Talk:Second Amendment to the United States Constitution

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Militia Act of 1792

Somebody inserted "According to the Militia Act of 1792 the Presidend as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eithteenth century the public has a claim on privately owned weapons for public purposes. This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the Federal Government." This claim on privately owned weapons statement is misleading. The Militia Act of 1792 required all able-bodied male citizens from 18 through 44 to be enrolled in the Militia and equip himself with appropriate firearms. The Government could require these able-bodied males to provide military and law enforcement service with their privately owned weapons. It did not give the government a claim on their privately owned arms which were private property. The same is true of the pre revolution militia. All of the Colonies required Able Bodied males to provide themselves with arms for when they were required to provide military service. It did not provide government ownership of these privately owned arms.

Infringed

I would like to see an explanation on how the following is consistent with the pro-gun argument.

up until the National Firearms Act of 1934, there was no Federal law against ordinary Americans' owning any weapons available anywhere, including anything the US military used, such as tanks, artillery, bombs and even high-explosives. No licenses and no registration were required.

Most people on both sides agree that so-called "Weapons of Mass Destruction" (i.e., biological, chemical and nuclear weapons) cannot have any legitimate purpose in the hands of individuals and that even in non-hostile hands these weapons pose a serious threat due to the risk of even simple accidents during storage or transport. As such, most agree that even the broad protections of the Second Amendment for the right to keep and bear arms do not apply to "WMD's".

I would say it is because infringed means "destroyed" or "removed" and not "abridged" and not "encroached upon". Yet I hear repeatedly from those opposing gun control the Slippery slope argument that no restrictions should be allowed.

Note that the 1828 dictionary definition of "infringe" does not have any meaning synonymous with "encroach" -- only with "destroy"

--JimWae 01:13, 2004 Dec 8 (UTC)

For the record, the dictionary cited gives three definitions: two are synonyms for violate, and the third, To destroy or hinder, is marked "Little used." In other words, JimWae's reading is idiosyncratic. —Tamfang 01:17, 2 March 2006 (UTC)[reply]

A comment has been added to the Semantic issues section. It gives a citation for usage of the term infringed, but the term is not there. This is perhaps the best place to take a discussion of the topic.

Infringe is not used in that citation. Without it, what basis is there for the claim that it means the same as today? {Further, even today infringe has 2 meanings, one of which is not encroachment, but breaking.} Violation is used twice (in citation), once in regard to promises & then regarding the rebels violating the rules. Where's the connection to infringing a right?
The Constitution has no rhetoric about "natural rights" & its stance is more consistent with "social contract" theory than "natural rights" theory. Or at least, to say the Constitution is based on "natural rights" needs some demonstration not given in new comments.
if someone can find an old instance of infringe with the meaning of encroachment, such would provide some reason for keeping the comments recently added - otherwise they seem specious.

--JimWae 09:23, 2004 Dec 20 (UTC)

The constitution cannot be taken by itself. The constitution is the implementation of the declaration of independence. The first document to say that we where a separate country was the declaration of independence. It took us 2 tries to get the form of government right (articles of confederation, then constitution). And if you refer to the text of the declaration of independence, "we hold these truths to be self-evident, that all men a created equal, and that they are endowed with certain unalienable rights..." etc. So, no, our constitution is not a social contract, it is a document outlining which of our natural rights we have given up, in order to form a government. -- Dullfig 05:25, 8 February 2006 (UTC)[reply]

There was a supreme court case on this issue defining the "arms" mentioned as things of normal military use. Techincally that could include tanks, but definetely NOT WMDs and the like. No F-16's either. Sorry. I really wanted that old F-14 in my yard. for "defense". Motor.on

It has been argued that in 1789 to say "bear arms" was closer to saying "to fight", and not as close as saying "to carry weapons", as it means in the modern language. For instance to say you wanted to join as a sailer in the navy to fight a war, you would have said 'I want to bear arms in the navy'. Even though a sailer had little chance of actually using a firearm when fighting war in the navy. BruceHallman 16:01, 10 March 2006 (UTC)[reply]

Articles of Confederation

...of some relevance, certainly not decisive though

Article VI

... No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. ...

--JimWae 01:18, 2004 Dec 15 (UTC)

Punctuation

The comma is there in the constitution - removing it removes much of the ambiguity that resides in the amendment, and changes the meaning. Please make sure the punctuation matches what's really in the constitution.

It might be interesting to provide links from (or to) the second amendment and the Gun Control issue.

I restored the version with the commas exactly as they appear in the manuscript at the national archives. Yes, the US GPO actually reprints it with more modernized punctuation, but since there are so many pedantic asses out there who like to prattle on about what a comma here or there means, it's important that we be historically accurate even if our own government printing office isn't. --LDC

The External Link is, in my opinion, misleadingly described. The link is to a polemic which does include some quotes, in the main only tangentially relevant, from founding fathers.

I would simply delete the link but, recognizing this is a hot area, thought I would ask first.

I moved the bit about the punctuation to the bottom. To my knowledge, no reputable scholars consider this to be an important issue at all (but correct me with cites if I'm wrong) and I think we looked sort of silly for putting it right up front. I believe that arguing about the punctuation is in the realm of crackpot legal theory, not something that the courts or anyone else serious really cares about.

At the present time, the article is a touch misleading on the issue of 14th Amendment incorporation. The Supreme Court case with the language that suggests that the Amendment is only a bar to Federal action was decided before most modern incorporation jurisprudence. Since that time, the Court has decided that the 14th Amendment does mean that most of the rest of the Bill of Rights applies to states, and it's difficult to sustain the argument that it's still "good law". I am not sure how to fix it, though. Katahon 22:42, 25 Mar 2004 (UTC)

An issue with this is that there were more than one original copies of the Constitution. At least one copy was produced and sent to each of the 13 states for ratification. There is much doubt as to the validity of the copy in the Archives, given what the British did in 1812 in their attempts to eradicate record of the original 13th Amendment.208.255.197.162 02:42, 6 May 2005 (UTC)[reply]

http://www.gpoaccess.gov/constitution/html/amdt2.html <-- Has less Commas. Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:

Article the Fourth, --A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed. http://web.archive.org/web/20000815052740/http://www.nidlink.com/~bobhard/billofrt.jpg http://www.freerepublic.com/forum/a39388c210c1b.htm

Appears to be leaning towards arms control.

This article needs to do away with two views. The Second Amendment means the right of the people, the individual rights to bear arms. This article in its current forms does not cite the founding fathers intentions. There are no records of the founding fathers ever advocating a state's rights view, or any view controlling access to military arms.

The founding fathers were clear on this issue. "well regulated" in their day meant well-trained, well-armed, and well-equipped. The right of the people means the same in the second amendment as it does in the first. To say that "the people" has a different meaning here is to say that the first amendment only protects a state's right to free speech.

How to you explain the right to assemble-- that is a collective action? -- (Comment by User:24.145.225.26)

Herbm 04:28, 12 June 2006 (UTC): The right to assemble is a personal right of each of individuals -- no membership or class status is required to exercise this right, e.g., membership in a political party or other club is not required. The right derives from the individual not the club or political party just as no membership in any political party is required to vote (in a general election).[reply]

It is practically impossible to find any examples of a "collective right", certainly not any mentioned in the Constitution where every reference to rights of the people means individual rights; this is especially true of the Bill of Rights (containing the 2nd Amendment) which were added specifically to further guarantee and explicitly enumerate essential rights.

RIGHT PEOPLE KEEP BEAR ARMS SHALL NOT BE INFRINGE

These common words above are conveniently linked right to their definitions in Webster's 1828 dictionary.

Also see what militia means: MILITIA ACT

How do you know what the founding fathers meant? Have you asked them?

In the 18th C most Englishmen carried a gun or sword. Nowadays even our policemen are not armed - they don't need to be. We have a peaceful society with a low homicide rate and a virtually zero gun homicide rate.

Seriously, there IS a debate about what they meant and how relevant this amendment is to the 21st century America. Both points of view need to be stated. Exile

I suggest you look at Luther Martin to see a very clear statement of the other view. - User:24.145.225.108

If you believe well regulated simply means well trained I suggest you look at the Articles of Confederation and The Federalist. - User:24.145.225.108

Anyone who has kept up with this debate ought to be aware that the 5th and 9th Circuits have rejected the simple dichotomy of individual and collective right. We now have a spectrum that runs from expansive individual right to limited collective right. Scholarship has also accepted that we now have a range of views, including a number of theories that fit in between these two poles. Here is what Hamilton said in the Federalist: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security"- User:24.145.225.108

As I understand it, America had no state army when the Ammendment was made and this was originally one of the ideals of America that it would be a peaceful nation, with no permenant standing army, perhaps a reaction against the constant war among European nations (how times have changed!). However, it was obviously necessary that America would be able to defend itself if it came under attack - therefore it ensured that its citizens would be well armed, and if an attack was made then they could form a temporary army to fight off the invasion and then disband again when the threat had gone. Therefore the right to bear arms was only a precaution in case of war, it was not meant to refer to people carrying and using guns in peacetime. --Cap 18:18, 10 Sep 2004 (UTC)

That line of reasoning doesn't make much sense because it completely ignores the need for self-defense which is necessary in peacetime as well. Mdchachi|Talk 22:47, 8 Nov 2004 (UTC)

Mdchachi makes a good point above. Cap, are you certain all future military leaders of our standing army will be benevolent?

Actually, the individual right of self defense was something that existed under common law and there would have been little need to include it in constitutional law. Most common law rights were not included in the early declaration of rights found in state constitutions. There is no evidence of efforts by British or colonial authority to abolish the common law right of self defense. Indeed, John Adam invoked such a right in defending British troops in the Boston Massacre. What the colonists faced was an effort to disarm the militia. The first evidence for an individual right in constitutional law may be found in the Jacksonian era when a few states revised the phrase "bear arms in defense of themselves and the state" and changed adopted a new formulation--to "bear arms in defense of himself and the state." This change calls into question many of the claims made by collective and individual rights supporters.

Copyright Infringement?

The intro text was clearly copied from http://supreme.paxtv.findlaw.com/constitution/amendment02/ although modified somewhat. Perhaps it should be reworded so that it not such an obvious copy?

I have addressed the issue, and have also reformatted the article like all the articles on Articles (e.g. Article Three of the United States Constitution) and First Amendment to the United States Constitution.) -- Emsworth 22:31, Jun 4, 2004 (UTC)

The second amendment is in place as a check against the power of the government. It creates a scenario where every citizen could possibly own a weapon. If the government were to become gradually more and more tyrannical, as Zarconnen says above, a system would be in place that would allow for the oppressed to fight back. Now the idea that a couple of guys with pistols are going to take on the US Military is, when considered in that way, ridiculous.

But what if a majority of the population united to rebel against the tyrannical government. In this situation it can be reasoned that many members of the offical military will rebel right along with the rest of the people. Actually I think it's likely that a higher percentage of military personnel would fight the people's fight. When viewed this way, it's not quite so ridiculous. Not only will there be many trained soldiers to help fight the rebellion but the official military force would be significantly weakened by the dissention.

I believe it is entirely feasible to overthrow a government. At least one that is sufficiently corrupt to incite such a major rebellion. If you don't believe that, pick up a history book and turn to page 1776!

No offense to my Brit buddies.

Someone should mention how limited this admendment has become. If this was interperated as widely as the first admendment, computer virus would be protected, as well as pipe bombs.

... and nuclear weapons...

Last time I checked it not illegal to write a computer "virus." Only to spread it. Secondly, as the Supreme Court ruled, the second amendment only applies to "ordinary military equipment" (United States v. Miller, 1939), therefore nuclear weapons do not count. Only things which applies to the individual soldier. Of course in reality, that is not the laws we are living with under in the United States. Note that the Supreme Court has never accepted a case where "ordinary military equipment" was in question. The latter meaning small arms and automatic weapons. Also, the fact that the equivalent of pipe bombs WERE legal during the writing of the constitution (in fact, all bombs), would certainly lead one to believe it was not their intent to ban it. In fact, pipe bombs were legal for the first 158 years of this country's history, which is both the majority of it, and the time closest to the creation of the constitution. Wodan 14:10, Apr 15, 2005 (UTC)

The Bill of Rights addressed the concerns of those opposed to a strong central Government

For an excellent overview of the history and evolution of the Second Amendment, read "That Every Man Be Armed" by Stephen Halbrook, particularly Chapter 3 pages 76-87, in which James Madison's original proposed amendments are discussed, along with the different House and Senate versions. The exact wording, like everything Congress does, was a compromise. There is also a linguistic analysis of the wording, which predates the American Revolution and has it's roots in the seventeenth century English Bill of Rights.

What is remarkable about the passage of the American Bill of Rights is that no one argued against the concept of an individual right to keep and bear arms; most of the debate on the Second Amendment centered around whether the militia clause was necessary, or if it were necessary, just how it should be worded. Other debate centered around whether it was even necessary to have a Bill of Rights, either because it could never list all the rights freemen possesed, or that such rights were too fundamental to ever be taken away. The Ninth and Tenth Amendments summed up the argument: the Federal government was only allowed to do what the Constitution said it could do, all other rights were reserved to the people, or to the States.

The argument about the meaning of the words "the people" is not insignificant. In the Bill of rights, the phrase is used in the First, Second, Fourth, Ninth, and Tenth Amendments. It is not logical, and highly improbable, that the founding fathers meant to alter the meaning of "the people" from one amendment to the next. The belief that a militia was preferable to a standing army to defend the nation led to the argument that, as long as the free citizenry were armed, there would be no need for a standing army. However, it can not be logically argued that, if the militia is not necessary, then the people have no right to keep and bear arms.

Finally, as a side point, the Forteenth Amendment prohibits the States from denying "the people" any rights guaranteed to United States citizens by the Constitution. Thus, individual States are not supposed to pass laws that infringe the individual right of the people to keep and bear arms. As a matter of fact, it was in large part due to some southern states disarming the negro population after the Civil War that the Forteenth Amendment was proposed and passed. No Supreme Court case since has has found that "the people" do not have a protected, fundamental right to keep and bear arms, and only in some cases does the state and federal government have the right to place reasonable restrictions on that right.

Some amendments mention the State. 2nd amendment mentions both the State & the people.
Keeping in mind that not all rights are enumerated, there could still be a right to self-protection even if the 2nd amendment were found to apply only to militia.
I suppose there are some groups advocating disarmament; there are also some groups suggesting the 2nd amendment is there to ensure people (or a State militia) have the means to start an insurrection against the federal government. The battleground is in the middle ground -- over gun control. Is gun control true infringement, or is opposition to gun control mostly concern over some slippery slope? --JimWae 18:06, 2004 Dec 18 (UTC)

Everything after this statement was of dubious historical merit. The fact is the word people could be used in either a collective or individual sense. I suggest people look at the work of Richard Primus. -- (User:24.145.225.26 added this comment after removing the above text.)

Fourteenth Amendment

Are there any references to the legal theory by which some Amendments are, via the Fourteenth Amendment, presumed to restrain States as well as the Federal government while others are presumed to restrain the Federal government alone? The Second Amendment appears to be unique in that States are allowed to "infringe" in ways that the Federal government is not. What's the legal theory (not ruling) that leads to this distinction for the Second Amendment? Jim Bowery 01:58, 29 Dec 2004 (UTC)

It's seems to me there's a strong case to be made that by including the mention of State militia in 2nd amendment, that only the state governments can infringe (fracture) any right to keep & bear arms (as long as due process is followed)
Still, however, that does not prevent federal laws from abridging such a right --JimWae 07:35, 2005 Feb 3 (UTC)

I believe what is helpful is to look at the context of what the framers of the constitution were saying at the time of the creation of the Bill of Rights (firearm case law). Their plain language editorials and recorded comments and debates at time the over and over again lumped the right to 1) free speech 2) keep and bear arms 3) and due process as inherent rights of the citizens. The rights were always grouped together. Based on historical context, it was not their intent to separate the right to keep and bear arms from any other Bill of Rights. The fourteenth amendment was further passed to insure that states did not take away the basic rights given by the Constitution to all. There is therefore no reason to believe it should be treated differently. Wodan 14:03, Apr 15, 2005 (UTC)

The Second Amendment is not unique in not having been incorporated into the due process clause. The exceptions include: right to an indictment by a grand jury (Fifth Amendment), right to a jury trial in civil lawsuits (Seventh Amendment), and the prohibition of excessive bail (Eighth Amendment).

I, too, believe it is helpful to look at the context of how the framers presented the amendments before the legislators. In particular, the framers of the fourteenth amendment argued for forbidding the states from infringing on individuals' ability to defend themselves, and gave examples of individuals flourishing pistols to avoid being lynched by a mob. This is how the amendment was pitched to the states, and presumably this is what the states believed they were ratifying. See also: Sayoko Blodgett-Ford's excellent treatise of this subject. TTK Ciar 04:33, Jan 13, 2006 (UTC)

Infringe Definition

The distinction you allude to doesn't seem to be supported by the 1828 Webster's definition. The primary definition is "to break, as contracts". One breaks a contract by failing to perform some, not all of its conditions, and there is no evidence that this definition was different in 1828.

The other definitions also support the idea that abridgement is a form of infringement, particularly, "to transgress" and "to hinder"

I gather you are adressing my point. "Breaking a right" & "abridging a right" are clearly different. Your right to free speech is abridged but not broken when laws are enacted against libel, slander, inciting riot & yelling fire needlessly. I am liking "fracture" as a synonym more & more.

I'll agree

3. To destroy or hinder; as, to infringe efficacy. [Little used.]

is more of a problem, but find "hinder a right" a very rare expression -- and note it is listed under the same meaning as destroy. Notice example given is in connection with hindering an benefit.

The semantic issue remains, because there are 2 distinct meanings (removal or denial, & abridgement). The 1828 dictionary points to a preponderance of one meaning over the other at that time - denial.

Regarding your point of "breaking some not all parts of a contract", you seem to be begging the question what all parts of "right to keep & bear arms" would be. Are you proposing 2nd amendment is uniquely absolute & NO abridgements are allowed? Several SCOTUS's have clearly permitted abridgements.

--JimWae 21:26, 2004 Dec 31 (UTC)

An Addition

Presser v. Illinois (sometime in the 1870s) should be added, it said that wargames etc by private citizens were illegal because those involved weren't part of the militia.

That's actually not what it said. That is only partly true. Either way, it is a good case and I added it to the firearm case law page. Wodan 03:34, Apr 29, 2005 (UTC)

Needs discussion of Silveira v. Lockyer

Emerson is no longer the latest federal court ruling on the issue. The entry needs a discussion of the Ninth Circuit's decision in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).

Emerson is a recent case, but not the most recent. I'll edit this section when I get a chance. -- Temtem 03:00, Apr 29, 2005 (UTC)

Nor is Silveira the latest. See US v. Stewart in the 9th district, which let a person keep their home-made machine gun as its manufacture was outside the interstate commerce authority of congress. Mlorrey 02:47, 6 May 2005 (UTC)[reply]

I made a page for that: US v. Stewart. Although as you probably know, that is not a 2nd Amendment issue, but a commerce clause issue. I don't think the 9th Circuit Court is where one should be making his gun rights arguments to. Wodan 02:53, May 6, 2005 (UTC)

To paraphrase the Secretary of Defense, we don't always get to argue to the appeals court we want. —Tamfang 18:03, 14 February 2006 (UTC)[reply]

"Examples," etc.

These examples, I believe, should be worked into the historical discussion. (Also, the fact that these examples constitute their own section—i.e., the emphasis given them—is a subtle, or perhaps none-too-subtle, form of bias.) I shall alter their position soon, if no one objects. Hydriotaphia 07:24, Feb 7, 2005 (UTC)

New firearm case law page added

I've created a firearm case law page which helps put Second Amendment opinions into context of judicial rulings. If you find other cases which should be added, feel free to take a look. More importantly, there are a lot of "red link" cases on there that I would like to see become "blue link" cases. Wodan 13:57, Apr 15, 2005 (UTC)

Where is the neutrality dispute?

Whoever thinks there is a POV issue here, please point out the details so the article can reach a correct balance. If nobody wants to point anything out, it does not deserve the neutrality tag at the top. Wodan 02:54, Apr 29, 2005 (UTC)

It's been a week and not a word from anybody about the neutrality dispute, so I'm going to take it off. If somebody has a neutrality issue, please post the exact text you have a problem with here in order to discuss it. Wodan 13:51, May 5, 2005 (UTC)

I've been busy. I see a whole ton of pro-gun things have been entirely stripped while the typical anti-gun excuse making remains. Mlorrey 02:49, 6 May 2005 (UTC)[reply]

My neutrality issues with this article are less with what the article says and more with what the article doesn't say. The sentences regarding the fact that the Founding Fathers could never have envisioned a world without the 10 rights and the sentence talking about how the Founders never envisioned TV, radio, etc. are clearly arguments. One could argue just as effectivly (1) that the Founders could indeed envision a world without the 10 enumerated rights (there were other rights that were proposed for the Bill of Rights and failed, the Bill of Rights was a result of debate and compromise, and we are permitted to amend the Bill of Rights thus indicating that the Founders' believed that future generations may not agree with them) and (2) that even though the Founders' could never have envisioned TV or radio or space travel or airplanes, etc., and these things are still covered by the Constition, they still can constitutionally be regulated by Congress. Airline travel for one was highly regulated until just the last few decades and TV is still regulated. Given this and the entire tone of the article, there needs to be a neutrality tag. --Sbstern 06:06, 10 Jun 2005 (UTC)

Founding Fathers

It would be a revisionist history coup to even suggest that the intent of the Founding Fathers with regards to the Second Amendment was not the protection of individual rights; if strictly interpreting their writings and speeches. While many may argue about court interpretation, which is anything but clear, the clear writings of those who actually played the crucial role in the development of the Constitution and later the adoption of the Bill of Rights such as James Madison, George Mason, Alexander Hamilton, Thomas Paine, Thomas Jefferson, Patrick Henry, Samual Adams, and many more, is hard to argue against. If somebody has a problem with using "the Founding Fathers" as a statement, please show evidence that there was ever any dissent during any constitutional talk by the Founding Fathers that the 2nd Amendment does not protect individual rights. At that point, you can change it. Otherwise, it is simply an injection of POV modern day politics. Wodan 20:17, May 3, 2005 (UTC)

I will also add that the Founding Fathers opinions on the Bill of Rights are not a "gun right advocates say" versus "gun control advocates say" issue. I have never heard a gun control argument using James Madison's speeches as part of their agenda. What the Founding Fathers said about the Bill of Rights is recorded in history. Again, if somebody wishes to present additional facts to oppose these statements, please do. Otherwise, historical context of the Bill of Rights is not the place to insert modern day politics. Wodan 21:10, May 3, 2005 (UTC

Founding Fathers quoted by both sides

In fact the individual rights view is a modern development. Virtually all of the quotes in this section talk about arms in the context of the militia. Individual rights scholarship only takes off after Levinson's 1989 Yale Law Journal Article.

Problems with Wodan's claims

To see the problems with Wodan's claims consider the shift in the language of state constitutions in the period between the Founding era and the Jacksonian era. State constitutions in the former use the phrase bear arms in defense of themselves and the state. The individual rights language--bear arms in defense of himself and the state only appears decades after the Second Amendment was adopted. Many scholars who support the collective rights view do quote Madison, Mason, Henry, and other founders. I fear things are not so simple and can't be settled by a battle of opposing quotes. The key issue is context. What do the quotes mean in context?

German Second Amendment article

I found the length of this article somehow shocking. One has to fight through all the opinions various people have stated about the Second Amendment... whew. It's a real struggle. I'm the main author of the German de:Second Amendment article, and I hope I omitted all the rather irrelevant facts so one can gain a good overview about the controversy without reading too much. Perhaps somebody could give me a comment about my work. --Keimzelle 10:14, 4 May 2005 (UTC)[reply]

I applaud you for your efforts. This is not a simple subject. Unfortunately shortening the subject will never make it more clear in the truest sense, but it will make it more readable to somebody not interested (or who doesn't have the time) in knowing all the pertinent information. I can tell you this without knowing any German. The English article itself is only a short introduction. For more information, here is a good article [1]. That is only one of hundreds, if not thousands of independent studies, all of them quite lengthy. Here is a summary of some of them: [2]. Click on any one of them for an idea of their level of detail. Another article I really like is a recent court analysis of the Second Amendment: [3]. You can also read the analysis by the US Department of Justice ([4]), and the United States Senate ([5]). As you can see, the Wikipedia English article is really actually quite short in historical context. The problem is that a simple article cannot be effectively written because there are many people who are not very well educated on the subject, which as you can see it's not easy to be, that want to insert modern day public opinion on the matter, or as even some lower courts have done, quote other court cases out of context. Because of this, actual historians and constitutional scholars have to add more writings as evidence of their position, and the cycle continues. Wodan 12:22, May 4, 2005 (UTC)

That's a real problem. I'm fascinated about the Second Amendment because it's a big battlefield for all the history and law scholars - if you interpret the Amendment only in a historical context (e.g. because all the male adults were members of the militia, the framers of the Amendment didn't see it necessary to differentiate between "people" and "militia" as it would make sense today), it doesn't answer all the questions you have. Can it be said that the NRA is completely blind for the historical context, or is it correct to say that historical change doesn't matter anyhow because "the words of the law are always the same"? And why is the Ashcroft brief defying U.S. v. Miller, 1939? Well, I'll post a English summary of my German article somewhere on my own wiki page. Regards, --Keimzelle 12:57, 4 May 2005 (UTC)[reply]

I'll be happy to answer some of your questions, although some questions cannot be answered because they are too theoretical:

What do you mean by "NRA is completely blind for the historical context." That is a pretty vague question. The NRA is not the only, and maybe not the major proponent of individual rights to keep and bear arms. The US Senate, the Department of Justice, and countless constitutional scholars say the same thing. It is in gross error to boil it down to a simple NRA subject.

