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Everything You Need to Know About Universal Background Checks

Of the many common rhetoric of the gun-control lobby, one of the more frequent we hear is a call for “Universal background checks.” This article covers all the core points surrounding the arguments for and against this legislation. Interestingly various research studies have shown that a majority of gun owners favor Universal Background checks and that brings me to feel the need to write this article. WHY are gun owners themselves divided in the ranks?

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What Are “Universal Background Checks”

The Brady Handgun Violence Prevention Act of 1994 (Brady Act) requires federally licensed firearms dealers (FFLs) to perform background checks on prospective firearms purchasers to ensure the firearm transfer would not violate federal, state or local law. Anyone who makes a business out of selling firearms is required to obtain a FFL from the ATF. The law doesn't currently have any provision that requires background checks  to be obtained for private sales or transfers from one individual to the next within the same state. The media calls this the “gun show loophole” or “internet loophole” and feels a new law is needed to close the gap. While we would imagine that a number of private transactions do take place at gun shows, a large number of the transactions that take place there are done by FFLs and do require a background check. Put differently, the laws that apply at gun shows are the same laws that apply everywhere else in the country. No legal exceptions are made. (Great piece from TruthAboutGuns about the supposed loophole)

A small number of states have passed local or state laws that do enforce these universal background checks with Colorado probably being the most notable with the new law going into effect in July 2013.

THE CURRENT MAP

States in RED fully restrict any transfer of a firearm without a background check while States in GREEN prohibit any transfer of handguns only without a background check. Some states (both in red and green) require the purchaser obtain a permit in advance of the purchase which requires the background check. We have not distinguished this methodology for purposes of the map.

While States in BLUE do not have incremental state laws that close the “private sale loophole” they naturally still conform to the Federal law and rules maintained and in part enforced by the ATF that require that anyone in the business of buying or selling guns obtain a FFL and once they have one they perform background checks on all buyers.

Universal background checks

But We Don't Want Bad People To Get Guns Right? Why In the World Would Anyone Oppose Background Checks?

Ok, on the surface I admit the sales pitch sounds really good. I can see the survey takers calling up random households and asking something like “Do you support legislation that requires all gun buyers to pass a background check?” and I can so easily hear the average person… and gun owner… responding “Yes!”

It makes some logical sense right? If you are a law abiding gun owner why not just subject yourself to a background check you know you will pass and sleep well at night knowing how many criminals might be stopped from buying guns because they fail the backgrounds check.

But I'm here to argue today that it isn't as simple as it seems.

The Misinformation Being Spread

LIE: “40% of Firearms Sold Don't Require A Background Check”

The most common lie we hear from politicians (including Obama and Clinton) is that as much as 40% of firearms sold don't require a background check. This would lead us to believe that for every 100 guns sold in this country, 40 of them were sold by private individuals and thus didn't require a background check. This figure of 40% is derived from a 1994 survey of only 251 people. The survey is flawed in so many ways. First, its over 20 years old. Second, even if the study was trustworthy, studies of the survey data suggest that using the 40% figure is an exaggeration of the findings. At the highest only 22% of gun sales come from private sellers (Washington Post Fact Checker). Third, and most important, no survey based on a sample size of 251 in the context of millions of gun purchases can be considered statistically sound. It wouldn't even pass a high school stats class standard. (Yeah, it's that ludicrous). For more details about the statistically silliness read this great article from Truth About Guns.

LIE: “Criminals Exploit The System By Buying Guns From Private Sellers So They Can Avoid Background Checks”

Probably the most disturbing lie about this proposed legislation is that it suggests it will solve a problem that is somehow responsible for American tragedies. The media and many politicians would have you believe all the famous killers of the last five years all went to a gun show, approached a private seller, and proceeded to purchase big and scary guns without a background check. This is almost never the case. The majority of criminals either A: Get their guns legally by passing a background check,  B: Steal the firearm from a friend or relative (stealing is already illegal), or C: Steal the guns in car break-ins, home invasions, or other criminal pursuits (also already illegal). (Chicago Sun Times Reports on a Recent Study) See more info below on this article about where most mass shooters get their guns…

Lie: “The Number Of People Failing Background Checks Proves That It Works”

Some politicians also attempt to point out the success of the law in states like Colorado as a reason to pass it at the Federal level. Don't be fooled by the numbers they give you. They may tell you that a certain number of people have been stopped based on the numbers of how many didn't pass background checks when trying to buy a gun. Check those stats to see how many of those failures took place with FFLs where the person would have had to have passed a background check before the law passed; meaning that with or without Universal Background Checks a high percentage of the failures would have failed anyway… because those buyers go to gun stores to buy guns.

