An Alt Reading of the 2nd Amendment

You guys may recall my attempt some time ago to push -via Tomasky- a constitutionally permissable way for the federal government to give such states that wanted one an incentive to enact stricter gun laws. An attempt that at the time Tomasky put in one of his columns, but which, not surprisingly, gained no traction whatever.  Not least because it would have required an increase in government spending. Well here’s another attempt to change the conversation about the 2nd, one that requires no new expenditure, just a different and more perceptive reading of the law. I expect it will come to the same fate as the last attempt, but hear me out.

For reference, this is the text of the 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.

We all know that, until relatively recently, SCOTUS backed the view that nothing in that text suggested the insane idea that every citizen had an inviolable right to buy and own any weapon, or any number of weapons, that he or she wanted. But then the politics of the of a majority of the Justice’s changed, and then view of the 2nd changed, and now citizens are free to arm themselves as heavily as their budgets and bunker-space allows.

What if we read the 2nd another way?  Consider this: as far as firearms go, the best muskets available in 1789 might, when used by a very skilled operator, who was left unhindered to reload between rounds, could in ideal conditions, fire maybe 3 rounds in one minute, and more likely only two.  Which is why, in military terms, the musket was not at all an effective weapon against, say, a group of opposing soldiers, especially one attacking over even ground, unless weilded by at least a platoon or more of men who had been highly drilled and maintained discipline under fire, so that as one third of them fired, the second third prepared to fire and the last third re-loaded.  To obtain the kind of continuous fire necessary to counter an infantry charge, only a group of soldiers, drilled and disciplined, were an effective rapid-fire weapon.

If we read the 2nd in this light, then what it seems to be saying is that citizens must be allowed to keep and train with their muskets, to then be drilled together (“well regulated”) so that in times of threat the states will have available an effective rapid-fire “weapon”, one which could never be provided by one man with one musket, alone.

Now, of course, any of us can purchase this afternoon the equivalent firepower, in one handy portable device, of a large and highly trained platoon of soldiers in 1789.  But the 2nd amendment does not, and was never intended to, grant to individual citizens the right to control private militias. The 2nd clearly only grants to citizens a right to be one cog (of a necessary many cogs) in a well regulated state militia.

In Texas that shitbag who burst into that church, and in a very short time [update: apparently he shot for about 7 minutes] killed 26 and wounded another 20, was able to fire at a bare minimm 46 rounds; but many of the dead and wounded were hit more than once and some more than three times and it’s highly unlikely that every bullet he fired hit a body. Which means he must have fired at least a hundred rounds, or likely even more.  [Update: apparently he fired around 450 rounds, so about 60 -65 rounds a minute] To fire that many rounds in such a short time in 1789 he would have required a large platoon, or two, of highly trained and strongly disciplined shooters. To kill so many in shuch a short time that shitbag would have needed, in other words, a private militia.

Any society, anywhere, at any time, is far more threatened by large groups of highly trained killers working together than ever it is from lone wolf shitbags. Because large groups of highly trained killers are very hard to organize, and fund, and move around, and even harder to conceal. The men who wrote the constitution in 1789 were intelligent enough to know that highly trained and disciplined groups of citizens with a common malignant intentions would be far more dangerous than any lone citizen however malign.

The reading I am suggesting, therefore, is that shotguns, hunting rifles and even small mag handguns all could conceivably fit with an understanding of firearms consistent with conditions in 1789. Those types of weapons still make sense for the kind of shooting that any individual citizen might want or need legitimately to do (i.e. hunting game or self defense against another person).  But for such weapons to be at all militarily effective, even now, they would require to be wielded by a group of highly trained and strongly diciplined shooters working together. In other words they would have to be wielded by a ‘well regualated militia”.  On the other hand, semi-automatic rifles with huge mags, and even high mag automatic pistols, now can place the firepower of an entire 1789 militia platoon into the hands of a single citizen, and allowing individual citizens to command their own private militias is an outcome which was never contemplated by the authors of the 2nd Amendment. Indeed, if such and outcome had been presented to them, would have been rejected out of hand, as being a far greater threat to domestic peace and the inalienable rights of citizens than any kind of safeguard of same.