In regards to your second question, it has happened many many times that the courts have re-interpreted the Constitution in a way to put words in there that don't exist. For example, the very long list of what comprises free speech, even though the 1st Amendment cannot be more clear when it says "Congress shall make no law...abridging the freedom of speech" Yet what we have today is a Virtual first amendment. In fact, the Alien and Sedition Acts proved that Congress was ready to ignore the constitution within just 7 years of its writing. Therefore your question of historical change is not possible to answer, because it is only theoretical. In reality, the US Government simply does what it wants, even if it goes squarely against the constitution, and that in turn becomes the ad hoc evolution of the constitution.

Ashcroft is not "defying" the US v. Miller case. Your understanding of the Miller case is simply incomplete (see your personal page for comments). The Department of Justice simply put out an opinion on their interpretation of the Second Amendment. It is very common for the DOJ to state their opinions on legal matter. They quoted US v. Miller in their analysis since it is the only Supreme Court case to take on the Second Amendment directly. Wodan 18:56, May 4, 2005 (UTC)

Suggestions for the German article about the 2nd Amendment

On User:Keimzelle/Second Amendment I've posted a English synopsis of the German article. I want to keep de:Second Amendment slim, but it may be that I missed some important things. Bye, --Keimzelle 13:37, 4 May 2005 (UTC)[reply]

I've posted some commentary correcting some of your page. I hope they are easily understood, and feel free to ask any further questions you might have. You may also be interested in another page I created, firearm case law. By the way, why don't you start a Gun control in Germany page to educate us across the Atlantic about your situation? Wodan 18:56, May 4, 2005 (UTC)

Thank you very much for your comments. Because I've written the synopsis rather quickly, I didn't correct my mistakes. I'm 23 and I'm a keen reader of English texts but writing accurate English texts is still a difficult task. By the way, I'm from Switzerland, not Germany ;-) --Keimzelle 19:35, 4 May 2005 (UTC)[reply]

No problem. Just note that some of the mistakes were not of language error, but were in fundamental opposition of the legal situation in the US. I am sure though that you will be able to adjust accordingly. I understand translating is extremely difficult. You are off to a good start. I'm looking forward to seeing how your Switzerland gun page turns out. Remember to quote as many facts as you can, and back them up when you can. Statements on crime like "a minority" or "a greater extent" are not too useful or credible without numbers, statistics, quotes, reports, etc. Best of luck to you in building up the details. Wodan 20:07, May 4, 2005 (UTC)

Some deleted text

I removed the following

Note that if the Second Amendment was accepted in its original form, a military draft would have been unconstitutional. It is also noted that most constitutional scholars agree that since the original House proposed amendment more clearly ensured individual rights to keep and bear arms ("A well regulated militia, composed of the body of the people..."), it is unlikely that the simpler Senate version that was soon thereafter approved by the House, had any fundamental or drastic difference in meaning, but rather, a streamlining of the wording. A more thorough study of Federalist and Anti-Federalist politics of the Constitutional debates are required to further analyze this topic.[6]

The part about the draft may be conjecture, the normal interpretation I've read about that wording was to deal with concientous objectors. Regarding the second "body of the people" that too seems like conjecture, but perhaps could be restored (with citation). After removing those, the federalist/anti-federalist part just didn't fit. As and aside, I'd like to point out that this article does not contain every revision the amendment went though, only the major ones where it went from one body to another. Reading every version, as well as the rejected changes, would be useful exercise to help examine intent, but is beyond the scope of this article (and may be construed as original research). -O^O

Most Constitutional Scholars do not agree

Jack Rakove, perhaps the leading constitutional historian writing about originalism, argues that the changes made the militia focus more clear and were not simply stylistic changes. Taking out the phrase "composed of the body of the people" gave Congress the ability to create a select militia if it deemed this necessary. Congress came very close to rejecting the universal militia model when it came to a vote after the adoption of the Second Amendment Removing the phrase "common defense" assuaged the concerns of those who feared the loss of state control. The evidence that individual rights was central to this debate is very flimsy. Why would they have worried about this given the common law right of self defense was not an issue in the Founding era?

More deleted text

Somebody actually used a Michael Moore interview for a quote on the text of the Second Amendment. I think we can do a little better than that. A lot of people have opinions. Let's keep this page to the facts. Wodan 22:48, Jun 21, 2005 (UTC)

I don't think it's irrelevant. Little had been made of the semantic issues in the Second Amendment before Bowling for Columbine. It was either simply "right" according to the gun-ownership lobby, or "wrong" according to the gun-control lobby. Most people weren't bothered about the literal ambiguity of the sentence itself until the point was raised in the film, and then suddenly everyone started using this argument. I think that makes this point very relevant, Jamyskis Whisper, Contribs 06:19, 22 Jun 2005 (UTC)

I'm afraid this is a misunderstanding of history. Michael Moore was hardly the originator of the concept. In fact, it is an old argument. Regardless, there are thousands if not millions of people with worthy opinions on the second amendment. I don't think Michael Moore has earned the right in terms of historical context to be elevated above all else. Mentioning his movie is certainly not worthwhile in a document about the living history of the second amendment. Wodan 01:02, Jun 23, 2005 (UTC)

Context of the quotes

While only some of the quotes are 1789 or later, many of the quotes are from the debates and/or introduction of the Second Amendment. They are therefore obviously directly related to it. Even the quotes not in direct relation to the intent of the Second Amendment (such as those not by the authors of the amendment) reflect the historical context of the era. Wodan June 28, 2005 22:46 (UTC)

Certainly some of the quotes give context of some of the authors intent. Yet, the amendment had not yet taken its present form, so statements such as

There is also a distinct lack of any quote by any of the Founding Fathers or their contemporaries that would indicate that the Second Amendment was only meant to apply to state run militias.

do not belong - unless reworded to "no discussion has been found that limits the right to that of the militia" (if indeed true - though some earlier statements of this right in other constitutions are quite restricted by exclusively mentioning militia) and before its adoption several of its authors spoke specifically about an individual right--JimWae 2005 June 28 23:34 (UTC)

One cannot take the meaning of a law to be identical with what was said in debate before it had its final form --JimWae 2005 June 28 23:36 (UTC)
Another problem is that so far one quote from Madison was "not an accurate quote". I do wonder how many other are also such --JimWae 2005 June 28 23:34 (UTC)
3rd problem - some of the quotes do NOT clearly speak of an individual right and do not clearly support the argument presented --JimWae 2005 June 28 23:34 (UTC)
4th problem - the article is pretty one-sided in terms of amount of text on one side or other - I say this even though I agree there is an individual right to self-protection. My issue with this amendment is the meaning of infringe - and the attempt to make this right absolute, without restriction --JimWae 2005 June 28 23:34 (UTC)

2005-Jun-29 Rewrite

I have just put the article through a considerable rewrite, and I want to comment here on the intent of this rewrite. My primary goal was to tighten up the article and focus it on the amendment itself. I've tried to make the article more readable overall, and to make the article flow more naturally when read from beginning to end. I also tried to present both "sides" of the debate in a succinct and balanced manner, and direct the reader to other articles for additional reading where appropriate.

The "quotations" subsection presented a problem for me. I agree that the subsection is appropriate, but there were an overwhelming number of quotes there, and it seemed redundant. I've tried to edit it down to the quotes that seemed to most directly apply to the topic. Please note, I made no attempt to verify that these quotations are accurately sourced, and some of them I have doubts on.

Please let me know what you think of the "new" version. I'll be happy to explain any deletions or additions that seem questionable. -O^O

Protection of Lawful Commerce in Arms Act

Just wanted to put this sucker forward, since it may effect the terms of this entry. The version that came through the Seneate says that :

SEC. 2. FINDINGS; PURPOSES.

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

I know Congress doesn't have the power to state how the judiciary should see things, but this might be important as a side-note at least.65.31.59.176 20:33, 12 August 2005 (UTC) Blueeyes[reply]

28 July version

I removed the version said to be from 28 July because the source cited is inaccurate. Source given was AoC pp. 778, which can be found here and identifies itself as for 17 August. Removed:

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

The correct AoC page for 28 July is here and has no record of this text version. Does anyone have a source for the 28 July version of the text? Jamesday 05:19, 21 August 2005 (UTC)[reply]

semantics section

I have moved the following addition to talk:

Arms had different extensive meaning in 1789, "arms" included flintlock rifles, muskets, and shotguns, one-shot pistols, swords, bayonets, and cannons, so some argue that such is all that the Second Amendment was meant to protect, not breechloader or repeater shotguns, automatic rifles, grenade launchers, anti-aircraft weapons, nor any weapons of mass destruction. Others contend that if one were to follow that line of reasoning, freedom of speech and of the press would not include radio, nor TV, nor the Internet. Infringe possibly had a different intensive meaning in 1789.

There is some disagreement over what the word infringe means. Relevant to this are definitions given in the 1828 Webster's Dictionary (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe), all of which give a sense of the complete removal of a right, not to encroachment nor to abridgement that is now one meaning of the word. It remains an open question whether or not the 1828 dictionary definition was a complete account of usage of the word at that time. According to the Encarta dictionary, (http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861621241) infringe entered the English language about 1550 from the French word frangere meaning "to break", and is the source of the word fracture. An early appearance is in Shakespeare's Measure for Measure. The Supreme Court of the United States has repeatedly permitted to stand many gun-control laws, all of which would seem to constitute abridgements on Second Amendment protections without completely removing them.

I do not know of any serious gun control organization that bases their opposition to a permissive reading of the Second Amendment on the theory that the words are simply defined wrong. The above arguments strike me as well intended, but not well researched.

1: Whether "arms" should be held to only include weapons that existed at the time of the writing of the BoR. Again, I know of no serious organization or scholar that proposes this. I know of no precedent where any other part of the constitution is held this way either.

2: Whether "infringe" could only be held to mean "complete removal". The very dictionary link referenced above includes "transgress" as a definition. Further, this argument would hinge upon the idea that the only 18th century meaning of "infringe" was to destroy. Even a single example of 18th century usage of this word that was contrary to this definition would serve to disarm this argument. There are ample historical instances that can be found where "infringe" is used as to overstep. Here is one I think is particularly clear:

yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

Note that this passage says that the meaning of "infringe" included the narrowing of a right. -O^O

Such is not so clearly stated after all. Since you have not provided the source, let me provide another interpretation: Any repeal or narrowing of natural rights is a breaking of natural rights. --JimWae 05:55, 17 September 2005 (UTC)[reply]

Hello JimWae, I not sure whether or not I see your point. We both (I think) read the above as "repeal or narrow = infringe", but then we must differ somehow. In case you didn't recognize the source text, it is from the Virgina Statue for Religious Freedom (Jefferson). - O^O

Text of the Second Amendment

There is only one version of this amendment, and it's the one written in the Constitution. --Revolución (talk) 05:36, 17 September 2005 (UTC)[reply]

I'm sorry, but there are two versions of this text. There is the version that was passed by the House, ratified by the states, and that is considered the "official text" by the US government. There is also a second version, which contains additional commas inserted by a scribe, that hangs in the National Archives. -O^O

"Civic Model"

I removed the "civic model" section that had been added. To the best of my knowledge, the "civic model" is a model proposed by Saul Cornell in some recent writings. It is not a model that has had widespread impact or attention in the legal or academic communities. If there is more body of knowledge around this "civic model", I'd be interested in reading it. -O^O 20:00, 26 October 2005 (UTC)[reply]

I would suggest you look at recent volumes of Law and History Review, Fordham Law Review, and reviews of a recent book by Uviller and Merkel. How much more evidence would you like? -24.145.225.108

Before I start, let me say again welcome to Wikipedia. Regarding your above references, I have read, or at least skimmed, most of them. Since you asked me to, it was the least I could do.

Wikipedia is not the place to debate contemporary research, it is an encylopedia. Despite this, we have too many articles that devolve to editors trying to shoehorn the latest academic theories, or latest academic mudslinging, into the article. I do not doubt that you can find plenty of symposium transcripts and publications to support your views, but that isn't the point.

As you know, the place of firearms in America is a sharply debated topic. There has been at least a small effort made to keep this article focused on the Second Amendment itself, and lave the larger argument to the Gun politics in the U.S. article. I hope that whatever changes are made to this article, we can keep the spirit of staying on topic.

There are generally seen to be two sides to the gun control debate. Even when Saul Cornell says that the dichotomy no longer seems tenable, he is explictly recognizing that the debate is traditionally broken into those two points of view. And as much as Dr. Cornell wants to declare that he has come up with the "third model" to break that dichotomy, it doesn't mean that he actually has, only that he has convinced himself and a handful of others that he has.

Cornell's model isn't the only "third model" that exists. As you pointed out, there is an entire spectrum of views out there, but there remain two dominant interpretations. We will know that the "civic rights" model has truely claimed it's place as the "third model", if and when it has taken an equal place in the public discussion of the second amendment. What Senators embrace this position in their public writing on the 2nd? What courts have explicitly embraced it? What gun control groups endorse it, or gun advocacy groups reject it?

What I see here is a new theory that is being batted around by a group of scholars, and because a handful of them have accepted it, you are attempting to promote it to equal status was the two interpretations that truely are widely accepted.

I think that this third model perhaps deserves an article of its own. It certainly deserves to be discussed in the Gun Politics pages, but it doesn't rank being considered a primary interpretation on the Second Amendment page. -O^O

In both the 9th Circuit cases and Emerson the courts noted that one could describe the spectrum in terms of at least three models. Emerson used sophisticated collective rights, but I think expansive collective rights model is more apt. In Silvera and Nordyke the spectrum was cast in terms of three views as well. Rather than describe the 3rd view as some form of collective rights model the court described it as a limited individual rights model. In his recent Harvard Law Review essay, Stuart Banner notes the growing appeal of this middle stance. While it is true that the label civic model has not yet gained traction, the debate is clearly no longer being cast in terms of two models. You also have the symposium on Uviller and Merkel's book in WMBRLJ in which Levinson the leading spokesmen for the individual rights view praised the Uviller and Merkel model as the best one currently available. If one adds the Williams book published by Yale that means that both of the most recent books on the subject have adopted some form of the middle view. I think it is certainly fair to say that so far this model has not yet been adopted by the courts, but until Emerson the individual rights model was just an academic theory as well. Perhaps the best solution is to note that the courts and scholarship have recently noted a range of theories in the middle range and that there is growing frustration with the two theories that have dominated the debate. I suspect that you will see courts and more scholars turn to one of these middle range theories. It makes no sense to move discussion of this material to gun politics. These new theories emerged from scholarship and have been noted by the courts. Thanks for the welcome. -24.145.225.108

Thank you for working in the spirit of Wikipedia, I believe the article has been improved by your contributions. -O^O

"Executive Branch" and 1954-2001 comments

A few questions before I edit that subsection. Someone changed the "first written" opinion from 2001 to 1954, cite please? The words of the Reagan SG were taken verbatim from Miller I suspect he was just requoting. I have some tweaks to the Clinton SG, but I can wait a bit for a response to the 1954 question. -O^O

I suggest you look at an article by Mat Nosanchuk in the Northern Kentucky Law Review symposium on the Second Amendment it provides the evidence for this claim

added info re miller

i've added some info regarding miller and the disposition of the court pursuant to his failure to appear, as it has a substantive effect on the interpretation of the ruling. hope that's okay ('be bold'). Anastrophe 05:05, 27 December 2005 (UTC)[reply]

Is it known when and how Miller died? Some sources say only that he had "disappeared" during the government's appeal. --Tamfang 22:29, 25 January 2006 (UTC)[reply]

from the citation i included with my edits noted above: " In fact, he died before the decision was rendered. His body was discovered in April of 1939, with multiple .38 caliber bullet wounds. His own .45 pistol lay by his side with four rounds expended. Perhaps he had a legitimate need for that shotgun after all. " Anastrophe 23:25, 25 January 2006 (UTC)[reply]

Wow, thanks. —Tamfang 09:04, 26 January 2006 (UTC)[reply]

Mediator needed to prevent ongoing edit war (2nd Amend.quote)

There is only one source that can serve as the source for 2nd Amend.'s text -- the original source, transcribed from the original Bill of Rights document.

[[7]]

This issue has already been argued before (see above), and it should have been finally agreed that no other source but a link to the original BOR document can suffice. However, we're back to people wanting to replace the original with a version that serves their political interests; they don't like the fact that the original had a couple of commas they find inconvenient. Therefore, I request that a Wiki mediator be brought in, and hopefully lock the 2nd Amend.quote to any further editing (after reverting it back to the link at the Congressional archives). Otherwise, there's just going to be revert edit-wars on this issue until doomsday.J.R. Hercules 05:15, 3 January 2006 (UTC)[reply]

this has nothing to do with politics; have you read this article? the second amendment, as ratified by the states, did not contain the comma you are inserting. the second amendment, as currently defined in law in The Statutes at Large, does not contain the comma. The version in the archives is a copy; there are many copies, some have the comma, some don't. I have no opinion on what meaning the comma may have; i am reverting on the basis of what i describe above, principally as found in the statutes at large, which is how the amendment is currently presented. please bear in mind that your request to lock the quote is your own POV, that it is the only version acceptable. The section discussing commas in the second amendment should be your guide. Anastrophe 05:25, 3 January 2006 (UTC)[reply]

I don't consider as an authoritative source an article penned here by people who have the ideological agenda to rationalize away the BoR's original punctuation. In the meantime, I'll point out that the link to the photograph of the Bill of Rights is not a "copy", but a photograph of the original document. Furthermore, your claim that the Government Printing Office's version is the "correct" version is a little strange considering that THIS link to the GPO's Bill of Rights contains the exact same punctuation as the original document (as it should).[8] J.R. Hercules 05:39, 3 January 2006 (UTC)[reply]

it is a photograph of *one of the many copies* of the document. it is not the original, or only copy. as the article points out, the version in the archives was rendered *after the BOR had been ratified by the states*. it seems clear you have not read the subsection of this article that discusses the commas. had you done so, you'd see that it describes the differences in punctuation even within the GPO's versions. again, it's worth bearing in mind that the version without the extra comma is what was ratified by the states; if that is not the 'official' version, what is?

you are claiming an ideological agenda by others; since you're laying down that gauntlet, then how about stating what your ideological agenda on this matter is. i have my beliefs as to how the 2nd amendment should be interpreted; however, i'm basing my edits upon the *historical record*, not my beliefs. Anastrophe 05:49, 3 January 2006 (UTC)[reply]

You just won't give up, will you? The photograph of the BoR on the archive website is a photograph of THE original BoR. It is not a "copy". Nowhere on the National Archives site does it "point out" that it was some "version rendered *after the BOR had been ratified by the states*".

Oh? You mean "the article" *here*, the one on Wikipedia? That's what you're referring to? You're back to that again? Something written quite possibly by yourself -- or maybe by a high school kid from Russia -- becomes the authority. Open-edit Wikipedia articles are legitimate confirmation sources for other open-edit Wikipedia articles........?

I called the National Archives. They confirmed that the copy on display there -- the one on the National Archives site -- is the original BoR. The one that has John Adams' signature (did the scribe forge Adams' too?) That's why it's in the bullet-proof case. In the bomb-proof wing. Surrounded by cameras. And security guards.J.R. Hercules 21:28, 3 January 2006 (UTC)[reply]

i'm really curious why you're so worked up about this. no, i didn't write any of the section on the commas. the only previous edit i've made to the article was to replace "protects" with "codifies" in the first paragraph. heck, you're welcome to look at the history of the article, rather than just slinging reckless accusations as you are currently. suggesting that there is one, and only one copy of the bill of rights is rather naive. this was back in the 1700's for crying out loud. they didn't draft the bill of rights, then fax it to each of the states. here's an article from the north carolina archives about their copy: [9] so, still maintain that there's one, and only one copy? Anastrophe 21:48, 3 January 2006 (UTC)[reply]

followup to my own response. here's an excerpt from the above noted article: "It was one of fourteen original copies of the proposed amendments to the U.S. Constitution - collectively known as the Bill of Rights - prepared by three federal clerks in 1789. A copy was scrivened for the governor of each state to peruse as the adoptions of the twelve amendments to the Constitution was debated; the other copy was for the federal government.". what is at issue now, is whether the thirteen original copies that went to the states differ from the 'master' copy held at the national archives. i have not yet been able to find a high resolution copy of the NC copy, or any others for that matter, but i'll keep looking. if the contention in the WP article that the thirteen other copies differ from the one at the national archives turns out to be false, then i will be delighted to remove the whole section about the comma myself. let me repeat: i have no agenda in this matter besides accuracy. Anastrophe 22:22, 3 January 2006 (UTC)[reply]

another interesting bit of history - regarding delaware's copy of the BOR, which is currently held in maryland, and which was signed directly by delaware's leaders. [10]. this is getting very interesting! Anastrophe 22:28, 3 January 2006 (UTC)[reply]

more: [11] - delaware's copy - bears the 'extra' comma. Anastrophe 22:35, 3 January 2006 (UTC)[reply]

since this is already rather drawn out, i'll try to keep this my last post in the thread. this site: [12] has a wealth of information on the amendments as proposed by the various states. the second (better simply referred to as 'right to bear arms', as it's in different positions in different state's lists - virginia has it at nineteen!), varied considerably in text from state to state (again, talking about the proposed amendments, not in terms of the final draft). new hampshire's was quite succinct, befitting the 'live free or die' state: "Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.". the presence, or absence, of a comma in the final version that was ratified strikes me as a minor issue. the intent of the different states varied, and the final wording - for better or worse - remains ambiguous (or we wouldn't be having this dispute). however, it seems fair and reasonable that the copy in the national archives, which every citizen may see for him or herself, can reasonably be considered the canonical version. on that basis, i'm removing the 'dispute' tag, removing the enumeration of the different versions at the top, but leaving the section further into the article regarding commas in place, until visual evidence supporting or invalidating it can be secured. either way, it needs to be sourced. Anastrophe 23:06, 3 January 2006 (UTC)[reply]

back again, oh well! it's worth noting that the article does specifically reference [13] an image of the printed version that was ratified by the senate, which does not contain the extra comma (and which also has "People" capitalized, unlike the one at the archives) Anastrophe 23:15, 3 January 2006 (UTC)[reply]

Thank you for reediting the quote section. I read the above links you provided above with some interest.J.R. Hercules 04:58, 4 January 2006 (UTC)[reply]

I see this issue has come up again. Another way to handle it would be the version that was used up until October 30th - that "dual mention" worked for awhile, I don't know why it was removed. - O^O

i actually think that the 'ultimate' way to do this would be - for all of the articles pertaining to the original bill of rights - that an image of the actual text, as it appears in the document on public display at the national archives, should be provided along the top of the article, with a textual version, mirroring it, provided beneath. that there are variations on the punctuation isn't in dispute; however, as i think i mentioned above, the copy of the BoR that any citizen of this country may view for themselves, which is publicly displayed, is for all intents and purposes the 'official' version, regardless of differences in various reproductions. is that POV? hard to say. if we yield to the notion that there is a canonical or authoritative version that exists, i think that that is it. since the article specifically points to the discussion about the commas further in, that seems an adequate way of keeping that issue fully and publicly addressed. Anastrophe 00:58, 11 January 2006 (UTC)[reply]

Hi Anastrophe - I was just logging off, but did one more refresh and caught your comment. I'm glad the debate here isn't about whether the commas matter (which is a whole other can of worms) but just over whether they are there or not. Since, as you say, there isn't a dispute that the punctuation is debated, I think the most NPOV way of handling it is to go back to stating the debate. If we did indeed have to select a canonical version, I think I would have to go with what the Congress voted on, not what the scribe wrote down later. Its funny that so much effort goes into this - they played fast and loose with punctuation back then, but we take it so seriously today. - O^O

militia purpose

Why does the first sentence say "...codifies the right of the people to keep and bear arms."? To me, a better expression would be "...codifies the right of the people to keep and bear arms for militia.". Isn't the purpose of the arms for use in a militia? The word 'milita' appears to have a significant importance to the meaning of the Second Amendment and should be mentioned. Of course, I might be uninformed, so I am simply asking the reason why the word militia was left out. Bruce Hallman 08:14, 02 February 2006 (PST)

The question is not: "does the second amendment give me a right to own guns" but "can the second amendment take those rights away"!. The distinction is important. Let me digress:

In the complete absense of a government, people would naturaly defend themselves from attack. Self defense is the exercise of your right to exist. You have a right to prevent someone from killing or hurting you. But what about firearms? Ok, Imagine you are a caveman. How do you prepare for an attack? do you gather pebles? do you pick a tiny stick? no, you pick the biggest damn log that you can comfortably pick up and swing. Not only do you have a right to defend yourself, but because you are not the agressor, you are not the one that tried to deny someone their right to exist, you have a right to defend yourself with supperior force!

