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Archive for the ‘Constitution’ Category

The 2nd Amendment to the Constitution is one of the most debated portions of that document.  For generations the controversy in question is whether the Founders intended to give the right to keep and bear arms only to militias or also to individual citizens not serving in the military.

The Supreme Court may be on the verge of settling the issue once and for all.  Last week, the High Court heard arguments in its second big gun rights case in the last few years.  In 2008, the Court ruled in District of Columbia v. Heller that Washington, DC’s ban on gun ownership was unconstitutional.  The ruling was a landmark decision for proponents of 2nd Amendment rights, but it only applied to federal enclaves like the District of Columbia.  However, the case opened the door for a challenge to national gun ban laws.  Currently before the Court is McDonald v. Chicago.  At issue is whether Chicago’s gun ban is constitutional under the 2nd Amendment.  The Court’s decision in this case will determine whether 2nd Amendment rights go beyond federal property and can be applied to the states and local governments.

Things look promising for gun rights advocates in McDonald based on a quote from the majority opinion penned by Justice Scalia in Heller.  In Heller, Scalia stated, “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”  He supported the majority’s position by stating the fact that gun possession was a right of Americans “…prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense…”  Now, we have all heard the stories of the rugged frontiersmen with their guns they used for securing dinner and protecting the homestead.  Thus, Scalia’s argument makes perfect sense.  How could the authors of the Bill of Rights not guarantee a right early individual Americans already had and one so vital to their survival?  The idea that the right was not protected through the 2nd Amendment is preposterous.

But there is more from the majority opinion that supports 2nd Amendment rights for individuals.  The Court saw the individual’s right to keep arms as an important preservation of the citizen militia.  According to Scalia, “The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty.”  At the time of the 2nd Amendment’s drafting, a militia was “the body of all citizens capable of military service”.  Thus, whether young, middle aged, or old the country may call upon you in an instant to serve in a militia to put down an insurrection or defend against foreign invasion.  Denying you the initial right to own a gun that could be needed to defend the country in a time of emergency would have been counterproductive.  The Court’s reasoning in support of individual gun rights is compelling to say the least.

Getting back to the current case before the Court, if the justices are consistent and overturn Chicago’s gun ban they will have to justify their applying the 2nd Amendment to states and local governments.  Remember that Heller only applied to firearm possession on federal property.  But, the means to apply the 2nd Amendment to states and localities is simple.  Over time, the Court has used the 14th Amendment to bind states and localities to recognizing the 1st, 4th, 5th, 6th, 7th, and 8th Amendment rights of their citizens.  In part it reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”  If the Court grants individual Americans the right to keep and bear arms under the 2nd Amendment it will apply the right to the states under the 14th Amendment.

The current Supreme Court has a golden opportunity to set the record straight with regards to individual guns rights under the 2nd Amendment.  The debate over the years has been very contentious with both sides misquoting the Founders’ statements about gun rights to suit their purposes.  The Founders made a lot of statements about gun rights and how they apply to citizen militias.  Understanding that at that time citizen militias meant “all citizens capable of military service” it is easy to come to the conclusion that the 2nd Amendment bestows a right to gun ownership to all individual Americans.  Fortunately for America, it appears the Supreme Court will come to the same conclusion later this year.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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With no political capital left and much of his legislative initiatives dead in Congress, President Obama’s administration recently announced that he intends to use executive orders to advance his agenda.  According to White House chief of staff Rahm Emanuel, “We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues”.  Those issues include everything from budget commissions to environmental law to health care funding.

Of course, executive orders are nothing new.  They have been around since at least Lincoln’s so called “Emancipation Proclamation” and probably before that.  George W. Bush signed the most ever as president and was rightly criticized by Obama in his campaign for president.  This is key because it doesn’t matter which party controls the White House.  When push comes to shove and the president can’t get his way he resorts to this underhanded tactic.