39 Responses to An Alt Reading of the 2nd Amendment

  1. StillBernie says:

    I’ll leave the legal jargon to you – this sort of thing is hard for me to follow. But the bigger problem with this church shooter is that if the Air Force did it’s fucking job, he would have been barred from buying firearms in the first place. This is one shooting that probably could have been prevented. Which would have left the black market. Which is the elephant that’s going to be hard to get rid of.

  2. StillBernie says:

    One commenter from NY said that they feel so much safer when they go to their synogogue and see that so many people have their guns with them. What are you going to do with that. We’ve already lost the war i’m afraid.

  3. bluthner says:

    Saying ‘we’ve already lost the war’ when it comes to changing the laws about gun control is exactly like saying things like “drug addiction is a real bitch so we might as well not bother about changing the bankrupt War On Drugs” or “job creation is hard, so fuck it, let vast swaths of the population slip into poverty and despair don’t do anything about it”, or “the anti-abortion lobby is determined, so fuck a woman’s right to be in control of her own body, let religious dogma rule!” etc.

    You want to despair, fine. Walk away. But more engaged people, and younger people, and people who aren’t so easily defeated, might actually want to live in a safer country, at least one day. It’s not impossible to change the law. All it takes, in the end, which is to say in the longer run, is voting for representatives who won’t sit on their fucking asses while the slaughter continues.

    As for “If the airforce had done its jobe”: there will always be defects in any system. But more than that, it’s just fucking insane to allow high mag assault rifles to be sold even to “the right people”. When absolutely fucking no one needs a high mag assault rifle unless he or she happens to be an actual soldier in an actual army.

    So yeah, you can blame the whole thing on a failure of the data base, but that’s just more hopelessness. If no one can buy or own a high mag assault rifle then, eventually, high mag assault rifles will be a lot harder to come by; doesn’t mean mass shootings will stop, but it will definately cut down the number of dead and wounded. And all those armed Jews can keep their (low mag) sidearms at Synogogue.

  4. StillBernie says:

    No Bluth, it’s not about the laws. I’ve said ad nauseum that i’m all for any and all gun laws we can manage. I hate all guns. It’s when someone feels safer seeing fellow worshippers with guns in synogogue – which is an utterly rational sentiment, and at the same time utterly ludicrous and absurd. That’s when i think the war is lost.

  5. bluthner says:

    As I said SB, and will repeat: changing the gun laws has nothing whatever to do with that feeling you describe, of people feeling safer when they carry. Nothing I posted has anything whatever in the slightest to do with taking those guns away or alterning the laws around that kind of gun use. So I don’t understand your statement “No, it’s not about the laws”.

    It’s all about the laws. About passing saner laws. About interpreting the law we have now (the 2nd amendment) in a saner way that is more consistent with its initial intent.

    How you can respond to a post entirely about the interpretation of the law by saying “it’s not about the law” I have no earthly idea.

  6. StillBernie says:

    Again, i’d love to see the laws passed. Please pass them. Do whatever you have to to get them passed. As i said, the interpretation of the law is way out of my purview. But it’s not going to stop people killing with guns. Maybe it will lessen the carnage per incident. So that’s something. And then monitor those 3-d printers.

  7. Just like when overwhelming public support for child labor laws didn’t gain traction until photos of tykes sorting through piles of coal started to be widely published, overwhelming public support for restrictions on military style weaponry (which would be entirely constitutional, that’s settled already, but it won’t stay that way if Trump gets to install any more SCOTUS justices) won’t happen until the media starts publishing photos of exactly what a hypervelocity AR-15 round does to a child’s body.

    As I’ve said before, most Americans have never seen a bullet wound of any kind, never mind one of this kind, and their sensibilities regarding being shot are largely informed by Hollywood narratives where the hero is shot in the shoulder and next day is back to doing physically demanding heroic shit. Maybe with his arm in a sling, maybe not.

    Just a few clear forensic photos of a grade school kid’s arm more or less blown off and hanging by a thread of tendon from that shoulder wound would set the national conversation off in an entirely different direction almost overnight.