Guns exist. you cannot wish firearms away. They are now part of the human experience. In a world with guns, the biggest stick you can pick up is a firearm. Now, about the second amendment:

As should be obvious by the foregoing, the right to own a weapon PRE-DATES the constitution. It was your right LONG before the constitution was written. The constitution cannot GIVE you any rights, it can only TAKE THEM AWAY! So the question is does the second ammendment take away your right to own a gun? No. The word militia is only there because the founders thought that having a militia was another good reason for having guns. But as the 10th amendment indicates, any right not mentioned in the constitution remains a right of the people. Unless the Constitution explicitly says "Americans give up their right to own guns", you have a right to keep and bear arms.

So that is why the word Militia is not mentioned in the explanation, because the second ammendment is about guaranteeing that you will always have the right to own a weapon, not that you can form a militia. I hope I made my point.

Dullfig 17:56, 2 February 2006 (UTC)[reply]

To mention the militia in the introductory one-sentence summary would amount to taking sides in the debate. The unambiguous, uncontroversial purpose of the Amendment is to guarantee "the right of the people to keep and bear arms" — the nature and extent of that right (is it restricted to persons liable for, or actively engaged in, militia service?), and the purpose of Congress in specially enshrining it, which are not universally agreed on, do not belong in the first sentence. —Tamfang 21:01, 2 February 2006 (UTC)[reply]

Couldn't have said it better myself :-) -- Dullfig 21:04, 2 February 2006 (UTC)[reply]

Afterthought — adding the "militia" phrase could work against the anti-gun side. "The Second Amendment condifies the right to bear arms within a well-regulated militia. The right to keep and bear arms for self-defense was considered too obvious to mention, and is protected by the Ninth Amendment." Heh. —Tamfang 06:35, 8 February 2006 (UTC)[reply]

Well, I reaffirm my ignorance, and it is a shame that taking sides is so real here. The purpose to bear arms is quite clear and important in the Second Amendment, and the importance of purpose was central to and affirmed by the Miller case, right?

More, the US has subsequently defined 'milita' quite clearly in Title #10 section 311, which excludes people that are under 17, over 45, female, and not able-bodied. I don't see how the Second Amendment applies for uses outside of militia. If, per the Supreme Court, sawed off shot guns have no use in a milita, why doesn't the same logic apply to the gun rights of people not eligible to serve in a milita?

The founding fathers found it quite important to mention the purpose (in the one sentence long) Second Amendment. To exclude the purpose, (in our one sentence long) summary sentence appears to accomplish not much more than appeasement to those people taking sides, and I argue, changes the meaning written by the founding fathers from guns for a militia purpose, to guns for unlimited purpose. Bruce Hallman 12:47, 09 February 2006 (PST)

And I might argue that your proposed language changes the meaning of the 2A from defending a private right to creating a collective right.

You may hold that there is no right to keep and bear arms outside the militia, but in that case the militia restriction is inherent in the phrase the right to keep and bear arms! (Kinda like how my license to drive a car does not authorize me to drive a stolen car, though that restriction is not explicitly stated.) The introductory sentence as it now stands is sufficient: whatever right the citizen has to keep and bear arms, broad or narrow, the Second Amendment codifies it (incorporates it into the written law). This is consistent with all the theories. Your proposed version is not.

My own ~~rationalization~~ understanding is this: the preamble reminds us that standing armies are a threat to liberty, and it's better to rely on a popular levy ad hoc; and for this purpose (not excluding other purposes) it is necessary that the people at large be familiar with arms and skilled in their use, which cannot happen unless the citizen is assured of the freedom to acquire that familiarity and skill – including grandma, who while not liable to militia service herself can still contribute to the effectiveness of the militia by teaching Junior to shoot rabbits (without waiting until he's 17, any more than you should wait until voting age to learn to read). This view is consistent with US v Miller to the extent that a theory can be teased out of that poorly-written ruling. (A minor point: US v Miller does not say that short shotguns have no militia use; it says that the courts are not aware of such a use, and without evidence on that point the District Court had insufficient grounds to dismiss the case. I might also note that neither court showed any sign of giving a damn that the defendant was not acting in a militia capacity.)

Meanwhile, Eugene Volokh (a law professor) argues that the presence of a preamble is less significant than you might think, citing from State constitutions of the same period many examples of rights clauses with preambles that we would not ordinarily read as restrictive. [14] For example, New Hampshire's constitution of 1784 said: "The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved." Would we infer that writings not directly concerned with politics, e.g. fiction and criticism of works of fiction, are not protected?

—Tamfang 23:10, 9 February 2006 (UTC)[reply]

Thank you Tamfang, I appreciate your thoughtful and extensive reply. Though, I don't understand why something as simple as the first half of the sentence needs such an extensive reply. Shouldn't a literal reading of the Second Amendment carry extra weight over your own non-literal inference and understanding?

By the way, your non-neutral point of view is plainly evident. Witness your Feb 8, 2006 comment below "Brady Campaign to Monopolize Gun Violence". Also, in your post above you wrote: "The unambiguous, uncontroversial purpose of the Amendment is to guarantee 'the right of the people to keep and bear arms'." Why does your quotation of the Second Amendment truncate away the first half of the sentence, focusing only on the second half?

I can agree that you apparently find the first half the sentence ambiguous and controversial, but the Supreme Court, which should by definition reflect a neutral point of view, has ruled that the purpose of the Second Amendment matters. The word and purpose, 'militia' has been ruled to be relevant by a neutral and higher authority than you (and Mr. Volokh), even though you don't like it. Bruce Hallman 18:05, 09 February 2006 (PST)

You asked why the word militia was left out; I tried to tell you. You said something about US v Miller that I believe to be mistaken, and based part of your argument on it; I told you what I believe the Court really said on that point. You asked why "the same logic" doesn't apply to persons outside the militia; I tried to tell you. Now you "don't understand" why I went to so much trouble; but as to that I am content to leave you in the dark, and hope I may be forgiven for my sloth.

The existing version of the introduction is obviously consistent with the view that the 2A protects a broad individual right; I have argued that it is also consistent with the view that the 2A protects only a narrow collective right. If you disagree, please address my argument. Here's a summary of my argument, again: if there is no RKBA outside the militia, then the RKBA necessarily implies the militia and there is no need to mention the militia explicitly.

Your proposed language is consistent with the view that the 2A protects only a narrow collective right, but not consistent with the view that it protects a broad individual right. If you disagree, please say why.

If my foregoing two statements are both true, then the shorter language is more neutral than what you propose, and thus preferable. If you disagree, please say why.

If a literal reading is to "carry extra weight", why do you want to replace a phrase that is in the Constitution ("the r. of the p. to k.&b.a.") with one that is not ("the r. of the p. to k.&b.a. for militia")? What on earth does it mean, anyway? It looks like "the right of the people to follow orders if enlisted," which is Newspeak. Does it amount to anything other than prohibiting the government to disarm itself? Or do the people have a right to form militias independent of the state, and to K&BA for that purpose? If so, how do we distinguish such keeping and bearing from doing so for, say, private security?

The second half of the 2A says what the clause is intended to do. The first half gives one reason why, which is interesting and decisive in some difficult cases (as the Miller court argued, though on even-numbered days I may not agree that it's relevant to Jack Miller's case) — but not half as important as the operative part. Reading the preamble is like reading the legislative history to infer the intent of Congress where the wording of legislation is ambiguous. I never said it's entirely irrelevant, so feel free to stop hacking at that straw man; then maybe you'll have time to address my actual argument on the point that you raised.

If you want to persuade people that the 2A does not recognize a broad right to keep and bear arms, you're in the wrong place. Our purpose here is not so much to discover its true meaning as to describe the 2A in language consistent with all viewpoints insofar as that is possible. However, I have argued that the 2A itself, not ignoring the militia clause, is consistent with a broad individual right, and so is Miller. We can agree to disagree, but I obviously will not concede that your view is valid or "neutral" and mine is not. Don't wave the Supreme Court at me unless you can show how Miller is inconsistent with my view as stated above. (Note that I'm not saying mine is the only view consistent with Miller.) We can discuss Cruikshank too if you like, or how about Dred Scott?

Maybe the Supreme Court "should by definition reflect a neutral point of view," in a perfect world, but it would be foolish to suppose that it always does; good thing you didn't say that. (The decisive authority, I say, is the understanding of those who voted to ratify the clause, insofar as that can be ascertained.)

Yes, I have a definite opinion on gun rights. So? My remarks here do not purport to represent a consensus. If I expose my bias for all to see, at least you have a fair chance to correct for it (assuming I'm not really a pro-government extremist trying to make the individualist side look silly). Do you expect us to believe that you have no opinion?

—Tamfang 05:00, 10 February 2006 (UTC)[reply]

Thanks, Tamfang, for being patient with me. I am a little slow sometimes. Please correct me if I misunderstand you.

We agree that the summary sentence of the Wikipedia article should have a neutral point of view.

Or, at least, so we piously pretend to believe. ;) That's a start.

I believe it should try to summarize the entire second amendment. You believe it should summarize only the second half.

Wrong. I believe that the language as it now stands is a sufficient summary of the whole. There may be a place for militia in the summary, but your first proposed version is just plain inaccurate; your second (below) illegitimately elevates the subordinate clause to equal weight with the main clause; and I for one am not motivated to write one for you. (I didn't write the present summary either.)

A red traffic light forbids cars to move forward. Its purpose is to prevent collisions. Is the first sentence of this paragraph therefore inadequate?

I believe that the second amendment mentions 'militia' for some significant reason (purpose). You believe that the mention of 'militia' is not significant.

Having already discussed the militia aspect at some length (and been mocked for doing so), I don't know what to say to that — in mixed company.

I would like the word 'militia' mentioned. You do not. You believe that not mentioning the word 'militia' is a neutral point of view.

In the summary, yes. It is in the nature of a summary to omit something. (I would have no quarrel with a summary of the Bill of Rights that, for brevity, omits any mention of the Third and the first clause of the Seventh.) I do not contend that it would be "neutral" to omit discussion of the subordinate clause from the whole article. Is the second sentence of the page not good enough?

Doesn't 'neutral point of view' imply meeting in some common middle place? You seem to want the 'middle place' to be 100% on your side?

Suppose I grab you on the street and demand all your money. A neutral party comes along and offers to settle our dispute. Would it be fair to assign me half of your money?

I have argued that the brief summary as it now stands is adequate and neutral, and you have made no effort to refute my argument. Going once, going twice, I assume you concede.

I agree with your criticism that my initial suggestion could be viewed as not neutral. Perhaps there is other wording of the sentence, still including the word 'militia', which would be neutral and acceptable to you? Say, for instance, "...declares that militia are important and codifies the right of the people to keep and bear arms." Or, could you suggest a wording of the summary sentence that uses the word 'milita' and doesn't entirely ignore the first half of the Second Amendment?

My version would go something like this: "The Second Amendment declares that a popular militia, rather than a standing army, is the best institutional defender of political liberty, and to that end commands that the people's right to keep and bear arms be honored." But that's longer than the Amendment itself.

I disagree with you that this is a black and white 'broad' versus 'narrow' question. The question I see is what meaning of purpose should be read into the 2A, and omitting the entire first half of the 2A from the summary sentence dodges that question, and is far from neutral.

Broad and narrow are relative terms, not absolutes. Are you not aware that there are schools of thought on the issue that can be so described? Or are you saying that the axis along which we need to seek neutrality is something else?

Very often, dodging the question is the most neutral thing to do. —Tamfang 06:49, 11 February 2006 (UTC)[reply]

P.S. I think the third paragraph of section #4.3.1, starting with the work 'Cruical...' is decidedly non-neutral. The crucial part of Miller is the sentence "It must be interpreted with that end in view." Bruce Hallman 17:50, 10 February 2006 (PST)

You seem to read that passage as saying that the phrase "in the absence of any evidence" expresses the core of the SC's theory on the 2A. It does not say that: it says that if you misunderstand that phrase (as you did above, in my opinion, confusing absence of evidence with evidence of absence) you are likely to misunderstand the procedural nature and scope of the ruling.

Since the passage evidently is not as clear as it might be, I'll look into improving it. —Tamfang 06:49, 11 February 2006 (UTC)[reply]

My turn to ask some loaded questions.

Do you agree that the Second Amendment says "the right of the people to keep and bear arms shall not be infringed"?

Do you contend that the Second Amendment contains the phrase "keep and bear arms in or for a militia"?

Is there, in your opinion, a right to keep and bear arms outside the militia?

If yes, what's the big deal?
If not, then is the militia restriction not inherent in the right itself, and is mention of it not therefore redundant in a brief summary?

—Tamfang 06:49, 11 February 2006 (UTC)[reply]

>My turn to ask some loaded questions.

>Do you agree that the Second Amendment says "the right of the people to keep and bear arms shall not be infringed"?

Actually, your omission of the first part which includes the purpose, or an ellipsis, is a significant distortion IMO. I would agree with "...the right of the people to keep and bear arms shall not be infringed." The purpose matters, and I don't buy that the intended purpose was unlimited.

Did I ever say it was? You can stop bashing that straw man any time now.

>Do you contend that the Second Amendment contains the phrase "keep and bear arms in or for a militia"?

It doesn't say that exactly. And, I would agree that the 2A is somewhat ambiguous. I do believe that the Second Amendment was written with a purpose, and that reading the 2A is the first place to look for understanding that purpose. The phrase "keep and bear arms in or for a militia" accurately describes the purpose that I understand upon reading the 2A.

And yet the Court took no notice of the undisputed fact that Miller and Layton were not acting "in or for a militia".

>Is there, in your opinion, a right to keep and bear arms outside the militia?

Yes, but, I am not convinced that the 2A was written with the intention of protecting a broader version of that right beyond a well regulated militia. A broader version of the right might be (probably is) protected in common law, and other ways, but that is off-topic for a discussion of the 2A.

>* If yes, what's the big deal?

IMO, the 2A does not protect the right to keep arms, beyond keeping arms for use in a well regulated militia, or the right to bear arms outside a well regulated militia, and saying otherwise is a stretch and incorrect. To be correct, look for that right elsewhere. The 'big deal' is that people who advocate for a broad gun rights appear to me to be improperly co-opting the 2A.

The Second acknowledges that a right exists (Cruikshank). The Ninth forbids inferring from the Second that the broader right is not protected. Both are thus relevant to the broader claim.

>* If not, then is the militia restriction not inherent in the right itself, and is mention of it not therefore redundant in a brief summary?

Not mentioning the purpose written in the 2A is an implied expansion of the purpose to something it is not. 'brief summary'? The 2A is pretty brief in itself. IMO, quoting the 2A verbatim would be an improvement over omitting the first clause. The first clause contains the purpose, which I see plainly spelled out.

Then let's start over and discuss restructuing the article.

> Miller

I think I get the concept that there was not evidence presented to the Supreme Court to determine that the sawed off shotgun had a purpose (or not) for use in a militia. But didn't the Supreme Court write that: "It must be interpreted with that end [militia use] in view." 'Must' is a strong word.

The relevant phrase is "to assure the continuation and render possible the effectiveness of such forces", which is much broader than "militia use". (Tsk.) As I argued above and you have not disputed, a broad right serves that "obvious purpose" by encouraging self-training; clearly the "obvious purpose" is not served by self-training in weaponry not suited to militia use, and therefore the Court asked for evidence that a short shotgun is so suited.

> ...a popular militia...

Doesn't US Title 10 limit the militia to be subject to the command of the President? Does your word 'popular' imply that you believe that militia can legally, [per federal law], operate outside federal regulation and the military chain of command? To my eye, federal law prohibits that.

Bruce Hallman 11:30, 11 February 2006 (PST)

By "popular" I meant only that the militia is drawn directly from the people at large, rather than from the much smaller class of professional soldiers. —Tamfang 23:36, 11 February 2006 (UTC)[reply]

interpretation

Since I see editors arguing over how to interpret the meaning of the Constitution, allow me to remind everyone that it is not our job, as Wikipedia editors, to do so. Our job is to verifiably summarize reliable sources using the neutral point of view. We should simply report what notable scholars and commentators have written. Cheers, -Will Beback 20:09, 11 February 2006 (UTC)[reply]

The standard model is a modern invention. The notion that Buzzard was the only case supporting the militia view is not supported by the sources. What about Aymette? If an individual right had always been part of state constitutions why the big change in language in some Jacksonian constitutions? I suggest everyone look at the review of the Harcourt volume in U of C Law Review -- (comment added by User:24.145.225.26)

Aymette was an 1840 case where the Tennessee Supreme Court stated that it was legal for Tennessee to legislate the method of bearing arms, which in this case was regarding the concealed weapon carry of an "Arkansas toothpick" or a Bowie knife. Reference: [15] As this was but a State Supreme Court, it has no bearing on the US Supreme court rulings regarding Standard model versus Collective model. The Standard Model was still the dominant view at this time in the US Supreme Court. Yaf 21:13, 1 March 2006 (UTC)[reply]

I appreciate your reminder, and that is why I am asking here about my idea that the neutrality of the summary sentence could be improved by some recognition of the purpose of the Second Amendment mentioned in the first clause. Wording like:

"...declares that militia are important and codifies the right of the people to keep and bear arms."

...would be more neutral than not mentioning militia at all. I think that Tamfang disagrees, though I believe he didn't object explicitly that my latest proposal is not neutral. I did cite a reliable source, the Supreme Court, in the Miller case, said that the militia purpose matters. I accept as valid his criticism that my first proposal was not neutral. BruceHallman 23:12, 11 February 2006 (UTC)[reply]

Better, but the two clauses need a logical link such as "to that end". Also, "declares ... important" is flabby; the reader may be puzzled at why a mere finding of fact is in the Constitution. —Tamfang 23:39, 11 February 2006 (UTC)[reply]

Such as: ""...states that militia are necessary and codifies the right of the people to keep and bear arms to that end." ? —BruceHallman 03:28, 12 February 2006 (UTC)[reply]

I'd prefer "and to that end codifies", and "states...necessary" is almost as weak as "declares...important", but it's getting better. "affirms the necessity of popularly-based defense"? no, that's merely more words .... —Tamfang 03:59, 12 February 2006 (UTC)[reply]

Or this: ""...holds that militia are necessary and to that end codifies the right of the people to keep and bear arms." The verb hold comes from the "holds these truths to be self evident..." and the adjective necessary comes directly out of the 2A. BruceHallman 16:52, 12 February 2006 (UTC)[reply]

How about "to ensure the effectiveness of civilian forces, codifies"? —Tamfang 18:17, 12 February 2006 (UTC)[reply]

'militia' is definitely more neutral than 'civilian forces', at least from my perspective. Not to mention that 'militia' comes directly from the 2A, and 'civilian forces' is an interpretation. I see 'militia' as being under a federal chain of command, based on Title 10. The use of 'civilian forces' could include groups like the Minute Men Civil Defense Corps, who do not qualify as a militia per Title 10, because they are rougue. Actually, I had considered wording in the past tense, (and abandoned the idea due to likely being non-neutral), because the militia of the late 1700's is archaic, without a modern example that relys on private arms, besides the National Guard who do not. BruceHallman 22:26, 12 February 2006 (UTC)[reply]

Past tense is okay with me, but because it's archaic I'd like to make explicit what militia meant. It certainly does not mean the National Guard if Federalist 46 is any guide. —Tamfang 01:38, 13 February 2006 (UTC)[reply]

Our quarrel is precisely over which expression is most "neutral", and I can't see how to answer that question without interpretation, since the primary sources are ambiguous. —Tamfang 23:36, 11 February 2006 (UTC)[reply]

You can always include them both. -Will Beback 21:18, 12 February 2006 (UTC)[reply]

We're debating whether/how to add a phrase to the first sentence of the article. Bruce, how do you feel about having both a short and a long version? I think it would look odd. —Tamfang 01:38, 13 February 2006 (UTC)[reply]

I think and hope that we can find a mututally acceptable improved neutral point of view introductory sentence. Like this?

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, held that militia were necessary and to that end codified the right of the people to keep and bear arms.

BruceHallman 03:38, 13 February 2006 (UTC)[reply]

militia is singular and the phrase is still ridiculously vague. I wish we hadn't driven everyone else away from the discussion! ;) —Tamfang 05:12, 13 February 2006 (UTC)[reply]

Have been following this discussion for several days, now. NPOV is most desireable, but difficult to obtain on this in a short, one-sentence overview. That said, how about the following:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of the militia."

I tend to agree with Tamfang, that the militia was likely mentioned only as a parenthetical "good" reason for the RKBA, but was not meant to stand as the sole reason. Yaf 22:00, 13 February 2006 (UTC)[reply]

Do you agree with Tamfang? Tamfang wrote earlier that he/she favored the 'to that end' phrase, and while you wrote militia in the singular, he/she did not. Your belief of "not...the sole reason", which I respect, is not literally what the 2A says and is not in conformance with settled law since 1939. So, I don't see how it can be justified as a neutral position. Though, your position is consistent with the side of people who advocate for RKBA. My concern is that, although a broad personal RKBA is valid, it is not explicitly protected by the 2A, and co-opting the 2A to defend the RKBA is not neutral. Therefore eliminating 'I believe' and 'I understand' assumptions helps with neutrality and a straightforward literal conservative summary is better, like:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, held that militias were necessary and to that end codified the right of the people to keep and bear arms.

BruceHallman 14:37, 14 February 2006 (UTC)[reply]

I still favor "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of the militia." Now, as to your proposal of Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, held that militias were necessary and to that end codified the right of the people to keep and bear arms."; this, I feel, is not correct, for the RKBA of the people is not predicated on the existence of the milita. Your choice of "...and to that end codified..." implies that the right is reduced to a code of laws predicated on the existence of the militia. If the militia is ever abolished, or becomes a total anachronism, through legal manipulations in the courts or whatever, then, under your wording, the RKBA disappears. It does not. Instead, the RKBA is separate from, and distinct from, the existence of the militia. This is because the RKBA is instead established by the Ninth Amendment. The ninth, as I am sure you know, states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Under English Common Law dating back to Blackstone, the people have had a RKBA. The Ninth Amendment retains this right for the people. The Second Amendment then adds that this pre-existing right may not be infringed, and the reason listed why it may not be infringed is that "a well regulated Militia" is deemed good because it is "necessary to the security of a free State", as stated in the Second Amendment. Hence, I still support the following wording: "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of the militia." Yaf 16:13, 14 February 2006 (UTC)[reply]

Bruce: As to the mystery of my gender, a hint: Tamfang is Elvish for copper beard. (Not conclusive, as my ex-wife can attest.) I'm the one who said militia is singular. I disagree that the law is "settled ... since 1939," since the Miller case never reached a conclusion (the Supreme Court said start over, but Miller was dead). I would also distinguish between what the authors and ratifiers of the Second Amendment understood it to mean and what the Supreme Court (the same political appointees who erased the Tenth Amendment by holding that growing corn for your own consumption is "interstate commerce") said it means. The Supreme Court is generally not held to have been infallibly correct in Scott v Sanford, Plessy v Ferguson or Lochner, for example, why should it be so in Miller? (Even if its ruling in Miller resolved the case, which it didn't; it said "start over" but Miller was dead.) —Tamfang 18:39, 14 February 2006 (UTC)[reply]

Yaf: I see no contradiction between the propositions that the RKBA is broader than the militia purpose and that the authors of the 2A were motivated by a militia purpose (which it would be dishonest to conceal) in specially protecting it; see my earlier argument about the Ninth Amendment. There's nothing very unusual about a law whose application is somewhat broader than its immediate purpose. Thus I suggested and to that end because it gives away much less to the "it's for the National Guard" party than Bruce's original RKBA for militia language. And I still think "the militia is important" is both limp and uninformative, but if you and Bruce are both happy with that language I guess you can have it; I have nothing to offer that isn't longer and more contentious. —Tamfang 18:39, 14 February 2006 (UTC)[reply]

Yaf suggested: "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of the militia."