But, it’s more than underhanded; it is downright unconstitutional.  As schoolchildren, we are all taught that our federal government is composed of three branches.  The legislative makes the laws; the judicial judges the laws for constitutionality; and the executive acts as the top cop by enforcing the law.  Congress has power to legislate, not the president.  The closest he/she comes to this power is his/her ability to advise Congress, “and recommend to their Consideration such Measures as he shall judge necessary and expedient”.

The Founders knew that separating the powers of government into three different branches would prevent any one branch and/or person from becoming too powerful – thus potentially infringing upon the rights of the citizenry.  Through executive orders presidents circumvent the process reserved to Congress because they have the force of law and at times have horrendously violated the rights of American citizens.  For instance, Franklin Roosevelt issued executive orders that deprived Americans of their property without due process of law by seizing their gold during the Great Depression and that unconstitutionally suspended the writ of habeas corpus by interning Japanese-Americans during World War II.  More recently, George W. Bush issued an executive order that allowed his administration to unconstitutionally wiretap the phone conversations of Americans without a warrant.  Now, Obama, like his predecessors, is unable to get his unpopular policies through Congress, so he will violate the supreme law of the land by usurping the powers of another branch of government. 

But, the current occupier of the Oval Office is not content with stopping there.  His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional.  This is reminiscent of Bush’s statement after signing an anti- torture bill that he would interpret the new law in any way he chose.  There are several things wrong with this position.  First, the Supreme Court has the power to declare all or parts of laws unconstitutional.  Second, if the president doesn’t like a part of a bill then his constitutional recourse is to veto it and hope Congress amends it to his liking.  Third, jury and state nullification are considered outside the law.  The president is essentially proposing executive nullification – the same thing.  Why is there a double standard?  Sorry Mr. President, you do not have a line item veto power.  You really must accept all or nothing when it comes to congressional acts.  Not doing so is unconstitutional and a usurpation of the High Court’s power.

Lastly, this president is also attempting to make unconstitutional recess appointments.  Here again presidents have done this in the past.  The practice originated in the good old days when Congress was only in session for part of the year.  Read literally, the phrase in Article 2 Section 2 of the Constitution giving the president this power reads “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session”.  Key to the power is the simple phrase, “all vacancies that may happen during the recess of the Senate”.  Obama’s current vacancies happened when the Senate was in session, thus if he waits until they recess he is usurping the power of the Senate to advise and consent to his nominations.  When Bush used the power to make John Bolton ambassador to the United Nations, then Senator Obama called Bolton “damaged goods”.  Not only is Obama being hypocritical, he again is attempting to commandeer powers that belong to another branch of government.

Make no mistake about it, over time an imperial presidency has been built in Washington by both Republicans and Democrats.  Executive orders, presidential nullification, and unconstitutional recess appointments have been used by presidents to achieve objectives they could not get legally through Congress.  It has made a mockery of the Constitution and at times has had serious consequences for American citizens.  Congress must reassert its authority over these matters.  Perhaps the Democrats with huge majorities in both chambers can set the example and stand up to one of their own in his quest to carry on the unfortunate tradition.       

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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Rick Perry has recently spoken out about Texas seceding from the Union. From the New York Times:

“When we came into the Union in 1845, one of the issues was that we would be able to leave if we decided to do that,” he told reporters on Wednesday. “My hope is that America, and Washington in particular, pay attention. We’ve got a great Union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, who knows what may come of that?”

Democrats have already begun making disapproving noises:

State Senator Rodney Ellis, a Houston Democrat, said Mr. Perry had not only opened himself to ridicule but also evoked a time most Texans would rather forget. “Texas has become a hotbed of right-wing political activity,” Mr. Ellis said, “but I think even those folks on the far right think this is over the top.”

And Perry has already begun to backtrack:

After the rallies, Perry downplayed his secession comments, amending them in an interview with the Fort Worth Star-Telegram to say, “I’m trying to make the Obama Administration pay attention to the 10th Amendment.”

So what’s the whole point of this? It’s just another Republican establishment figure going out on a limb to try to grab the Ron Paul constituency before what looks to be a nasty primary fight. Of course, the fact that at least part of the GOP now has to sound like hardcore libertarians on what used to be considered fringe issues can be considered encouraging to the movement.

