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"Private" entity vs "public" entity limiting 2a rights

solus

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Which is what this threads purpose is - to discuss whether or not such retailers are in violation of our rights. This is why I used the example of a retailer - not a golf club.
I contend that it is a violation of our civil rights (and constitutional rights) and that if retailers faced legal repercussions over the matter, the policy would change.

@solus - your kind of making my argument for me.... Yes, the act only related to employment initially. Yet you admit that other groups with "special interest" - which we all are as well - created a change in how the law is applied. I am simply suggesting that we as 2a'ers do the same. While we can argue semantics all day - and I do see your point, cases like Jonsson v Crossfit wouldn't be happening right now if the standards you use were applied. I would rather discuss what actions could be taken to move the "cause" of 2a forward than bandy questionable legal concepts regarding big box retailers status as "public" or "private".

So the purpose was to basically say why don't we take these anti-2a companies to task through the courts for violations of our constitutionally protected rights? Has it ever been tried? If it works for one group, it is worth at least CONSIDERING as a type of action that would further the protection of 2a. I believe that decisions that have lessened the "private" property rights of those that do interstate business with the general public make such an action potentially viable.

those other LGBT groups are pushing state by state by state and as such while making forward process, it is slowly in changing individual state's statutes. nothing nationally.

crossfit apparently has a competition policy about the competitors competing as the gender they were born with in place and this transgender'd individual (m > f) is challenging that policy as she wishes to compete as a female. the Olympics have the same concept which bubbled up years ago, and while controversial, the gender verification policy still exists as a policy and is practiced subjectively on Olympians when they compete.

if she didn't want the answer she shouldn't have asked...

how do you believe this case fits your scenario? especially since it has nothing to do with 2a and private property carry concepts?

finally the case cited is a 'state' issue not a national one.

if you do not get the cats herded for one major push, understand and engage in 'what if' banter to assess overall strategy ~ covering most of the contingencies likely to pop up during the execution of said strategy, gather sponsors, sell sponsors on the strategy, and then push those cats in a concerted effort, the effort you perceive will fail miserably and cause a backlash with existing 'rights'.

by the way, your case is similar to those 'talked' about towards suing BSA for not allowing gay adult leaders participate in scouting ~ the concept you felt was an orange.

as Grapeshot stated below (or above depending how you have your posts viewed)
quote: Private property, save for the specfic (sic) exceptions, remains private AND that includes much more than just the Second Amendment - public accomodation (sic) not withstanding.

so first you have to decide which front your effort is going to go, state or federal?

ipse
 
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xd shooter

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I've been coming around to this same conclusion, that businesses that invite in the public, and do nothing to guarantee our safety, do not have the right to remove my right of self defense.

I own and operate a business myself, while I would like to say that my business is my business and that can run it as I see fit and service only those customers that I prefer, the truth is that there are so many regulations that I must abide by, its mind boggling.

I think we have 2 arguments we can use, the self defense aspect as mentioned earlier, and the fact that businesses must obtain a business license from the government AND abide by all the regulations set forth, which include all laws, rules, ordinances, Etc, including not violating our rights.

When you visit a Store with a changing room, you have the right to privacy, right? IOW they can't put cameras in these rooms, even though that's where a lot of instances of shop lifting begin and you'd think the store, being private property, would have the right to prevent loss... I mean if you don't want to be photo'd or taped in the changing room, you don't have to go in there, right?

I refer to the case of the bakery, who for religious reasons, denied their services to a gay couple for a wedding cake, they sued the bakery and WON. How's that for a private business wanting to operate as they see fit? Our right to self defense isn't at least as great as a gay couple right to not be discriminated against, even for religious convictions?

I certainly agree that a private residence, your home, is absolutely invioble. Your house, your rules. But you don't invite the general public into your home.

Now if said business can guarantee your safety, with a metal detectors, pat downs, armed security, to ENSURE that no "bad guys" with guns or other weapons can get in, fine. Barring that, I should be able to carry wherever and however I choose.

Has there ever been a case, where someone that normally carries, but due to a businesses no gun sign or known anti gun stance, did not carry into that business and was harmed, attacked, robbed, shot, etc while in said business? Would they have a case to sue that business? The recent stint of robberies at sonics and jack in the box restaurants after their stance of no guns allowed seems to me to open them up to lawsuits. Has one ever been filed?
 
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solus

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I've been coming around to this same conclusion, that businesses that invite in the public, and do nothing to guarantee our safety, do not have the right to remove my right of self defense.

I own and operate a business myself, while I would like to say that my business is my business and that can run it as I see fit and service only those customers that I prefer, the truth is that there are so many regulations that I must abide by, its mind boggling.

