Talk:Second Amendment to the United States Constitution/Archive 3

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)


 * 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)
 * 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)
 * 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)
 * 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)
 * 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)

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.'' &mdash; (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)

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)

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."


 * 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)


 * 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)


 * 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)


 * 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)

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)


 * 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)


 * 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)


 * 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)


 * 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)

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)

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:
 * 1) Involuntarily committed to a mental institution
 * 2) Convicted of a felony or a misdemeanor crime of domestic violence
 * 3) 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)


 * 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)


 * 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)

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)

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)

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)


 * 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)

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. 


 * Emerson is presently reversed and remanded, 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)


 * As I recall, Emerson was reversed by the fifth circuit court of appeals. In their reversal, the appeals court agreed that the second "protects the right of individuals".  They went on to reverse and remand for other reasons.  To continue your analogy, "the court HAS ruled, but was reversed for other reasons".  Just an observation - O^O 23:49, 17 October 2006 (UTC)


 * The district court's ruling on the second amendment grounds was specifically reversed by the fifth circuit. The statement from the fifth circuit was "Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds."  The fifth circuit did hold that the second amendment is an individual right.  It simply held that the statute in question, 18 U.S.C. § 922(g)(8), is not sufficiently broad that the second amendment would be brought into play.  Basically, the fifth circuit held that a statue would be in violation of the 2nd Amendment if the statute consisted of a broad government attempt to restrict firearm possession, but is not in violation of the 2nd Amendment if it simply limits only certain types of guns or limits possession of all guns to a certain class of person. Sperril 22:08, 16 November 2006 (UTC)

Dear fellow editors: If you want the full citation, it appears to be United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999), rev'd, 270 F.3d 203 (5th Cir. 2001), ''cert. denied'', 122 S. Ct. 2362 (2002). I haven't studied this case at all. The Supreme Court declined to hear the case, so the Fifth Circuit decision (whatever it was) stands (unless the Supreme Court later overruled it in some other case). Yours, Famspear 22:50, 16 November 2006 (UTC)

See also Silveira v. Lockyer. I don't know anything about this case either. Yours, Famspear 22:53, 16 November 2006 (UTC)

Looks like the U.S. Supreme Court also declined to hear the Silveira v. Lockyer case. Citation added to that article. Yours, Famspear 22:59, 16 November 2006 (UTC)

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)

24.145.225.26 15:11, 18 March 2006 (UTC) 24.145.225.26

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)

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)


 * 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)


 * 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)


 * 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)

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)

tter 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

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.


 * 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)

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)


 * 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)
 * 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)

Actually, the right of self defense under common law was legally distinct from the right to have arms Even during the founding era the right to have arms in several states included the right to have arms for self-defense. James Wilson's comments that follow unmistakably show that protecting an individual right to SELF-DEFENSE (as well as a collective-right) was intended. (James Wilson was president of the PA convention, so maybe he had an inkling of what he was talking about):

"2. Homicide is enjoined, when it is necessary for the defence of one's person or house.

" With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons." (http://deila.dickinson.edu/cdm4/document.php?CISOROOT=/ownwords&CISOPTR=15463&REC=0&CISOBOX=homicide&CISOSHOW=15122)

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)

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)

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)
 * 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)
 * 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)


 * 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)

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)


 * 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)


 * 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)

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)
 * 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)

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)

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)


 * 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)


 * 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)


 * 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)


 * 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)

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)

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)


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

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)


 * 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.'."


 * 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)

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)


 * 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)

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)


 * 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)

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)


 * 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)

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)


 * 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)

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)

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)

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)

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)


 * 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)

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)

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)


 * 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)

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)

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 be