I don’t know a whole lot about Perry’s record in Texas, so I don’t know if he’s a worthwhile politician and therefore worthy of our support. I would tend to suspect he’s not, just on general principle when dealing with Republicans.

But this, and the broader 10th Amendment movement in general, does represent a sea change in libertarian thought. Back in 2006, the Libertarian Party had a vicious fight between the Radical Caucus and the Reform Caucus. Reform ended up winning, but it seems like a lot of the people in the Radical Caucus ended up reappearing in Ron Paul’s presidential bid in 2008, in the GOP. And now, as an effective component of the Paul wing of the GOP, they are sounding more credible and wield more political power than they could have had by winning the fight for the LP in 2006. Maybe Michael Medved was right.

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Syndicated from my weekly column in the Mountaineer Jeffersonian, a weekly paper publication in Morgantown, West Virginia:

A supreme court ruling from mid-January could impact the legality of thousands of police searches each year. At issue is the admissibility of evidence obtained where the possibility of police misconduct or negligence exists. Called the Exclusionary Rule, which is based largely upon the fifth amendment to the constitution, specifically the verbiage that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law,” and upon the fourth amendment provisions against unreasonable search and seizure. Thus this supreme court case may in fact be quite landmark in that it has watered down these protections for citizens, allowing for greater lee-way for law enforcement agents to act irresponsibly and still enjoy the “fruit of the poisonous tree.”

The case involved an individual by the name of Bennie Herring, whose home was entered based upon a search warrant in a police database. When the police entered his home, they found drugs and a firearm. Unfortunately, no such warrant for Mr. Herring’s arrest should have existed. It had in fact been withdrawn prior to his arrest. The existence of it in the database was purportedly caused by a database malfunction involving the computer systems of a neighboring county’s police department. Mr. Herring, following his unsuccessful appeal to the supreme court, is now serving a 27 month sentence after being found guilty by a jury in Alabama.

Professor Craig Bradley of Indiana University law school was quoted as saying “It may well be that courts will take this as a green light to ignore police negligence all over the place.” Chief Justice Roberts, writing for the majority in a 5-4 ruling, stated that the exclusionary rule was limited to “deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence.” Unfortunately, the existence of errors in law enforcement data is commonplace enough that it could easily be qualified as recurring systemic negligence. According to a 2005 report by the Office of the Inspector General’s audit division in the Department of Justice, the nation’s largest database of potential terrorists included noteworthy amounts of incorrect and incomplete data. A 2006 report from the Social Security Administration went on to document database errors in the Numident database, a system operated by the Department of Homeland Security to enable the identification of individuals by social security number for purposes such as employment eligibility verification and drivers licensing. This report estimated that data for 4.1 percent of the total records could contain errors, impacting the employability of and potentially otherwise inconveniencing 17.8 million US citizens.

Chief Justice Roberts went on to state, “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system,” and that “marginal deterrence does not ‘pay its way.’” He was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. On the other side, Justice Ginsberg wrote for the minority that the majority “underestimates the need for a forceful exclusionary rule and the gravity of record keeping violations.” She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

This ruling follows on the heels of a 1995 verdict in which a similar judgment was issued. The case, Arizona v. Evans, dealt with a similar issue wherein a database maintained by the courts had contained erroneous information which led to prosecution. In Arizona v. Evans, the supreme court ruled that erroneous records kept by court officials was an exception to the exclusionary rule. This month’s ruling now extends that exception to records maintained by police and other law enforcement agencies.

Flying in the face of what seems to clearly be an accurate reading of the constitution, this ruling sets a dangerous precedent. There is a long and well-documented history of police misconduct in this country which includes, at times, a willingness to operate outside of what is ethical and legal to obtain a desired result. This ruling will unfortunately create a new loophole which crooked or desperate law enforcement agents will be able to use to obtain results while disrespecting the constitutional protections of citizens against unreasonable searches. If “database errors” can be systematically created in such a way that enables police to enter onto any premises at any time to search for evidence, regardless of whether any such warrant has ever been in actuality granted by a judge, the potential for abuse is tremendous. Defense attorneys representing those accused under such circumstances will likely have no means of investigating whether such a database error was created erroneously or was in fact simply a malfunction of hardware or software. Furthermore, given this ruling, it will be nearly impossible for any citizen to defend themselves against such unconstitutional intrusions of their property.

