Comm2A files against the AG on LCIs, Draper v Coakley

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Glockster30

First of, thank you for the support! Thank you to all of you who have been following this matter closely.

To clarify, my rant yesterday was not directed to any of you Constitution loving and Rule-of-Law following individuals. I know that you all know how the system is rigged--one need only mention the key words "firearm", "gun" or "Second Amendment" and political and judicial minds melt immediately and that case is doomed.

I do not want anyone to think that this is over--at least as far as I'm concerned. As long as you are with me I'll continue this fight! They started with two attorneys at the AG's office, which by the end of the appeal ended with 10-12, including those in support of the Brady Center and the Law Center (there are some on the service list who do not appear on the briefs or in the 1st Circuit's opinion). We've obviously struck a nerve.

Stay strong. I'm in this for the long run...

Best,
Alex
 
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How much does it cost to file a lawsuit against the AG? What if we got hundreds of us to serve her with lawsuits and overwhelm the system?
Rcwhat,

I have ideas brewing even as we submit these posts voicing our frustration.

I have thoughts about how to follow this case up that I think all of you will find intriguing...

Please stay tuned! We're not done...

Alex
 
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Lawsuits have to be brought strategically. Bringing bad lawsuits will result in bad precedents being set, and will set us back, rather than move us forward.
This is COMPLETELY CORRECT! To any of you thinking of doing this independently, DON'T! Please, please, please don't! Contact Comm2A to coordinate. There is nothing more frustrating for attorneys like me than having to deal with precedent that is against us. Hell, the courts won't even recognize the precedent that is for us.

Again, DON'T DO IT!
 

drgrant

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Glockster30

First of, thank you for the support! Thank you to all of you who have been following this matter closely.

To clarify, my rant yesterday was not directed to any of you Constitution loving and Rule-of-Law following individuals. I know that you all know how the system is rigged--one need only mention the key words "firearm", "gun" or "Second Amendment" and political and judicial minds melt immediately and that case is doomed.

I do not want anyone to think that this is over--at least as far as I'm concerned. As long as you are with me I'll continue this fight! They started with two attorneys at the AG's office, which by the end of the appeal ended with 10-12, including those in support of the Brady Center and the Law Center (there are some on the service list who do not appear on the briefs or in the 1st Circuit's opinion). We've obviously struck a nerve.

Stay strong. I'm in this for the long run...

Best,
Alex
Alex, when you say attorneys supporting the "Law Center" are you talking like SPLC? (Southern Poverty Law Center - they're a bunch of gun hating morons, too. )

-Mike
 
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Before either side pleaded, the judge started with something pretty close to "I am inclined to accept all claims by the AG and none of the claims by the plaintiff, but I am prepared to hear testimony". Basically the equivalent of "we'll have a trial before the hanging".
Rob,

Here is the exact language from the transcript: (3:5 - 8) "Before we begin, I will announce my current inclinations and pose a few questions to focus your
arguments. At this point, I am largely persuaded by the arguments made by the Commonwealth."

It is on page JA300 of the Joint Appendix to the Appellants' brief.

Alex
 

rivet_42

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The worst part of this decision for the average, non-gun-owning person in Mass. is that it is not limited to the AG's rule-making authority over guns. It extends to *any* product that the AG decides to assert authority over. The AG is now the sole and inscrutable arbiter of what products may and may not be sold to consumers in the Commonwealth, from baby cribs to automobiles to computers. She can ban any product from being sold in the Commonwealth for any reason or no reason at all, does not have to say way, and does not have to provide any assistance to manufacturers or distributors or retailers to get the product into compliance.

I think it's fairly easy to pitch *that* to people of all political stripes as bad law because any law that depends on the discretion of police and/or prosecutors for "reasonableness" in enforcement, is bad law.

It's also ripe for exploitation by rent-seekers and crony-capitalists who would like to exclude upstart competitors and marketplace disruptors.