Also, a study in 2009 suggested that 94.2% of denials are actually false positives anyway, which means a lot of those people were able to buy guns after sorting out whatever it was that triggered the denial in the system. Also take note that no research can tell you how many people that fail background checks just proceed to obtain a gun illegally after the denial in the store. Having failed the background check only slows down the “potential criminal” from getting a gun; it doesn't actually stop them.

Frankly can you actually believe that real criminals with bad intention (who are already convicted felons and thus can't pass the background check) march into gun stores attempting to buy guns only to discover to their own shock that they didn't pass? Or is it more likely that they have already been informed that their criminal record prevents them from owning guns and thus if interested in a gun they are likely to commit a crime (again) and buy one via illegal means?

Why It Won't Make Any Difference

This legislation won't make any difference because people who have decided to harm others can still get guns just as easily with a “Universal Background Check” law in place. There is extensive evidence to suggest this is the case by looking where past criminals have obtained their guns. Here is an article published by the New York Times (shocking) in which they outline where the last 16 most popular shooters got their guns. Spoiler alert… they almost all passed existing background check laws except for one who stole the guns from his mother. Put differently NOT ONE of these instances would have been prevented if a Universal Background Check law was in place.

The other reason it won't make any difference is because offenders are rarely prosecuted for breaking the law. Stop and think about this. It is illegal to violate the Brady Act (meaning it is illegal for a prohibited person to obtain a gun) but the criminal is only “stopped” if they are caught and prosecuted. The average number of bad guys that are “stopped” and prosecuted each year for breaking this law… about 3.5 people per year.

Why The Gun Community Sees it As Potentially Harmful

Before we get into the real dangers let's start with something more practical; the cost of enforcement. If you look at states where Universal Background Check laws have been passed you can discern a few patterns. First, local law enforcement has no means or resources by which they can enforce the law. Unless a firearm was clearly manufactured after the law was passed there would be no inference that the owner had acquired it after the law was passed making it almost impossible for law enforcement to detect or prove that the law was violated.

The term transfer is a boiling pot of hot water. If the law criminalizes transfer of a firearm without a background check how can you try out your friend's gun when standing next to him at the range? How can your spouse pick up your firearm in self-defense without breaking the law? In fact, in 2014 in Colorado, a law enforcement agency wasn't sure how to return a firearm to its owner without breaking the law since the agency itself doesn't have a Federal Firearm License and can't run background checks (Story). You may suggest that the law could contain provisions that allow family members to transfer firearms without background checks (like the Colorado law does) but that makes the point all the more invalid and makes the enforcement all the more impossible. Why make a law and then put a bunch of exceptions into it making it almost worthless.

Would / Could It Lead to Registration?

What happens when you pass a law that is impossible to enforce? You pass more laws that make it easier to enforce the first law. In states where Universal Background Check laws already exist; law enforcement doesn't actually have any idea if it is working and they have no way to identify criminals of the law. Lets say I get pulled over or otherwise confronted by a law enforcement office. I have a gun. The officer would like to be able to identify if I passed a background check in order to obtain that gun. They can't. There is no way for him/her to know. What is the solution? Firearm registration is the only solution. By creating new legislation that creates a database of guns and their owners law enforcement would then be able to uphold the Universal Background Law previously passed by otherwise unenforceable.

Universal Background Checks > Firearm Registration

Certainly however the biggest reason gun rights advocates oppose the idea of Universal Background checks is because Firearm Registration takes us one step closer to firearm confiscation. It would be nearly impossible for the government to confiscate guns without knowing who owns what guns. The easiest way to create that database is by making all transfers of firearms require a background check both because it creates the SYSTEM by which the database can be built and it creates the NEED for Firearm Registration in order to enforce the law.