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From Liv Films, an editorial about gay marriage, fat marriage, eating lobsters, and more. Mona of Liv Films was the “Ron Paul Girl,” but most of their recent work has been non-political. LMFAO (laughing my fat ass off)….

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Press release posted on the LP Radicals yahoo group. Starchild has had various offices in the San Francisco and California LP, and is one of the spokespeople for this initiative.

The San Francisco Department of Elections announced today that the measure prohibiting city officials from spending money arresting and prosecuting people for prostitution, and mandating equal legal protection for sex workers, has qualified for the November ballot. Of 500 signatures randomly sampled and checked by department personnel, 80 percent were found to be valid. “This is a happy day for San Franciscans who want government to focus on fighting real crimes like homicides and robberies, and are tired of seeing resources wasted in a futile effort to police consensual sex between adults,” said Starchild, a sex worker activist and spokesperson for the campaign. “We’ve cleared the first hurdle.” By the Elections Department’s tally, supporters had turned in 12,745 signatures of registered San Francisco voters on July 7.

The campaign to decriminalize prostitution will hold a kickoff rally and press conference to formally announce the results on Tuesday at 4:00 p.m. in front of the Polk Street entrance of City Hall, with
speakers to likely include Supervisor Jake McGoldrick, who was a signer of the petition to put the measure on the ballot along with two of his board colleagues. “It is way past time that the
recommendations of the Board of Supervisors 1996 Prostitution Task Force were implemented,” said the measure’s proponent, Maxine Doogan. “Criminalizing sex workers has been putting workers at risk of violence and discrimination for far too long.”

The prostitution reform measure joins two other voter-submitted measures on the local Nov. 4 ballot, along with eight measures put on the ballot by the mayor or members of the Board of Supervisors, with many others expected to be added in the next several weeks.

Starchild – (415) 621-7932 / (415) 368-8657 / RealReform@…
Maxine Doogan – (415) 265-3302 / MistressMax@…

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Candidate Endorsement: Chris Bennett for Vice President

Chris Bennett[NOTE: Originally posted on Last Free Voice]

As you are hopefully all by now aware, longtime LFV contributor Chris Bennett is seeking the LP’s Vice Presidential nomination. While he would have my support simply for being an LFV contributor and a great guy, there is so much more to his candidacy that I have decided to formally endorse his bid for the LP Vice Presidential nomination.

Chris is 35 years old (will be 36 on August 30th) and lives in Springfield, Illinois. He graduated from Heritage High School in Littleton, Colorado. As an interesting aside, Chris was classmates with Matt Stone, co-creator of “South Park”.

Chris has been married to Evonne Bennett for eight years, and they have two children, Brandon (age 7) and Charity (age 9). He will graduate in May from the University of Illinois at Springfield, with a degree in Political Studies, and a minor in Economics. As such, there should be no question that he has the education to back up his candidacy, especially when compared with other LP candidates (including many of those seeking the LP’s Presidential nomination).

Chris also has the actual experience to back him up. As a libertarian activist for the last 16 years, he has volunteered on four presidential campaigns, three of them Libertarians. He was Scheduling Coordinator for the late Aaron Russo during his 2004 presidential campaign, and was also heavily involved in the Marrou and Badnarik presidential campaigns. He is currently the Legislative Chair for the Libertarian Party of Illinois, where he has fought for better ballot access for third parties in one of the most difficult ballot access states in the country.

Chris announced his candidacy right here on Last Free Voice last year, and his platform is as follows:

I will not make promises I can not keep. I do not have 200,000 dollars in future contributions and I am not endorsed by a famous dead person. However there are some promises I will keep:

I am strongly against the invasion and the “police action” in Iraq and will help push for an anti-war resolution at the Denver Convention.