Consider, for instance, Tesla automobiles. Tesla has a well-known direct-to-consumer sales model that does not use dealerships. More traditional car makers, which are tied to the dealership sales model, have succeeded in getting laws implemented in a few states making Tesla's direct-to-consumer sales model illegal. It's a classic case of buggy-whip manufacturers using the legislative process to preserve their outdated business model. Now imagine what the major car manufacturers could do to Tesla sales if they could somehow get the AG to declare Tesla automobiles "unsafe". Tesla wouldn't be able to do a damn thing about it.
 
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Wow. So please correct me if I am wrong but this is my takeaway from this entire mess.

The loaded chamber indicator required by mass law is solely at the discretion of the AG. Further, the AG has not and likely will not definitively say whether any particular loaded chamber indicator is allowable under mass law. Therefore, while the AG currently holds the position that Glocks of a certain generation are not qualified for sale under the law, the AG reserves the right to stop Ruger or S&W or Kahr or any manufacturer from selling a handgun with any loaded chamber indicator at any time if the AG so deems that the LCI isn't complaint and that compliance had no specification other than what the AG so decides on any given day.

Yes. That is tyranny. THere is no other word for it. Please correct my understanding if I am wrong here.
Teaser452,

As the attorney who prosecuted this case, your interpretation is 100% correct.

Alex
 
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Alex, when you say attorneys supporting the "Law Center" are you talking like SPLC? (Southern Poverty Law Center - they're a bunch of gun hating morons, too. )

-Mike
The two amici were the Brady Center to Prevent Gun Violence and the Law Center to Prevent Gun Violence. Both were represented by mega brand-name politically entrenched law firms, and the former AG who instituted 940 CMR 16.05(3)--Scott Harshbarder--was originally counsel for the Brady Center.
 
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Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

Article VIII. In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.
 

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Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.

Article VIII. In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.
AMEN.
 

DispositionMatrix

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You flipped a coin and made a guess, and you want a congratulations? [rofl] Shit happens. With any legal action there is risk.

-Mike
False. I figured the judiciary would use whatever tortured logic possible to reach the desired conclusion, which anyone could have done. A quick read shows that to be the case.
 
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Wow. So please correct me if I am wrong but this is my takeaway from this entire mess.

The loaded chamber indicator required by mass law is solely at the discretion of the AG. Further, the AG has not and likely will not definitively say whether any particular loaded chamber indicator is allowable under mass law. Therefore, while the AG currently holds the position that Glocks of a certain generation are not qualified for sale under the law, the AG reserves the right to stop Ruger or S&W or Kahr or any manufacturer from selling a handgun with any loaded chamber indicator at any time if the AG so deems that the LCI isn't complaint and that compliance had no specification other than what the AG so decides on any given day.

Yes. That is tyranny. THere is no other word for it. Please correct my understanding if I am wrong here.
Teaser452,

As the attorney who prosecuted this case, your interpretation is 100% correct.

Alex
As I've mentioned many times, it's ironic that MA dealers can sell pre-1998 Glocks without an LCI, but can't sell a post-1998 Glock with an LCI. Not only is this ironic and foolish behavior exhibited by .gov, it also proves how "arbitrary and capricious" this decision is. In addition, it's pathetic that the legislators let the AG get away with this BS.
 
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The worst part of this decision for the average, non-gun-owning person in Mass. is that it is not limited to the AG's rule-making authority over guns. It extends to *any* product that the AG decides to assert authority over.
That's why I argued earlier that going after the reg on guns was a bad idea. Better strategy is to undermine the reg itself on something less politically polarizing. Anything remotely pro-2A drops your odds by at least 50% from the start.
 

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I think the only way to resovle this issue and the bonded warehouse issue now is through legislative action.

The worst part of this decision for the average, non-gun-owning person in Mass. is that it is not limited to the AG's rule-making authority over guns. It extends to *any* product that the AG decides to assert authority over. The AG is now the sole and inscrutable arbiter of what products may and may not be sold to consumers in the Commonwealth, from baby cribs to automobiles to computers. She can ban any product from being sold in the Commonwealth for any reason or no reason at all, does not have to say way, and does not have to provide any assistance to manufacturers or distributors or retailers to get the product into compliance.
If the legislature is made aware that the consumer protection powers, already overly broad without oversight, have been vastly expanded by the courts maybe they will decide to change the law such that the AG doesn't have such unlimited powers. Something as simple as requiring a detailed letter of assistance for determining compliance could curtail this arbitrary nonsense and would eliminate the basis of this ruling. Which would open it up for another challenge should the AG persist in being a petty tyrant.