I favor: "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, held that militias were necessary and to that end codified the right of the people to keep and bear arms."

I argue that the order of the 2A, where the militia clause is followed by the RKBA clause carrys meaning, (meaning: 'and to that end'). That is why my suggested sentence is more neutral. Yaf's sentence moves the 'militia' clause to a more incidental position, as if an after thought, and thereby introduces bias.

BruceHallman 19:39, 14 February 2006 (UTC)[reply]

Tamfang, I agree in principle with your point. Then how about considering the following, instead:

"Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of this right towards supporting a well-trained and well-equipped population of civilians in maintaining the security of a free State." This leaves open (somewhat) whether the right exists for individuals (which I believe it does, but by the Ninth Amendment, not by the Second Amendment) or whether it exists only for groups of individuals, which by its intentional vagueness is probably a more NPOV way of stating it for an introductory sentence intended for an overview.

The NPOV issue seems largely to revolve around the translation of what has become archaic word definitions that have changed somewhat in their common usage (well regulated, Militia, infringed) since the time of the original writing. As for the National Guard issue, this is not an issue, as it was not what was described at the time of the crafting of the wording of the 2A. A select Militia was the expression that would have been used at the time for describing such Governmental bodies, and the fact that it was not chosen means that this was not the precise type of Militia that the importance of this amendment was intended to address. A well regulated Militia on the other hand is a group of well-trained and well-equipped civilians.

Anyone have problems with using this revised introduction sentence to replace the existing one that is in the Wikipedia Article? Yaf 19:42, 14 February 2006 (UTC)[reply]

Yaf, I have a problem because the 'citizens' you describe are not necessarily part of the command structure of the military as required by Title 10 which is the present official definition of militia. That is the rub; where people that want to use the 2A to defend gun use for self-protection, hunting and recreational uses go wrong in my opinion. Not that people do not have the right to use guns those ways, it is just that the 2A does not give them those rights. The 2A had the purpose of making sure that the citizenry kept and bore arms for use in a militia, a militia which is archaic today. U.S. v. Miller said that the use of a gun in a militia must be considered. Miller is the latest word from the Supreme Court on this, no need to call it settled, it is just the latest. Any sort of wording consistent with Miller would be neutral in my opinion. Perhaps there is some sort of ambiguity that we can agree upon that can be read both ways? I am looking for some wording that includes 'militia' and that describes 'purpose'. The 2A has both, and the summary sentence should have both. BruceHallman 21:33, 14 February 2006 (UTC)[reply]

Ah, you are confusing the militia with the Militia. Title 10 is only one definition of Militia/militia; namely, the militia. There is still the pre-existing constitutional Militia of the 2A, consisting of all 18 to 45 year old males whether citizens or not, as well as the now-extended 1958-revised Title 10 defined militia consisting of those males who are at least 17 up to 45 year olds without prior military service, extending up to under 64 year olds with prior military service, and additionally including women who are officers in the National Guard. The Militia is not strictly under the control of the military; the militia ostensibly is. I disagree with your statement that the Militia and/or militia is archaic today. It is still the ultimate re-set button to reboot the Governmental system of the republic, should that ever become necessary. (I sincerely hope it never does.) U.S. v. Miller said that the militia usage of weapons mattered on the infringement issue regarding the permitted choice of arms; it did not say that actual service in a militia for either a particular gun or any particular individual was a pre-requisite necessary to establish permission of ownership of guns in general. The reason, I believe, is that the Ninth Amendment already guarantees private ownership of guns, in principle.

So, how about the following, "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, codifies the right of the people to keep and bear arms and states the importance of this right towards supporting a well regulated (that is, a well-trained and well-equipped) Militia in maintaining the security of a free State." I am about to think only the original 2A will serve, ambiguities and all, for an opening sentence. Would you agree with just using it? :-) Yaf 22:11, 14 February 2006 (UTC)[reply]

Yaf; Please cite the source(s) of your distinction between "Militia/militia". I do not see it in Miller. I do not see it in Title 10. When I said the militia is archaic, I meant that the 'unorganized militia', the "bring your own gun militia", described in Title 10 is archaic.

Your 'ultimate re-set button' analogy appears just wrong to me. Such would amount to rebellion, and the President could enlist the militia to fight against a rebellion. How could that be, the militia fighting the Militia? I am not convinced that the Militia/militia exists outside the command structure of the military, now or in 1789, please cite your references. By your logic, correct me if I am wrong, the Whiskey Rebellion of 1789 would have been a Militia protected by the 2A? BruceHallman 22:58, 14 February 2006 (UTC)[reply]

Bruce, the militia clause is a subordinate clause. If it is to be promoted to equal grammatical status with the main clause, a balancing demotion in sequence is appropriate. — The legislative definition of militia is, to a first approximation, all young male citizens; I don't see anything about command structure in that definition, or in Miller. (I'm not convinced that the legislative definition of militia, written after the 2A, is relevant; could Congress change the meaning of the First Amendment by an act redefining religion and speech and press?) — That the 2A does not protect the right to keep and bear military weapons for all lawful purposes is, of course, a contested opinion and you won't persuade anyone by pretending that it's neutral. — Miller says that to be protected a gun must be suitable for use in a militia; I trust that your omission of some such word was a mere slip of the fingers. — Is it your view that a right of the citizen can lapse through neglect by the state? Because that's implied by calling the militia "archaic". —Tamfang 23:05, 14 February 2006 (UTC)[reply]

Yaf — oh dear, don't tell me you're another capital letters fetishist (like those who make a big deal over citizen vs Citizen). The use of capital letters in the Constitution was a matter of formal style, not significant. If you want to distinguish between the select and unorganized militia, please use whole words. —Tamfang 23:05, 14 February 2006 (UTC)[reply]

Nope, not me! I was simply trying to capture the difference in the capitalization of the 2A Militia vs. the lower case militia of the 1958 re-defining by the Federal Government. If something is written differently, it usually means that a difference must exist. Select and unorganized militia is exactly the same concept, though, as you point out, and is exactly the same difference that I intended with choice of militia and Militia I used in the above. Re-defining something in Federal lexicon does not destroy the original 2A's intent. Yaf 01:22, 15 February 2006 (UTC)[reply]

Hello Yaf; just my opinion, but I don't think that making a distinction between "Militia" and "militia" will be fruitful. Capitalization was not used consistently at the time of the writing of the constitution. I think if there is a distinction between different forms of militias that needs to be made, those different forms should be explicitly described in each reference. Just my 2c - O^O

Greetings to the current round of editors. By way of introduction, I'm a long time contributor to this article, but one who only edits sporadically. I see that there is debate ongoing over that troublesome opening sentence. I'd like to give my 2 cents here, but of course everybody's opinions are important.

The difficulty here (as I see it), is that the whole issue of what the second amendment means is debated. That makes it difficult to state in a single sentence what the second amendment is without either violating NPOV, or immediately opening up the whole debate can of worms. Personally, I think the version I just posted "prohibits the infringement of the right of the people..." is about as much as can be said without taking a POV. We can't call the first thirteen words a "preamble", because that isn't what they are, and that implicitly says they aren't binding. We can't state whether the second clause is dependent or not on the first, as that is also debated. It gets really messy fast.

If possible, I'd suggest trying to keep this format:

Bare minimum description of the 2nd.
Actual text of the 2nd (both comma version)
Factual description of the congressional drafting process
Framing of the modern dispute
Description of the modern dispute (including only the most crucial court cases)
Historical evidence for/against the modern dispute

Deeper discussion of the modern dispute has traditionally been pushed off to the gun politcs article. We've tried to keep this article focused on the 2nd itself, and not let it turn into a gun control/gun rights debate. Unfortunately, this effort hasn't been perfect.

I find it helps me to imagine I was a fluent english speaker who had no conception of what the second amendment is. How should the article best be presented to educate such a reader? - O^O

Unfortunately, we appear to have fixated on the first bullet (no pun intended) of

Bare minimum description of the 2nd.

as that was where we were attempting to find a neutral opening statement. Yaf 01:26, 15 February 2006 (UTC)[reply]

And, I should add, I can live with the current statement that strips out the "codifies" and uses "prohibits infringement...". Yaf 01:31, 15 February 2006 (UTC)[reply]

Sorry, O^O, I see your edit as from a non-Neutral_point_of_view. Your edit was not made by Consensus. Also, would you please cite your Reliable_sources, they are not apparent.

From the beginning, I have asked that the purpose of the Second Amendment be included in the introductory sentence. The purpose can be read directly, militia are necessary. Also, the Supreme Court qualifies as a reliable source and the "obvious purpose" was effectiveness of the Militia [[16]]. I am trying to do my part reaching a consensus about this, perhaps you would consider undoing your edit until a consensus can be reached? BruceHallman 02:06, 15 February 2006 (UTC)[reply]

Greetings BruceHallman,

Remember, everyone is an editor. If you aren't happy with an edit I make, you are free to adjust it. It often isn't until two people begin conflicting over a specific section of text that it is exactly clear where the disagreement is. Consensus is a process, not a moment in time. Consensus generally doesn't mean that all edits are hammered out in talk before being transferred to the article.

Your "reliable sources" comment confuses me. Without digressing into it very much, I'll simply point out that my edit primarily reformatted and removed information that was was already in the article. I suppose that if I added something, you would be in your place to ask that I cite it, but since I didn't add anything of substance I'm not sure what you are asking.

I'll take the time to reread all of your posts here to see if I can more completely understand your position. You, of course, are free to edit the article. But I ask that you consider that there is disagreement over whether the second clause depends on the first, and that therefore any statement discussing the dependency of the right on the milita should be couched as summarizing opinions, not fact. -O^O

O^O, I encourage you to (re)read the Wikipedia Policies_and_guidelines, that is what I am trying to use to guide my own actions regarding editing of the introductory sentence. Your mention of fact confuses me, because the standard at Wikipedia is Verifiability, not fact.

If I can try to restate my point: The Second Amendment, literally read: the first clause appears to describe the purpose. The introductory sentence of the Wikipedia article fails to mention this purpose, and this omission is consistent with the position that the Second Amendment is a protection of broad personal gun rights. I argue that this position is non-neutral because Article_Three_of_the_United_States_Constitution give the Supreme Justice authority to interprete the Second Amendment. I have cited Wikipedia:Reliable_sources, specifically the Supreme Court, and Title 10. These two sources appear to have excellent authority. I contrast that with your edit which was made based on your personal opinion regarding broad personal gun rights, apparently from a biased point of view, with not much explaination. [By the way, I do not disagree that we have broad personal gun rights, but I disagree that the authority comes from the Second Amendment.]

BruceHallman 14:41, 15 February 2006 (UTC)[reply]

Have attempted to craft a widely NPOV introduction, and have inserted same. This new version intentionally omits where the RKBA springs from. (Personally, I believe it stems from the Ninth Amendment, but that is not important for the opening sentence in an article on the 2A.) I have also intentionally omitted whether the introductory (and somewhat parenthetical) statement of the importance of the Militia is the sole reason for the ban on infringing the RKBA for the People, as this is controversial. (Personally, I believe it is but a single, albeit good reason, but not the sole reason.) I have also included a verifiable reference, for those who feel that this statement requires verifiability. With these changes, I believe that the needs for a NPOV introduction are now met. Any problems? Yaf 17:06, 15 February 2006 (UTC)[reply]

Bruce, a tangent: stipulating that the RKBA is broad, would you object to a statement that – in light of the Ninth – the Second does support it? —Tamfang 17:12, 15 February 2006 (UTC)[reply]

Yaf: I probably wouldn't object to a mention of the Ninth Amendment.

Not my position. I would object to a mention of the Ninth Amendment in the introductory sentence, as it would be taken as evidence of bias. Yaf 17:40, 15 February 2006 (UTC)[reply]

I do have a couple problems with edit and your citation of verifiable source. Quoting from your source here:

"After noting the need for a "well regulated militia" (a body of citizen soldiers called to serve during times of emergency or war), this amendment declares that the people's right " to keep and bear Arms, shall not be infringed."

A key point in your source mentions that militia were 'the need', in other words they were a purpose, perhaps not the only purpose, but the only purpose mentioned. Why leave that out? Leaving it out is non-neutral, IMO.

My other is concern with the authority of the verifiable source. The Supreme Court trumps scholastic.com. Be honest, like it or not, the latest ruling from the Supreme Court used the words 'obvious purpose'. I argue that the 'obvious purpose' must be included regardless of the fact that people disagree with the Supreme Court. The same people who wrote the Second Amendment wrote Article III, giving authority to the Supreme Justice to resolve ambiguity. You and I, and scholastic.com, do not have that authority to resolve ambiguity in the Second Amendment. BruceHallman 17:31, 15 February 2006 (UTC)[reply]

To reach a conclusion sooner, why don't you edit the introductory sentence and see if other editors can live with it? Yaf 17:40, 15 February 2006 (UTC)[reply]

Well, I just did, adding the words 'to this end' which I believe is consistent with US v Miller '...obvious purpose...must...'. BruceHallman 18:30, 15 February 2006 (UTC)[reply]

Tamfang, perhaps a mention of the ninth would be OK, though in the introductory sentence? And, could you please point me to some verifible source of your idea, I would like to read more. The root of my concern is to include the purpose in the introductory sentence. BruceHallman 17:31, 15 February 2006 (UTC)[reply]

I didn't mean the Ninth should be mentioned in the introduction to the Second – that's why I said "a tangent": would you consider such a statement controversial if it appeared somewhere else? As for a source, well, there's Cruikshank. (I have become very tired of this debate and will now remove it from my watchlist) —Tamfang 04:16, 16 February 2006 (UTC)[reply]

It appears that we struggled fundamentally with the structure of the 2A in reaching our present introductory sentence. To that end, and to address the rationale for the seemingly odd structure of the 2A, I have added a quote from the Senate testimony (with a reference) of Prof. Volokh of UCLA Law School. I put this down in the Modern explanation section. If we do include a Ninth Amendment connection, I think it likely that it will belong in this section, too, but perhaps not. Yaf 18:41, 15 February 2006 (UTC)[reply]

Oh my, I don't think I have any hope keeping up with this volume of edits. I'll try to respond to what I can in the above before altering the article.

BruceHallman in particular, thank you for reminding me and all the editors about the Policies_and_guidelines. Although you didn't point out anything specific shortcoming in the present article, reading the early edit history of Policies_and_guidelines brought back some pleasant memories. You did question my use of the word "fact", and I'll admit that I used it casually. You can consider my reference to a "fact" to mean a properly worded [[[Verifiability|verifiable]] statement. For example:

Not a "fact": The militia consists of (some definition).
Fact: According to (some specific source), the militia consists of (some definition).

There was some discussion above on the true "source" of the RKBA. While that may be a topic of interest, it is not very germane to the opening sentence of an article about the second amendment itself. It is quite germane to a discussion on the RKBA, or on rights in general, but not immediately to the topic at hand.

Finally, briefly, I will point out that the Constitution itself does not explictly give the Supreme Court authority to "interpret" the Constitution. This power was claimed by the Supreme Court in Marbury v. Madison. -O^O

Notes on my 03:55, 16 February 2006 edits: I had two major NPOV objections, and multiple minor objections. Major objection #1 - a definition of "milita" was inserted into the opening sentence. Unfortunately, the second amendment itself does not define "militia", and there are competing definitions. The single definition presented only one view, and was not NPOV. Major objection #2 - the words "to this end" imply that the second phrase is dependent on the first. This is also a topic of much dispute and NPOV in itself. Most of my minor objections are trivial and can wait until the sentence stabilizes. - O^O

O^0, you describe 'to this end' as a topic of much dispute, which it is, but the ultimate authority is the Supreme Justice. Why do people of lesser authority who have dispute have equal weight as the greater authority of the Supreme Court in the US v Miller ruling? The Founding Fathers provided a mechanism to resolve the ambiguity in the Second Amendment with Article III, the Supreme Justice. The Supreme Court acted to resolve the ambiguity regarding dependency of the clauses when they wrote 'obvious purpose...must' regarding militia and the 2A. Please explain why lessor authority should have equal weight with greater authority when determining the neutral balance point? BruceHallman 05:16, 16 February 2006 (UTC)[reply]

As I wrote in the main article earlier today, "Still, the Supreme Court has ruled in passing in 22 out of 27 times while quoting or paraphrasing only "the right of the people to keep and bear arms" language of the Second Amendment, without ever mentioning the Militia Clause, and this treatment has evidenced clear support of the Second Amendment as an individual right and not as a collective right.[17] " Hence, I would suggest that the viewpoint that you suggest, that the "Militia ... to that end..." construct is clearly a minority viewpoint relative to the Supreme Court's own history of rulings. Picking just a single US vs. Miller to prove your minority viewpoint (based on the Supreme Court's own rulings) is not a particularly strong argument. For that reason, I don't believe that the "to that end" is needed in the introductory sentence. Yaf 05:34, 16 February 2006 (UTC)[reply]

Yaf, I am sorry but I disagree with the neutrality of your source and by extension the neutrality of your "22 of 27" edit. "Volokh holds a libertarian political ideology." Eugene_Volokh. "Miller is the only case directly relating to the Second Amendment". United_States_v._Miller

26 of the 27 Mr. Volokh references do not directly relate to the Second Amendment. Many of the references are noted as 'disent' or quotes of earlier disent and are give equal weight. [[18] The one case of the Supreme Court that does directly relate to the Second Amendment uses the words "obvious purpose...must" regarding the purpose being miliita. I would still appreciate an answer to my earlier question about the relative weight of the authority when determining the neutral balance point. BruceHallman 14:43, 16 February 2006 (UTC)[reply]

Do you disagree that this edit, or that its insertion, is based on a verifiable source? As you have so well-stated previously, we are not to do original research in writing inputs for articles in Wikipedia, but are instead to base our inputs on verifiable sources. As Mr. Volokh testified before Congress, and since his words are public record (which were referenced), and since the insertion in the article includes all these details, I don't see the issue. On the other hand, if we find a verifiable source with a different viewpoint that conflicts with Mr. Volokh's position, then I wouldn't have any issue with inserting this in as well, or if you inserted it, or if anyone else inserted it, for maintaining article balance. However, if there is no published dissent with his scholarship, then this would seem to indicate that it was accurate. (Of course, the absence of something doesn't prove the existence of something. To think otherwise would be a logical fallacy.) As for his holding Libertarian viewpoints, I likewise don't see that this is relevant. I personally don't care if he were a little green Martian with Martian viewpoints testifying before Congress, as long as his scholarship was valid, the quotes were accurate, verifiable sources were noted, and so forth. Personally, I think testimony given before Congress is quite good for providing a gravitas beyond just mere supposition. Similarly, I don't see the issue with including all conflicting viewpoints (provided they meet the same degrees of meeting Wikipedia guidelines). As for the relative weight of the authority (or authorities), if one believes Mr. Volokh, then it is the Supreme Court itself, which is the ultimate authority on these issues, and which I think we all agree. On the other hand, if one does not believe Mr. Volokh's testimony relative to the Supreme Court, then it should be easy to find an equally-verifiable and documented source, claiming Mr. Volokh was somehow mistaken, and most likely also showing where his scholarship was wrong The neutral balance point of the article is simply the point at which the article stabilizes, based on verifiable facts, which are properly documented, and which are used in crafting the article. Yaf 18:38, 16 February 2006 (UTC)[reply]

Quoting Volokh is hardly hard core proof of anything since his work has been challenged by a variety of scholars.If one quotes scholarly authority one must do so in a way that takes stock of the full range of this debate and not selectively quotes from writing supporting gun rights or gun control. -- (comment by User:128.146.26.140)

OK. Then it ought to be easy for you to contribute to the article and to quote one of these alternative viewpoints, rather than just making anonymous complaints and providing no documentation or claims for an alternative viewpoint. If you have documented references and/or quotations, with verifiable citations, then put them into the article. Otherwise, complaining without contributing won't accomplish much. Yaf 03:29, 4 March 2006 (UTC)[reply]

If you want to see a critique of Volokh all you need to do is look at the Konig essay in Law and History Review. Or if you prefer just consider what Blackstone says about the function of preambles, "If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point." While you are at it you might look at Heyman's Chicago Kent essay on the misuse of Blackstone in this debate. Unless you read both sides of the debate and check the primary sources you can't be a genuine participant in this debate.

Who's this 141.156.208.66 guy?!

Seems to be some kind of anti-gun rights troll; if you look at his list of contributions, has gone on a rampage changing many gun-related pages into gun control blather. I vote he be banned.

Dullfig 05:27, 8 February 2006 (UTC)[reply]

AHA!! reverse dns lookup points to www.bradymail.com. Cute. Real cute. These guys don't give up. Typical left wing stuff, can't discuss issues on the merits, have to go vandalizing. I'm not surprised. Dullfig 06:07, 8 February 2006 (UTC)[reply]

Yabbut try whois bradymail.com — it's Brady Corporation of Milwaukee, not the Brady Campaign to Monopolize Gun Violence. —Tamfang 06:30, 8 February 2006 (UTC)[reply]

This is a sockpuppet for mail.bradymail.org (141.156.208.66) using traceroute. His IP should be banned. Yaf 16:57, 8 February 2006 (UTC)[reply]

and, oops, bradymail.org (unlike bradymail.com) is connected with the Entity Formerly Known As National Coalition to Ban Handguns (see whois). —Tamfang 19:45, 8 February 2006 (UTC)[reply]

Given that the term standard Model was coined by Glenn Reynolds in the last 20 years it is hard to see how anyone could argue that the Supreme Court adopted this viewpoint in the 19th century--unless you believe in time travel. Only one case before the Civil War mentions the Amendment and it does not even get the number right. I suggest you look closely at Story, not just the quotes people cite, but the whole discussion. Story very clearly sees the right in expansive terms, but ties it to the militia. His reading fits either the expansive or so called sophisticated collective rights model or the civic one. To find a clear statement of the individual rights view in this period you would need to go to someone like Spooner, hardly a typical figure. — (comment by User:24.145.225.26)

Enter Stage Right

The section on US v Miller contains an external link that might be considered slanted. Since it generally agrees with me I'm not gonna remove it, but heads up to those of you who feel differently. ;) —Tamfang 18:26, 11 February 2006 (UTC)[reply]

I just changed the external link to point simply to the actual text of the Supreme Court ruling on Findlaw.com because it is more neutral. BruceHallman 17:02, 15 February 2006 (UTC)[reply]

The legislative process edit.

The third paragraph of the Legislative Process section says this:

It should be noted that the Bill of Rights Madison introduced on June 8th were not numbered amendments to be added at the end of the Constitution. The Rights were to be inserted into the existing Constitution. The Right to Keep and Bear Arms was to be inserted in the First Article, Section Nine, between clauses 3 and 4 following the prohibition on suspension of habeas corpus, bills of attainder and ex post facto laws, all individual civil rights. Madison did not propose inserting the Right to Keep and Bear Arms in the First Article Section 9 in which Congress's powers concerning the Militia are specified. This indicates Madison considered the Right to Keep and Bear Arms to be an individual right. (Annals of Congress, 1st Cong., 1sesss., 451) (Rutland, rev.ed., 196-202)

It could be made more neutral, shorter, less interpretive like this:

It should be noted that the Bill of Rights Madison introduced on June 8th were not numbered amendments to be added at the end of the Constitution. The Rights were to be inserted into the existing Constitution. The sentence that later became the Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4 following the prohibition on suspension of habeas corpus, bills of attainder and ex post facto laws, all individual civil rights. (Annals of Congress, 1st Cong., 1sesss., 451) (Rutland, rev.ed., 196-202)

BruceHallman 17:29, 16 February 2006 (UTC)[reply]

Miller again

The Miller court did not say "the law is question is constitutional," which is what "sustained" means; it said "we lack sufficient evidence to say the law is unconstitutional" (paraphrase). So I changed "sustained" to "provisionally sustained"; is there a better wording? —Tamfang 19:20, 21 February 2006 (UTC)[reply]

The District Court "sustained the demurrer and quashed the indictment" and the Supreme Court "Reveresed and remanded." How is this best summarized as 'provisionally sustained'?

I don't understand what you see as provisional, please explain.