I am against a fair tax and I will continue to fight to decrease the tax burden for all Americans.

I will continue to fight to restore our civil liberties and constitutional rights and fight to eliminate the Patriot Act, the Real ID Act, the Military Commissions Act and the North American Union.

As an African-American, I will use my candidacy to recruit more minorities and women into the libertarian movement.

As a soon-to-be college graduate, I will continue to convince younger voters and non-voters that the Libertarian Party is the future not the two “boot on your neck” parties and use my candidacy to re-energize libertarian college campus and local organizations across the country.

If I am nominated, I will help/assist state parties on getting our presidential ticket on their respective state ballots.

If I am nominated, I will assist serious Libertarian candidates running for office in all facets of their campaign across the country.

The days of a dormant Libertarian Party VP candidate are over. Our VP candidate should be as active as our Presidential candidate and I will proudly work with whoever you choose as our Presidential candidate in order to spread our message of liberty and freedom to the American people.

Chris has been working hard to spread the word about his candidacy, and in fact he is one of the few Libertarian candidates to get attention from the mainstream press. Even better, he received FRONT PAGE attention in a major newspaper, the Springfield State Journal-Register.

By BERNARD SCHOENBURG
POLITICAL WRITER

Published Monday, October 15, 2007

At 6-foot-9, Chris Bennett is hard to miss. And his political aspirations match his height.

Bennett, 35, a senior at the University of Illinois at Springfield, is hoping to become the vice presidential nominee of the Libertarian Party.

“The days of a dormant Libertarian Party VP candidate are over,” said Bennett in a news release announcing his quest last week. “Our VP candidate should be as active as our presidential candidate and I will proudly work with whoever you choose as our presidential candidate in order to spread our message of liberty and freedom to the American people.”

Bennett was soft-spoken as he explained in an interview how he realized, after working on Bill Clinton’s primary campaign in 1992, that he didn’t really believe in Clinton’s platform.

“I just didn’t like how he wanted more government in more stuff,” Bennett said. “I didn’t like government having more control over the health-care situation, as Hillary tried to do and she’s proposing to do now.”

So, Bennett said, “I went soul searching.”

“The Republicans didn’t feel right,” he said. “They never really do reach out to minorities or a lot of women. And the Democrats, it just seems like they were taking the black vote for granted. So I decided ‘I’m going to search for another party.’”

Bennett had seen a Libertarian Party convention on C-SPAN. The convention included an African-American candidate for the presidential nomination, Richard Boddie.

“He was saying stuff that I really agreed with,” said Bennett, who is black.

Bennett now has been a Libertarian activist for more than 15 years, including working as scheduling coordinator during the late Aaron Russo’s 2004 attempt to be the Libertarian nominee for president.

“For the longest time, I used to carry a Constitution in my back pocket,” Bennett said, “so if anybody wanted to get in a philosophical, constitutional argument, I could whip out my Constitution.”

Bennett doesn’t think the country’s leaders are adhering to the Constitution, including going to war in Iraq without a formal declaration of war. Among his platform planks are “restore our civil liberties and constitutional rights,” including elimination of the Patriot Act and a proposed federal “Real ID” identification card. He said both invade people’s privacy.

He’d like to see lower taxes, with eventual elimination of the Internal Revenue Service.

Bennett frequently posts on Web sites, including one called

lastfreevoice.com, often in strong language.

“Jesse Jackson has taken up the anti-gun issue only because he failed as a ‘civil rights’ leader and pushes his new agenda to re-invent himself,” Bennett claims in one entry. “Just remember Hitler forced his people to give up their guns and look what happened; millions died in concentration camps. Life, liberty and the pursuit of happiness; I’ll defend those values with my gun to protect my right to bear arms.”

Bennett said he actually doesn’t own a gun, but believes in the right to own one.

He’s also taken off on television preachers who get rich through their appeals.

