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Old January 4, 2011, 12:09 PM   #1
KLRANGL
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Duty to inform and your right to not self incriminate

Has there been any legal study or court case regarding "duty to inform" laws and their infringement on your right to not self incriminate?

Was visiting a friend who lived literally right next to Duke University in North Carolina. NC law makes it a misdemeanor to even have an unloaded gun in your car on university property (felony if you attend or work for the school). I really wanted to CC while there, since some of it isn't the best area in the world, but I was too afraid of taking a wrong turn in an area that I did not know and end up on campus property. So I ended up not carrying (good thing, since I ended up on campus property while I was there by accident).
Many of us can admit (to ourselves) to accidentally ending up in a place that forbids carry. If you find yourself in that situation, and upon leaving the area you get approached or pulled over by a police officer, in a duty to inform state are you not then legally required to self incriminate by stating that you are carrying while in a location that does not permit carry? We all have the responsibility to follow the law to the letter, but people are fallible and accidents can happen.
Thoughts?
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Old January 4, 2011, 12:27 PM   #2
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I've had a few tough situations over the years with cops that I considered harassment. I politely told them that if they want answers to their questions that they must read me my rights. After checking my ID and seeing that I have no record they buzz off because it's too much hassle for them and there are easier targets. Never admit to anything. Unless you're a lawyer don't submit to questioning without represenation, EVER!
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Old January 4, 2011, 01:05 PM   #3
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Never admit to anything.
Except in this case, that would be breaking the law.
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Old January 4, 2011, 01:20 PM   #4
Brian Pfleuger
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Interesting question.

My initial response would be that part of the responsibility of carrying a firearm is to to make every reasonable effort to guarantee that you are within the law at all times.

Which you did, by not carrying, in this case.

Hypothetically though, it's an interesting question. I would GUESS that you would have the duty to inform the officer that you were carrying but could invoke your right to silence if asked about being on campus property. I'm just guessing though.
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Old January 4, 2011, 01:28 PM   #5
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Given law enforcements usual stance of sorry I have to ruin your life but the judge may be nice to you...and thier mission statement of arrest everyone possible for the revenue...and considering that you speak of an accident where you hold no criminality in your heart...I say protect yourself in whatever way you must.

The polices job is to find violators. Let them do thier job and do not hand over your life to thier whims of the day hoping for reasonability from them in a misguided attempt to be a good Joe.
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Old January 4, 2011, 01:39 PM   #6
Bartholomew Roberts
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Quote:
Has there been any legal study or court case regarding "duty to inform" laws and their infringement on your right to not self incriminate?
There is U.S. vs. Haynes, 390 U.S. 85 (1968) regarding firearms registration of NFA firearms. It ruled that the way the registration requirement was written violated the 5th Amendment. As a result, Congress rewrote the law so that the burden of registering the firearm would always be on a party that could legally own the firearm.

Not exactly on point; but would probably provide some relevant info.
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Old January 4, 2011, 02:44 PM   #7
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Given law enforcements usual stance of sorry I have to ruin your life but the judge may be nice to you...and their mission statement of arrest everyone possible for the revenue.
Edward, you must have had some tough times with LE. I know of no mission statement that advances the theory of ARREST ALL. Officer discretion is still alive and well on the streets were I live. In my 17 years on the street lots of folks got a walk, some even got a ride home.

As far as the issue at hand, part of the responsibility of legal concealed carry is to know where you can and can not take your firearm. Even with a retired card I must live within the laws of the state I visit. As you correctly stated "We all have the responsibility to follow the law to the letter."
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Old January 4, 2011, 03:00 PM   #8
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I am with peetza on that one. If you are required to inform, I would. I certainly would not volunteer, oh by the way, I was just at school with my roscoe. I know I personally would use my discretion if it was a legit accident, and no harm came from it. I never really understood those laws anyway, if you are going to use a gun at school to kill someone, do you really give a rats behind that taking the gun there is illegal? I can't picture somebody saying to themselves, "I really want to go shoot some kids, if only it wasn't illegal to bring guns to school."
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Old January 4, 2011, 05:54 PM   #9
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Correct! So if the criminals disregard the law, then the only one the law will affect is us law Abiding folks who want to be recognized as good people. And the Lawgivers would have us to believe and recognize a duty to inform the authorities of things that can and likely will be used against you in a court of law? Even if you have a cwp, you're not given any benefit of any doubt. Suddenly you are under more scrutiny to see if you have stepped outside the boundries of your permit.

