Gun Rights, the Militia, and Community
During the Cold War, conservatives rightly pointed out that the collectivist materialism of the Soviet Union was anti-human in the worst ways. It elevated the state to mythic proportions. It denied the value of individual human beings. It suppressed the human spirit and focused on minimal material comfort to the exclusion of other values. The state could undo social injustices, we were told, but conservatives reminded us that life always would involve certain unavoidable inconveniences and inequalities. No law could completely eliminate evil, and the attempt to do so would lead to other evils that have been the constant fellow traveler of the leftist program.
Every state that has sought heaven-on-earth has imposed crushing burdens on qualities such as initiative, enterprise, idiosyncrasy, self-reliance, law-abidingness, trust, and regard for one’s own. During the post-war period, conservatives made common cause with libertarian critics of “The State.” Individualism was the watchword of the day. But the emphasis on individualism was always a bit out of tune with the conservative ethos. As other disorders worked their way through society since the 50s, including nihilistic disregard for family and social obligations in general, conservatives expressed their concerns about the breakdown of civil society and community, trends rooted in an “atomistic” individualism.
Conservative political philosophy is concerned above all with balance. Excessive individualism and excessive collectivism both exhibit genuine evils in political life. We are skeptical of change not least because the happy balance of traditional Anglo-American liberties avoided the evils of both. It has been difficult to preserve these liberties under the American Constitution and even harder for others to replicate. The uniquely American balance of our historical liberties is expressed perfectly in the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Second Amendment has always flummoxed modern observers. For starters, it has a preamble. In the law, there is always an issue of interpretation--whether in contract law, property deeds, or statutes--about whether a preamble limits the meaning of the words to follow. Is it surplusage, an exhortation, or a restriction on the specification that follows? In this instance, it is what it appears to be: an expression of purpose. The right remains “one of the people,” but that right is in the service of a broader objective: “the security of a free State.” The Founders rightly worried that the federal government’s power to “provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States” would be abused to create a federal “select militia” that weakened states’ and individuals’ right to create militias and bear individual arms respectively.
The Second Amendment is also confusing today because of the degradation of the militia over the last 100 years. A true militia may be thought of as a cooperative arrangement of the people and the state. Like the jury system, it injects the sensibility of ordinary people into the state’s exertion of power. The formalized National Guard appeared in 1903 taking over the role of the formerly more numerous and less uniform state militias. The routine use of the posse comitatus has also gone by the wayside in the age of professional policing, though it still persists in various locales.
The right to bear arms at the time of the founding, while an individual right, was not conceived completely individualistically. In this sense, Scalia’s recent opinion in Heller, with its focus on self-defense, downplays unfairly the “classical republicanism” of the Founders. The right to keep and bear arms undoubtedly allows arms as a means of self-defense from ordinary criminals, as well as the predators of nature. But the Heller decision’s dicta--including its gratuitous dig at the M-16--paves the way for eliminating weapons chiefly useful for a broader and more political concept of self defense: resistance to military enemies of the Constitution, whether foreign or domestic, through the actions of the citizen-militia.
The Founders knew that a community was a fragile thing. It can be harmed from moral disorder within, a foreign conquest, and, most insidiously, the evil of “faction.” A purely individualistic focus on the right to bear arms--typical in the rhetoric of libertarians and the Founding era’s Francophile left-wing--does not take into account that the Founding generation, soon after enacting the Second Amendment, imposed certain duties that relate to this right. The federal Militia Act of 1792 provided as follows:
That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutered and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Would that the United States mandated such training today! Gun control would have an entirely different meaning involving shot groups and tactical reloads. The founding era’s rhetoric was more than a recitation of rights. Even among the more liberal elements, a right was rarely disembodied from some sense of community obligation. The right to bear arms existed alongside a duty to bear arms. While the counterbalancing action of the different branches of government figures prominently in the Federalist Papers, the authors of that hoary work emphasized the need for a virtuous citizenry to preserve republican government. They knew that the political liberty of all depended upon the widespread inculcation of individual virtues--such as self-reliance--but also political virtues, such as watchfulness over the state and the willingness to forego private advantage when the common good was at stake. After all, the term republic comes from the Latin “res publica,” literally public things but better translated as the common good. The limitations on majority control contained in the Constitution could work at most to stop a temporary majority in the grip of some passion or mania. The Constitution could not, in Rube-Goldberg fashion, forever channel any sort of collection of people, however devoid of virtue and public spiritedness, away from the natural results of their collective character. The Founders knew that character and liberty were mutually reinforcing and necessary for republican government to serve the individual and common good.