Having the courts affirm power above and beyond what the legislature has already doled out should piss them off for trespass into their fiefdom of granting powers.
 

Rob Boudrie

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False. I figured the judiciary would use whatever tortured logic possible to reach the desired conclusion, which anyone could have done. A quick read shows that to be the case.
Would you have advised Comm2A to bring the case of the individuals who were MA lifetime prohibited persons because of a weed conviction?

How would you have advised Alan Gura when he brought the Heller case in DC?
 

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Glockster30

First of, thank you for the support! Thank you to all of you who have been following this matter closely.

To clarify, my rant yesterday was not directed to any of you Constitution loving and Rule-of-Law following individuals. I know that you all know how the system is rigged--one need only mention the key words "firearm", "gun" or "Second Amendment" and political and judicial minds melt immediately and that case is doomed.

I do not want anyone to think that this is over--at least as far as I'm concerned. As long as you are with me I'll continue this fight! They started with two attorneys at the AG's office, which by the end of the appeal ended with 10-12, including those in support of the Brady Center and the Law Center (there are some on the service list who do not appear on the briefs or in the 1st Circuit's opinion). We've obviously struck a nerve.

Stay strong. I'm in this for the long run...

Best,
Alex
alex,
this is great to hear you are not giving up the fight! Perhaps we will have a better chance in some given time. I can't help but think that Orlando expedited the negative decision in this case. Once again thank you for all your hard work! Thank you for chiming in on the forum too, we love to have you here posting. Keep us updated on anything we can do.
 

TayNinh_66

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Would you have advised Comm2A to bring the case of the individuals who were MA lifetime prohibited persons because of a weed conviction?
How would you have advised Alan Gura when he brought the Heller case in DC?
DC was attempting a total ban. Glock LCI is merely an inconvenience. You are not suffering any damages or having any rights curtailed because there are numerous other handguns you can buy. Comparing the two is pointless.

The 1st and the 9th circuits are not gun friendly and SCOTUS is neutered so at this point my advice would be to donate to an anti-hillary PAC. It is my opinion that LCI's will be with us until there are some independent studies that compare various types of handguns with the number of ND's for each handgun. If the studies show there is no correlation between ND's and LCI's, then they will slowly fade away. Claiming your constitutional rights are being infringed upon is probably not going to persuade state legislators.

Claiming one LCI protrudes .025 (Glock) and another LCI protrudes .026 isn't particularly persuasive either.
 
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Rob Boudrie

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DC was attempting a total ban. Glock LCI is merely an inconvenience. You are not suffering any damages or having any rights curtailed because there are numerous other handguns you can buy. Comparing the two is pointless.
My point was not a direct comparison, but that that a different court could have easily use a "reefer madness" / "gateway drug" / "drug culture" argument to justify continuation of the lifetime PP status for someone with a minor MJ conviction.

We knew there were risks when we took the MJ case, just as we did when we took the LCI case.

As to "not having rights curtailed" - that is like saying you are not having your rights curtailed because the AG issued a regulation you could not submit letters to the editor to the Boston Globe since you could also write to the Herald and USA Today.
 
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False. I figured the judiciary would use whatever tortured logic possible to reach the desired conclusion, which anyone could have done. A quick read shows that to be the case.
Disagree.

The District Court did not use "tortured logic" to reach the desired conclusion. It did not use logic at all. None of the DC's authorities in support of its holdings support those holdings--read the appellate brief. I went into great detail about that.

The CA1 decision, at least as far as I am concerned as the attorney who prosecuted this case, makes the DC decision appear lucid. CA1 set up a straw man argument that the dealer-manufacturers are looking for what amounts to be blueprints and then knocked that down. Now read the appellate brief and response to the AG's appellee brief, and then listen to the oral argument at the hearing. I EXPRESSLY STATED THAT THAT IS NOT WHAT WE'RE LOOKING FOR:

[
  • Souter: Then why is there a vagueness argument? Employ your people to come up with something.
  • Flig: That “something” is the issue.