“TV evangelists are the scum of the Christian community,” he said, writing about recent allegations of misspending by Richard Roberts, son of Oral Roberts. “Isn’t it immoral to steal from your contributors for your own lavish lifestyles …? Who do they think they are — the GOVERNMENT?”

And in an essay chastising Democrats for not doing more to get U.S. troops out of Iraq, he refers to the president as “Fuhrer Bush.”

Bennett is pro-life on abortion, which goes against the Libertarian platform. But he thinks other Libertarians may be coming around. He also thinks steps should be taken to legalize drugs.

A native of Cedar Rapids, Iowa, Bennett moved to Littleton, Colo., at age 9. He’s been married to his wife, Evonne, for 71/2 years, and they have two children. He moved to Springfield in 2005 to attend UIS.

While he said rural or suburban Libertarians might not be keyed into the issue of race relations, those from urban areas are, and he thinks the party is good for African-Americans.

In addition to ending discriminatory drug laws, which he blames for too many blacks being in prison, the Libertarians’ anti-tax sentiment would also help, Bennett said.

“If we lower taxes, people would be more able to get the house that they want or be able to contribute to their church or their social organization a little bit more,” he said. People could also “save for a rainy day.”

“I know a lot of people who would like to start their own IRA account, but they can’t because they’re taxed so much,” Bennett said.

Clearly, Chris interacts well with the media, and is able to get across his point intelligently, but also in a way that the average person can easily understand.

For the above reasons, I endorse Chris Bennett, without reservation, for the Libertarian Party’s Vice Presidential candidacy.

This brings me to another point. Chris is in desperate need of donations, to help him get to the Libertarian Party Convention in Denver. As a family man working his way through college, with a wife and two children, he is far from wealthy. Not only will he need the funds for travel and hotel, plus incidentals such as food and beverage, he will also need the funds to print brochures, to hand out to the delegates in order to get the votes he needs.

We all give money to other candidates, whether Ron Paul or Steve Kubby or George Phillies, or someone else. We need to start giving money for Chris’s campaign, because unless he can afford to get to Denver, he will be unable to continue his campaign. It would be a travesty if a qualified candidate such as Chris was not seriously considered for the LP’s Vice Presidential nomination, solely because he lacks the funds to attend the convention. We can do much better than that, especially with a candidate who has proven his worth. If we all pitch in, we can get Chris to Denver.

You can make donations to Chris’s campaign by clicking here, or you can click directly on the “donate” link on his website, which will take you to the same place. You can donate by credit card, debit card, or by setting up other payment arrangements via PayPal.

While I normally would never ask anyone to donate to a specific campaign, I’m making an exception in this case. Chris is “one of us”, a valuable and respected member of the blogosphere, a valuable and respected contributor to Last Free Voice, and a valuable and respected member of the libertarian movement, who has given freely not only of his time and expertise on other campaigns, but also has managed to engage in hands-on activism while in college and trying to raise a family.

Chris is not just another libertarian on the internet, waxing philosophical about libertarianism, who suddenly decides he should be nominated to represent the LP in a lofty position; nor is is a Johnny-Come-Lately to the LP who suddenly decided he should be nominated for for the Vice Presidency; he has actually made many years of sacrifices which benefit us all, and he has the experience and education to back up his campaign for the Vice Presidency.

Unlike many candidates, Chris is not looking to raise millions. He has set a goal of $3000 to attend the LP Convention, and since I used to live in Denver, I can assure you that it’s a very reasonable goal, especially since it will also cover the costs of his campaign brochures.

I have made a commitment to donate $100 to Chris’s campaign, to help him get to Denver. If only 29 more people match that commitment (and I know there are many others who can afford to do so), Chris will have met his goal. However, even if you can only spare $10, or $20, or $50 – or if you can give the legal maximum of $2300 per person, or $4600 per married couple – you can rest easy with that donation, knowing Chris is a tried and proven libertarian, and a candidate who has actually earned that donation through his many years of activism on behalf of libertarians everywhere.

Please, help spread the word. Let’s raise the funds necessary to get Chris to Denver!

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