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

message: 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)
replies: text:  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)
thread_title: Ambiguity

message: 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)
thread_title: Judicial section opening sentence

message: :::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)
thread_title:  Editorial suggestions 

message: 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)
replies: text: I am no sure I agree with you, but I added quotes anyway. BruceHallman 13:53, 16 March 2006 (UTC)
thread_title:  Introduction 

message: 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)
replies: text: 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)
thread_title:  Judicial prededence, child protection laws 

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

message: 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)
replies: text: 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)
thread_title:   24.145.225.26 edits 

message: 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)
thread_title:  2A versus Gun Politics 

message: 128.146.26.96 13:48, 22 March 2006 (UTC)
replies: text: 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)
thread_title:  Article starting to read more like an honest broker in contentious debate 

message: 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)
thread_title:  Over reliance on Volokh 

message: 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)
thread_title:  Disagreement as to why 2A is not = RKBA 

message: 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)
replies: text: 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)
replies: text:  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)

text:  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)
thread_title:  Serious problems with modern interpretation section 

message: 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)
replies: text: 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)
replies: text:  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)
thread_title:  Clause followed by a right 

message: This section seems to merely repeat rarlier material and is very slanted 24.145.225.26 16:38, 26 March 2006 (UTC)
replies: text: 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)
thread_title:  What is the point of the section Historical Foundations of Rights to Possess Arms 

message: 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)
thread_title:  State vs. Commonwealth 

message: 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)
replies: text: 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)
replies: text: 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)
replies: text: 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)
replies: text: 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)
thread_title:  Origin of the 2A 

message: 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)
replies: text: 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)
thread_title:  common law and amar