    No need to identify the victims by name. Just a handful of anonymous forensic photos, dedicated to showing the specific damage to children’s bodies wrought by hypervelocity rounds like the .223 would focus attention on the AR-15 lunacy immediately.
    Then let the NRS bleat about “bad taste” and “disrespecting the dead” and all the rest of it, in the face of continuing attacks telling them that if they want to embrace these weapons, fine, but they’re not going to get away with that without also embracing the damage they do.

    The problem here is that the Dems, and liberals, don’t know how to fight. They’re candy-asses, and unless that changes, we’re fucked.

    Does anyone think for a single moment that if the situation were reversed the right wing wouldn’t adopt tactics like that?

  8. bluthner says:

    Nine,

    I agree wholeheartedly, but would only add that it doesn’t just have to be photos of children. It’s sexist, sure, but photos of women shot up would be nearly equally as shocking.

    Of course there will be some people who will get off on extreme photographs any bullet wounds in any bodies- just look how popular all those beheading vids were- but letting the creeps get their rocks off would be worth changing the laws.

    SB

    Maybe it will lessen the carnage per incident.

    That was the entire point of my post. Which read all the way through, right?

  9. StillBernie says:

    “… won’t happen until the media starts publishing photos of exactly what a hypervelocity AR-15 round does to a child’s body.”

    Dunno even about that. Just reading this –

    ““In retrospect Sandy Hook marked the end of the US gun control debate,” Dan Hodges, a British journalist, wrote in a post on Twitter two years ago, referring to the 2012 attack that killed 20 young students at an elementary school in Connecticut. “Once America decided killing children was bearable, it was over.””

  10. StillBernie says:

    Repubs are perfectly fine with photos of mangled fetuses, i can’t see why bullets would freak them out.

  11. StillBernie says:

    You know what, all of this is going nowhere. We really can’t do shit about it. And it’s most likely going to happen again. Unless you’re in a red state and you’re not outnumbered, and contacting your reps might actually make a difference.

  12. bluthner says:

    We really can’t do shit about it.

    Dead dead wrong. But of course that’s exactly how the NRA wants you to think.

  13. StillBernie says:

    If you think i’m any fan of the NRA or their bullshit, guess again. It’s not how the NRA wants me to think, it’s the politicians that they bought. And the people who vote for them. That’s your problem. That’s who you have to sway, not me. So you make your constitutional argument, who do you make it to and who will adopt it. What are the legal counter arguments. And what are the chances.

  14. StillBernie says:

    Look, I’m in blue state land here. If Nat comes up with a plan for jobs and investment, there are some slim possibilities of getting a hearing for it somewhere down the road. You want a plan for the NRA, you’re going to have to take it to red state land. Or even purple land. You can try to see if Bernie or Lizzie Warren might take it on, but they have a better chance of seeing Christ than getting a hearing on it.

  15. StillBernie says:

    I’m out, folks. Lots to do today. Then tonight i might watch Alec Guiness put his saber down and get whacked by Darth Vader. Then i think it’s time for another rewatch of Alec in Tinker Tailor. And wonder what it’s going to take for some folks to realize that it was always Bill Haydon and that everybody always knew it. And if they decide that they’re going to process that or not.

  16. NatashaFatale says:

    The view of the onetime 1600ish-to-1800ish American history pseudo-major.

    In those halcyon, bliss-was-it-in-that-dawn-to-be-alive days, the word “arms” – as in “men at arms” and such – referred to the military. “Arms” included cutlasses, muskets, bayonets, and cannon. Arms did not include fowling pieces, deer rifles, or, generally, pistols (though any decent arsenal would have a stock of them). Personally, I don’t think fowling pieces, deer rifles, the gentleman’s dueling pistols and the coachman’s blunderbuss had anything to do with the 2nd amendment – but not because its authors looked down on them. Rather, I think, because it never occurred to them that the right to own such common household implements and necessary tools of many trades would ever need protecting. Any more than the right to own padlocks and axes would ever need protecting.

    “Well regulated militias” were necessary to the security of a free State for reasons that most people have never heard of. Consider the 3rd amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Consider the Declaration of Independence and its list of ol’ George’s outrages:

    He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

    He has affected to render the Military independent of and superior to the Civil Power.