It's easy to say that you're a nice guy and let some folks walk under your discretion if they are cheery and cooperative with you, and I believe you. Indeed, even I have been handed kindness from LEO's occassionally...BUT! That is occassionally and not the norm.

Most times its all about compromise to get us to swallow the injustice. My 48 yrs experiance has shown me that the less I am honest about with LEO's, the more of my families money I get to keep for us. When those guys tell me they coulda wrote me up for 6 things but will only give one ticket like thier being my friend, but my fams money is being sucked away.

This was the point of the law. To suck dry the revenue of the citizens. I do not bash you officers, but if you let too many people go...you get in trouble, so I understand much of it is out of your hands.

But let us all be clear that police kindness and levity are just like police brutality..isolated incidents and not the norm...hence no duty to inform.
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Old January 4, 2011, 06:14 PM   #10
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Edward, you must have had some tough times with LE. I know of no mission statement that advances the theory of ARREST ALL. Officer discretion is still alive and well on the streets were I live. In my 17 years on the street lots of folks got a walk, some even got a ride home.
That is a nice sentiment and may be your personal philosophy, but many times an arrest is made, and it is typically the job of the police to assist the prosecutor in making sure there is a conviction. I don't think it is common practice to arrest everyone for the revenue though.

Utah is also a duty to inform state. I would always recommend obeying the law in that regard. If they can prove that you have a disregard for any part of the law, no matter how trivial you feel it is, they have got you, and a jury will be putty in their hands.
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Old January 4, 2011, 06:18 PM   #11
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Correct! So if the criminals disregard the law, then the only one the law will affect is us law Abiding folks who want to be recognized as good people. And the Lawgivers would have us to believe and recognize a duty to inform the authorities of things that can and likely will be used against you in a court of law? Even if you have a cwp, you're not given any benefit of any doubt. Suddenly you are under more scrutiny to see if you have stepped outside the boundries of your permit.

It's easy to say that you're a nice guy and let some folks walk under your discretion if they are cheery and cooperative with you, and I believe you. Indeed, even I have been handed kindness from LEO's occassionally...BUT! That is occassionally and not the norm.

Most times its all about compromise to get us to swallow the injustice. My 48 yrs experiance has shown me that the less I am honest about with LEO's, the more of my families money I get to keep for us. When those guys tell me they coulda wrote me up for 6 things but will only give one ticket like thier being my friend, but my fams money is being sucked away.

This was the point of the law. To suck dry the revenue of the citizens. I do not bash you officers, but if you let too many people go...you get in trouble, so I understand much of it is out of your hands.

But let us all be clear that police kindness and levity are just like police brutality..isolated incidents and not the norm...hence no duty to inform.



Edward, if the officer saw 6 violations, and only writes you for one, they are giving you a break. Maybe you had to pay for one violation, but wouldn't six be worse? And if you are in violation six times, why are you suprised you got a ticket? And, I have no pressure on me to ever write tickets, not in 15 years. The only time tickets are ever mentioned is during "Click it or Ticket" seatbelt enforcement week. And the only thing said is if you are doing traffic enforcement, concentrate on seatbelts.


I have said it before, and it's certainly true where I work, most cops are very aware that a lot of people are suffering with the economy in the toilet. If you get a ticket in my area, you were asking for that ticket in big red letters.