The words "Reversed and remanded.", a direct quote from Miller would be more accurate. BruceHallman 14:46, 23 February 2006 (UTC)[reply]

My point is that the case was never finally resolved, and the constitutionality of the NFA never determined, because no court ever corrected what the Supreme Court identified as the defect in the District Court's actions by taking evidence on whether a short shotgun has military use. —Tamfang 17:21, 23 February 2006 (UTC)[reply]

I've removed the troublesome phrase entirely; it was redundant. —Tamfang 17:29, 23 February 2006 (UTC)[reply]

Regardless, the elephant in the room is the fact that: Ever since Miller, appellate courts have cited Miller as reason that private guns are not protected by the Second Amendment. I have added language of this fact and tried to use neutral wording. BruceHallman 21:25, 23 February 2006 (UTC)[reply]

Tamfang, would you cite specifics when you edited in the word 'almost' in the Miller section? Also, as the Second Amendment is a federal issue, and not directly a state issue, why edit the word federal out? I could accept a sentence describing both federal court and state courts. BruceHallman 14:20, 24 February 2006 (UTC)[reply]

For "almost", well, at least one Circuit disagrees. I also cut a sentence which happened to contain the word "federal", because it disregarded the District Court in Miller itself as well as another District ruling within the past few years, sorry I've forgotten the specifics. In a perfect world there would be some mention of a recent Ninth Circuit case in which one of the judges wrote, "Since we're only a three-judge panel we have to follow the Ninth Circuit precedent which misreads Miller, but I hope it can be reviewed en banc someday." —Tamfang 16:40, 24 February 2006 (UTC)[reply]

What I wrote: "No federal court in history has overturned a gun law on Second Amendment grounds." was accurate. You describe the remanded district court decision that preceded US v. Miller, but that is inconsistent with your edit where you wrote the words 'since "Miller"'.

Both phrases, "in history" and "since Miller", were yours, I think. Are you saying history begins with Miller? —Tamfang 18:55, 24 February 2006 (UTC)[reply]

Your 'I've forgotten the specifics' explanation fails the Wikipedia verifiability policy.

Unless you have a verifiable source for "no federal court in history", removing any statement one way or the other seems the conservative thing to do. —Tamfang 18:55, 24 February 2006 (UTC)[reply]

Although I concede that there are minority dissenting opinions, the reality is: there is no 'court in history [that] has overturned a gun law on Second Amendment grounds'. That fact is relevant considering that US v. Miller is a very important cited precedent in court since 1939.

If you read carefully you may note that I did not say that a dissenting opinion (actually it wasn't a dissent, if memory serves) is enough to invalidate "the reality". —Tamfang 18:55, 24 February 2006 (UTC)[reply]

I suggest this edit as a compromise: "Even so, since US v. Miller no court has overturned a gun law on Second Amendment grounds." BruceHallman 18:19, 24 February 2006 (UTC)[reply]

O^O, you deleted the sentence "No federal court in history has overturned a gun law on Second Amendment grounds." calling it an 'old mistake'. Could you please cite a verifiable reference for your claim? Thanks. BruceHallman 19:13, 24 February 2006 (UTC)[reply]

Hi BruceHallman - I think that the edit in question was made by Tamfang, not by me. - O^O

Yeah, the "two old mistakes" were in the Text section. — Found what I wanted. Northern Texas Federal District Court rules that "18 U.S.C. § 922(g)(8) violates the Second and Fifth Amendments to the United States Constitution." [19] It's a Federal court, and it's after Miller. —Tamfang 21:30, 24 February 2006 (UTC)[reply]

The Lead

The lead is incredibly pro-guns rights, and needs a serious rewrite to POV. The amendment does everything BUT declare the militia is necessary. It says that well-regulated gun ownership is a right, not a requirement, of citizenship. Staxringold 09:51, 27 February 2006 (UTC)[reply]

Hello Staxringgold,

I'm sorry you think the lead is biased. Multiple generations of editors have worked to create something that was generally NPOV, but this is a very difficult topic to satisfy everybody on. I agree with you in saying that the second amendment discusses a right, and not a requirement, so I'm not sure precisely where we disagree. I'll take a guess though. My guess is that you would prefer the lead to somehow declare that the latter half of the amendment is dependent on the former half of the amendment. Since this is a primary point of dispute, it wouldn't be appropriate to assert it in the lead. Instead, the language used has simply been a light paraphrasing of the second. I'd love to see the lead clarified, but we need to avoid stating outright that the second clause is or is not dependent on the first, and we need to avoid falling into the trap of declaring rights to be recognized versus granted, etc...

The current format of the article attempts to avoid even touching on items of dispute from the lead through the ratification section. After that, it does launch into discussing the competing interpretations. -O^O

The 2A makes a statement regarding the necessity of the militia, and then establishes the right of the people. This was a common legal construct at the time; to make the case for a reason for a right, and then to define the right.

Now, the topic of whether this right exists outside of the context of the militia is a POV that is debated in this century, but up through the late 19th Century it was never debated. To insert this debate in the opening is definitely a POV. Multiple editors have labored for some time on the best way to reflect most NPOV approach, with more detail in the Wikipedia article itself.

O^O is correct when he states that the opening intentionally avoids touching on this debate regarding the interpretation. Yaf 19:21, 27 February 2006 (UTC)[reply]

No, it is not correct. The current lead says the amendment calls the militia a necessity. That is demonstratably false with the very next section where the amdendment is quoted:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

The amendment says that well-regulated militias necessary to the security of a free state have a right to bear arms. Anything else is reading into it, which is what doesn't belong in the lead. Staxringold 20:06, 27 February 2006 (UTC)[reply]

The amendment does not state that militias have a right to bear arms, it says that the people have a right to bear arms. Again, to make an assertion that links the two is a statement of POV. -O^O

So the "standard" legal reading of the amendment is that the founders put two completely different rights into one, run-on sentence? "Militias are necessary, youse guys can have guns"? "Citizens have the right to free speech, the people shall not be enslaved"? The one follows the other, and even under your interpretation the militias are still not necessary. It says "being necessary", that is to say that when militias are necessary the 2nd clause follows. Staxringold 20:16, 27 February 2006 (UTC)[reply]

Please don't personalize this by calling up "my interpretation". My personal interpretation has no bearing on the goals of characterizing the debate and keeping the article NPOV. In general, there exists an interpretation of the second amendment known as the "standard model". Advocates of this interpretation hold that the second amendment protects an individual right, not a collective right. There exists another interpreation commonly known as the "collective rights" model. Advocates of this model hold that there is no individual right, only a collective right that can be expressed in context of militia duty.

It isn't our job, either in the opening sentence of the article, or here in talk, to decide which of the possible interpretations of the Second amdendment is "right". It is our job just to present the facts. The article has a lengthy section about the differing interpretations that comes right after the section on ratification. I don't understand why you are trying to change the introductory sentence to reflect one POV over another? - O^O

No. Only one right, the right of the people to keep and bear arms. In addition, a good reason was given for this right, in the form of a clause before the statement of the right, namely that the militia "good thing" was necessary, and that the right of The People to keep and bear arms would help support this "good thing". Now, by the Standard Model, "The People" in the Second Amendment are also the same "The People" that are mentioned in the First Amendment, the Fourth Amendment, the Ninth Amendment, and the Tenth Amendment of the Bill of Rights. The Bill of Rights applies to rights of individuals, not states rights. Hence, the First Amendment doesn't apply to the rights of states; neither does the Fourth, the Ninth, the Tenth, nor the Second Amendment. Of course, the collective rights model attempts to make the case that the people in the 2A are somehow different than "the people" mentioned in the other amendments. The collective rights model only came into being in the 19th Century, long after the 2A was written. We should not take either POV over the other in the introduction. Yaf 20:39, 27 February 2006 (UTC)[reply]

If you look at the syntax of the right to assemble it tracks the Second Amendment's language pretty closely. Assembly was a right citizens, not individuals, enjoyed in the Founding era and it was something done for a public purpose-- redress of grievances. The right of the people language could have a civic, individual, or collective meaning. The 1776 Pennsylvania Constitution talked about the right of the people to legislate-- obviously not an individual right.

Ambiguity

BruceHallman wrote in an edit comment: "Ambiguity is needed to achieve NPOV"

Thank you Bruce. That was a very direct and insightful way to state something that we've been struggling with. I agree with you on this comment. - O^O 23:35, 27 February 2006 (UTC)[reply]

The notion that the collective rights model is a modern invention is just silly. It clearly was how most Anti-Federalists viewed the right to bear arms apart from the PA Minority and it became the view of Jeffersonians. If you want proof of the widespread acceptance of this fact, just look at Story's comments on the original understanding of the Amendment's origins

§ 1202. It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to martial law. If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it. All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd. It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses. It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine all, that was useful or desirable in militia services. — (Comment by User:24.145.225.26)

This is a compelling argument, that the "collective rights model is a modern invention" concept which is presented in the Wikipedia Second Amendment article is non-NPOV. BruceHallman 19:07, 4 March 2006 (UTC)[reply]

Judicial section opening sentence

The Judicial section starts with sentence: "The US Supreme Court has never directly ruled on the meaning of the Second Amendment, despite having had a variety of opportunities to do so. " I see this sentence as non-NPOV, and also incorrect. US v. Miller directly ruled on the Second Amendment. And, when the Supreme Court refuses to hear an appeal, subsequent to Miller, that is way of them saying that they feel the law is already settled by Miller. Is there a better, more accurate, more neutral, opening sentence? BruceHallman 16:30, 4 March 2006 (UTC)[reply]

State's RKBA relevancy to 2A

BruceHallman wrote, "How are State 'right to bear arms' laws directly pertinent to the US Second Amendment? This State 'arms case law' text would be best moved to a new Wikipedia article, in the interest of controlling the size of this Second_Amendment_to_the_United_States_Constitution article. "This page is 71 kilobytes long. This may be longer than is preferable; see article size. At the most, State 'arms' laws are pertainent to the topic of the 'right to bear arms' which in itself is a much broader question than the Second Amendment, see Gun_politics_in_the_United_States, Right to Bear Arms or Firearm_court_cases instead."

Yaf 21:16, 9 March 2006 (UTC) wrote: "Au Contraire! They are relevant by virtue of being the first interpretations of the 2A, during the time when the Supremes had not yet spoken. The two main State cases are here, representing the first individual and collective interpretations, respectively, of the 2A. The lesser cases, in Mississippi, Tennessee, and a few other states are NOT needed here, and aren't discussed here. Besides, they all fell into either the KY or the AR line of thoughts."[reply]

Those State cases are ruling on those of State constitutions. I concede that the State constitutional 'rights to bear arms' clauses are often and usually similar to that of the United States. Yet, they simply are not the same thing. They *are* interesting to study! I am only looking for logical sections to move off the main page, because the main page is longer than desireable. The studies of case law not directly addressing the US Second Amendment seem the most logical to go.

An individual's right to bear arms comes from more than one place. Why weigh down the US Second Amendment article with tangents of the various rights to bear arms? People in Texas have different rights than Kentucky, or West Hollywood, or Canada, North Korea, Nazi Germany, or a refugee on a raft in international waters near Key West, or a pirate off the Horn of Africa. There perhaps should be a Right_To_Bear_Arms Wikipedia article. The 2nd A. article should focus on the 2nd A., not the broader aspects of the 'right to bear arms'.BruceHallman 21:45, 9 March 2006 (UTC)[reply]

I concur that we don't need the 2A article to address the RKBA outside the US, except for the specific historical foundations of the right in the Colonial period in the US. The Nazis and others don't really belong here. (I have removed Hitlerian disarmament examples from the disarmament section for this reason.

On the other hand, what about the Historical Quotations section? This takes up quite a number of bytes, yet doesn't really add to the 2A discussion during the creation and interpretation of the 2A. I even have some issues with the long Justice Story quotation; it really bogs down the article. Perhaps we could move these sections to a Second Amendment Historical Commentaries article, or similar?

I still think the two key state cases, and what is there now, still belong here, for they largely frame the foundation for the modern interpretations of the 2A. Yaf 22:04, 9 March 2006 (UTC)[reply]

Obviously, the long length of the 2A article is not a fatal flaw. I agree that the Story article is a tough read, but it does directly address the 2A as viewed from that early time period. The historical quotations are bulky, but they too directly address the thoughts of the people from that time period when they wrote the 2A.

Perhaps you should be more specific with your argument that case law in the States regarding interpretation of the State constitutions directly is pertinent to the US Constitution. It is only indirectly related I think. BruceHallman 22:19, 9 March 2006 (UTC)[reply]

Yaf wrote: " The two main State cases are here, representing the first individual and collective interpretations, respectively, of the 2A." This is just not true, they are the first interpretations, I can grant that, but not of the 2A. BruceHallman 22:41, 9 March 2006 (UTC)[reply]

What is the topic of this article?

I expected to find an article about the Second Amendment to the United States Constitution, and when I read the article, instead I largely find an article about the right(s) to keep and bear arms. To a lesser extent I also find fire arm law, gun control arguments with special emphasis on why this right should be viewed as an individual right. I am struggling in my mind to find a better title for the actual topic of this article, because the existing title does not accurately describe the actual topic.

Loading up the article with individual rights and collective rights arguments makes the article more and more off topic. To steer the article back to the actual topic would require the movement of the arguments about the right to keep and bear arms off this Second Amendment page.

In short, the RKBA topic is not same as the 2nd A. topic.

At best, the 2A is only a sidebar to the RKBA topic. They are not synonymous. BruceHallman 15:45, 10 March 2006 (UTC)[reply]

As the lead sentence states, "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares the necessity for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms"." The article discusses the historical basis for the 2A, its relationship to other rights in the Bill of Rights, and historical and modern interpretations of the 2A addressing infringement prohibitions of what is meant by the statement regarding "the right of the people to keep and bear arms". Yes, there is material about the right(s) to keep and bear arms. Yes, there are also firearms law, gun politics, judicial interpretation, and other pertinent discussions on whether the 2A right is an individual right or a collective right.

I disagree that the individual and collective rights arguments that are documented push the article off topic. These arguments are precisely the dialogue that the 2A addresses, admittedly somewhat rather vaguely, and with a rather archaic formulation, at least from the perspective of modern eyes. The "right of the people to keep and bear arms" is, by one point of view, precisely what the 2A addresses, at least by the individual rights argument.

On the other hand, by the point of view of the collective rights proponents, "the people" terminology does not refer to a right of individuals, but rather, to rights of a collective of people.

Overall, I believe that the present 2A article is predominantly "on-topic", although I do have some difficulties with the length of the article being rather long. For a complex topic, however, this is probably not avoidable.

That said, I do happen to believe that we are nearing the point of reaching more of a static article, in the very near future, as the basic material now covers the 2A rather well. Of course, I could be wrong, especially if another editor sees an omission that is not evident at the present time to my eyes. The only one that comes to mind is the point of view that the 9th Amendment is actually the Amendment that establishes the RKBA, with the 2A being merely a prohibition on infringement of this pre-existing and unenumerated right. Of course, this POV is not universally held. For that reason, I am hesitant to put anymore content in the present 2A article on this POV.

On the more recent gun law changes (since the early 1980',s, especially 1986, etc.) I don't think these are really germane to the basic 2A article. They are important, of course, but they don't fundamentally change the 2A rights as much as the earlier gun laws did. For that reason, I believe we have reached a balance on the gun laws relative to the 2A. Of course, this viewpoint could change, too, with the creation of another AWB, say in 2 or 3 years. Yaf 16:38, 10 March 2006 (UTC)[reply]

How is discussion of non-2A RKBA on topic for a 2A article? Say, for instance, the 19th century case law about the RKBA found in the State constitutions. All I am asking, (and I don't see that you addressed this in your post of 16:38), is that the broader RKBA that is based in non-2A sources appears off topic in a 2A article. BruceHallman 17:39, 10 March 2006 (UTC)[reply]

OK. As you so wisely noted previously in crafting the necessary ambiguity in the opening sentence, of the relative importance between the militia clause and the second part on prohibiting the infringement on "the right of the people to keep and bear arms", there is a difference in the point of view of the two major viewpoints in what the 2A really says. Both sides are convinced they are right. Fortunately, the ambiguity you so elegantly identified enabled us to arrive at a phrasing of the opening that both sides could live with.

However, in actually going through the article, all major viewpoints must now be addressed.

Hence, among those who see the 2A as predominantly prohibiting any infringement of "the right of the people to keep and bear arms", with the militia clause being of lesser importance (being only a good reason for the right), the topics that you feel are off-topic are precisely on-topic.

On the other hand, by the view of those who feel that the 2A is expressing a collective right, on a militia-based interpretation, these individual right discussions appear largely off-topic, despite being interesting. I understand your view on this. But, we are to represent all significant viewpoints in writing WP articles. By the very ambiguity that we arrived at previously, we are largely bound now to represent all major viewpoints of the ambiguity in the article. The present article does meet these criteria, I feel. Yaf 21:00, 10 March 2006 (UTC)[reply]

I appreciate that opposing points of view matter and must be accommodated. Yet, the RKBA for State Constitutions are different than the RKBA for the Federal Constitution. What it the link between these types of RKBA? I'm asking: Is this article is about the greater topic of RKBA? Or, is this article about the narrower topic: The Second Amendment of the U.S. Constitution? Making the article with the premise that the 2A is synonymous with the general RKBA is inaccurate and non-NOPV. BruceHallman 21:40, 11 March 2006 (UTC)[reply]

Editorial suggestions

I suggest you trim some of the contemporary quotes from the 18th century--how many times do you need to hear from Tench Coxe? One only needs a few of these to establish the range of contemporary views, then move Story after this material to show how the leading early constitutional commentary on the Second Amendment saw the matter, trim down the treatment of Buzzard and Bliss. One might also drop Bliss and use Nunn the other pro-individual rights case from the pre-Civil War Era since it deals with the Second Amendment, but it is important to point out that it is one of the cases that Amar describes as contrary to Barron v. Baltimore. Good luck 24.145.225.26

(Just hit 4 tildes (~) and autosign your comments, in the future! -- thanks, Yaf)

Nunn is an excellent case from Georgia, and does quote Bliss extensively, having come up in response to an 1837 law of Georgia that was in question, relative to the 2A. However, Bliss is clearly the first, and establishes more precedent with respective to individual rights. Nunn does have the advantage of more directly addressing a state's interpretation of the 2A directly. Bliss, though, sets the historical stage for the treatment of the 2A as an individual right, which is simply re-iterated in Nunn. I don't see the point of having both, and Bliss is generally considered as setting the precedent; to omit it would be POV, leaving the impression that the "collective right" interpretation from Arkansas was somehow the common POV (it wasn't.)

On the other hand, there would be benefit of adding Nunn; but this would likely be taken as not presenting a balanced case of the individual right vs. the collective right. Yaf 00:24, 12 March 2006 (UTC)[reply]

Current Judicial Precedence

Have removed the following: "At present, the courts find it acceptable under the Second Amendment for federal, state and local laws to:

Regulate militias
Ban or regulate handgun possession
Prohibit or require a permit for the carrying of concealed weapon
Ban assault weapons
Prohibit posession of firearms by persons who have been:

Involuntarily committed to a mental institution
Convicted of a felony or a misdemeanor crime of domestic violence
Dishonorably discharged from the military

Require the licensing of firearms dealers
Ban or regulate bombs, artillery and explosives
Require the registration of firearms
Ban the possession of firearms and ammunition on county-owned property
Prohibit firearm possession in licensed liquor establishments
Require handgun owner identification cards"

primarily because it is simply too POV, as the Federal District courts have never ruled unformly either for and against various forms of several of these provisions, and the Supreme Court has not yet ruled uniformly. Why else is it POV? Well, some states also permit the unfettered carrying of concealed weapons, with no permit required. That is not mentioned here. Some states do not regulate handgun possession in any shape, form, or fashion, any different from other firearms. Some do. Some states permit Class III automatic weapons and any other weapons (AOW); others prohibit them. It all depends. Some states do not ban assault weapons, others do. Even the crime of domestic violence (Lautenberg Amendment) has been ruled unconstitutional on grounds of both the 5th and 2nd Amendments in North Texas, but has been upheld elsewhere. To claim a uniformity when there is none is POV. Have reverted this insertion for now. Yaf 22:52, 12 March 2006 (UTC)[reply]

Simply adding the word 'generally' would have addressed most or all of your concerns. Removing the entire post seems an over reaction. Feel free to add descriptions of the exceptions you know of as needed to balance the point of view. The exceptions you described above appear to me to be limited and managable.

Including a description of the Current Judicial Precedence is very much 'on topic' and a useful addition to the article, and can cetainly we can find wording in a neutral point of view with a reasonable amount of editing. I have posted an attempt at better NPOV which I trust you can find acceptable.

Also, I have restained my urges to not wholesale remove your POV posts in the past, instead offering constructive edits. I would hope that you could act with similar restraint now. BruceHallman 01:38, 13 March 2006 (UTC)[reply]

On the contrary, the points that were there are NOT generally the practice. For example, relatively few states ban or regulate handguns; elsewhere, they are recognized as valid expressions of an individual's 2A rights. Likewise, in most jurisdictions, so-called "assault weapons" are allowed. Ammunition may be purchased without showing identification in most states. Etc., Etc., Have edited to attempt NPOV. I believe it would still be best to simply delete the whole discussion, as there are so few points of uniformity across the US. Yaf 02:34, 13 March 2006 (UTC)[reply]

Introduction

after a popular revolution of 'the people' against the colonial tyranny of England

Is this a little partial? Sounds like something from 'The Communist Manifesto'

The word tyranny is then used again in the second paragraph, in a different context, of a different goverment.

I struggled with writing that that wording, and came very close to including a sentence that tried to capture that the revolution was not universally popular, and many people in the communitiy opposed the war. Loyalists (and neutrals). I decided against it, for brevity and because I was trying to paint a brief, yet diverse picture of the context of the body of thought at the time the Second Amemdment was being drafted, to help explain why Federalists and Antifederalists thought like they did at that time. I considered including a sentence about the fact that Loyalists still lived in those communities and would have included it if I could have found some verifyable reference to my hunch that the Loyalists (and neutrals) were more symapathetic to the Federalist cause. But after some looking, I haven't found much about what political effect that ex-Loyalists had on the drafting of the Bill of Rights. Ultimately, though I don't think Loyalists were welcome in the congress that drafted the Second Amendment, so I think the bias in the introduction indeed matches the bias in the mindset of the people drafting the 2A. And, I think that feelings and opinions ran very hot in those times, hot enough to justify the hot word tyranny. User:BruceHallman 14:36, 14 March 2006 (UTC)[reply]

If you wish to say something that expresses the 'mindset' of people at the time you must say you are doing so. Otherwise you must use a quotation. The article states as a fact that England was a tyrannical power, which is dubious, even if we do not go into the slippery nature of historical fact.

I am no sure I agree with you, but I added quotes anyway. BruceHallman 13:53, 16 March 2006 (UTC)[reply]

Judicial prededence, child protection laws

Yaf recently deleted the line in Current Judicial Precedence that the courts generally allow 'child protection gun laws', with the explanation "laws only restrict freedoms; they don't create it (neither does the Constitution))". I don't understand the relevance of that comment. I 'am' willing to reword the bullet item about that child protection laws are allowed in a NPOV. The fact that current court precedence allows "child protection laws" is a verifiable fact and per WP:V it should be allowed to be included. BruceHallman 14:48, 14 March 2006 (UTC)[reply]

The point of issue was not with the child protection laws, which I see you have already addressed with an NPOV edit. Rather, my issue was with the following, "At present, with certain exceptions and disputes, the courts generally find it acceptable under the Second Amendment for federal, state and local juridictions to pass laws to:" The issue was with the statement of "to pass laws" for all the tabulated topics, when there are clearly many freedoms listed in many states which have generated no local laws. As for the statement, it is in line with the belief that the Constitution does not grant laws; instead, by the Ninth Amendment, there are pre-existing rights. A Constitution may only take away unenumerated rights or freedoms totally, or restrict them; it cannot grant them. Likewise for laws. Laws do not grant freedoms, they simply restrict behavior in some way. I should have been more clear on my tagline for the collection of several edits which I lumped together. Thanks for pointing this out. Yaf 04:39, 15 March 2006 (UTC)[reply]

Counter-example of a lower Federal Court Case that HAS ruled since the 1939 US v. Miller that the 2A is an individual right

Have reverted incorrect addition by 222.253.93.44 citing an older reference that claims that no lower Federal Court since 1939 has ruled the 2A is an individual right, as a counter-example proving this formerly true claim false occurred in 1999.

The counter-example is from 1999, where it was ruled that the Lautenberg Amendment, 18 U.S.C. § 922(g)(8), violates the Second and Fifth Amendments to the United States Constitution, and is unconstitutional, in United States of America v. Timothy Joe Emerson, U.S. District Court for the Northern District of Texas, San Angelo Division, 46 F. Supp. 2d 598, April 7, 1999. [20]

Emerson is presently reversed and remanded[21], and at most, maybe someday, the appeal to the Supreme Court might be heard, but the Supreme Court very rarely does does that. It is a bit of a stretch to say "the court HAS ruled" when you are only relying upon a reversed case, better to have written "the court HAS briefly ruled and was then reversed". BruceHallman 13:44, 16 March 2006 (UTC)[reply]

24.145.225.26 edits

The series of edits by 24.145.225.26 today gave me pause to consider the 'best' start of this 2A article. Obviously, there are *very* strong feelings by all points of view on this topic! [Myself included.] We must recognize and accommodate this polarity if we ever hope to reach consensus, and consensus is required for our success.