I think we have 2 arguments we can use, the self defense aspect as mentioned earlier, and the fact that businesses must obtain a business license from the government AND abide by all the regulations set forth, which include all laws, rules, ordinances, Etc, including not violating our rights.

When you visit a Store with a changing room, you have the right to privacy, right? IOW they can't put cameras in these rooms, even though that's where a lot of instances of shop lifting begin and you'd think the store, being private property, would have the right to prevent loss... I mean if you don't want to be photo'd or taped in the changing room, you don't have to go in there, right?

I refer to the case of the bakery, who for religious reasons, denied their services to a gay couple for a wedding cake, they sued the bakery and WON. How's that for a private business wanting to operate as they see fit? Our right to self defense isn't at least as great as a gay couple right to not be discriminated against, even for religious convictions?

I certainly agree that a private residence, your home, is absolutely invioble. Your house, your rules. But you don't invite the general public into your home.

Now if said business can guarantee your safety, with a metal detectors, pat downs, armed security, to ENSURE that no "bad guys" with guns or other weapons can get in, fine. Barring that, I should be able to carry wherever and however I choose.

Has there ever been a case, where someone that normally carries, but due to a businesses no gun sign or known anti gun stance, did not carry into that business and was harmed, attacked, robbed, shot, etc while in said business? Would they have a case to sue that business? The recent stint of robberies at sonics and jack in the box restaurants after their stance of no guns allowed seems to me to open them up to lawsuits. Has one ever been filed?

once again, the Colorado same sex couple won a STATE civil rights COMMISSION ruling against a small business ~ not the federal civil system. additionally, quote: He added his bakery has been so overwhelmed by supporters eager to buy cookies and brownies that he does not currently make wedding cakes. so who won... the CO gay couple? the other het couples who wished to enjoy this prized baker's wedding cakes? or the baker who's sales in other products has soared because of supports in the religious belief of the baker?http://www.theguardian.com/world/20...ker-wedding-cake-gay-couples-commission-rules

you have a business, then you as the owner, and if you have written policies in place, follow said policies without exception, have the right to exclude any customer. I am sure the baker did not have any type of policy in place, or didn't follow them w/o exception, which I would believe what caused his downfall.

additionally, feel those who brought suit, had the backing of the deep pocket Gill Foundation, et al., while the baker was stuck out in the wind to drip dry.

ipse
 
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xd shooter

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So if I have a written policy that excludes my servicing gay Latino females, I'll be good to go?

I doubt that. :) The point is, there are regulations that businesses must abide by, we need to somehow add the right to self defense to the "Protected Classes".
 

rightwinglibertarian

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This is actually an interesting question. Apparently in my state (Wisconsin) the city cannot ban firearms on public transport (and I believe Madison was or is being sued for this very thing), Yet banning firearms at police stations and local government buildings which are publicly funded is legal? Private businesses I can accept as having the right to ban firearms but not public places and certainly not in states that have preemption laws.
 

solus

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So if I have a written policy that excludes my servicing gay Latino females, I'll be good to go?

I doubt that. :) The point is, there are regulations that businesses must abide by, we need to somehow add the right to self defense to the "Protected Classes".

you keep stating there are regulations yet fail to articulate those regulations, it is acknowledged federally, EEOC enforces laws that prohibit discrimination based on race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment. Race, color, sex, creed, and age are now protected classes.

no shirts, no shoes, no service!!

it would be appreciated if in the future, you would use "gay" or "lesbian" to describe people attracted to members of the same sex as your description is inappropriate ~ thanks.

I have always wondered why we protect property, money, other valuable commodities yet fail, as evidenced by events of late, to adequately protect our most valuable resource ~ our youth as JQP insists on putting them in GFZ.

ipse
 

xd shooter

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OSHA regulations, EPA regulations, workmans comp regulations, wage regulations, just to name a few. It seems everyday I come up against more of them, which usually costs me money to attempt to comply with them.

In my particular business I also deal with FAR's, FCC regs, ITAR, export regulations, among many others. I imagine that businesses that deal with food also have a few regulations that they must comply with.

Get the idea?

And what description did I use that was inappropriate?
 
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solus

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OSHA regulations, EPA regulations, workmans comp regulations, wage regulations, just to name a few. It seems everyday I come up against more of them, which usually costs me money to attempt to comply with them.

In my particular business I also deal with FAR's, FCC regs, ITAR, export regulations, among many others. I imagine that businesses that deal with food also have a few regulations that they must comply with.

Get the idea?