While you may have been told that the Federal government doesn't keep a database of gun buyers you have been misled. Yes, the FBI does destroy the paperwork and evidence of a background check shortly after it is performed, but the ATF requires that FFLs keep detailed paper records of every background check performed. These records must be made available to the government without notice; and should a FFL decide to close up shop the records must be turned over to the ATF. So, yes, there is a paper record of every background check performed and the government has access to it. That record includes the date, the name and address of the buyer, the make/model of the firearm, the serial number, the type of firearm, and the caliber/gauge of the firearm. All that is assuming the AFT actually does purge the data and isn't keeping records of all background checks…. which is hard to believe. Gun rights supporters take comfort in knowing that in the absence of a Universal Background Check law not every single transaction is recorded. If private transfers were criminalized, registration would be next and then confiscation wouldn't be far away.

Universal Background Checks > Firearm Registration > Gun Confiscation

If you do not support Firearm Registration you should not support Universal Background Checks.

This Essentially Creates a Tax on Firearm Purchases

A reminder that in most states Background checks cost money. The buyer has to pay a fee to the governing body for the background check which essentially adds one more expense to exercise a constitutional protected right.

The NRA Thinks We Should Just Fix The Broken System

In this video Wayne LaPierre speaks to the greatest weakness of the system is the lack of valuable data in the database. 38 States submit less than 80% of felony convictions to the system according to this video. Further the NRA urges that the background check system isn't a strong deterrent because those who fail to pass the background check because they are felons should be prosecuted but they aren't.

The argument in the video, while interesting and valid still misses the mark. I understand that making the existing system actually do what it is supposed to do makes sense. Why have the existing legislation if we know it doesn't actually stop criminals… but I would argue that the correct course of action is to do away with background checks entirely.

What do you think? Where do you stand on the idea of Background Checks?

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24 Responses to Everything You Need to Know About Universal Background Checks

  1. Michael October 24, 2015 at 10:39 am #

    Jacob, I agree with most everything you have written here. The point that most every writer of 2nd Amendment issues leaves out is that the second amendment is not a grant of rights to the citizens but a bar from government enacting legislation that infringes on the peoples right to keep and bear arms. The ATF nexus into law was interstate business regulation and therefore they could not, and should not, be doing any Brady background checks. This, constitutionally, is a power left to the states (10th Amendment) and not to the federal government. Lastly, the 2nd Amendment is to ensure the people have the ability to defend themselves, not against bad guys, although that do is part of the defense, from an oppressive government. As all governments are force and the power of governments (any government) by its nature tends to increase, it is the only measure the people have to ensure their freedom.

    • Jimmie Knight December 16, 2015 at 2:49 am #

      I’m cool with the 2nd amendment but we have way too many stupid people doing stupid bs with guns in our country. The 2nd amendment does protect against any of this and its high time we put a stop to this nonsense

  2. GENE October 24, 2015 at 11:53 am #

    Thanks Mr. PAULSEN, it’s nice to have it told the way it is, I now have to assume that there is a stampede of ‘Gun Grabbers’ heading to their local pharmacy for ‘Zantac’.

    • icemancold October 24, 2015 at 12:22 pm #

      Thank you for an informative article.EACH Point you mentioned about the Background check is accurate and thus will not work to prevent Crimes. What needs DONE is FIRST THING NULLIFY and ABOLISH the SO CALLED GUN FREE SAFE ZONES which invite mass killers to commit their HORRIBLE ACT there where they are safe from being KILLED BY A POTENTIAL VICTIM WHO HAS HIS OR HER OWN GUN.NEXT ALL FIFTY STATES NEED TO ENACT CONSTITUTIONAL CARRY ALLOWING CITIZENS TO CARRY A WEAPON EITHER OPENLY OR CONCEALED. A STREET THUG WILL THINK TWICE ABOUT A MUGGING IF HE EITHER SEES A WEAPON OR IS UNSURE IF THE POTENTIAL VICTIM HAS A WEAPON. GUNS PREVENT CRIME AND SAVE LIVES !! GUN FREE SAFE ZONES INVITE CRIME AND MURDER.!!