I just retitled the ==Origin of the Second Amendment== renaming it to be ==Historical Context of the Second Amendment==, for the reason that 'Historical Context' is more descriptive than 'Origin' to capture what I believe would be the best start of the article.

The best start to the Second Amendment article must address our intended audience. The start should paint the big picture of context, and it should be strictly neutral in point of view. Who is our intended audience? I imagine an interested neutral observer, as opposed to a partisan scholar. Say for instance, a high school student researching a term paper, etc.. For this reason, I propose that the top part of the article should be used to try capture an image of real life in America in 1789. The hopes, the fears, the forces, the emotions: the powers driving the lives and minds of the people who fought and forged the compromise that became the Second Amendment.

The intial paragraph of 24.145.225.26 was: The first Declaration of Rigths drafted in Virgina omitted any mention of the right to bear arms, but did assert the need for a well reglated militia. Thomas Jefferson's alternative proposal for the Virginia Declaration of Rights would have protected an individual right, but this language was not included in the version adopted. The first state to include a provision on the right to bear arms was Pennsylvania. The language chosen by Pennsylvania affirmed a right of the people to bear arms in defense of themeselves and the state. Some modern commentators have interpreted this right as protecting an individal right, but others have read the language as simply affirming a right to bear arms in defense of community or state. The first state to affirm a right to keep and bear arms was Massachusetts which linked this right to the common defense

I think these are good points, but in my opinion at least, it fails to 'paint a picture' meaningful, engaging or useful to an audience of interested high school students. The biggest reason it fails, I think, is that it jumps too quickly into esoterica, like the concept of 'individual rights', 'bear arms', 'militia', States Declaration of Rights, etc. before those concepts have even been defined. 24.145.225.26's paragraph would make a good addition to section 3, 4 or 7 perhaps, but it is too dense and technical for the opening, I argue. BruceHallman 03:27, 18 March 2006 (UTC)[reply]

24.145.225.26 15:11, 18 March 2006 (UTC) 24.145.225.26[reply]

Fair enough points, but if one wants the big picture you ought to start with the fear of standing armies and the efforts at disarmament during the Revolution. The right place to start would be with the assault on the magazine at Williamsburg, or the effort to seize militia stores at Concord and Lexington. Opening with Shays's rebellion is a bit like walking into the movie about 15 min into the show. It is important, but one ought to understand why the Virginia Declaration of Rights talks about the militia and the right to bear arms only enters the picture with Pennsylvania

Just a quick note, I haven't had time yet to think about all your points. 1789 versus 1776 *is* like walking into the movie 15 minutes late. Half a generation of time had passed between the Revolution and the First Congress, and the state of mind was different then. I believe we should try to capture the state of mind in 1789. BruceHallman 15:37, 18 March 2006 (UTC)[reply]

Buzzard

For some reason the citation of Buzzard at Guncite does not match the citation at http://www.constitution.org/2ll/2ndcourt/state/191st.htm notably missing is the expression 'these constitutions'. It appears to me that the Guncite reference is in error, or at least is editorial and not a true citation.

------------ It's there, or at least it is at this link (the two texts appear identical): http://www.guncite.com/court/state/4ar18.html. ---------

While it is true that the Arkansas Supreme court considers the Second Amendment to the Federal Constitution, their actual ruling pertains to Arkansas law. Yaf's insistance that State rulings should be mixed with the Federal amounts to unbalanced point of view. A neutral point of view editorial method that maintains a distinction between federal and state jursidictions should be possible. Indeed, I personally believe that State law regarding right to bear arms is off topic in an article about the Federal Constitution, and there is an appearance at least the Yaf is including State law with the point of view that the topic of this article is the greater question of a right to bear arms not the question at hand, the Second Amendment to the United States Constitution. BruceHallman 20:44, 20 March 2006 (UTC)[reply]

Interesting, that the citations don't match. The Guncite reference may be editorializing in what is claimed to be a quote. We need to determine what the actual quote was of the Ark. High Court. And, I do agree that we need to keep a NPOV in this article.

As to my insistance on including State rulings, this follows simply from the view that the 2A prohibits infringement of the "right to keep and bear arms", and, in the absence of any Supreme Court rulings during most of the 19th Century, the views from the States during that critical time, regarding differing interpretations from the states on the 2A's protected right of how "to keep and bear arms", is indeed relevant. And, yes, there are different interpretations from the various states, ranging from treatment as an individual right in Ky to treatment as a collective right in Ark. Fundamentally, though, I don't think it is possible to break out the RKBA completely from a discussion of the 2A, and still maintain a NPOV. The 2A does not grant the right to keep and bear arms; it instead protects against infringement of this pre-existing right that belongs to the people. Discussions of how to protect this right at the state level hence do seem pertinent to the discussion at hand of understanding the 2A. And, obviously, I don't believe that including a reasonable set of 19th Century state-level interpretations capturing the major points of view of the time, and legal treatments of how to protect the RKBA during that critical time, to set the stage for the 20th Century discussion, is out of context in this article. But, I do agree with you in that I do not see the need at this time for including any state level decisions during the 20th Century and later, except when appealed to the Supreme Court, and ruled on there. Miller being a prime example. Yaf 21:44, 20 March 2006 (UTC)[reply]

Added quote from Bliss v. Commonwealth ruling, making it clear that the 2A was considered. Interestingly enough, it appears that the interpretation on the 2A protected right to keep and bear arms was absolute in KY in 1822, and hence the reason why the justices stated that Kentucky's constitution also had to have the same interpretation. It was changed later, of course, probably upon seeing that Buzzard seemed to permit the states to regulate the arms protected by the 2A. Yaf 23:24, 20 March 2006 (UTC)[reply]

Provide evidence please that Bliss describes the federal constitution, it appears to not do so, rather it is addressing the Kentucky Constitution.

Regarding your point about a pre-existing right to bear arms, this is an interesting topic of course, but it is clearly a different topic from the topic of the preservation of such right(s). The topic at hand, stated concisely, is the prohibition of infringement. BruceHallman 00:28, 21 March 2006 (UTC)[reply]

2A versus Gun Politics

Let's be candid, the majority of this Second Amendment article is actually about Gun Politics. We all agree that Gun Politics is important, but perhaps we also agree that diluting the Second Amendment article with Gun Politics fails to serve our readership who come here to learn about the Second Amendment. This Second Amendment article could be improved by moving the pro and con gun arguments over to the the gun politics page, does anybody agree? BruceHallman 14:48, 21 March 2006 (UTC)[reply]

Article starting to read more like an honest broker in contentious debate

128.146.26.96 13:48, 22 March 2006 (UTC) While Shays's Rebellion figures in mindset of those drafting the Second Amendment, the dominant concern remains standing armies and the dangers posed by distant governments unresponsive to the people. Intro needs to recast to take that into account. Essay is starting to look much better and read less like a gun rights manifesto. The fact is that that scholarship on this issue is pretty divided and this essay ought to reflect that fact.[reply]

Well, I grant that the scholarship is divided. Though the scholarship is mostly modern and appears largely driven by gun politics. I disagree that standing armies were the dominant concern by both sides in 1789, that concern was essentially a one sided, Antifederalist, concern. To me at least it is curious that the modern equivant to the Antifederal position, the Individual Rights position, fails to register any significant complaints about our modern day standing army. Why is this? I have a personal hypothesis, but I am curious if there is any scholarship on this shift, the evolution of the Antifederalist argument in 1789 through to the Individual Rights argument of today. These two arguments are decidely different. BruceHallman 17:40, 22 March 2006 (UTC)[reply]

Anti-Federalists and standing armies

128.146.26.96 19:05, 22 March 2006 (UTC) [[User:128.146.26.96|] 19:03, 22 March 2006 (UTC)[reply]

I think to the extent that Federalists must craft their argument in response to Anti-Federalist complaints, the standing army issue continues to be a problem. The right to bear arms was not even seriously debated during ratification till the end of the Pennsylvania ratification convention. The language used by PA Anti-Federalists drew on the PA Constitution of 1776. Also, there were two Anti-Federalist strains feeding into modern 2nd Amendment theory. The more individual rights strain found in Pennsylvania Dissent of the Minority and the states' rights strain found in Luther Martin and others.

I take it you meant to write: 'The preservation of the right(s) to bear arms...', as the pre-existing rights, arms for protection of self, and arms for protection of state, were largely agreed upon. The question was: to formally preserve one, or both, of those pre-existing rights in the State and Federal Constitutions? Many States chose to preserve both, but the Federal Congress, at least explicity, did not. Perhaps though, the Federal Congress implicitly preserved both the rights? That's our argument. BruceHallman 20:46, 22 March 2006 (UTC)[reply]

Actually, the right of self defense under common law was legally distinct from the right to have arms. The question of when one might have arms for non-military purposes was something subject to pretty heavy government regulation. Of course, in practice, and as a matter of policy, there was little reason to pass laws limiting firearms ownership when the goal was to get muskets in the hands of citizens. Once hand guns became a problem this all changed. This is what the Fordham symposium shows. This was why you had cases like Buzzard decided they way they were.24.145.225.26 01:26, 26 March 2006 (UTC)[reply]

Over reliance on Volokh

This essay takes Volokh's views as standard when his views clearly represent a vocal, but tiny voice among legal scholars. The standard view of legal scholars and the courts has been the collective rights view. The scholarship was heavily that way until the 80s when individual rights caught up--due in no small measure to the work of about six gun rights lawyers who were not primarily scholars. Recall that the Chief Justice of the Supreme Court, Burger, derided the individual rights view as silly during the 60s. This was over-statement, but much of this article has taken a revisionist view of the Second Amendment as orthodoxy. The individual rights view only took off after Levinson's Yale Law Journal article (1989). It is currently under siege by a score of scholars who have exposed its distortions and misrepresentations. The individual rights model has not yet even responded to the Chicago-Kent essays and two of the leading supporters of it (Levinson and Shalhope) have modified their views and embraced the new middle view represented by scholars such as Uviller, Merkel, and Konig. There clearly was an individual rights tradition, but this essay fails to explain why Jefferson's individual rights language was not adopted by Virginia and makes no effort to distinguish between rejected proposals such as Sam Adams made and the language that was actually included in the Second Amendment. To fail to do so is to ignore context and presents a distorted view 24.145.225.26 13:30, 23 March 2006 (UTC)[reply]

Disagreement as to why 2A is not = RKBA

I just removed Yaf's paragraph explaining his POV about the popular misconception that the 2A is synonymous with a RKBA. This is after Yaf removed my section explaining the opposing POV. Yaf explained his reason: "rm blatant POV, no proof of "disinformation" campaign by NRA". Yaf's given reason was wrong. Yes, the POV I posted was blatant POV, but real POV and met the WP:V test. Yaf's initial posting of his POV actually was failing the WP:NOR WP:NPOV tests.

I still think that the reason for the popular misconception needs to be explained in the article, and both sides' POV will need to be presented in the explanation. Though, reality is that the 'heat' of each POV is intense, but must be tolerated to achieve NPOV. BruceHallman 14:47, 24 March 2006 (UTC)[reply]

Serious problems with modern interpretation section

There are some serious problems with using Emerson as somehow typical of jurisprudence on this issue. It is clearly the odd case. Volokh's claims about ambiguity in the jurisprudence seems a stretch if you read the cases. Hatch's testimony is also pretty problematic from a scholarly point of view. The fact is that the right of the people to assemble protected in the 1st Amendment evolved from a very collective right-- to assemble and pettition for redress of grievances. Individuals can't assemble, only groups of individuals. If this article is to capture the historical complexity of this subject and remain NPOV it can't take claims such as Hatch's and Volokh's at face value. Both of those guys are pushing a very clear ideological agenda24.145.225.26 22:58, 24 March 2006 (UTC)[reply]

You make valid editorial points, please edit that section, removing much of the excentric, to a more central balance and neutral position. BruceHallman 03:30, 25 March 2006 (UTC)[reply]

I disagree on the validity of the editorial points. Editing to remove significant viewpoints is hardly NPOV. WP is to represent all viewpoints with significant representation. Simply deleting what you don't like, through POV editing and without citation, simply discredits the validity of WP, and is clearly not in accord with NPOV policies. As to discrediting Hatch's viewpoint, what other Senate Committee has investigated gun rights? Disregarding a Senate Committee report, because you disagree with the findings, hardly seems NPOV. Yaf 04:58, 25 March 2006 (UTC)[reply]

A very interesting debate here. While Hatch's views are important as a political reflection of the debate, does anyone seriously think he or his committee approached this issue with any scholarly rigor?66.213.109.42 16:22, 25 March 2006 (UTC)[reply]

Clause followed by a right

The 'clause followed by a right' paragraph should be deleted because it is a form of straw man argument solely raised by one POV. Obviously, the second clause of the Second Amendment is not a right, which invalidates the validity of the logic of the paragraph. Though, extreme pro-gun POV uses the 'clause followed by a right' Straw Man argument to diminish the meaning of the first clause. While, the mainstream opinion, as established with US v. Miller is that the first clause is the 'obvious purpose' of the 2A and equally significant.

A 'two clause' analysis paragraph could be likely be phrased to capture the minority point of view that the first clause is insignificant, but it should clearly convey that that is a non-mainstream point of view, and contrary to mainstream judicial interpretation. BruceHallman 17:10, 25 March 2006 (UTC)[reply]

Obviously, by inspection, the second part of the 2A is a right, for it states, "... the right of the People to keep and bear arms shall not be infringed." This is not original research, it is simply reading the word "right". This is not a strawman argument; it is simply reading what the 2A says about the right of the People. Calling the second part of the 2A other than what it says, that somehow presuming it magically were not a right, is an extreme POV. The 2A clearly supports the militia, and it does contain a right because it says it does. Yaf 18:25, 25 March 2006 (UTC)[reply]

Rationalization aside, the second clause simply describes that 'the right' shall not be infringed by the states. The 2A does not create the right to which it refers, the right preexists and is contained elsewhere. You yourself made this argument the other day in your explanation of your rational about the reason for the common misunderstanding that the Second Amendment is synonymous with "a right to bear arms". Perhaps you could describe it as a clause followed by a prohibition of infringment. To generalize the second clause to be 'a right' is a misinformation myth, a commonly used tactic by pro-gun rights proponents. Similar to their other tactic, to diminish or dismiss the significance of the first clause. Those tactics are not mainstream or neutral. BruceHallman 18:55, 25 March 2006 (UTC)[reply]

What is the point of the section Historical Foundations of Rights to Possess Arms

This section seems to merely repeat rarlier material and is very slanted 24.145.225.26 16:38, 26 March 2006 (UTC)[reply]

Feel free to edit it to balance the slant and take out the repeated material. Isn't one of the important points to be made that: The rights to arms existed prior to the 2A? The 2A protects a specific portion of those rights, those with the purpose of 'protection of state' by the militia. Other rights to arms, such as for collecting, protection of self, or for recreation, are protected elsewhere (Ninth Federal Amendment, and in certain, but not all, States). The root of the gun political debate centers on the origin of the source of the rights to bear arms, and the question of whether those right(s) are unitary or separable. A section on the historical origin of the rights to bear arms is valuable in the study of this debate in my opinion. BruceHallman 16:53, 26 March 2006 (UTC)[reply]

State vs. Commonwealth

The article states this in one of the first sections:
Eventually, the State of Massachusetts raised a militia to quash the insurrection.
I know that Massachusetts is now a Commonwealth and am pretty sure it was referred to as such in the lead-up to the Constitution. But, since I'm not really sure, I'm going to leave it to someone else to change. -- MusicMaker5376 22:33, 15 April 2006 (UTC)[reply]

Origin of the 2A

I am willing to discuss Simon's proposed edit, but am concerned that it is not so simple as to consider the Right to Keep and Bear Arms is the same as the Second Amendment. BruceHallman 17:10, 4 May 2006 (UTC)[reply]

I concur, in part. The RKBA is not the same as the 2A. However, the 2A protects the RKBA, and in that sense codifies it. The same RKBA existed in England and Australia as in the Colonies; however, because protection of the right was not codified in Australia and the UK, and due to Parliamentary supremacy, the RKBA was extinguished by statutory law in both England and Australia. It still exists in the US, thanks in large part to the 2A. Have attempted to craft a NPOV version of Simon's edit, clarifying that the RKBA is not the 2A. Yaf 18:08, 4 May 2006 (UTC)[reply]

I actually agree that the century old history of the RKBA belongs here, though I disagree that the economic conditions in 1791 should be deleted out of this paragraph. Contemporaneous economic/political/social conditions are relevant to the origin of the 2A. There should be room for both the big picture, spanning centuries, and the narrow picture of a fear of rebellion in America and France, that spring and summer. BruceHallman 19:24, 4 May 2006 (UTC)[reply]

Bruce, I didn't think the economic conditions stuff was edited but lightly. What is it that you feel was omitted in the latest edit? It still looks like it is largely intact to me, although it is now in the second paragraph rather than in the first. Yaf 02:43, 5 May 2006 (UTC)[reply]

I don't have major problems, nor do I have time right now to think. I will look at it later, and then, only if I have strong feelings, I will suggest an edit. BruceHallman 03:15, 6 May 2006 (UTC)[reply]

1689

I suggest you look at the Chicago Kent symposium which deals with narrow scope of the right under English law. The earlier discussion implied that the individual right was well established under English law, a view that most English historians apart from Joyce Malcolm reject.

24.145.225.26 01:57, 6 May 2006 (UTC)[reply]

Reverted from the version of

"The English Declaration of Rights (1688) affirmed that Protestant subjects might have arms suitable to their condition, subject to government regulation. When Parliament sought to codify the right of individuals to have arms in their homes for self defense shortly after the Declaration of Rights, this bill was defeated. Parliament concluded that such language was inconsistent with social stability. American colonial law departed from this English model in one important respect, it embraced a much broader conception of the militia. Thus, by the time of the American Revolution, the ideas of a well regulated militia and related notion of an armed citizenary well established."

as this represents a POV commentary on social stability, and speculation on the conception of the militia, while confusing what the 2A actually builds upon. The Common Law right to keep and bear arms is the underlying right that the Ninth Amendment maintains, and which the Second Amendment prohibits the infringement of. The 2A actually protects and freezes for all time the pre-existing right of the people that existed under British Common Law in 1789, whereas the English Declaration of Rights allowed arms as permitted by law, but which also allowed Parliamentary supremacy to extinguish the pre-existing Common Law rights, upon Parliament ever deciding that the law should be changed. (This has happened of course in the UK, Australia, and Canada, relative to the right to keep and bear arms...) In contrast, the American Constitution is actually more forceful in protecting the rights of citizens than what exists under a Parliamentary supremacy, as it froze in 1791 this Common Law right, and the right may not be extinguished without amending the US Constitution. This is a bigger difference than it first appears, as the Freedom of Speech rights also came from the English Declaration of Rights, and they could be extinguished upon similar parliamentary decrees changing the law were it ever to happen. In the US, the First Amendment, however, prevents Congress from ever usurping the free speech rights of "The People" short of amending the constitution. Yaf 05:25, 6 May 2006 (UTC)[reply]

Incidentally, an interesting background article on Joyce Malcom's position is available on the BBC website. [22] Yaf 05:41, 6 May 2006 (UTC)[reply]

This is all strongly pro-gun and not historically neutral. There was no right to keep or bear arms under common law.

24.145.225.26 22:06, 6 May 2006 (UTC)[reply]

Actually, there was (and still is).

"The common law of England, for example, created what are called "common law crimes," such as murder, rape, arson, robbery, larceny and assault. These common law crimes formed the body of criminal law in the American colonies without any legislation both before and after the Revolution, until modern legislatures wrote criminal codes mostly in the latter half of the l9th century. Moreover, the common law also recognized and enforced what the great 18th century British jurist Sir William Blackstone called the "absolute rights of individuals." Among these absolute rights of individuals, Blackstone proudly listed "the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defense." It should be stressed at this point that Blackstone was not creating any new rights, but was merely listing the rights already secured to the British subject under the common law. In speaking of the right of self-defense under the common law, Blackstone made the telling point: (Self-defense) considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense, therefore, as it is justly called the primary law of nature, so it is not neither can it be in fact, taken away by the law of society." [23] .

It is ironic that the United States is the sole country still using the English system of measure (inches, lbs, feet, yards, etc.), while still protecting what historically were the rights of every Englishman under Common Law. Yaf 22:31, 6 May 2006 (UTC)[reply]

This is a serious misreading of Blackstone. The English game laws clearly disarmed large numbers of people. Every attempt to bring a suit under common law against the game laws failed until the late 18th century. I don't have the cases with me, but I can produce several cases which contradict YAF's ideological claims. The fact is under common law there was no right to arms. The right of self defense described by Blackstone clearly described the English Declaration of Rights more narrow political construction. This section needs to be revised or it will discredit everything that follows. I suggest you read the essays in Chicago Kent on Blackstone and the Declaration of Rights 24.145.225.26 22:44, 6 May 2006 (UTC)[reply]

Not at all. As the American Blackstone", St. George Tucker, noted relative to Blackstone in two footnotes: "[fn40] The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government.'" "[fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. " So, as you point out, yes, the game laws in the UK did remove the right to keep and bear arms, ostensibly to effect a protection of gamebirds for the elite of England, but more likely to suppress potential insurrections. But, and this is the key point, Parliamentary supremacy is what allows the Common Law rights in the UK to be extinguished (which they have been). The US Constitution, on the other hand, established the Common Law rights then extant when written, in terms of both enumerated and unenumerated rights, as summarized in the US Bill of Rights. And, we did not have any game laws in effect in America at the time. It is false to compare the latter-day game laws of England providing effective gun control with the Common Law rights that existed in 1789 in America, and which were ratified in the Second Amendment in 1791. The US system is more closely allied with the older Common Law rights than with the latter-day game laws of the realm in the UK. We have never been under the same game laws in America as exist in the UK. Yaf 23:40, 6 May 2006 (UTC)[reply]

This is wrong on many counts. There is no evidence to support the claim that the US Constitution incorporated the common law. If that were true than there would have been no need for reception laws that later expressly incorporated aspects of the common law. Look at any standard history of the law in American if you are not aware of these reception laws. Also, Tucker himself noted that the common law had not been incorporated uniformly in America. It was precisely for this reason that he wrote his own study as a commentary on the evolution of the common law in a single state, Virginia. If you look closely at Tucker and his footnotes you will note that he links the 2nd Amendment to the 5th Auxiliary right which was linked to the Declaration of Rights, not the common law right of self defense. When you look at the footnotes dealing with self defense they make no mention of the 2nd Amendment. You obviously have not read the Heyman article in Chicago-Kent. Anyway, I suggest you look at the English cases that very clearly challenge the idea that there was a right to have arms under common law. I fear YAF is simply using this site to push his pro-gun agenda. He continually talks about the 9th Amendment, a line of argument, that he himself admits is something unique to pro-gun rights ideology. The edits I have just made bring this essay back into NPOV

24.145.225.26 00:37, 7 May 2006 (UTC)[reply]

The US Bill of Rights itself is widely recognized to codify many aspects of Common Law. It is evidence in and of itself that the US Constitution (including Amendments) incorporated Common Law. (Technically, by your lawyerese, the Constitution itself did not incorporate Common Law rights; hence the need for the first ten amendments.) But, by the words of the Ninth Amendment, there are other rights not expressly enumerated in the Constitution that also exist. These are widely recognized to be Common Law rights, too. English cases, English game laws, and other legal issues across the pond, post-Revolutionary War, have no bearing on the Second Amendment. To quote them is a logical fallacy. Still, you do make good points although I fail to understand some of your logic in talking about state militias prior to the legal definition of states; they were Colonies (some Chartered, some not.) Likewise, there were not yet any Americans yet, prior to the Revolution, they were still Colonists and British Subjects, at least after 1707. Prior to that, they had been Englishmen. But I digress. St. George Tucker talks at length of self-defense common law rights, as quoted earlier. I am not pushing a pro-gun agenda. However, I do insist that we be correct in our edits. As for your claim regarding the Ninth Amendment arguments, they have had legal standing for quite some time now among Supreme Court rulings applying to a right to privacy, a right to abortion, and an assortment of other, mostly unenumerated, Common Law rights. To argue that the Ninth Amendment somehow applies only to gun rights is very POV. Yaf 03:57, 7 May 2006 (UTC)[reply]

Please produce an acceptable scholarly source to support the claim that common law rights are generally understood to be included in the 9th Amendment. The scholarship on this issue is bitterly divided. Apart from Goldberg's concurrence in Griswold, the 9th Amendment has had almost no impact on modern jurisprudence. Scholars like this sort thing because they need things to write about. Judges generally don't pay that much attention to scholarly musings. As far as my slip up about state vs. colonial militias, mea culpa. The point is that when colonials defended their right to arms against British disarmament they quoted the Declaration of Rigths, Blackstone, and their colonial militia laws. Your reading of St. George Tucker confuses his discussion of the right of individual self defense with the right to bear arms. I suggest you look at the most recent issue of the William and Mary Law Review which has an article on Tucker and the Second Amendment that analyzes this confusion. Also, Webster was a Federalist not an Anti-Federalist. Moreover, the right to bear arms was not part of the original Anti-Federalist critique, but only emerged at the end of the Pennsylvania convention. 24.145.225.26 14:34, 7 May 2006 (UTC)[reply]

Have added same (from a Yale Law Journal reference.) The original argument is from the 19th Century, so the basic argument, that Common Law rights form the basis for the Bill of Rights, including the Second Amendment, and that unenumerated rights are also part of Common Law rights, is certainly not a new idea. There is no confusion of the right of individual self defense with the right to bear arms; they are one and the same under Common Law. Now, whether or not this right is, as noted in some state laws, an individual right, or, as noted in a few other states' law, a collective right for the common defense, that is an entirely different matter, and is discussed at length in the article already, being at the core of one of the most disputed meanings of the 2A. Yaf 05:18, 9 May 2006 (UTC)[reply]

You will have to do better than Amar, a contrarian by nature, whose work is hardly taken as the orthodox view of anything. Using Amar in this manner is particularly peverse given that he views the 2nd Amendment as a collective right in the 18th century and only sees it morphing into an individual right after the 14th Amendment. The notion that right to bear arms and the common law right of self defense were the same is not npov. It represents one controversial claim in this debate. To prove this point you must find historical examples of 18th authors who make this connection explicitly or a significant body of modern scholarship. The claims made by Amar that you quote refer to developments long after the 2nd Amendment was ratified. Look at the debate between Chase and Iredell in Calder v. Bull over the status of natural rights under the Constitution to see how far fetched your claim is for the 18th century. You clearly have not read John Reid's work on the concept of liberty in the Age of the American Revolution or Gordon Wood's work on early American constitutionalism. 24.145.225.26 01:10, 10 May 2006 (UTC)[reply]

Have reverted your vandalism in deleting cited and substantiated quotes. If Amar is not to your liking, then surely you can find a quote stating the problems with what he claims in the Yale Law Journal reference. Deletion of cited facts contrary to your POV position is considered vandalism. Find a source critical of his position, or presenting a contrary position; don't simply delete a quotation with a citation. Yaf 03:36, 10 May 2006 (UTC)[reply]

I find it hard to believe that anyone could fail to see that this is an argument derived from a case at the end of the 19th century and not a historical text that speaks to the original understanding of the connection between the common law and the Bill of Rights. To call this vandalism is silly. You clearly have no clue about American law, legal history and are simply spouting off whatever random evidence you can find to support a thesis that is simply not accepted by most scholars or judges. Either you remove this or I will. If you want to have some outside authority to review the matter that would be fine with me. If you look at the scholarly literature and the jurisprudence there is simply no foundation for the claim that it was universally understood that common law rights were absorbed into the Bill of Rights.