  • Souter: Are you saying in effect that the only way the Attorney General can enforce this or reach the objective of this regulation is to come up, in effect, with her own blueprint about how the gun should be designed.
  • Flig: Certainly not, Your Honor. What I’m saying is that there should be sufficient specificity in the REGULATION to provide manufacturers and dealers enough information to actually know what may or may not comply.


  • Souter: When you get to how the indication is to be done you’re getting in effect into a specification of the details of the design of the pistol, and your argument seems to be that without a specification of the details of the design a requirement of “plain indication” is vague.
  • Flig: That’s correct, Your Honor, but I think you’re taking it a step too far, and that is asking for specificity. We’re not asking for specificity; we’re asking for guidance.


Now let's read from the CA1 opinion (p. 7):

"Perhaps it is a sense of the weakness of their position that leads the dealers to argue, in effect, that fair notice requires the Commonwealth to provide something approaching a design specification: if the Commonwealth wishes to require load indicators that "indicate plainly," the Commonwealth ought to supply the industry with a graphic plan or blueprint. But if due process demanded any such how-to guide..."​


So much for facts. So much for argument. So much for a fair hearing. So much for what is now a PUBLISHED DECISION with DEAD WRONG content.

This is just a SMALL sampling of CA1's MANY errors.

DispositionMatrix, this is NOT tortured logic. This is a decision that has nothing to do with our case. I filed one lawsuit. The CA1 issued an appellate decision on another.
 
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DC was attempting a total ban. Glock LCI is merely an inconvenience. You are not suffering any damages or having any rights curtailed because there are numerous other handguns you can buy. Comparing the two is pointless.
TayNinh,

Without addressing the non-quoted part of your post, do you know how many handguns as NOT available because of the vagueness in the reg? I happen to be aware of one very major manufacturer who will not even submit handguns for testing because of the entire regulatory scheme, much less the LI nonsense.

So to say that other handguns are available is a non-starter: how many alternatives must you have available to establish unconstitutional burden? Do you know? I sure don't. What I do know, quoting from my appellate brief, is the standard to which you refer--the availability of other handguns--is expressly NOT the applicable standard for burden. Here is the cut-and-paste from my brief (sans formatting):
_________________

Instead of focusing on the vagueness in the REGULATION and the challenged conduct it sanctions (arbitrary and capricious enforcement), the District Court’s Second Amendment burden analysis—conspicuously lacking any citation to legal authorities for its approach—focuses on the non-categorical impact on the Second Amendment (purportedly leaving a “wide array of firearms” available) despite the REGULATION. By the District Court’s logic, the REGULATION is cured of its unconstitutionality and/or the AG’s ban of Gen3/4 Glock pistols is cured of its arbitrariness and capriciousness so long as alternative pistols remain available to the CONSUMERS: “The regulation does not substantially burden the right to bear arms … because [it] in no way prevents citizens from obtaining a wide array of firearms.” Dismissal Memorandum, 16-17 (AD17-AD18). At what quantitative and/or qualitative point would the District Court rule that the reduction in the availability of firearms burdens Second Amendment rights?

This is the exact opposite of the Second Amendment burden analysis prescribed by the Supreme Court in the now famous District of Columbia v. Heller, 554 U.S. 570 (2008) case. There, the Supreme Court sharply criticized Justice Breyer’s proposed

“… judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’” Id., 634 (emphasis in italics).​

Whether it is a “salutary effect” or a non-categorical arbitrary and capricious ban on certain brands or models of firearms, the discrete variable Heller unambiguously excluded from the burden on constitutional rights analysis in general—and the Second Amendment in particular—is “proportion[ality]” between the offending law or regulation (and/or its enforcement) and its result or impact.

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., 634 – 635 (emphasis in the original).​
________________________
 
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As to "not having rights curtailed" - that is like saying you are not having your rights curtailed because the AG issued a regulation you could not submit letters to the editor to the Boston Globe since you could also write to the Herald and USA Today.
This +1000.