As Patrick Henry put the matter:
Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
A robust militia serves to improve the virtue of the people and ties their fortunes with those of the state. Military drill instills characteristics of physical courage and discipline, while also giving the people the necessary skills to resist any threats to their liberties. It is worth remembering that that the Founders were not only concerned with preventing tyranny; another important intervening event preceded the Constitutional Convention of 1787. That event is Shay’s Rebellion, a lawless veteran’s movement that threatened the fragile order that prevailed under the Articles of Confederation. In other words, the Second Amendment in particular evinces the U.S. Constitution’s dual aims: liberty and order. The liberties the Constitution recognizes are historical in nature, and certain seeming inconsistencies--in truth, necessary limitations--flow from their historical contours, which are by necessity more circumscribed that the abstract liberty one might imagine from a purely theoretical point of view.
The Founders’ Solomon-like solution to the problem of creating a government energetic enough to discharge its duties, but not so powerful to oppress the people, finds itself most emphatically in the concept of the militia. The militia is simply ordinary male citizens assembled to perform some necessary government task such as preventing a riot, responding to a foreign invader, pursuing a fugitive, or, if need be, breaking off from de jure control and responding to some emergency from within the apparatus of the government itself. For those who find this institution an anachronism in the age of nuclear weapons, consider the relative inability of modern militaries to suppress insurrections with small arms in such varied locales as Iraq, Vietnam, Algeria, and New Orleans. How much happier would the events in New Orleans have been if some reasonable percentage of the citizenry were routinely accustomed to assisting law enforcement and the National Guard in preserving order and responding to disasters.
Like a strong military in foreign relations, a well-organized militia has a deterrent to would-be tyrants both at home and abroad. While some standing military is necessary today, how much less of a threat such a military would pose to our liberties if it were counter-balanced by tens of millions of American men armed, trained and organized at the county and state level, enforcing laws that they have chosen to live under as a free, self-governing people.
As it stands, the American people are disorganized and increasingly servile. Partly because of the proliferation of meddlesome laws, their relationship to law enforcement and the military is typically one of indifference or hostility. The increasing professionalization of law enforcement and military functions has reinforced this gap between the State and the People. A robust militia working hand-in-hand with full-time government officials would do much to restore civic pride, reduce tension between the government and the community, and deter the worst government excesses. The common extreme individualist notion of gun rights is problematic. Without some sense of common destiny and moral courage, an armed but selfish population would be of little use against either foreign or domestic threats. Why? Because it would always be in one’s individual interest to let some other guy do the fighting. To paraphrase General Patton, without teamwork you can’t fight your way out of a “piss-soaked paper bag.” This criticism of the disorganized militia was commonly levied during the War for American Independence. Consider the account of George Washington in a letter to the Continental Congress dated September 1776:
To place any dependence upon Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestick life; unaccustomed to the din of Arms; totally unacquainted with every kind of Military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly train’d, disciplined, and appointed, superior in knowledge, and superior in Arms, makes them timid, and ready to fly from their own shadows.
Does this line of criticism mean we should not have a militia? Hardly. But it does mean that a disorganized militia is not nearly so useful in securing a free state as an organized and well-armed one. Without some subordination to law and public purpose, armed Americans acting as lone wolves or in some other disorganized groupings would more likely become a rabble like the Quantrill gang. Without some concern beyond the self and without some coordination with self-governing and local political life, the right to keep and bear arms is nearly useless as a bulwark of liberty.
Constitutional and republican government aims to preserve liberty and government without extinguishing either. As Burke put the matter:
To make a government requires no great prudence. Settle the seat of power, teach obedience, and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein. But to form a free government, that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful, and combining mind.
The historical right to keep and bear arms is the product of such minds. But conservatives should consider the Founders’ solution in all of its detail. They preserved an uncompromising individual right to keep and bear arms. But that right existed in a larger tableau of duties and institutions that balanced the individual good with the need for cooperation in social life. In an age of out-of-control crime, rampant illegal immigration, natural disaster, and threats of terrorism and urban disorder, a revitalized militia movement to assist local law enforcement and the National Guard, something like a well-armed variation on the Cold War Civil Defense programs, would be a worthy conservative endeavor that would secure a great number of the benefits of our historical right to keep and bear arms.