And what description did I use that was inappropriate?

as stated, XD these regulatory/contractual items you mentioned do not preclude you from excluding anybody from your business property. sorry!

apparently since your customers are governmental customers purchasing your highly controlled and selectively designed and unique products/service as such pertain to contractual, manufacturing specifications, QA/MA to assure specifics are met, delivery criteria, as well as meeting those before you can get paid.

a specific example, regulator/contractual requirements you mention mandate and provide for your customers the right of inspection ~ ONLY after they notify you giving you notice of what they are assessing and when is convenient to you and your staff.

unless an incident has occurred, OSHA inspectors are not given any or unfettered access to your manufacturing or property w/o notification.

DCMA cannot avail themselves of unannounced or unfettered access to your property to inspect your products or conduct their assessments without notification and clear objective reason as outlined in the FAR policies.

therefore, you and your delegated representatives, as management, have the authority to deny access to your facility(ies) as written in the policies you referenced, as well as your own policies. (BTW if your policies do not reference handling the unexpected appearance of OSHA, DCMA, customers, etc., at your front doors, then you should seriously look at your staff to consider revamping policies as they should not truly allowed unannounced visits and you put your business at substantial risk)

you might wish to consult a risk management and possibly a MQ/QA (not QC) consultant as you might find you are working too hard making much to ado about...

ipse
 
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drsysadmin

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Like many issues involving constitutional law, the law against discrimination in public accommodations is in a constant state of change. Some argue that anti-discrimination laws in matters of public accommodations create a conflict between the ideal of equality and individual rights. Does the guaranteed right to public access mean the business owner's private right to exclude is violated? For the most part, courts have decided that the constitutional interest in providing equal access to public accommodations outweighs the individual liberties involved.
(Emphasis added)

Source: http://www.legalzoom.com/us-law/equal-rights/right-refuse-service

Can a private business exclude a customer (not an employee) on the basis of sex/age/rage/religion? Take a look at the Denny's case where white Secret Service agents were served but black Secret Service agents where not. Denny's would be considered a public accommodation business (as would a retailer). Denny's paid something like a total of $53 Million (in 1994) to settle such cases. Yet in many cases they were not in violation of any State or Federal law if you accept that private businesses may exclude "for any reason".

Often, while something may not be codified in law, both common sense and common law (traditional law that may not be written) are generally applied when such questions arise. Given that the right to bear arms is not only codified but also has a long history in common law, it is reasonable to say that discrimination on the basis of the exercise of a codified right would be likely held unlawful. It is this that makes such a challenge worth considering.
 

tomrkba

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When asked to leave or conditionally denied entrance according to any whim they may choose, they're only infringing on your "right" to be on that property (yet, no such right exists).

You are nothing more than a guest on another's property - a privilege which may be denied or rescinded at any time. Loud talking may be prohibited or get you ejected as well despite your rights being protected via the 1A from certain government intrusions.

If you choose to comply with any rules or prohibitions they impose as a condition of using their property, your rights have not been infringed - you waived them.

There is no conflict of rights here.


Yes, there is.

First, there is no contract in place with the corporation. I have waived nothing by being on their property and I do not magically sign a temporary contract by my presence.

There is a difference between a personal location and a store that is open to the public generally. Your right to free speech does not disappear at the property line of a public place. The business accepts anyone who comes in for the purposes of doing *business*. I agree that a political rally is not "business" unless that is what the company does.

***opinion follows***
More importantly, a corporation receives its charter FROM THE GOVERNMENT. It exists as a fictional entity because of government. In my mind, no corporation should have any power to abridge a right because it is a mere grant from government. The same rules should apply and the corporation's "power" should be far less than that of government. No contract with a corporation should be able to override a right, but a corrupt SCOTUS ruled otherwise.
***opinion ends***
 
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ATM

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Yes, there is.

First, there is no contract in place with the corporation. I have waived nothing by being on their property and I do not magically sign a temporary contract by my presence.

There is a difference between a personal location and a store that is open to the public generally. Your right to free speech does not disappear at the property line of a public place. The business accepts anyone who comes in for the purposes of doing *business*. I agree that a political rally is not "business" unless that is what the company does.

***opinion follows***
More importantly, a corporation receives its charter FROM THE GOVERNMENT. It exists as a fictional entity because of government. In my mind, no corporation should have any power to abridge a right because it is a mere grant from government. The same rules should apply and the corporation's "power" should be far less than that of government. No contract with a corporation should be able to override a right, but a corrupt SCOTUS ruled otherwise.
***opinion ends***

You have no inherent right to be on their property and they have no inherent right to disarm you - how could these two rights be in conflict?