      • Mike G. January 8, 2016 at 9:44 pm #

        Good God Someone with a brain !!!! Make the entry of schools go in at one location with armed guards and dogs to snif out guns drugs and metal detection to check for possible knives, let’s get serious about were our children go to school. Dope freaks walking around with there pants down around their asses showing there underwear should be turned around and made to call there parents to come and get them and take back home, Charge the parents 300 dollars for permitting there child to be seen. The charg. Indecent exposure, see how long it takes for there pants to go up wear they belong, and for the ones that say it’s just a style tell them it’s to bad we do not allow any style that exposes undergarments this is a school not a brothel or play ground for sexual deviots to parade around in fix it or try a different school system. STOP Turning your cheek and looking the other way.

  3. pif October 24, 2015 at 12:15 pm #

    Articles like this make me embarrassed to say that I am a gun owner and CCP holder.

    • John October 24, 2015 at 4:38 pm #

      If this article of cold hard facts and not someone’s wishy-washy dreams makes you “embarrassed to say”, then you need to move to France or Britain or one of those countries that feel your government will keep you safe. The one you live in now sure will not protect you. You have to do it yourself as you seem to have indicated that you are doing.

      • pif October 24, 2015 at 5:30 pm #

        Did you read where I said that I am a gun owner and CCP holder?

        The problem I have is with this paranoia that we have to be armed to fight our, democratically elected, government. Who decides at what point we have to fight our government with arms? IIRC that is what Timothy McVeigh did.

        Now, I can understand that many of us, me included to some extent, are fed up with our government because it does not work for we, the people, as it should. But, I think this has more to do with unlimited campaign financing, which, interestingly enough, is supported by exactly the same people that support unlimited gun rights. Do you support public campaign financing without dark money?

        • prairiewolf October 25, 2015 at 8:04 am #

          We the people, of the government, by the government and for the government is how DC has changed the Declaration of Independence to the Declaration of Dependence.

          All they listen to is lobbyist and campaign contributions (bribes) not the will of the people nor do they think of the good of the people as shown by the big business bail outs and the lack of real assistance for the people. Give a man a fish he is fed for the day. Teach him to fish and he is fed for life.

          • pif October 25, 2015 at 9:39 am #

            Couldn’t agree more with you.

            However, does this mean that we have to take up arms against our government? If so, at what point?

        • Mike G. January 8, 2016 at 10:15 pm #

          Hay just think about this for an hour. Say Clinton somehow gets into office and starts in with taking the second amendment out of our constitution, making all guns eligal, so now you have all law abiding Americans cowering in their homes hopeing that the next home invasion won’t be your house as you pray to God to protect your 14 year old daughter as she sleeps in her bed. Suddenly you hear screems from next door you look through the corner of a window to see your friend get shot not by a bad guy this time but by a cop, you see, at work that day your friend was talking with one of the workers on the job and whispers in his ear yea I have a old pistole my dad had long ago and a box of ammo, I will defend my family and friends from the bad guys I’m not a sitting duck. Not a sitting duck, just another criminal in the eye of the law inforsement officer, his fourth kill this week.

      • Tionico October 26, 2015 at 1:33 pm #

        Maybe he means that, as a gun owner making use of his “not be infringed” right to own and use guns, he has submitted to an unconstitutional requirement to seek permission from his state government , then pay money for what they obviously view as a “priviledge” (since they can, and will, deny him that right, illegally, should he refuse to bribe, er, m[pay them for the use of that “priviledge”).
        and I have to agree with him. I, too, did the time and paid the fine to obtain my Mothe May I Card to “legally” carry in a few states, when I KNOW beyond any doubt Ialready HAVE that right, which is clealry infronged upon by the government (prohibited in doing so) nas deigned to “grant” me…. but, the time and $65 is a small price to pay (I did use the word “bribe” above, did I not?) to buy my “Get OUt of Jail Free” card if found carrying a concealed handgun according to my RIGHT. One small comfort, though, is that I have managged to acquire some firearms with no record of said acqusition left lying about for gummint to discover and misuse. And those will not be disposed of any time soon.

  4. Mikial December 15, 2015 at 5:23 pm #

    I saw a “news” piece today that said Democrats are introducing a bill to require background checks at gun show. This such idiocy and only serves to highlight how completely stupid and uninformed these idiots are. I have bought several guns at gun shows, and I had to go through a background check for each and every one of them because i purchased them from one of the vendors in the show.

    These people are fools and their idiotic bill wouldn’t change a thing. And if they think that somehow this is going to prevent backstreet sales of stolen guns from one scumbag to another,they are delusional.