Last edited by Conn. Trooper; January 4, 2011 at 06:26 PM.
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Old January 4, 2011, 06:37 PM   #12
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But let us all be clear that police kindness and levity are just like police brutality..isolated incidents and not the norm...hence no duty to inform.
Cops are people too. No one should ever believe they are a bastion of honesty, civility or honor. There are plenty of bad cops. And there are plenty of good cops too. The problem is that you can't tell whether you're dealing with a jerk or good guy from the first 30 seconds of interaction. And that is when you're going to have to make a decision on what to tell the cop. I always assume the cop I am dealing with is looking to jam me up and am pleasantly surprised when this is not the case. I withhold as much information as possible, until it becomes absolutely necessary to tell the officer. I'm not going to break the law or lie but until the officer asks me to step outside or requires my license and consequent CCW, I'm not volunteering anything. In at least half of my police interactions, they never even asked for a drivers license.

My brother (a cop) stopped a guy in the middle of a snow storm, parked in the middle of the road with his lights on and not moving. He was drunk and asleep. My brother was as polite as pie and nice as possible. And he threw out the slimmest hope that this guy wasn't going to go to jail. BUT he was 20 miles from the station, in the middle of nowhere with no backup on duty. So he was not going to rile this guy. He got him cuffed and into the car. This was the guy's 3rd DUI, so he is going to jail. But my brother was as calm as a cucumber, telling him it would all be worked out. If you mean, "go to jail", than yes, it will all get worked out. And that is fine by me. My point is to illustrate that cops will say what they think they need to say, depending upon the situation. They are concerned about their safety. Great. I am concerned about mine. My interests and the interests of a cop pulling me over are unlikely to be the same. Finally, it has been long accepted that they can blatantly lie to suspects if they feel it necessary.

I like my brother. He's a good cop. But as a general rule, I don't trust cops and I don't volunteer anything. And it's not because I have anything against cops or think we should not have them, it is just that there are plenty of bad, dangerous and corrupt cops out there.
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Old January 4, 2011, 06:42 PM   #13
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Gents, once again, the thread has gone off the rails and into the river, right into "Bad CopLand" I am out.
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Old January 4, 2011, 06:54 PM   #14
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Gents, once again, the thread has gone off the rails and into the river, right into "Bad CopLand" I am out.
I don't think the police (as an institution) are bad at all but it is an organization of human beings and is therefore fallible. I have friends in law enforcement who are great people.

The police come under scrutiny when a persons right to liberty is in question. Some police let people off with warnings when they shouldn't, some are far to eager to put people in handcuffs when they shouldn't. Some do everything right and we never hear about them on firearm discussion boards.

Not all police are created equal because not all human beings are created equal. Same goes for judges, lawyers, contractors, garbage men, etc. etc...
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Old January 4, 2011, 07:00 PM   #15
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I had a list of states that you 'must' inform and states that you 'do not have to inform'. I used handgunlaw.us and its not their fault. I was in virginia and didn't inform the cop. well he was real cool and we were talking outside because the baby was crying. I was cool with this because it was the reason I was out of the car and I figured he'd give me a break. anyways, he went back to his cruiser to check real quick after we talked(you know like make sure I'm not a convicted felon, wanted + on the run) and he just happened to ask, "You're not carrying today, right?" Of course I told him I was and then pointed to the pocket and when he had it in his hand I told him it was loaded(all this was offered and they're were no more questions during this process after his initial question). this was a few months ago and he informed me and actually quoted the numeric code/law that I must inform him. long story short- I got no ticket and the weapon was unloaded on his vehicle while he cheked me out. Real nice guy, good cop but I never got into it with him about the gun law. I always thought VA was no need to inform. I felt bad and actually said you know for now on I am going to just tell you guys, but it kept eating at me since I was wondering: is it possible this was a county code he was quoting to me? it was a county cop(for guyz up north just think of it as the same as a town cop- not city or state). I don't think handgunlaw.us is wrong, and I did tell him thats where I got the info from when he first brought it up. At the end when he gave me my firearm back and, like I said I felt bad and told him I might probably just let them know for now on, I spelled the sites name for him as he had not heard of it. he seemed to know the law, so I have been a little more timid about not saying anything since // then again I dont want to have a teaparty next to my weapon everytime I get pulled over. anyone know what I'm talking about with different municipality, "INFORM" laws? Is it possible VA isnt a 'must' inform state, yet different counties might require it in their own laws? well anyways I still carry the list of states and we took another long trip but that was the only time I have ever been pulled over while carrying. my wife just got her CCW permit from our home state so we're happy about that too.
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Old January 4, 2011, 07:14 PM   #16
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What City/County did it happen? Virginia is a no inform state (I always do though).