If they had a right to disarm you, as soon as you entered upon their property they could seize your firearm. Sounds ridiculous, right? Your right to be armed is not "trumped" by their right to determine who may remain on their property.

If you had a right to be on their property, you could go there and do anything you pleased within the confines of law despite their wishes or policies. This also sounds ridiculous to me, but it seems to be your opinion (otherwise, please clarify). Their right to determine who may remain on their property is not "trumped" by your right to be armed.

I maintain that those inherent rights are not in conflict regardless of what SCOTUS ever rules on the matter.

You may agree to disarm to conform with their policy or you may remain armed somewhere else.
You may agree to not proselytize to conform with their policy or you may speak your mind somewhere else.
You may agree to wear a shirt and shoes to conform with their policy or you may remain partially clothed somewhere else.
You may agree to leave your pet elsewhere to conform with their policy or you may keep your pet with you somewhere else.

Where is the abridgement or overriding of a right you speak of? What you propose would be abridging a right.
 

wrightme

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Some general thoughts, re: definitions matter.


"Private property" vs "Public Property."

Private property is that owned by individuals or corporations.
Public property is that owned by government or other public entities, for the use of the general public.


A publicly owned corporation (i.e., owned by stockholders) is still a private entity, not a public one in the nature of 'public property.'

Private property that is open for commerce is not the same as 'public property;' nor is it viewed as identical to 'private property that isn't open for commerce' wrt trespass law.

Property that is open for commerce has an implied consent to the general public to access it for such commerce. Property that is NOT open for commerce does NOT have such implied consent for access. An invitation to access is required, otherwise trespass is implied, sans invitation.


A business open for commerce CAN revoke consent 'at will' (i.e., invoke 'trespass') to individuals; except for 'protected classes.'
 
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Grapeshot

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papa bear

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DRSYSADMIN, you have made a good and thought out argument. it is well executed. i think you have put some thoughts into the naysayers. i say again well done

just to add again. there are no private property rights in the USA, only laws, telling businesses what they can and cannot do
 

solus

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wrightme, thanks for qualifying this private/public even more ~ you articulated it quite well.

ipse
 

solus

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(Emphasis added)

Source: http://www.legalzoom.com/us-law/equal-rights/right-refuse-service

Can a private business exclude a customer (not an employee) on the basis of sex/age/rage/religion? Take a look at the Denny's case where white Secret Service agents were served but black Secret Service agents where not. Denny's would be considered a public accommodation business (as would a retailer). Denny's paid something like a total of $53 Million (in 1994) to settle such cases. Yet in many cases they were not in violation of any State or Federal law if you accept that private businesses may exclude "for any reason".

Often, while something may not be codified in law, both common sense and common law (traditional law that may not be written) are generally applied when such questions arise. Given that the right to bear arms is not only codified but also has a long history in common law, it is reasonable to say that discrimination on the basis of the exercise of a codified right would be likely held unlawful. It is this that makes such a challenge worth considering.

sorry your information is incorrect in the Denny's discrimination situation(s) as the agents attorney(s) filed suit against the corp for violating title II of the 1964 civil rights act ~ federal code.

http://www.civilrights.org/publications/reports/long-road/accommodations.html

ipse
 

drsysadmin

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those other LGBT groups are pushing state by state by state and as such while making forward process, it is slowly in changing individual state's statutes. nothing nationally.

once again, the Colorado same sex couple won a STATE civil rights COMMISSION ruling against a small business ~ not the federal civil system.

sorry your information is incorrect in the Denny's discrimination situation(s) as the agents attorney(s) filed suit against the corp for violating title II of the 1964 civil rights act ~ federal code.

Which is why I believe a federal civil rights lawsuit would in fact have merit against big box retailers that operate across state lines. Note Denny's was never actually found to be in violation in a court of law.....
Think of it this way. A business operates with direct permission of the government. The government sets regulations (from taxes to work environment standards to required quality levels of goods) that the business must follow. Therefore, one can argue that the business is operating "under color" of government, and as such as an arm of government. Additionally, because there is no legal question (though there should be) on whether government can regulate business and can stipulate that businesses MUST act in certain ways, there is no reason the government (which is - brace yourself for laughter - SUPPOSED to act to protect our rights) can not regulate the behavior of business when it comes to them violating a protected constitutional right.