Comments
A novel concept! Following the Constitutionally approved model! The Militia as opposed to the bloated bureaucracy of the Department of Homeland Security. I recommend everyone read the essays of Dr. Edwin Vieira proposing such heresy. If we had a functioning Militia, we would have no need of a standing army and, therefore, no aggressive foreign policy. Revitalizing the Militia means the end of Empire.
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Good points about individualism and collectivism, and about conservatism’s nuanced and balanced view of them. It is all too common in “conservative” circles these days to see “collectivism” described as something bad in and of itself, but that view is as dangerous as a communist-like contempt for all individualism.
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Shay’s Rebellion was hardly a “lawless veterans movement”. It was a far more complex situation that in 1786 enjoyed the support of such ‘bandits’ as Thomas Jefferson. Please see http://www.lewrockwell.com/north/north247.html
for Gary North’s review of the best scholarship regarding Shay’s Rebellion.
Historians note Washington’s mixed feelings about militia, opinions that were in flux throughout Wahsington’s long military career. Please see Mark V. Kwasny’s “Washington’s Partisan War”, a work that gives far more credit to the militia than has most studies of the First American War of Secession. Washington saw his battles, but fortunaely not the war, in 1st Gen terms, while the militia wished to be able to live to fight anotherday. History is written by historians, who tend to invoke the ‘Great Man’ theory. Washington vs Clinton, Washington vs Howe, Washington vs Cornwallis - all struggles of the generals and some of their top subordinates. Rothbard and more lately Sseph Stromberg, have contested such a one dimensional approach and seek to give more credence to the nameless ones, who history has largely ignored. ST
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A very worthwhile post. Thank you.
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Teu, why do you make this extremely controversial and unsupported statement? The fact that it hasn’t held up unchanged since day one doesn’t mean they made any mistakes. As Madison said, “a republic, if you can keep it.”
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It only created problems in the modern era. Our country could be much worse off. Do you imagine some linguistic gymnastics by the Founders would have saved us from all of the problems of our era?
Incidentally, the Declaration of Independence is not the same as the Constitution and has essentially no legal impact.
I suppose the Bible could have been written more clearly too so that people with Asperger’s don’t get thrown off. You know, all those beatitudes and parables are kinda tricky!
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Teu, you say, “ Race has always been America’s primary problem, and the “equal” statement has been a major cause of this.”
Is this really true? Isn’t part of the problem, the major cause in fact of our racial strife, that get-rich-quick scheming Americans imported millions of black Africans to do work they were too lazy to do in conditions of chattel slavery that afforded these blacks many grievances because they ahd no human or legal rights whatsoever. To mix two alien peoples and to put one in a position of unhappy subordination was unnecessary and disturbed what would otherwise have been a happy, growing, and homogenous society.
The Declaration of Independence might be Engightenment clap-trap, but it was the no-so-Enlightenment institution of slavery that made it anything more than soaring rhetoric.
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There is nothing ambiguous about the phrase in the Second Amendment that safeguards the fundamental right to bear arms and endorses the need for a “well regulated militia”. The genesis of the wording is really quite simple. The Founders were against a standing army because these forces of empire were a symbol of aggressive Europe and one of the most potentially corrosive attractive nuisances for any nation to withstand. Standing armies militated and fomented....... and were a chronic and destructive drain on the finances of any nation. As an alternative, the Founders were in favor of a small and efficient Federal Government that would rely, in times of real need.... upon the speedy mobilization of a citizens militia. This citizens militia would only be required in extremis and it would be released to pursue a variety of liberties.... with their own arms..... when the emergency passed. Abjuring a standing army was an effective insurance that we would not “go abroad in search of monsters” nor resort to self-inflicted tyranny at home. This fundamental Republican Virtue was one of the earliest principles to fall into the widening abyss that separates us from the Foundational Philosophy.
Government has grown out of any proportion to real need and the people have thoroughly habituated themselves to a nanny state that will think nothing of running roughshod over them in the years to come.
Now, when the cows have been let out of the barn, fattened on corn and consumed as cheeseburgers, we have people assuming that the Founders were sloppy in their prose or “confused”. No, on the contrary, what would confuse the literate, reasoning and deliberative Founders, even the uber-Federalist Hamilton, is the perverse state of the Republic they left for this witless generation to utterly destroy.
The fact that neither conservatives nor liberals have raised this obvious truth about the Founders negation of a Standing Army during the discussion of this case is the best illustration that ignorance remains bliss. The Constitution is now, at best, a conceit to be parsed as required by an authoritarian government that would not recognize a Republic if somebody had a gun pointed at its tapering pin-head.
