.

    JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
    The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
    Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
    JUSTICE BREYER: Not self-defense being the harm. And I agree with you that this, the firearm analogy, floats up there, but it isn't going to decide this case, the Massachusetts statute. I agree with you about that.
    What you've suddenly given me the idea of doing, which I'm testing, is to focus not just on what the kind of weapon is --don't just look to see whether it's a cannon or a machine gun, but look to see what the purpose of this regulation is, and does it make sense in terms of having the possibility of people trained in firearms?
    Let's look at those military briefs. Let's say that the generals have it right, there is some kind of right to keep trained in the use of firearms subject to regulation. We have regulation worried about crime, back to my first question.
    CHIEF JUSTICE ROBERTS: So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable.

    MR. DELLINGER: You -- you place a trigger lock on and it has -- the version I have, a few -- you can buy them at 17th Street Hardware -- has a code, like a three-digit code. You turn to the code and you pull it apart. That's all it takes. Even -- it took me 3 seconds.

    JUSTICE SCALIA: You turn on, you turn on the lamp next to your bed so you can -- you can turn the knob at 3-22-95, and so somebody -

    MR. DELLINGER: Well -

    CHIEF JUSTICE ROBERTS: Is it like that? Is it a numerical code?

    MR. DELLINGER: Yes, you can have one with a numerical code.

    CHIEF JUSTICE ROBERTS: So then you turn on the lamp, you pick up your reading glasses -

    (Laughter.)

    MR. DELLINGER: Let me tell you. That's right. Let me tell you why at the end of the day this doesn't -- this doesn't matter, for two reasons. The lesson -

    CHIEF JUSTICE ROBERTS: It may not matter, but I'd like some idea about how long it takes.

    MR. DELLINGER: It took me 3 seconds. I'm not kidding. It's -- it's not that difficult to do it. That was in daylight.
    The other version is just a loop that goes through the chamber with a simple key. You have the key and put it together. Now, of course if you're going -if you want to have your weapon loaded and assembled, that's a different matter.
    CHIEF JUSTICE ROBERTS: Does it really make sense to say the best self-defense arm is a rifle, as opposed to a pistol?

    MR. DELLINGER: It is -- there has been no showing here that a rifle or a shotgun is inadequate for the purposes of self-defense in this facial challenge.

    JUSTICE ALITO: Is there anything to show that the District Council ever considered the issue of self-defense? That -- because they banned handguns and they had this provision on the trigger lock which -- and the issue -- my question with the trigger lock doesn't have to do with whether trigger locks are generally a good idea. It's whether you're ever allowed to take it off for purposes of defense. There's no -- is there anything to show that the -- that the council actually considered what sort of weapon is appropriate for self-defense?
    CHIEF JUSTICE ROBERTS: Why is the -- why is the D.C. law phrased in those terms? In other words, if you can't have a handgun at all, why do you have a separate provision saying that you can't carry it anywhere?

    MR. DELLINGER: Well, it's -- it's -- the carry provision, you cannot carry unregistered firearms. That's just a general requirement, that firearms be registered. You're not allowed to register handguns is the mechanism by which they are prohibited.
    Now, here is -- to address your question about why a ban is unreasonable, the one thing we know the Second Amendment is not about is it's not about the interest of collectors. Some people collect guns the way they do stamps, and if that were what the amendment were about then prohibiting someone from having a particular type of gun would prevent them from completing the set. But the notion -

    CHIEF JUSTICE ROBERTS: Why isn't that covered by the provision that you have the right to keep arms?

    MR. DELLINGER: Well, the word "keep" would encompass -- "keep" can encompass every use of an arm, and that's why it provides no limit at all, unless you read it in combination with "keep and bear" and that in combination with "well-regulated militia."

    JUSTICE SCALIA: You mean you can't have any more arms than you would need to take with you to the militia? You can't have a -- you can't have a -- you know, a turkey gun and a duck gun and a 30.06 and a 270 and -- you know, different -- different hunting guns for different -

    MR. DELLINGER: Well -

    JUSTICE SCALIA: You can't do that? I mean a State could say you don't -

    MR. DELLINGER: Of course you could do that.

    JUSTICE SCALIA: You can have to have a 12 gauge and that's it.

    MR. DELLINGER: And like the District that allows that, as every State does. There are -

    JUSTICE KENNEDY: I -- at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia's suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.

    MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny, but this law would because a powerful, overwhelming case could be made that you're eliminating the one type of weapon -- this law is -- is designed only for the weapon that is concealable and movable, that can be taken into schools and onto the Metro, can be easily stolen and transmitted among -

    JUSTICE KENNEDY: I'm asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law?

    MR. DELLINGER: You would apply this standard. You would ask whether the ban is one that's carefully balanced considerations of gun ownership and public safety. I don't see how, once we are in the land where you -- where there is a right, there is a far weaker case if there is any need for public safety to -to limit the number of guns one has. Here there is an overwhelming case and we are talking about local legislation.
    CHIEF JUSTICE ROBERTS: Thank you, Mr. Dellinger.

    The case is submitted.
    And with those last four words, history is being made!

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