Now I am not aware of any attempt to make these arguments in a court - but I do believe that since they have not been tried, we should at least consider them carefully which was the point of the thread.
 

skidmark

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Which is why I believe a federal civil rights lawsuit would in fact have merit against big box retailers that operate across state lines. Note Denny's was never actually found to be in violation in a court of law.....
Think of it this way. A business operates with direct permission of the government. The government sets regulations (from taxes to work environment standards to required quality levels of goods) that the business must follow. Therefore, one can argue that the business is operating "under color" of government, and as such as an arm of government. Additionally, because there is no legal question (though there should be) on whether government can regulate business and can stipulate that businesses MUST act in certain ways, there is no reason the government (which is - brace yourself for laughter - SUPPOSED to act to protect our rights) can not regulate the behavior of business when it comes to them violating a protected constitutional right.

Now I am not aware of any attempt to make these arguments in a court - but I do believe that since they have not been tried, we should at least consider them carefully which was the point of the thread.

I would like to address the total fail of your legal "logic" - but I'm not sure just where to begin that does not involve massive facepalms.

Perhaps we could just look at "A business operates with direct permission of the government. The government sets regulations (from taxes to work environment standards to required quality levels of goods) that the business must follow. Therefore, one can argue that the business is operating "under color" of government, and as such as an arm of government"?

Businesses may be regulated in where they are located, or who they may offer services/goods to, or a few other "big" issues and a host of other smaller ones, but they do not operated with the "permission" - directly or indirectly - of the government.

"Under color of law" has a specific meaning and a defined (and rather narrow) set of actions/activities. The conduct of commercial business does not fall anywhere within those boundaries.

But what intrigues me most is how you arrived at a business operating "as an arm of government". I would love to hear your description of the specific governmental functions your hypothetical businesses are performing.

stay safe.
 

OC for ME

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<snip>***opinion follows***
More importantly, a corporation receives its charter FROM THE GOVERNMENT. It exists as a fictional entity because of government. In my mind, no corporation should have any power to abridge a right because it is a mere grant from government. The same rules should apply and the corporation's "power" should be far less than that of government. No contract with a corporation should be able to override a right, but a corrupt SCOTUS ruled otherwise.
***opinion ends***
Incorporation is a tax/liability mechanism. I am "incorporated" for tax/liability purposes and I hold no charter to any government entity. This is as far as the government gets into the existence of a corporation. As pointed out previously the government may have various levels of oversight on daily operations.

All a OCer needs to do is tell the citizen in control of the property that you will not be denied access due to your pistol and you will not disarm while upon that property and see what happens.....I'll wait.

The focus must not be about Target not allowing our pistols, but all government facilities not allowing our pistols.
 

drsysadmin

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I would like to address the total fail of your legal "logic" - but I'm not sure just where to begin that does not involve massive facepalms.

What "is" a total fail to some may turn into the civil rights argument of tomorrow. Look at the idea that people of color are equal to caucasians. At one time, most people in the nation and the law itself said that such "logic" was a fail. Yet look at where we are. So you might want to hold off on the facepalms for a bit...

Perhaps we could just look at "A business operates with direct permission of the government. The government sets regulations (from taxes to work environment standards to required quality levels of goods) that the business must follow. Therefore, one can argue that the business is operating "under color" of government, and as such as an arm of government"?

Businesses may be regulated in where they are located, or who they may offer services/goods to, or a few other "big" issues and a host of other smaller ones, but they do not operated with the "permission" - directly or indirectly - of the government.

Really now? Ever seen a business operate without a business license? Is such activity legal? No, it isn't. And where does one get a business license? Oh yes - from Government. So you can not operate a legal business without the DIRECT PERMISSION of government. Did I just hear everyone reading this facepalm at how "fail" your argument is? Probably.....

Do you get the point - snarky sarcasm just because you disagree isn't necessary. So let's move past that kind of behavior, shall we?

"Under color of law" has a specific meaning and a defined (and rather narrow) set of actions/activities. The conduct of commercial business does not fall anywhere within those boundaries.

You are correct, it does not fall under such defined activities currently. However, definitions change. Standards change. Arguments once rejected often are later accepted in the Courts. This is the purpose of considering such a challenge - to modify the definitions and standards of how 2a is protected so that it falls more in line with the original intent by the founders - the right of every person to be armed for their defense. If we accept current definitions and standards, then you might as well stop fighting for 2a to start with. I am unwilling to do that.

But what intrigues me most is how you arrived at a business operating "as an arm of government". I would love to hear your description of the specific governmental functions your hypothetical businesses are performing.

Last time I checked, every retailer collects sales taxes from you and transfers those taxes to the government. As such, it does the same function (though through a different process) as an existing governmental institution - the IRS. Businesses act under the authority of law to collect taxes for the express benefit of government. Make sense now?
 
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