§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.

(1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923; 2009, cc. 735, 772.)
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Old January 4, 2011, 07:21 PM   #17
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thank you egor. he was wrong or mustve been quoting an old law. I don't remember the county. I guess if I had gotten a ticket I would've
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Old January 4, 2011, 07:48 PM   #18
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Conn. Trooper,

I'd be happy to have you pull me over. And I have no intention in taking a stroll into Bad Copland and I am sorry you feel that I have taken that turn. But the fact is that the general public puts police officers on a pedestal and holds them to a higher standard than the rest of us. While this may seem like a good thing, it means that the bad apples are given the same courtesy and respect. And it allows them to get away with all kinds of behavior that would be completely unacceptable if they were of any other profession.

I've avoided painting police with a broad brush. But no cop pulls over a minivan and assumes it's a soccer mom with nothing to hide. Maybe after he's talked to her for 3 minutes and sees the screaming kids in the back, but not until he's engaged her. So why should any of us assume any cop that pulls us over is there to do us a favor? If he was really there to do us a favor, he would not have turned on his lights in the first place. A cop pulls you over assuming the worst, why should we be any different? And fact is, when you get pulled over Conn. Trooper, in any place in the US, if you flash your badge you are free to go, even if you were doing 80 in that 65...

Not that you would do such a thing!
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Old January 4, 2011, 08:40 PM   #19
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I do 80 in a 65 all the time, but I wouldn't write a ticket for that anyway, I wait until you are 20 over at least.

And I agree that police should be held to higher standard, our word should be beyond reproach, because sometimes that's all it takes to take someone's freedom away. I also agree that there are some bad cops out there, I just disagree with the number of them. I have made it 15 years in 2 states, and I have never seen a "bad cop". I have seen some I thought were better than others, some were more professional, some were smarter. The vast majority go out and try to do the best job they can day in and day out.
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Old January 4, 2011, 11:40 PM   #20
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Im not sure how the conduct of police officers has anything to do with my topic...
This is about the laws, and how they may or may not effect your rights (specifically, your right to not self incriminate)
I would much appreciate getting the topic back on focus.

Quote:
Hypothetically though, it's an interesting question. I would GUESS that you would have the duty to inform the officer that you were carrying but could invoke your right to silence if asked about being on campus property. I'm just guessing though.
I feel like it can't really be that easy, but maybe it is. The cop would already know whether you are in a prohibited place, and by admitting the possession of the firearm you might not be explicitly admitting to carrying in a prohibited place. The fact that you are carrying in a prohibited place would merely be inferred. I still feel like I shouldn't have to self incriminate myself, but I have no argument other than it just doesn't feel right.
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Old January 5, 2011, 07:47 AM   #21
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I still feel like I shouldn't have to self incriminate myself, but I have no argument other than it just doesn't feel right.
A prosecutor might ask you, "So, Mr. Killer Angel, you acknowledge that we have a duty to inform here, but you believe that breaking the law regarding where you can carry should give you an exemption from that duty to inform?"

Answering that one is probably not going to feel right. Go ahead and give it a shot here, where it doesn't matter.
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Old January 5, 2011, 11:03 AM   #22
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Originally Posted by Edward
This was the point of the law. To suck dry the revenue of the citizens.
No, Edward, sucking the revenue of the citizens is NEVER the point of any law.