I have deleted the POV commentary with no citations that is original research, contrary to Wikipedia policies regarding WP:NOT and WP:NOR. This is in clear violation of the rules of Wikipedia. If you have cited and substantiated information to add to the article, fine. Please add it, to improve the article. But, to delete cited content you disagree with and replace it with POV commentary that is uncited and unsubstantiated is contrary to Wikipedia policy and constitutes original research. Yaf 13:38, 10 May 2006 (UTC)[reply]

Every claim I made can easily be documented. If you had bothered to read the cites I have provided here. You really don't understand the basics of American constitutional law. There are no bill of rights claims to common law rights under American law. Either a right is established under common law and is subject to the full scope of the state's police power or a right expressly protected by the bill of rights and subject to strict scrutiny. There is no federal appeals court that has treated the right to bear arms as an individual right apart from Emerson and even that court failed to apply strict scrutiny. Amar's discuussion is about the impact of the 14th Amendment. The discussion of Jefferson is not original research, but was part of a scholarly symposium in the law and history review. 24.145.225.26 15:17, 10 May 2006 (UTC)[reply]

Here is primary source and secondary source evidence that clearly contradicts your claims YAF. You must find primary source evidence and secondary source support on point, and not go on a fishing trip trying to find late 19th century sources for claims made about the 18th century. This is simple logic, not vandalism. You are not only distorting the history you are ruining the narrative flow of this essay 24.145.225.26 15:36, 10 May 2006 (UTC)[reply]

The North Carolina law review article, while not very persuasive, is at least an authority on point. As the quote from Spitzer demonstrates this is at best controversial. The only NPOV solution is to present both sides and take out the Amar blather which ruins the flow of the essay. 24.145.225.26

Edited the content slightly to agree with WP:NOR formatting requirements, but believe that I have left it NPOV. Yes, it is important to keep the article NPOV, through presenting all viewpoints with significant representation. (Yes, this is hard at times, but it is a policy that is required for balance.) Yaf 23:28, 10 May 2006 (UTC)[reply]

And, forgot to mention it, but can you provide a year and date, page numbers, etc., for a more complete reference for Spitzer? Yaf 23:32, 10 May 2006 (UTC)[reply]

Spitzer, Robert J., "Lost and Found: Researching the Second Amendment." Chicago Kent Law Review 76, no. 1 (2000): p. 349-401. 24.145.225.26 23:37, 10 May 2006 (UTC)[reply]

common law and amar

The amar quote deals with a case from the late 19th century and can not be used to understand how the common law was interpreted at the time of the Founding. The scholarship is clearly divided on this issue and any other suggestion is not npov 24.145.225.26 15:11, 22 May 2006 (UTC)[reply]

The Amar quote is an interpretation of the 2A from the 19th Century. It clearly belongs here. Likewise, if there are other interpretations, properly cited and not original research, then they should be included here, too, for balance. Deletion of cited and/or quoted information counter to your POV but on topic is usually considered vandalism. Please improve the article, and add what you feel is missing in the form of cited information. Don't just delete what you feel is not yet balanced with other cited viewpoints. Yaf 20:40, 22 May 2006 (UTC)[reply]

Look if you want to include this in a section on the 19th century, it would at least not ruin the logic, flow, and historical character of this discussion. If you really don't get that you don't have the chops to be writing on this topic

24.145.225.26 21:09, 22 May 2006 (UTC)[reply]

Washington mis-quoated?

The quote: "A free people ought not only to be armed but also disciplined" seems not only to have been taken somewhat out of context, but has had its wording altered in a significant way. The quote should be "A free people ought not only to be armed and disciplined but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.", although I have yet to find a good source for it (only a ton of common ones I found when I realized that nowhere other than wikipedia lists the quote as it is). Corrected, the meaning of the word 'disciplined' shifts considerably, and the whole statement takes on a much more anti-federalist sentiment. Anyone who can find and cite a better source is encouraged to change it.

======================================

The above reference is a thoroughly BOGUS quote. Here is the actual quote: "A free people ought not only to be armed, but disciplined; to which end a Uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent others, for essential, particularly for military supplies." http://gwpapers.virginia.edu/documents/union/state1.html

Proposed split

I'm proposing to split this article, as it's way too long! This makes it hard to read, navigate, and edit. I'm not sure exactly how the split would go, but I'm thinking maybe the main article here would be more of a basic overview, and there would be new pages about the history of its enactment and about the present-day debate over its interpretation. ENpeeOHvee 19:45, 15 June 2006 (UTC)[reply]

The article is long essentially because length is needed to achieve consensus about neutrality balance. I suspect that finding a neutrality agreement about what to split out will not be quick or easy. BruceHallman 01:30, 16 June 2006 (UTC)[reply]

I understand that everyone with their different POV wants to make sure that all their arguments are included, but that doesn't end up accomplishing much if the result is an article that's not accessable to most readers because it's way too long. And I think the readers need to be the first priority. Also, I think NPOV will benefit because shorter articles are easier to check for balance and NPOV. I was actually browsing through this article to see how well it did at presenting both sides, but I had to scroll down like twenty pages to get to where the issues I was looking for were even covered.

Anyhow, I know it'll take some brainstorming and discussion to decided exactly how to do the split, but I think it's neccessary. A basic outline I was thinking was: overview/summary (here), analysis of case law and such, history of enactment, and finally - the most contentious issue would be addressed at an article focused on the arguments made by opponents and supporters of gun control. This last article would address the key debate over the essential meaning of the ammendement and would start and finish with that. Of course the other new articles would be refered to and linked to in the latter. Basically that's my primary goal here. I think that basic debate is very important and needs to be covered in Wikipedia in a way that's accessable to the readers. But the way the article's currently set up, it's just too long and intimidating and there's too much detailed legalistic analysis that people have to wade through to get to the meat of the matter (that stuff should be referred to and linked to for people who want more detail). All and all it's just too much work for someone browsing through here to get an effective overview, so it's pretty clear to me that it needs to be split. ENpeeOHvee 04:07, 16 June 2006 (UTC)[reply]

You may, or may not remember the intensity among the editors in months past, replaced, of late, with a relative truce. I credit this truce to a neutrality balance in the article. Any spliting would likely upset that balance and I fear, the truce. I agree the article is very long, but I believe the length is worth it, because it is the cost paid to achieve the balance and maintain the truce. BruceHallman 13:25, 16 June 2006 (UTC)[reply]

It would be extremely difficult to achieve balance among each of several smaller articles if we attempted to split up the present article. I don't believe a split would be worth the effort to attempt to achieve. I tend to agree with Bruce that we have largely achieved a balance in the present, admittedly longish, article. I am not in favor of attempting to split the present article. YAF 21:25, 20 June 2006 (UTC)[reply]

Wikifying

I have changed all of the external links and document references in the article into references (this collects all of them at the bottom of the article) in order to give the article a bit more of a "professional" look as well as changed blockquotes into using the Cquote macro as I think it gives a nicer look, i.e. more professional looking. This is strictly a formatting issue and should not change the content. Paul Robinson (Rfc1394) 03:12, 19 June 2006 (UTC)[reply]

Ninth and fourteenth amendments and Cruikshank

The references to the ninth and fourteenth amendment in the Cruikshank are not suported by the opinion, and in the case of the 14th, the paragraph is off-topic. If nobody objects, I'm going to remove them.

I object. The Ninth and 14th are precisely on topic here. To state otherwise, or to delete these references, is to mislead readers into believing that there is No right to keep and bear arms, since the 2A does not grant a right to keep and bear arms, but protects the pre-existing right to keep and bear arms. YAF 05:08, 25 June 2006 (UTC)[reply]

GA nomination

There seems to be a relatively easy to correct mistake here, the introduction doesn't summarize the article, just the Amendment, and it appears that this article discusses more than just the literal amendment but discussion of its impact and precendece in history at various times and whatnot. It just seems like something easy to fix, so im putting this article on hold on the nomination page so nobody speed-fails it. Homestarmy 04:12, 2 July 2006 (UTC)[reply]

Oh, and the "on hold" status only lasts for a week, so eventually it's got to be graded or something. Homestarmy 07:08, 6 July 2006 (UTC)[reply]

GA failed on the account of not answering to the on hold comment given on the talk page. Lincher 03:04, 10 July 2006 (UTC)[reply]

discussion of Bobkerrigan edit

BobKerrigan made this recent edit which, I believe, should be discussed before proceeding to add into the article, (especially at line 44): BruceHallman 14:48, 10 July 2006 (UTC)[reply]

"(or alternatively, these provisions might all be interpreted as limits on congressional power, a view that has been advanced by supporters of the collective rights view of the Amendment.) ^[1]

"The Founding Fathers who wrote the Constitution were familiar with history. They knew of individuals who suffered unjustly from bills of attainder such as Thomas Wentworth 1st Earl of Strafford, executed by act of Parliment, and denial of habeas corpus such as James Harrington, imprisoned by Charles II and held without trial or a hearing before a judge. It is unreasonable to imply that the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws was not intended to protect individuals from abuse by government.

"On June 18,1789 Tench Cox, a friend of James Madison, wrote the following under the pseudonym "a Pennsylvanian" in the Philadepphia Federal Gazette, "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms." On June 24,1789 Madison whote a letter to Cox thanking him. (Young, The Origin of the Second Amendment, 671, 673)"

This passage does not help the narrative flow of this introductory section of the article. Also, I believe the article already has too much back and forth about 'the minds of the Founding Fathers' point of view 'seesaw counter-balance' content, and adding even more does not help the article, especially at the top in line 44. Not to mention, the article at 112kb is already too long, and additions should be justified as necessary in the talk pages, and this addition has not yet been justified. BruceHallman 14:48, 10 July 2006 (UTC)[reply]

I agree with Bruce that the article is too long. Some of that stuff should be yanked, other stuff should be in separate articles (but that's OT). I think the first two paragraphs should not be added. I also agree that Coxe's comments should not be in the introduction, however since there are few quotes from the founders or their contemporaries directly addressing the Second Amendment, that the quote should be included in the article, but again, not in the intro.

Tench Cox was arguing the position of only one side of the debate, so you cannot say that his quote is 'directly addressing the Second Amendment'. Rather, the Second Amendment was a compromise reached in August/September of 1889 behind closed doors. To characterize Tench Cox's description of half of that compromise as if it was a description of the whole compromise is not an accurate statement. Indeed, there is a good chance that the June 1789 Tench Cox was not satisfied with the September 1789 Second Amendment compromise. BruceHallman 15:48, 11 July 2006 (UTC)[reply]

"Tench Cox was arguing the position of only one side of the debate, so you cannot say that his quote is 'directly addressing the Second Amendment.'"

Huh??? If a person speak's his mind on a subject, he's addressing that subject (in this case the 2A) whether it's one sided or not. Surely you meant to state something else.

Again Coxe's statement is very relevant for the following reasons: Tench Coxe was addressing Madison's original proposal which is listed in the article, and several writers/scholars point to Madison's original proposal as solid evidence that a soley military right to keep and bear arms was intended. And again, since comments from the founders and their contemporaries, about the Second Amendment (regardless of which side they may fall on), are sparse, they are worth publishing. (It'd be far better to remove the Jefferson quotes [for example]).

Aditionally you wrote: "To characterize Tench Cox's description of half of that compromise as if it was a description of the whole compromise is not an accurate statement." Coxe is not describing a compromise, he's saying what he thinks the 2A is protecting.

Not true. Tench Cox wrote this commentary several months prior to the Second Amendment, so he simply could not have been refering to the Second Amendment, it did not exist yet. BruceHallman 04:25, 12 July 2006 (UTC)[reply]

Please read my post again, I said Coxe commented on Madison's original proposal, and I stated why the quote is relevant.

I did not misunderstand. Madison's original proposal is not the Second Amendment either. Madison's proposal pertains to only half of the compromise that later became the 2A. BruceHallman 15:02, 12 July 2006 (UTC)[reply]

Your rebuttal is a logical fallacy -- a red herring. It does not address the reasons I presented as to why the quote should be displayed. To repeat, this article mentions Madison's proposal -- some scholars/writers cite Madison's proposal as evidence that the final version of the 2A was intended to protect a solely military right. Within that context, Coxe's quote is relevant.

You now are saying Tench Coxe was commenting on a proposal, wording with which I could agree. You now are saying that some scholars, I could agree with the word some. Though, your previous wording, "...directly addressing the Second Amendment." remains wrong. Tench Coxe could not have been commenting on the Second Amendment in June, something that did not exist until September. BruceHallman 14:23, 13 July 2006 (UTC)[reply]

"You now are saying Tench Coxe was commenting on a proposal, wording with which I could agree." I mentioned it was in response to Madison's proposal a couple of posts ago. Anyways, I guess it doesn't matter that we agree since the original poster of that material doesn't seem to be around. ;-)

I am sorry for misunderstanding you, and after rereading and further thought, I find that I basically agree with you. Indeed, the article is overly long, and some of the less related quotations could and should be edited. BruceHallman 14:00, 14 July 2006 (UTC)[reply]

Did you add the Coxe quote? I just noticed it in the Others section. If so, you probably want to fix it: "Federal Gazette, June 18,1789, writing in support of the Madison's first draft of the Bill of Rights." There is an unnecessary 'the' in that sentence.

The article is not only overly long and contains unnecessary quotes, it's also an abomination (well, maybe that's a slight exaggeration). For example this tidbit, "...or does 'keep and bear arms' pertain more narrowly towards use of arms in a military context, or, in the case of the Common Law while still under the British, in service of the king and country." I interpret that sentence as claiming that under English common law, in the late 18th century, there was only a common law right to have arms when under the 'service of the king..." That's is certainly debatable. The recorder of London, the city's legal advisor, in July of 1780 wrote, "The right of his majesty's Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty... And that right, which every Protestant most unquestionably possesses, individually may, and in many cases must, be exercised collectively..."

Then the next sentence of the article claims, "This distinction was not subject to serious judicial notice until the first gun control laws were passed in the Jacksonian era." I think that statement is misleading as well. Although it's true that gun control laws may not have been subject to 'judicial notice' prior to the Jacksonian era, gun control laws WERE passed prior to the Jacksonian era. For example, there were laws in some towns restricting the amount of gunpowder civilians could store in their dwellings (usually around 3 pounds), and despite some states' Bill of Rights declarations, guns were confiscated from citizens refusing to take loyalty oaths, eg., the Test Acts of Pennsylvania which remained on the books until 1789.

This whole task seems rather hopeless. After all, even if these things could be ironed-out, who's to say a couple months down the road a new group flocks-in and re-writes everything? —The preceding unsigned comment was added by 24.130.223.65 (talk • contribs) 02:11, 15 July 2006.

The article as it presently exists is too long per Wikipedia guidelines. The high quality is the result of an astonishing amount of hard collaborative work. Hopeless is not a word I would use to describe the present state of the article. BruceHallman 15:41, 17 July 2006 (UTC)[reply]

I read the main article and these comments yesterday. (The comments were more interesting.) Frankly, I found the article very disappointing--it's biased to downplay the clearly intended right of the people to their personal arms. It's also far too long and poorly organized. Trying to give the complete legislative history in an encyclopedia article is foolish. Use links where appropriate. Your goal should be to present 1) What 2A says. 2) What the people who wrote it thought it said (where those Founders' quotations are pertinent). 3) What the courts have said. 4) What present scholars and other interested parties say. Summarized, not detailed ad infinitum. And PLEASE stop humoring the gun prohibitionists. No objective person can read the historical material and believe that the 2A is intended to protect the right of the state militias to have arms. -- M-K, 19 July 2006

The Supreme Court, in 1939, wrote that: "With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made." . It is incredible that the Supreme Court fails to meet your "No objective person..." test. BruceHallman 23:27, 19 July 2006 (UTC)[reply]

You may be jumping to conclusions about what the previous poster said. The poster may be aware of the court rulings, however the courts aren't bound to decide cases based on original intent (although many may feel that when possible, that judicial philosophy should be followed). In other words the original poster may believe that based on original intent the 2A was not preserving a state's right, although some courts have held differently, but not because they based their decision on an honest appraisal of the historial record.

Granted, the Miller Court examined a smattering of the historical historical evidence, but the passage you quote may not mean what you think it means. It's also possible that the chief justice who wrote the Miller opinion (arguably one of the worst chief justices in the Court's history), wrote it to be intentionally ambiguous. For example, one of the justices signing the Miller opinion (Hugo Black) commented on the Second Amendment as follows:

"Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute." (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.) (http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm)

If you follow the link and read Black's remarks, it is unmistakably clear that he was describing an individual right, not a state's right or the right to have a weapon only when in the service of an organized militia.

I don't have time to engage in lengthy and fruitless discussion here, but I will say that you can always spot those who quake at the thought of an armed citizenry by their willingness to question every one of the twenty-seven words in the Second Amendment. "Militia" means National Guard. "People" means state. "Infringed" means broken. (You know, it all depends on what the meaning of "of" is.) This is all nonsense--we know what the people who wrote the amendment meant from their other writings ("The strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government." -- Thomas Jefferson, etc.) Their transparent purpose (whether they realize it or not) is to make us all government-dependent serfs. None of this--nothing that hasn't prominently occurred in the historical literature--belongs in an encyclopedia article.

Miller clearly suggest that the 2A guarantees a personal right to military arms, not that it supports the 2A as a state right. Nowhere in the ruling does the court question the use and possession of firearms by citizens; it merely upholds the restriction against sawed-off shotguns. Efforts to distort the ruling (questionable as it was) are merely more desperate groping on the part of the gunphobes.

By the way, if you want to research the historical usage of words (though that really doesn't belong here, as original research), Google Book Search is a great tool: http://books.google.com/books?as_q=infringe&num=100&btnG=Google+Search&as_epq=&as_oq=&as_eq=&as_brr=0&as_vt=&as_auth=&as_pub=&as_drrb=c&as_miny=1776&as_maxy=1790&as_isbn= --M-K, 20 July 2006

M-K describes "...the people who wrote the amendment...", as if there was a unified consensus among those 'people who wrote'. There was not, so this assumption is fallacious. Indeed, M-K picks and chooses from the writings of that time to support his/her personal opinion. BruceHallman 16:07, 20 July 2006 (UTC)[reply]

I invite you, Mr. Hallman, to find one quotation from any of the Founders, unambiguously supporting the notion that the Second Amendment was not intended to guarantee the rights of individuals. Good luck. As far as anyone researching this has been able to determine, there are none. --M-K, 20 July 2006.

It appears that your definition of "the Founders" includes only anti-Federalists. My definition includes both Federalists and anti-Federalists. These two schools of thought disagreed about the 'rights of individuals'. Your invite to 'unambiguously' find, I don't accept. What you actually mean involves being unambiguous to you. You already have your mind made up. BruceHallman 16:47, 20 July 2006 (UTC)[reply]

You're right, Mr. Hallman; I do have my mind made up. You see, I've read a great deal on this subject and I've concluded that the people who wrote the Bill of Rights weren't writing in code. "State," "militia," and "people" all mean different things; they aren't synonyms of each other, and the Bill of Rights wasn't intended as a tricky word game. Frankly, I'm not surprised you won't try to support your statements with quotations. I don't think you know very much about the history of the subject. James Madison, principal author of the Bill of Rights, was also the principal author of The Federalist Papers--is he one of the Anti-Federalists you object to?

By the way, saying that my mind is made up sounds like the pot calling the kettle black. --M-K, 20 July 2006

From this Wikipedia article about the Democratic-Republican Party (United States), (of which James Madison was a leader), I quote: "... its leadership opposed Federalist policies ...". So yes, it is accurate to describe James Madison as an Anti-Federalist. BruceHallman 17:58, 20 July 2006 (UTC)[reply]

The following is from Wikipedia, http://en.wikipedia.org/wiki/Anti-Federalists :

Anti-Federalism was the name given to two distinct counter-movements in the late 18th Century American politics:

The first Anti-Federalist movement formed in reaction to the Federalist movement of the 1780s. It opposed the creation of a stronger national government under the Constitution and sought to leave the government under the Articles of Confederation intact.

The second Anti-Federalist movement formed in reaction to Alexander Hamilton's aggressive fiscal policies of George Washington's first administration. This movement is sometimes called the Anti-Administration "Party", and it would coalesce into one of the nation's first two true political parties, the Republican Party of Thomas Jefferson and James Madison (not to be confused with the modern Republican Party).

So you're citing a different Anti-Federalist movement. Madison was a Federalist at the time the Bill of Rights was drafted. --M-K, 20 July 2006

I see the distinction, thanks. Regardless, this does not convince me of the validity of your apparent belief, when you describe: "...the people who wrote the amendment..." as if there was a unified consensus (matching your personal beliefs) among those 'people who wrote'. BruceHallman 19:24, 20 July 2006 (UTC)[reply]

Noah Webster argued[24] for a military 'superior to any force that exists among the people'. Superior to a colonial power's standing army, yes, but also superior to (rebellious) individually armed people. And, Alexander Hamilton in his ' watching over the internal peace ' writings in Federalist #29, clearly imagines a military strong enough to control individually armed (rebellious) people. Also, John Adams in his ' Heat and Impatience of the People' letter[25] clearly fears the dangers of rogue armed individuals. This fear of individually armed rouge people clearly existed in 1789. BruceHallman 19:24, 20 July 2006 (UTC)[reply]

Thank you for the quotations. However, none of those (at least to the extent quoted) indicate that the 2A does not protect an individual right of the people. Further, all three men are on record as supporting the individual right interpretation:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." --Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).

" ... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights ..." -- Alexander Hamilton speaking of standing armies in Federalist 29. "The best we can hope for concerning the people at large is that they be properly armed." -- Alexander Hamilton, The Federalist Papers at 184-188

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... " -- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)

I'm still waiting for a single quote from any of the founders that indicates that the 2A was viewed as a right of the states during that period. M-K, 20 July 2006

As I stated previously, I doubt I could change your mind. BruceHallman 20:22, 20 July 2006 (UTC)[reply]

The way you're going about it, I'm afraid you're not likely to change anybody's mind. M-K, 20 July 2006

Which calls attention to the wisdom of the Wikipedia policy "The threshold for inclusion in Wikipedia is thus verifiability, not truth." You and I both see 'truth' different, it seems. BruceHallman 20:57, 20 July 2006 (UTC)[reply]

This is exactly why I have asked you to offer some type of verification that the Right to Keep and Bear Arms was viewed as a state right rather than a personal right at the time the 2A was adopted. --M-K, 20 July 2006

Thousands of person hours of work, by both of the POV's, has meticulously scrutinized and verified the article as it is presently written. I cannot restate that process here, sorry. And more, your vocabulary (and theory) 'state right' and 'personal right' were not even coined in 1789 so your question has an ambiguous premise. BruceHallman 22:15, 20 July 2006 (UTC)[reply]

Also, the phrase 'bear arms', in 1789 usually implied a military context [26]. A military context is not really 'personal right'. Your modern defintion of 'bear arms' means to 'own arms' or to 'carry arms', this was not the common definition in 1789. BruceHallman 22:30, 20 July 2006 (UTC)[reply]

Bruce, as you know, I disagree with this view; 'bear arms' was historically used both in a military context and in the sense of preserving a pre-existing right for individuals which pre-dated the 2A. As the 2A notes, citizens also have the right to 'keep and bear arms'. -- claiming a military context view was dominant is clearly POV and is not widely supported by the historically current views of 1789. As for the claim that the article is riddled with errors, I tend not to believe this, based on the lengthy edit cycles that were executed in the crafting of this article. If there are a few errors, though, these errors need to be identified and discussed here on the talk page, to improve the article. Yaf 05:57, 21 July 2006 (UTC)[reply]

Fair enough. I have cited hundreds of 'military context' examples and you have cited a handful which are not. I respect that there are non-military uses of the phrase, but I stand by my evaluation and description "usually implied". Do you disagree that the phrase 'usually implied' military? If yes, how do you explain the hundreds versus a handful disparity? BruceHallman 14:57, 21 July 2006 (UTC)[reply]

"Thousands of person hours of work, by both of the POV's, has meticulously scrutinized and verified the article as it is presently written."

LOL* As my previous post illustrates (and went unrebutted by you or any one else), the article is riddled with errors (I'm reffering to my block of comments regarding this article as an 'abomination.')

"And more, your vocabulary (and theory) 'state right' and 'personal right' were not even coined in 1789 so your question has an ambiguous premise." Yikes! Surely you jest? One merely needs to look at the Articles of Confederation to see the rights of states mentioned. Further the writings of the Founders and their contemporaries are full of comments regarding the rights of states. Also, again, if you had bothered to read my post referring to this article as an abomination, you would see where the recorder of London describes the right of Englishmen to have arms (in 1780) as both a collective and individual right.

Also, earlier you stated, "It appears that your definition of "the Founders" includes only anti-Federalists. My definition includes both Federalists and anti-Federalists. These two schools of thought disagreed about the 'rights of individuals'. "

What kind of gibberish is that? Three jurists, who were contemporaries of the Founders (and Federalists), and wrote commentaries on the Constitution, UNAMBIGUOUSLY described the 2A as protecting an INDIVIDUAL RIGHT. (Tucker, Rawle, and Story). You haven't offered a SINGLE shred of evidence to support your theory that anybody viewed the 2A as being restricted soley to members of an active militia.

I have more to say, but this will do for now.

(My comments aren't meant to be construed as saying that an anti-individual right viewpoint should not be presented in the article. I'm merely disputing some of the assertions presented on this page as well as several errors in fact on the main article.)

Would anonymous please sign and date his/her posts? I find it hard to follow the train of thought. Also, please define the capitalized noun "the Founders". And, which definition of the word 'abomination' are you using? I have trouble with the biblical, and feel similar about loathing. I don't think that the emotion loathing is helpful towards constructive collaborative and neutral editing. And more, I disagree that what I wrote was gibberish and am reluctant to engage in discussion with that sort of tone or name calling. BruceHallman 14:57, 21 July 2006 (UTC)[reply]

First, I apologize for the tone, but it has been frustrating, and believe me, it's not because we disagree. As for the term "Founders", it refers to the signers and ratifiers of the Consitution. The term 'abomination' as indicated in my post was hyperbole, but if you want a definition, abhorence would do, but again that's slight hyperbole/sarcasm. Also, I created an account, if it doesn't add my moniker at the end of this post, I'll add it. I'd appreciate it if you now, go back and address the issues I raised. Thanks. -- Bill_of_Rights, 21 July 2006.

Mr. Hallman comments: "Also, the phrase 'bear arms', in 1789 usually implied a military context" in yet another attempt to throw sand in the eyes of intellectual opponents. It is clearly established that the phrase encompassed both a military and civilian meaning. As already noted in the article, a number of contemporary state constitutions contained phrases such as "That the people have a right to bear arms for the defence of themselves and the state" --Pennsylvania, 1776. In the Wikipedia article, this is followed by a niggling counter argument that other constitutions use "bear" in a military context. Well, duh--the whole point is that it could be used both ways--and the 2A does NOT limit it to a military context. The most telling argument--which those devoted to undermining the 2A keep ignoring--is that there is no record of anyone viewing the 2A as anything but an individual right until the 20th Century. Anyone possessed of intellectual honesty would have to see that as compelling and decisive in terms of original intent--unless they really don't care what the original intention was and instead are only concerned with finding a justification for banning guns. --M-K, 21 July 2006.

M-K -- In one of your posts, yesterday, there is a quote falsely attributed to Jefferson regarding 'tyranny.' It's thoroughly bogus:http://www.saf.org/pub/rkba/general/BogusFounderQuotes.htm

and http://guncite.com/gc2ndbog.html

Also, are you aware that the quote from Sam Adams was a proposed amendment that was rejected by the MA delegates and also voted against by Sam Adams himself? --Bill_of_Rights, 21 July 2006.

Thank you for the consolation, though it is immediately muted when you go on to question my honesty. Wikipedia has a feature that automatically appends your name and date to posts to talk pages. If you type four tildes, the squiggly thing on the top left of my PC based keyboard, when you hit 'save' it automatically fills in your name and time. BruceHallman 15:52, 21 July 2006 (UTC)[reply]

Also, please don't confuse the Bill of Rights with the Second Amendment, while one begat the other, they are different. And certainly the Bill fo Rights is not the Constitution. Neither is this article about 'justification for banning guns'. Many people are confused about this, including, it seems, you. Also, this article is about the Second Amendment to the US Constitution, not the constitution of Pennsylvania. I find being accused of 'throwing sand' to be offensive, and not true. I also object to accusations about my intellectual honesty, they also are not true. Also, I do care that the article be WP:V, WP:NOR and WP:NPOV. Intention is very difficult to know after the time has passed. Do you agree? If yes, how can you be so certain that your opinions are correct? BruceHallman 15:52, 21 July 2006 (UTC)[reply]

":Thank you for the consolation, though it is immediately muted when you go on to question my honesty." This is one of the things I find frustrating when discussing things with you. You're polite, but where on earth in my post did I question your honesty??? --Bill_of_Rights

"Many people are confused about this, including, it seems, you." Classic case of projection. The Second Amendment is a part of the Bill of Rights. The Bill of Rights are amendments to the constitution and thus are considered a part of the constitution.

I think you're confusing my posts with M-K's. --- Bill of Rights

Bill of Rights: Thank you for the corrections. I would not have used that Jefferson quote had I realized it was bogus. However, there are ample other legitimate quotes that establish the point I was making. And Adams' proposed text still illustrates his point of view, even if (presumably) he later voted in favor of a different text.

You're welcome. Not trying to be picky. Sometimes folks don't understand the full context of stuff their quoting. For example, with the Adams quote, some anti's use that as further 'evidence' that an individual right was not intended, however, not only was Adams' proposal rejected, but MA did not submit ANY declaration of rights (neither did PA).

Mr. Hallman: "Throwing sand" seems a fairly apt metaphore for what you are doing, as illustrated by such remarks as "please don't confuse the Bill of Rights with the Second Amendment, while one begat the other, they are different" and "Neither is this article about 'justification for banning guns'" or "the constitution of Pennsylvania." The Second Amendment is obviously part of the Bill of Rights, and amendments to the Constitution become part of the Constitution; and the Pennsylvania quote was in relation to the use of "bear" in a clearly broader sense. You will not directly address the points made, specifically that there is no evidence that anyone prior to the 20th Century claimed that the 2A was anything other than an individual right. "Intellectual honesty" means, in part, a willingness to be honest with yourself, even when you don't like the result. --M-K, 21 July 2006

Proposing to eliminate or revise text

The following quote is from the Early Commentary on the Second Amendment section: [Section 1202] of the book describes "Power over the Militia" and analyzes the origins of the Second Amendment. Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-federalists who feared federal control over the militia."

First, the section cited clearly is not analyzing the 'origins of the Second Amendment.' That is a definite error of fact. It is clearly stated (and should be obvious) that Story is discussing Art I sec. 8 of the Constitution. Neither is it obvious that Story 'viewed the original meaning of the Amendment as a concession to moderate Anti-Federalists.' Aditionally, that claim is contradicted in Story's dissent in Houston v. Moore.

If nothing else the sentence I quoted needs to be revised. I'm also proposing to eliminate the quote, as well as the text, unless somebody can come-up with a cite, backing up their claim, and in my opinion an absurd interpretation of Story's commentary.

I'm not particularly interested in debating the meaning of that passage. If someone can come up with a legitmate citation, then it's fine to let that Story passage stay, but again the introductory verbiage needs to be re-written. --Bill_of_Rights, July 22, 2006

Re-read the source[27], Joseph Story is clearly describing the origin of the Second Amendment, and he is describing the negotiations and concessions. I don't see your problem. BruceHallman 20:16, 22 July 2006 (UTC)[reply]

Bruce, I've read it. You're wrong. Starting with sec 1194, it's clear Story is referring to Art I sec 8 of the Constitution. Please find one source that cites the passage in question as referring to an anlysis of the 2A. Again let's see a CITATION!!! --Bill of Rights, July 22, 2006.

edited to add: It is clear you are very confused between the DEBATES OVER THE MILITIA CLAUSES in the constitution and any debate there might have been over the 2A. Again, please show a cite!

(It might help if you visit this URL: http://press-pubs.uchicago.edu/founders/documents/a1_8_16s19.html and note the title of the page! And again, Story is not documenting the devlopment of the 2A but rather the debates that took place over the militia clauses.)

To tirelessly repeat... Our opinions don't matter. You need a cite to back-up your interpretation. -- Bill_of_Rights, July, 22, 2006.

While Story is discussing Article I Section 8 he notes that the concerns over it were addressed by one of the amendments to the Constitution. "Hallman's" reading is clearly correct and "Bill of Rights" is just as clearly wrong. I might add that St. George Tucker also linked the 2nd Amendment to Article I, Section 8 concerns and the VA Declaration of Right's provision on the militia. Although often cited by supporters of the individual rights view, Tucker's thought has been subjected to a detailed examination in a recent issue of the William and Mary Law Review which challenges the individual rights reading by placing the often quoted snippets drawn from Tucker in their historical context. If you want evidence of the state's rights view from the ratification debates I suggest you look at Luther Martin's Genuine Information for starters. If you want scholarly authority for the relevance of this passage from Story take a look at Cornell's new book, A Well Regulated Militia24.145.225.95

Please try sticking to the subject at hand. We're not debating what kind of right the 2A addresses. User 24.145.225.95 writes, "While Story is discussing Article I Section 8 he notes that the concerns over it were addressed by one of the amendments to the Constitution." That is clearly wrong. Please cite the passage where that is stated. You cannot, because it is NOT stated (nor is it implied!) You have misunderstood what Story wrote. (I know which passage you're referring to. Assuming you attempt to quote it in your defense, it's very easy to explain where you have completely misunderstood what Story was addressing.) --Bill_of_Rights July, 26, 2006

In his discussion of Article I, Section 8 Story recounts the litany of Anti-Federalist complaints: "It was conceived by the friends of the constitution, that the power thus given, with the guards, reserving the appointment of the officers, and the training of the militia to the states, made it not only wholly unexceptionable, but in reality an additional security to the public liberties. It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia. Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. The power might be construed to be exclusive in congress. Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. It might also be said, that congress possessed the exclusive power to suppress insurrections, and repel invasions, which would take from the states all effective means of resistance. The militia might be put under martial law, when not under duty in the public service." He then goes on to express his confusion that Anti-Federalists could seriously worry about the future of the militia. He then says the following: "It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period." He then discusses the Federalist response and the Amendments to the Constitution which provided the final assurances for Americans. " The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The flow of the argument is clear. Anti-Federalist raised objections. These fears were unfounded. Assurances were provided which included amendments to the Constitution, one of which touched on the militia. (emphasis added to original quote) Tucker also linked Article I, Section 8 with the Second Amendment, see the WMQ law review article noted above. Even Rawle accepted that the purpose of the Amendment was defined by the preamble's militia language. I think you have fallen into the trap of thinking it either has to be an individual right or right of the states and missed the new civic model that many scholars have adopted. Tucker, Rawle, and Story all fit that model much better than either the individual or collective model. [User:24.145.225.95|24.145.225.95]]

Section 1202 begins: "It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period."

He continues: "The answers then given seem to have been in their structure and reasoning satisfactory and conclusive."

The responses to the objections appear to have been sound and sufficient.

"But the amendments proposed to the constitution (some of which have been since adopted) show, that the objections were extensively felt, and sedulously cherished."

Here, Story is merely stating, in a general sense, that some objections were so strong to some portions of the Constitution (such as the one being discussed here), that ammendments were proposed and P-A-R-A-N-T-H-E-T-I-C-A-L-L-Y mentions SOME were accepted. In other words, the main point Story is trying to make in this sentence is how sincere these objections must have been. Story brings-up the amendments, obviously in a general sense to demonstrate the sincerity of the objections, not to expound on the origins of the 2A, thus contradicting the contention that "the concerns over it were addressed by ONE [emphasis added] of the amendments to the Constitution." Story said no such thing. Not even by implication.

If he had been speaking in anything but general terms he would have said the 2A was adopted for that purpose. I could just as easily and erroneously claim Story was referring to amendmends that were NOT adopted since he paranthetcally refers to some amendments being accepted. Especially since he doesn't mention the 2A and only defends the militia clauses as they stood on their own, unamended.

For example there is this proposed and rejected amendment from Virginia: ""11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state."

But again, I don't believe either case is correct. He merely mentions the amendments as evidence of the objectors sincerity.

The discussion that immediately follows addresses concerns with the militia clauses in the Constitution, and Story answers those objections based ENTIRELY on interpreting the mlitia clauses. (If you don't believe that is the case, please post excerpts to the contrary.) Thus giving further credence to the point that the amendments were mentioned only to indicate the sincerity of objections held against parts of the Constitution. NOWHERE IN SECTION 1202 DOES STORY EXPLAIN HOW ANY OF THE (parenthetcially) ACCEPTED AMENDMENTS MIGHT HAVE AMELIEORATED ANY OF THE CONCERNS RAISED.

Thus the claim in the Wiki article that sec 1202 lends itself to support of the other side "in the modern gun debate" as the Wiki article claims, is false.

Again, Story ONLY responds with interpretations of the militia clauses in the constitution. An accurate description of Sec 1202 is that it is Story's analysis and defense of one of the militia clauses.

All you can say with certainty is that amendents were proposed, some were accepted, some rejected, and that, according to Story, ostensibly demonstrated the sincerity of the objections.

Also, at this point, quoting section 1202 does nothing to contradict Story's SPECIFIC comments on the 2A. Nothing else in Story's commentary discusses or even hints at how the 2A might have altered federal control of the militia. Given Story's SPECIFIC commentary on the 2A, Story merely felt that the 2A preserved an individual right for a collective purpose. (At the very least a right to keep arms and render militia service)

Even more erroneous is the article's comment that, "Justice Story clearly viewed the original meaning of the Amendment as a concession to moderate Anti-federalists who feared federal control over the militia."

Nowhere in sec 1202 can it be shown where Story draws that conclusion let alone, what IF ANYTHING, was conceded! Story NEVER explicitly makes that claim, and again nowhere can that be inferred from the text. Thus, to state, "clearly" is obviously incorrect let alone a milder claim such as "appears."

And finally, the first sentence from section 1203: "It is hardly necessary to say, how utterly without any practical justification have been the alarms, so industriously spread upon this subject at the time, when the constitution was put upon its trial."

In other words, Story states how groundless were the concerns raised over the potential abuse of the militia clauses. With those words, it is easier to make the implication that Story believed no concessions, with regards to control of the militia, were made via the accepted amendments.

At this point in the commentary, nowhere has Story related how the 2A had anything to do with altering the nature of federal control over the militia. And even if one wants to believe he did, based on Story's 2A comments, the concession was to preserve an individual right for a collective purpose. Again, Story only defended the objections based on his interpretation of the milita clauses. He never, even implicitly, refers to the 2A and how it might have addressed ANY of the objections to the militia clauses.

If Story believed the 2A somehow addressed objections to federal control of the militia, he would have addressed them in 1202 or in his comments on the 2A, but he does not! Which again lends credence to the fact that Story only mentions the amendments to illustrate the earnestness of the objectors. Or if you want to play the implication game, after reading sec 1203, he could be saying that even though amendments that SPECIFICALLY granted more power to the states mlitias were proposed (such as Virginia's above), none were accepted, and for good reason, because the anti-federalists' fears never materialized.

The introductory verbiage to sec 1202 implies that the section somehow contradicts Story's commentary on the 2A as protecting an individual right,but it clearly does not. Story never comments on what kind of "concessions" were made other than that some amendments were approved. If anything, it can be just as easily implied from the entire commentary (including Story's 2A commentary) that no concessions were made, regarding the militia issue, other than that citizens (regardless of whether they were active militia members) could not be disarmed by the federal government and had a right to serve in the militia.

The obove is bolstered by Story's opinion in Houston v. Moore (http://www.healylaw.com/cases/houston.htm) which dealt with conflicts between state and federal militia regulation. After a thorough and divisive consideration of the issue, all three justices who wrote opinions clearly agreed that in event of conflict, state militia regulation must yield to federal law. The Second Amendment, was mentioned only by **Story** and his conclusion was that the 2A was thought to have no important bearing on the matter. Further, Justice Story wrote that if Congress actually did use its Article I powers over the militia, then congressional power was exclusive. There could be no state control, "however small." Again, more evidence that Story's commentary on the 2A and the militia clauses had nothing to do with altering the scheme of federal control over the militia as is asserted in the verbiage of the Wiki article introducing sec 1202.

Now, this all being said, if you have an actual citation from Saul Cornell with wording similar to the Wiki article, one could use his words in introducing sec 1202 or at least provide a footnote giving a citation (with the page number). In that case I don't mind, it's simply another example of crackpot 2A scholarship.

However, if sec 1202 is allowed to stand with that incorrect (in my opinion) interpretation, then who's to say Story's opinion in Houston v. Moore is not also relevant and shouldn't be inserted? (That's a rhetorical question. I don't plan to add it.) I think it'd be better to only quote passages that DIRECTLY address the Second Amendment (yes, that includes those Historical Quotes that don't seem to belong either), and relegate the counter and counter-counter arguments to the footnotes. (The extraneous gun quotes should be a separate page.)

"I think you have fallen into the trap of thinking it either has to be an individual right or right of the states and missed the new civic model that many scholars have adopted." I'm glad you prefaced that with an "I think." I'm familiar with the writings of David C. Wiliams and others.

"Tucker, Rawle, and Story all fit that model much better than either the individual or collective model." I disagree. I think the model that an individual right was preserved for a collective purpose comports best with all of the evidence. But again, this isn't the place to discuss those issues.

Edited to add: If one is attempting to connect the dots with Story's sec 1202, it's simply an erroneous way to do it. I don't have any objections to the attempt, necessarily, but there are better passages/ways of doing that, and of course different sides will draw different conclusions (but that's a different story [no pun]). Also, in an article of this nature, depending on how it's done it may be something that should be relegated to the foonotes, then again, if it's done well, maybe not. --Bill_of_Rights, July 27, 2006

Your suggestion that Story only mentions the amendments, including the 2nd, to prove that Anti-Federalist fears were genuine seems pretty weak. Story links Federalist counter arguments and the Amendments as a response to these concerns. Your reading ignores the content of those critiques and assumes that Story was only writing about their feelings about the threat to the militia. Talk about misreading 19th texts from a modern perspective—do you have any serious training in history? Another place where you go wrong is in assuming Story’s concession must have meant he accepted the full force of the Anti-Federalist critique when all he was doing is saying that fears over militia disarmament could be met with the more general protections provided by the 2nd Amendment. The contradiction with Houston only exists if you make the mistake I have just identified in your logic. If you read the text in historical context as I suggested there is no tension between Houston and his analysis. When Story discussed the Second Amendment his focus is squarely on the militia and the threat of a standing army. He never mentions a private right to have guns outside of the context of the militia.

I am glad you have read Williams. His book is now "history" and has been shunted aside by much better recent scholarship. You don’t seem to be aware that a number of prominent former supporters of the Standard Model, including Levinson and Lucas Powe, have embraced the newer model found in the work of Uviller/ Merkel, Konig, and Cornell. I suggest you look at David Hardy’s blog on Cornell’s new book if you think this scholarship is “crackpot.”24.145.225.95

"Your suggestion that Story only mentions the amendments, including the 2nd, to prove that Anti-Federalist fears were genuine seems pretty weak."

No weaker than your assertion, except I didn't resort to attacking the messenger when I couldn't attack the message.

"Story links Federalist counter arguments and the Amendments as a response to these concerns."

True.

"Your reading ignores the content of those critiques and assumes that Story was only writing about their feelings about the threat to the militia."

Nope. I didn't ignore the content of those critiques and you have apparently misunderstood the context of my argument. To repeat the context: Section 1202 does nothing to support the claim in the Wiki article that 1202 lends itself to support of the other side "in the modern gun debate."

"Another place where you go wrong is in assuming Story’s concession must have meant he accepted the full force of the Anti-Federalist critique..." Wrong again. Context check follows...

"When all he was doing is saying that fears over militia disarmament could be met with the more general protections provided by the 2nd Amendment."

While I disagree with your claim that is what Story is implying, for arguments sake, let's say your statement immediately above is correct. That statment is entirely different from the statment I am complaining about in the Wiki article. Your statement that "fears over militia disarmament..." could be used to support either the argument that -- the 2A protects an individual right for a collective purpose OR a more restricted 2A. And as a result, sec 1202 adds nothing to the content of the page. However, if you claim section 1202 demonstrates the 2A is restricted to active militia members only, you have failed to show it.

"The contradiction with Houston only exists if you make the mistake I have just identified in your logic. If you read the text in historical context as I suggested there is no tension between Houston and his analysis."

I never said there was a conflict between what Story wrote and Houston. But again that is a switch of context. The tension exists with the wording in the Wiki article describing 1202. It can be read as implying the 2A somehow reduced the degree of control the national government had over the militia. But since you seem to agree the 2A doesn't do that then sec 1202 becomes superfluous. So I'm sure you'll next undoubtedly claim that 1202 shows the RBKA was intended for active militia members only, right? Which brings us full circle... there is nothing in the passage to show that. The argument is indeed circular. And please don't throw any more red herrings out there. 1202 simply does not add support for the claim that the 2A was intended to apply to active militia members only, since a broad RKBA ensures the continuance of the militia at least as well as a restricted RKBA.

"When Story discussed the Second Amendment his focus is squarely on the militia and the threat of a standing army. He never mentions a private right to have guns outside of the context of the militia."

"The passage from Story, shows CLEARLY that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights." --- Andrews v. State (1871) Tennessee Supreme Court (emphasis added)

"I am glad you have read Williams. His book is now "history" and has been shunted aside by much better recent scholarship." Note, I said Williams and others. I thought you'd catch the implication that I've been tracking that train of thought and it's evolution.

"You don’t seem to be aware that a number of prominent former supporters of the Standard Model, including Levinson and Lucas Powe, have embraced the newer model found in the work of Uviller/ Merkel, Konig, and Cornell."

Red herring...yawn. I haven't read Uviller/Merkel's book, but have read some reviews... There appears to be the usual twisting, shifting and distorting.

"I suggest you look at David Hardy’s blog on Cornell’s new book if you think this scholarship is 'crackpot.'" I didn't say his work was crackpot. I said it was if he used the same verbiage to describe sec 1202 that appears in the Wiki article. I have read some of his stuff. One article from 1999 comes to mind and his comments regarding the Test Acts of PA. I was not impressed. --Bill_of_Rights 7/28/2006

^ see Jack Rakove, "The Highest State of Originalism," Chicago-Kent Symposium.

[1] see Jack Rakove, "The Highest State of Originalism," Chicago-Kent Symposium.

[1]