We have been given a stellar seminar on the hazards of ignoring our own Revolution and its Founding Documents to a point of virtual no-return and hardly anyone raises an eyebrow beyond mindless partisan chattering. So, it is little wonder that the people of today think nothing of second-guessing or criticizing the Founders while armoring themselves in ignorance and pedestrian thinking.
While the Supreme Court came to a correct conclusion, the reasoning behind it is not altogether clear beyond the easily identifiable influence of a recreational gun lobby. I really doubt that the NRA gives a damn about the fundamental corrosion that is slowly bankrupting our dissolute nation while grooming generations of both venal and craven politicians. Funny, but the Founder’s disliked a Standing Government almost as much as they did a standing army, requiring it’s elected and appointed representatives to spend the majority of their time at some gainful occupation at home, where they belonged.
We’ll take what we can get and we’ll keep our right to bear arms even though one can question of what use it is when we are now, in effect, held hostage by two intractable forces: an ignorant and fearful citizen and their government and military that have become infected by authoritarian hubris.
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“The right remains ‘one of the people,’ but that right is in the service of a broader objective: ‘the security of a free State.’”
That’s a distinction without a [worthwhile] difference. The security of a free state is precisely the security of the people therein.
“But the emphasis on individualism was always a bit out of tune with the conservative ethos.”
Correct--the right, like the left, talks individual liberty when convenient but eagerly wields coercive power when available.
“The militia is simply ordinary male citizens assembled to perform some necessary government task...”
That depends on what you mean by “government.” If it’s “THE” government, the political apparatus, then no, the task of the militia is not limited to government functions. If your concept of government extends beyond the political apparatus to something like self-government, then ok. When individuals defend themselves, their families, their homes, or come to the aid of their neighbors against assault and robbery, they are serving the purpose of the militia in helping maintain the security of a free state. The word “militia,” like many other words, has been used in different, though related, ways. The militia could be a military unit under direct government control. The militia is also the general armed citizenry that can be called on for defense--against foreign invaders, insurrections, robbers, mass murderers. The distinction between private and civic defensive firearm use, if it’s a distinction you are trying to make, has little or no foundation.
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Dirk, if the Founders were against standing armies in almost all circumstances, why did they enhance government authority in the transition from the Articles to the Constitution and allow Congress to fund a standing Army and Navy? This “libertarian” reading of the founding seems to ignore the important strains of increased government authority and classical republicanism at the local level in their rhetoric. (Incidentally, I mentioned a “standing military” above and addressed these points about tyranny throughout my piece.)
I agree the Founders were wary of standing armies, but there are two important caveats to this. One, much of what a standing army did then was what police do today. An army focused chiefly on external defense is far less troublesome at home. Further, large, professionalized police forces likely would have the Founders too, but the kind of urbanization that has resulted since that time likely necessitates this development. In other words, we must face reality, recognize things changes, and try to achieve the same fundamental ends using mean adopted for changed circusmtances.
Second, in the case of both police and a standing army, the right to keep and bear arms and a “well regulated” militia are the key to keeping them in check. No standing army of several hundred thousand men could do much in a nation of 300 million with a militia even 1% of that assembled against them.
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I agree, Doc W, the militia includes informal gatherings to deal with different kinds of crises. But I would not seperate this from government or law in general. Without subordination to the law and lawfully elected officials, a militia, a lynch mob,the Black Panthers, and the Knights of the White Camelia woudl be indistinguishable. The militia should be trained, armed, and subordinate to our elected government in all cases save the last resort of resistance to tyranny.
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Mr. Roach, in reply to my previous post, it sounds like you are saying that the militia must get its arms and training from the government. In the case of the organized militia, perhaps so. But not necessarily, or even desirably, for the unorganized militia. When it comes to weapons, “one size fits all” will not optimally meet the physical and circumstantial needs of millions of diverse citizens. As for training, it might be a good idea for schools to teach firearms handling and safety, but recent history suggests that we should beware of “training” requirements being made sufficiently inconvenient and burdensome as to discourage people--remember how the Bush administration did that to airline pilots when it couldn’t prevent passage of the legislation allowing them to fly armed after 9/11.
The word “subordination,” as you appear to be using it, doesn’t harmonize very well with our Bill of Rights. Subordination implies a hierarchy, a chain of command from superior to inferior. We citizens are not inferior to government officials; they work for us, not the reverse. Obedience to just, non-tyrannical laws established democratically is not subordination. Organized government and written law properly exist that we may enjoy the blessings of liberty. The whole point of the Bill of Rights was to enumerate some of the pre-existing, inalienable individual rights that legislators and government officials must observe.