    …For quartering large bodies of armed troops among us…

    For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States…

    Whether in Europe – anywhere in Europe – or in the American colonies, nothing, absolutely nothing, was more loathed and feared than a standing army. Because standing armies show up and move in, eat all the food, drink all the booze, take all the shelter, rape not quite all the women and girls, and kill some of the men for not acquiescing to this treatment and some of the men just for sport. These are not invading armies – they are the outraged country’s own army and the armies of its allies and mercenaries.

    (One reason this history is so little known here is the extent to which it conflicts with our own reverence for the military. People who are commanded to stand and sing out their reverence for the camo-clad heroes among them twice during every baseball game and who are proud to boast that they always obey are not likely to imagine that their own country’s standing army could ever have been a problem.)

    In 1789 some these armies’ habitual victims found themselves in a position to do something about them – for which purpose they drafted the second and third clauses of the Bill of Rights (i.e., immediately after addressing freedom of speech and of religion).

    The 3rd amendment to keep them out of doors.

    The 2nd amendment to make them unnecessary. The well regulated militia would pack its two four-pounders full of grapeshot and station them at the town bridge, and its forty or fifty well-drilled musketeers would hunker down in well-prepared ditches. An invading army might make it through, but not without one or two hundred dead – and the fruit of its victory would be a five or ten mile walk to the next defended bridge.

    These reforms would not get rid of standing armies, but it kept them at bay until they learned to almost always behave.

  17. NatashaFatale says:

    All of which was offered to show that thej so-called “originalist” view of the 2nd amendment – the “embattled farmer stood” and all that sentimental jive – is not only ahistorical horseshit, it’s intentionally concocted ahistorical horseshit.

  18. “Once America decided killing children was bearable, it was over.”

    Right, but they didn’t see the dead children, all they actually saw were the Hollywood images in their minds.
    You know, a dead child with a nice clean hole in them. Maybe a patch of blood on the shirt front. A peaceful facial expression because they’re with Jesus now.
    No exit wounds. No shredded internal organs protruding from the abdomen. No face totally fucking blown off.

    No, they couldn’t handle that, I promise you. They’re coming unglued right now about “politicizing” these events by connecting them to guns, and largely getting away with it because nobody’s punching back. Christ, when Trump says “this is a mental health issue, not a gun issue”, not single fucking questioner has the gumption to agree, but also point out that the crazy person didn’t kill 26 people with a fucking baseball bat.

    I’ll say again, liberals and Dems are not willing to fight. I don’t think they know how. They want it all to be about rationality and thoughtful argument. Those days are over, and almost certainly ain’t coming back in any of our lifetimes.
    You appear to have just thrown up your hands and declare that nothing can be done, which is a posture I really do understand, but it’s chickenshit just the same.

  19. bluthner says:

    Nat,

    Yes, to your history and to your asserton that the ‘originalist’ version of the 2nd is concocted ahistorical horseshit.

    To turn it around even merely to the point of banning semi auto rifles and large mags, which must be the very minimum to start with -at the federal level- will require, at the very minimum, a.) a new federal statue and b.) an argumet for the swing justice on SCOTUS to hang her or his hat on in order to overturn at least part of the current insane precedent.

    What I’m suggesting is a possible argument to help with b. To get a. we are going to have to elect a whole new crop of representatives. I never said it could be done quickly. But it sure as fuck could be done, and given the way the bodies keep piling up -and with powerful ideas like Nine’s about showing peope what actually happens when assault rifle bullets meet young flesh- at some point it will get done. The number of citizens who own those kinds of rifles is not large, and the numbers behind more gun control than we have now are actually around 70% of voters.

  20. bluthner says:

    When I say ‘not large’ I mean not as a proportion of the entire voting population. it’s even a solid minority of gun owners.

  21. StillBernie says:

    Look, here was the situation in my state, which does have a ban.

    “Attorney General Maura Healey has issued a notice to all gun sellers and manufacturers in Massachusetts, warning that her office is stepping up enforcement of the state’s assault weapons ban, including a crackdown on the sale of copycat weapons.

    The enforcement notice clarifies what constitutes a “copy” or “duplicate” weapon under the assault weapons ban. Copies or duplicates of banned assault rifles, including copies of the Colt AR-15 and the Kalishnikov AK-47, are prohibited by the Massachusetts assault weapons ban. Despite the law, an estimated 10,000 copycat assault weapons were sold in Massachusetts in 2015 alone.