Legislators enact laws, both good ones and bad ones, for the purpose of controlling behavior. If they think we citizens shouldn't do something, they make it illegal.

Human nature being what it is, if they just wrote, "Don't do that," most people would ignore the law and do "that" anyway. So they attach a monetary (and sometimes other) penalty to the action, in the hope that people will choose to obey the law rather than risk paying the penalty. The problem is, too many of us citizens seem to like gambling. Speeding is a perfect example. Very, very few drivers actually drive within the speed limit, even most of the time. They ALL know that speeding is against the law, yet if/when they get caught, rather than man up and pay the fine, they typically rant and rave and whine about how mean the cop was to give them a ticket for "only" driving 75 in a 50 MPH zone.

That said, there's no question that some jurisdictions take unfair advantage of some laws and treat them as modes of revenue enhancement rather than as they were intended -- deterrents to unwanted actions or behavior. Small-town speed traps fall into this category, for example.

BTW -- for the record, I am not and never have been an LEO (and I don't even agree with Conn Trooper much of the time).
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Old January 5, 2011, 11:12 AM   #23
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Incidentally, I am not a lawyer, either, so I don't know just how or if this might extrapolate to the case of someone inadvertently carrying on school grounds in a "duty to inform" jurisdiction. First of all, of course, the exact wording of the duty to inform requirement matters. Some states require the CCW holder to proactively inform an LEO any time there is an "official" interaction ... even if not asked. Other states may be somewhat more or less restrictive.

But my point in opening this post was to mention that I believe there was a Supreme Court case (but I don't recall if it was SCOTUS or a state supreme court) a few years back that ruled that a convicted felon (in other words, a prohibited person) did NOT have to inform a police officer if he had a gun, because admitting such would be self-incriminating.

If any of the resident legal beagles know of this case, maybe you could comment on whether by extrapolation it would extend to protecting a CCW holder who wandered onto school property while carrying and encountered an officer. My gut feeling is that the right to not incriminate myself, being enshrined in the Constitution (the "highest law of the land") would outweight any state duty to inform law.

But it might cost some time and money to find out, and I would prefer not to be the test case.
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Old January 5, 2011, 11:13 AM   #24
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Originally Posted by KLRANGL
I feel like it can't really be that easy, but maybe it is. The cop would already know whether you are in a prohibited place, and by admitting the possession of the firearm you might not be explicitly admitting to carrying in a prohibited place. The fact that you are carrying in a prohibited place would merely be inferred. I still feel like I shouldn't have to self incriminate myself, but I have no argument other than it just doesn't feel right.
I assume that the officer would technically need to prove that you were on prohibited property. During the actual stop, he need only right the ticket or make the arrest because he believes what he believes. Your only defense, I presume, would be in court and invoking your right to silence during questioning. In court, unless the officer can PROVE that you were on campus property beyond a reasonable doubt, you should THEORETICALLY be exonerated. I suspect that the jury may well accept "I saw him there." as beyond reasonable doubt but a good defense attorney should be able to make an argument that at least allows "reasonable" doubt that you were there.



Back in the real world, a lot would depend on my impressions of the officer and their behavior. First of all, if I had previously realized that I was on prohibited property, I would immediately take the shortest, fastest route OFF that property. That in itself would be a reasonable "on the street" defense... "Yes sir, I do realize that I was on prohibited property. I am not from the area and took a wrong turn, mistakenly entering the area. As soon as I realized, I exited the property ASAP, that's when you spotted me."

If I DIDN'T previously realize that I had entered prohibited property, I would respond as such, with an apology even. Any decent officer would likely realize that you had no ill intent and made a true honest mistake.
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Old January 5, 2011, 11:29 AM   #25
tet4
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The real problem here is that many places have criminalized a fundamental right. This problem would resolve itself when carrying a firearm in unsecured areas is decriminalized.
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