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In an ideal world, every healthy adult male between certain ages would be in the organized militia, and everyone would be in it or a veteran of it, barring medical or religious excuses. Arms and equipment--as in 1792--would be standardized, provided by oneself, and if you couldn’t afford them or avoided service, you could not vote. Certainly you should also be allowed to own any other small arms you want in addition to standardized issue. Switzerland has it right in this regard.
As for subordination, there are two aspects. First, we should all be subordinate to the laws, just as legislation is subordinate to the Constitution. This is the meaning of self-government, and this is why the Founders’ rallying call was “no taxation without representation” not some extremist nonsense about all taxation being slavery or theft. Further, it is worthwhile in performing militia tasks for men to be subordinated to officers, preferably of their own choosing, whether picked directly or through some chain of command set up by their local elected officials. This is the import of the Washington quote above; without discipline, order, and a chain of command, a militia is pretty much useless in discharging militia-type tasks.
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IMO the author almost got it right.
A militia is an informal angry and armed mob, ready and willing to take to the streets and repel govt forces (military or police.)
When or if that day comes or ever comes, I guarantee we will be so angry at govt we won’t need much leadership or organization, just rifles and bullets.
How pathetic it is that any American would support gun bans or gun controls, especially in a country where every one of it’s citizens went to school for twelve years at govt expense.
Most have never bonded with our Constitution because they never bothered to learn our revolutionary history. If they did, they would have identified with it, sided with the Founding Fathers and bonded with the Constitution they created.
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Good article, though I would suggest you neglected to make an important point. That being that how the right to bear arms spelled out definitively states such specific items as muskets, balls, and powder. At the time these weapons were state of the art and next to the highest form of weapon that could be obtained with the exception of cannons. It seems to me that the law, if it is to more closely follow the constitution needs to permit citizens to carry much more sophisticated weapons than are currently allowed.
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I agree, M. Nucci. The contours of the right are defined by its purpose and the language. The purpose is to preserve an effective militia, which requires light infantry small arms useful for such a force. Its limitation is to “bearable” arms, i.e., small arms. Individual weapons, to include weapons like the M-16, but probably not crew served weapons like cannon.
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Two comments:
1) Militia at the time was NOT a state NOR federal entity. AT ALL. It was a private group. When the word militia is understood in its historical context, then the second amendment is not confusing at all. That is why the founders did not arrest themselves immediately after applying their john hancock.
2) When gun control activists point out the volume of gun crimes, I reflexively wonder, “How many of those crimes are committed by licensed individuals?” My guess is none. To solve a problem (gun crime) one must target the correct problem (unlicensed carry). We already have laws on the books against that, however, they are not enforced, i.e. no jail time, rarely a misdemeanor.
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Correction to above post: many militia at the dawn of our nation were not affiliated with federal or local governments. And most were not paid or otherwise subsidized by the government.
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Chris Roach, I agree that the individual should only have the right to carry bearable arms but the militia should have state of the art ordinance. I strongly agree that the defense should be a responsibility of the citizenry. The fall of Rome was preceded by parsing out the defense of the Empire to foreign mercenaries.
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You are right Mr. Roach, there does seem to be a divergence from original sentiment from the time of the Declaration to the articles of Confederation and the Constitution. Perhaps Washington , in his Farewell Address already smelled the coffee of a larger government and was appealing to sentiment rather than pragmatism in his reprising of old ideals.
Maybe all governments possess a DNA toward military growth. The Revolutionary Founders generation saw themselves go from a long shot to a surprising success and then into rebuke and revenge on the high seas. They were compelled to arm themselves it appears.
However, this antipathy to a large Standing Army is not simply a quaint and long dead notion. Photos of the Washington Mall during the crash-course industrialization of WWII show the mall to be lined with what are little more than Quonset huts designed by the FDR administration to be overtly temporary so nobody could get the idea that they were permanent. The bi-partisan swooning for the Pentagon of the Cold War seems to have scuttled this common sense.
What is most interesting is that it would appear that we have far less to fear from our professional and highly skilled standing army than we do their civilian overseers....a claque of draft-dodging academics and corporatists who scream their rebel yell from the comfort of a K Street Conference Room..
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I understand the “equal” statement to mean “...created equal, endowed by their Creator with certain unalienable rights...”. To construe that clause otherwise is to strain credulity.
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