    And this is even before you take into consideration bringing assault weapons over state lines.

    Go ahead and show dead kids ripped apart. I’m not saying don’t. My suspicion is that it could backfire in that it would piss off Democrat proles more than horrify Republicans. Who is your target for that, in terms of trying to change minds? Republican voters? Politicians?

    The Republican position here seems to be that the laws are adequate if enforced. What they don’t seem to be willing to do is enact a ban. And the response in Texas seems to be, from what i can gather, that they need even more guns to try to combat it. I can’t get my head around it, but that’s what you’re up against.

    “…we are going to have to elect a whole new crop of representatives.” You’re going to have to either get Dems elected in red states and districts, or get Repubs who won’t take NRA money. And then you’re going to have to get people to vote for them. And, i reckon you’ll have a tough time even if you do have many Repub voters horrified enough to support a ban. Because i suspect that most Repubs aren’t single issue voters.

    And again, i’m not saying that it’s not worth trying (hard) for. But i suspect that we’re still in for a long bout of hand-wringing and impotence for a long time. Like the opioid epidemic. And long as there’s money and big donors involved, it isn’t going anywhere.

  22. NatashaFatale says:

    9k,

    I meant to answer you right after you posted but I was worknapped (workjacked?). I’ve been thinking about your idea on and off all day and it’s gone from interesting to utterly brilliant. I’m thinking mostly GOP mothers, especially the kind who never usually talk back. They’ll talk back this time – some uncomfortable scenes around the dinner table for sure. I wonder if we could get some kind of guerilla marketing campaign started.

    Don’t be stingy – pass it on and share the gore.

    Hurry! A sudden opening on the cheerleading squad!

    That kind of thing.

  23. StillBernie says:

    Nat –

    Dude, they already pass around pictures of mangled fetuses. Which is the same as a child. Except that they care about the fetus more.

  24. bluthner says:

    Yes they pass around photos of mangled fetuses, but- they are motivated by those photos. And not just a little bit. God is going to punish them for all eternity unless they act.

    Comes down to it they are still human beings, and they must at some point want the carnage to stop the same as most other human beings do. At some point, who knows where it is, but it has to be somewhere, even they are going to say enough is enough.

  25. StillBernie says:

    I’m freaked out that 10,000 people in my little blue state felt that they needed assault rifles in 2015. Except that very few of those are probably still in my state. Which is even probably kinda worse.

  26. MadameMax says:

    Dude, they already pass around pictures of mangled fetuses.

    Amy, where the fuck is the logic in that?! Chopped up fetuses horrify them, so why wouldn’t blood-spattered, mangled, blown-into-unrecognizable-pieces-of-meat children horrify them just as much, or more?

  27. StillBernie says:

    The pictures don’t horrify them. They carry them around on sticks all the time. They look at them all the time. They’re supposed to horrify the folks going in the clinics, but i’d bet that you could count on a hand or two the number of people it actually dissuades from getting an abortion.

  28. StillBernie says:

    Anyone wanna volunteer to find a parent willing to let their kids body be used for a poster, and stand with it on a stick in front of a gun shop?

  29. bluthner says:

    Anyone wanna volunteer to find a parent willing to let their kids body be used for a poster,

    Two words: Emmett Till

  30. StillBernie says:

    Put it this way, Bluth. I’d advise that for this, hiring some consultants would be worth your money to do some test marketing for you. Because the possibility definitely exists that it might not go the way you think it will.

  31. bluthner says:

    Put it this way, SB, it couldn’t make things worse.

  32. Squirrel says:

    Maybe a poster campaign (cf some pretty unpleasant images on our tobacco packaging) of what a high power round from an assault rifle would do might actually work. Suppose every gun had to be sold with a photo of what it actually did to people?

    Can’t see it happening, mind you. The NRA would be bound to hop into every federal and state court to argue that pictures like that were obscene or something. (Which they would be*, that’s the point.)