TayNinh_66, Rob is completely correct (read my more detailed response to that same text he quoted). At what quantitative and/or qualitative point is the impact of an unconstitutional law or regulation so intolerable that it should be stricken? Who decides that the impact has reached that magic quantity and/or quality? How?

That's the whole point of not permitting ANY unconstitutional law or reg, no matter how insignificant its impact. To do otherwise is to push that burden/infringement down a slippery slope to which there is no end. This generation allows "X" amount of burden on a right. The next generation allows "2X" and the one after that allows "10x". Soon what started out as impact "X" completely obliterates the right.

Don't you see this in the world around you today? What do you think will be the eventual impact of the USSC's gay marriage decision? What about the gender identity bathroom ruckus? Why, based on the impact of those decisions, can't I now marry three women, two men and a dog at the same time, identify myself as a male lesbian and use the handicapped-only bathroom? If not, WHY not? My right to equal protection is being trampled--and so is the dog's. The same logic and reasoning that applies to abolishing gender opposites as a limit on that which we call "marriage" applies to the scenario I just painted.

Without boundaries or standards everything goes--and nothing goes. Government is free to act as capriciously as it wants.

As a first generation emigre from the former USSR (albeit as a child of 6 years) I am well aware of government overreach. Ask anyone who lived through the USSR, Cuba, North Korea, or many of the Middle East theocracies experiences. Why are they here and not there (assuming, like the USSR, those places still exist)?

Government overreach doesn't end well for anybody.
 
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I think the AG should just make things easier on herself. I'm sure she could find a way to (mis)construe a regulation based on a (mis)construed MGL that allows her to ban Alex Fig from challenging any of her authority. After all, there are other lawyers, so it doesn't infringe on anything. I'm sure the court would agree.
 
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To Alex Flig: thank you for your hard work on this case and for continuing to post about it here! I don't think any reasonable person could read your posts (especially the last 3 on this page) and not see the absolute tyranny.

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., 634 – 635 (emphasis in the original).​
________________________
Those two very important bold sentences are more succinct than this from the Will-there-be-a-next-Civil-War thread, and I don't recall seeing it expressed here before:

Some people have sworn, as part of military service or for some other reason, to uphold the U.S. Constitution. Obviously, those people were sworn in on the U.S. Constitution that existed at the time.

If the makeup of the Supreme Court gets changed in the wrong way, and they reinterpret the Second Amendment in the wrong way, does that change anything? No.

If there is a Constitutional Amendment that totally does away with the Second Amendment, does that change anything? No.

Does anyone think "they" realize this?
 
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Is there a Morin v. Leahy thread?

I'd be interested to hear Comm2a's response to the Commonwealth's latest filing (6/27) which indicates it IS OK to have a firearm in the home with just an FID. Curious how one might go about buying one, though...
 

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There is a thread.

The court denied our motion today.
Because they are scumbag pukes.

- - - Updated - - -

Beautiful !

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Id., 634 – 635 (emphasis in the original).
 

rivet_42

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Why does it seem that lately we (gun owners) are losing ground on every front?
Heller v. D.C. did for the anti-gun movement what Roe v. Wade did for the anti-abortion movement.

Obama's second term, so he doesn't have to worry about re-election.

Many Democratic voters and politicians have forgotten AWB94 and what it did to them in the '94 mid-terms. Al Gore has even said that AWB94 was part of what cost him the election in 2000.

The Dems have won a round of "culture wars" with same-sex marriage and Obamacare, and they're emboldened to think they can win this one too.
 
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drgrant

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Heller v. D.C. did for the anti-gun movement what Roe v. Wade did for the anti-abortion movement.

Obama's second term, so he doesn't have to worry about re-election.

Many Democratic voters and politicians have forgotten AWB94 and what it did to them in the '94 mid-terms. Al Gore has even said that AWB94 was part of what cost him the election in 2000.

The Dems have won a round of "culture wars" with same-sex marriage and Obamacare, and they're emboldened to think they can win this one too.
Some of the older dems haven't forgotten... which is why pelosi mostly ignored gun contol, because she knows that its damaging to any dem not in a safe moonbat district. They will posture and intoduce bills, but they might as well be dead on arrival if they involve banning stuff.
 
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