  5. Scott December 15, 2015 at 7:04 pm #

    I’m not yet a gun owner, so I may be misinformed, but I thought that the only people selling guns at gun shows are licensed vendors (i.e. FFLs who also conduct background checks and waiting periods). Are there folks making private deals in the parking lots?

    • Jacob Paulsen December 15, 2015 at 7:54 pm #

      Scott, at most gun shows anyone can pay for a booth space and sell guns. Perhaps a private collector who doesn’t have an FFL but wants to sell off 5-6 of his guns for example. Those deals (in most states) wouldn’t require a background and those types of deals are what all the drama is about.

      • Jimmie Knight December 16, 2015 at 2:46 am #

        There shouldn’t be a way to sell any forearm without a background check period

  6. I’m split. I agree and I disagree with some of the observations. My family has had guns for over a hundred years. My father gave me a pistol (even though it was illegal where I was going to for a job at 17) to protect myself and he gave me one piece of advice. You know how to use a gun. & you know gun safety. If you ever have to use it, make sure you kill him and drag him inside. And I’ve always been of the same viewpoint…….. We are having gun problems from every area today. We have the legal gun owners that go off the deep end and kill coworkers or their families. We just had a man kill his wife, 2 children and himself because he didn’t want to have them suffer when what he had done became public. Had he committed murder? No! Rape? No! He had embezzled and that was to shameful to him – when he knew he was near arrest. We have kids fanaticizing, taking weapons that belongs to a house hold member and going to schools. They aren’t stealing. It was in their home and it wasn’t locked up so they couldn’t get it. Some kids can never be taught gun safety. Others could but their lifestyle won’t. We don’t have a majority of kids brought up they way I was. Then there are the ones who think they are entitled or they ‘own’ their families. My cousin’s husband was in jail for abuse. She divorced him. When he got out did he go get a gun? No! They hadn’t told her he was out of prison. He walked into her house, grabbed a butcher knife and stabbed her repeatedly in front of their 2 small children. She’s dead. He was out of jail again years ago. Who’s at fault? …. On the other hand we have all the “stupid” criminals who buy stolen weapons and commit crimes. Some of their crimes may be dumb but I don’t know how to find someone to sell me a hot gun. And if I tried I’d attempt to buy from an undercover cop!
    If someone really wants to kill, they don’t have to have a gun to do it. They’ll find a way.
    I’m pro background checks just to keep the majority of the people who won’t pass from buying a legal weapon. Look at all the criminals that enjoy sing their fists or a knife. Or maybe some sicko’s that enjoy just shooting people. I’m pro carry permit, but some of the people I know who carry scare the living BJ out of me. Maybe If they can’t get legal, they won’t buy illegal. One thing that should be illegal is the high price of getting permits. Charge a fair price – don’t gouge. That’s not going to stop the wrong people from getting carry or hunting permits.
    What we need to do is figure out a way to get the illegal sellers ad buyers off the street and into jail with no parole. And we’ll have to work on the rest of our problems and figure out how to cure them. One of our biggest problems is that the politicians always yell and scream for what they think the people want at the time. The majority are more interested in being re-elected and padding their home state than they are in what the nation truly needs, It may not be what we want, but what we need to keep our nation solevent and safe. I carried a gun when I traveled in my car around the US and Canada. Had I had to use it,
    I’d have been thrown in jail and the key thrown away not the bad guy. I carried a gun when I
    drove semi. Had I been caught they’d not only have tossed the key away but confiscated a semi that did not belong to me, I carried that weapon to protect me from the hoods in the
    the parking lots at the refill stations and the rest areas. But it was to protect myself from
    other drivers as well.
    When I start traveling again, my gun will be with me .I don’t advise anyone to carry their weapons on the person or on the road illegally. I didn’t care of I got tossed in jail. And I knew that I would never use it unless I had absolutely no choice. Yo can say the same thing, what you have to decide is – is it true.
    Why am I so strong in my feelings? Not because I’m set in my ways or obstinate. I’m 72
    tomorrow and I’ve been around the country, many types of people, and work some tough
    work places. If hey toss me in jail I won’t be happy about it, but I’ve lived the biggest part of my life and I’ve met all kinds. Be safe first.