    * Not that I’ve actually seen a gunshot wound of any kind; but I did hear a somewhat shaken A&E doctor describe one to me in Liverpool once. He hadn’t seen one before, either. I have heard what a near headshot did to someone described to me by someone who survived—and escaped—a civil war. The girl recovered, astonishingly, but with the total loss of one eye and needing a lot of cosmetic surgery. If people saw even that, and knew it had one of the better outcomes, I think they might think again about letting all and sundry have AK47’s or their relatives to shoot at them with.

  33. StillBernie says:

    Bluth –

    It maybe could. You could be seen by some, me even, as a pimp and purveyor of the ugliest and most cynical sort of porn imaginable.

  34. NatashaFatale says:

    Madame makes a point that she hasn’t gotten around to posting here, so I’ll steal it. When the police finally walked into that classroom in Sandy Hook, they took pictures of what they found. You know they did because that’s what cops do at crime scenes.

    Now the public hasn’t seen those pictures. It’s not hard to imagine a couple of reasons why. First, releasing them would have violated any number of rules and regulations, including some specifically designed to protect the privacy and sensibilities of victims’ families, Second, and I think more importantly, walking into that classroom had to have been the hardest thing those cops ever had to do. What they saw there had to have been horrifying beyond anything they’d ever imagined, and every decent instinct they had must have rebelled at inflicting that horror on others.

    These instincts do the police credit, but this is a time to ignore them, and for a very simple reason: nowhere near enough people have felt that horror merely from reading about that classroom and seeing footage of flashing lights and yellow tape. Every person in the country who can be made to feel it from talk and printed words and flashing lights and yellow tape was already convinced long ago. The rest have proven immune to these things, and they will remain immune to them during the next few hundred massacres as well.

  35. NatashaFatale says:

    And here’s the philosopher R. Limbaugh’s contribution:

    Do you know something I’d like to know about these mass shooters? There’s a story in the Stack that I haven’t gotten a chance to get to here, but I would really love to know how many of these mass shooters went to day care? How many of them were separated from their mothers at age two, at age three, and were farmed out to day care centers?

    …This stuff, it all made me wonder just how many of these mentally disabled people or people with mental disorders, how many of them actually have been farmed out to, I don’t care who runs it, day care, state-run or not, during the early formative years. Family’s family for a reason.

    In no way ugly or cynical or porn-like. No, not at all.

  36. MadameMax says:

    You could be seen by some, me even, as a pimp and purveyor of the ugliest and most cynical sort of porn imaginable.

    With these words, Amy, you prove yourself to be part of the problem. Along with all the other people who are oh so sensitive that they can’t bear to see the actual, real life results of our gun-obsessed society, and also don’t have the imagination to form a picture in their own minds of this unbearably ghastly result so are not impelled to actually care much about it.

  37. bluthner says:

    SB,

    There was a time I used to have to look at crime scene photos as part of my job. Some of those photos still haunt my dreams more than 30 years later. None of them, not even the ones that involved naked young bodies, were in the least erotic in any way (unlike when ‘corpses’ are shown on TV drama- then they are often laid out in a way to titillate). Only the sickest human being imaginable could find those photos in any way pornographic. And we already know that the sickest individuals are a.) a fairly small group, and b.) not the target audience for a drive to end the insanity of GUNS R US which the U.S. now gripping the country. And only the sickest person imaginable could suggest that I was somehow ‘pimping’ the dead victims. I know you say that having never seen the kinds of photos I have seen, and thinking of the kinds of images that TV dramas tend to create, and sure that’s exactly what the NRA will try to say, but if you had ever seen what those photos are like- only very very disturbed people will fall for that kind of smear.

    Nat,

    The entire British patrician class is ripped away from their familes and sent away to boarding school at an extremely young age, even now. And look what misery they inflict on the rest of us!

  38. KevinNevada says:

    I think the idea of showing the actual death-scene photos, to show people what high-velocity guns like the AR-15 really do to a human body, is fucking brilliant.

    The conservatives cannot complain. Their religious-nut faction have been waving bloody-fetus photos at rallies outside of PP offices for decades, now.

    And the line proposed for gun ownership, bolt-action/shotguns/handguns vs. imitation-military, is precisely the correct line to draw. The AR-15 is the weapon of choice for mass murderers:
    Sandy Hook
    Aurora, Col.
    Orlando, FL
    San Bernardino,
    Las Vegas,
    and now
    a little small-town church in Texas.

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