  7. Lahoiria February 17, 2016 at 9:16 pm #

    part 11. The purpose of an irtannel’ serial number would apply when you have a gun discovered at a crime scene or on a criminal who scratched it off. You’d be able to pick up the serial number and trace back how that gun came to be provided to the criminal.2. I’m thinking of a ballistics database for cases where you recover bullets but not guns from crime scenes.3. True but that’s a simplistic way to come up with a premium. A more profitable way would be to charge less than $10/$100 to people who are lower risk and more than $10/$100 to those that are higher risk. 4. I would imagine both would like to get rid of it.5. Probably nothing, existing guns would have to be grandfathered exempt I’d imagine.Part 21. No it doesn’t exist, but it’s a concern among gun rights types (note how even the health law had a provision added to state no gun databases would be made). An attempt to create a compromise bill that would get both sides on board has to address both sides’ concerns, even if we think they may not be valid.2. Possibly, don’t know much about it.3. Interstate commerce would mean its constitutional. Congress could pass a law allowing people to buy and sell guns and the states couldn’t infringe upon that.4. So what? As you point out the insurance would be pretty cheap for any halfway responsible person.I have seen zero (!) suggestions made in the post Newtown shooting period by the anti-gun crowd that would have prevented the shooting. Which is regrettable for the anti-gun crowd. Why should this be a goal? I think it would dramatically cut into many gun crimes and accidents while at the same time only offering minimal hurdles for a responsible gun hobbyist (possibly even removing some hurdles for them).

  8. Eduardo February 17, 2016 at 9:29 pm #

    Obama should emlopy some of Bush’s tactics and break the back of the NRA by putting entire purview of gun control under the the cloak of national security interests. It’s already been established thanks to Bush and his neocon friends that any safegaurds to the constitutions are effectively void once any voice of objection falls into that black hole.He won’t be taking anybody’s rights.. He’ll just be taking control of the conversation. The NRA will be a lot more attentive and a lot less fiesty with their 300 million dollar budget if they have to face off with the full power of the United States.Obama can spin his wheels haggling over magazine sizes and other trivial measures or he can put the NRA in a position where they’ll be fighting just to survive as an organization. Look at Reagan and Patco..entirely different situation except for the fact of one fell swoop.

  9. James vC May 28, 2016 at 9:33 am #

    For what it’s worth , I believe any politician , public figure , or government office holder (elected-appointed-or whatever) should be removed from any / all positions of responsibility / authority at the very FIRST hint of interference or suppression of our Constitution , Bill of Rights and Amendments and then subjected to legal action as a possible traitor..

  10. blaine Olmstead August 26, 2016 at 11:16 am #

    here is another bit of information most don’t know. WHEN EVER YOU BUY TWO Pistols in five day period, a form (3314) must be filled out and sent to ATF and local police… Keep that in mind when buying a pistol

    • Jorge Guzman June 13, 2017 at 4:35 pm #

      This is a STUPID rule and easy to circumvent to show that its ridiculous. Just like most ATF rulings, like Pistol vs SBR for example, it’s all about the cosmetic look of a firearm – has nothing to do with effectiveness or performance. If one wishes not to file a form 3314, all one needs to do is wait 5 days to conduct another background check and take possession of the firearm…kinda like a “layaway” plan. Really what crime effect does this STUPID rule have? Criminals don’t buy their firearms at a LGS/FFL dealer. We have enough of “Touchy – Feely” laws and regulations – and the best part – all drafted by smart “dummy” lawyers with expensive degrees that failed Math 101.

  11. Jorge Guzman June 13, 2017 at 2:00 pm #

    Awesome article Jacob. Our biggest problem that we have going forward is messaging vice using stupid quotes like “I believe in Gun Control, I use both hands”, etc. We need to be mature with our message and it needs to be based on facts that contradict the anti-gun argument. Each time someone talks out of their rear end about background checks being effective in preventing crimes or having the ability to purchase a firearm outside one’s state we need to know how to address those questions with facts and put them on the defense to make their case or go home.

    • Matthew Maruster June 14, 2017 at 8:13 am #

      Jorge,
      Right on point. Coherent messages based on fact will do far more than some snarky quote that just makes the people who you are trying to affect dialog with roll their eyes.

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