Talk:Second Amendment to the United States Constitution/Archive 5

message: Dear readers:
I have added a citation tag to the following verbiage in the article:
::There is some question as to whether the Second Amendment contains a comma after the word "militia," and a parallel debate as to whether the presence or lack of this comma influences the overall meaning of the Amendment.
If there is a "debate" as to whether the presence or lack of the comma influences the meaning, then we should be able to find some evidence of somebody actually debating or discussing that point -- in the form of a primary, secondary, or tertiary source.
Just as importantly, the article should specifically state what the debate is. What do the debaters say the amendment means with the comma? What do the debaters say the amendment means without the comma?
As currently written, the article seems to raise the issue without actually saying what the issue is -- and without citing to any source that would show anyone is actually debating the issue. Yours, Famspear 18:37, 23 January 2007 (UTC)
replies: text: To avoid expending energy answering the wrong question, I want to make sure I understand what you are asking.  My understanding is that you are NOT asking for citations regarding the debate over the existence of the comma ( think that is fairly well sourced), but instead you are asking for citations regarding whether it is debated that the comma would have any impact on the meaning.  Is this correct? - O^O 18:46, 23 January 2007 (UTC)
thread_title:  comma debate question 

message: Whoever wrote this article misquotes the USSC in Presser v. Illinois.  The author incorrectly inserts "[Second Ammendment]" when quoting the decision of the justices.  The rights that the justices claimed were not inherent to citizenship were, in fact, military organization and military drill (Presser v. Illinois, 1886.)
Regarding the Second Amendment, the opinion states quite plainly "...the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms...we think it clear that the sections under consideration do not have this effect."
The decision was that the legislation in question (Military Code of Illinois) did not impinge the right to "keep and bear arms", but the right to organize and drill an independant military (which is not constitutionally protected).
Illinois v. Presser in fact upholds the right to keep and bear arms as an individual right of citizens.
67.40.74.37 22:46, 28 January 2007 (UTC)
thread_title:  Presser v. Illinios misquote 

message: While jurisprudential circumspection is not the strong suit of this discussion, the following comment by the D.C. Circuit (a notoriously liberal/pro-government circuit in many other contexts) about the 9th Circuit's result-oriented distortion of long established federal constitutional jurisprudence is well worth reading:
We note that the Ninth Circuit has recently dealt with a
Second Amendment claim by first extensively analyzing that
provision, determining that it does not provide an individual
right, and then, and only then, concluding that the plaintiff
lacked standing to challenge a California statute restricting the
possession, use, and transfer of assault weapons. See Silveira v.
Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We
think such an approach is doctrinally quite unsound. The
Supreme Court has made clear that when considering whether
a plaintiff has Article III standing, a federal court must assume
arguendo the merits of his or her legal claim. See Warth v.
Seldin, 422 U.S. 490, 501-02 (1975) (assuming factual
allegations and legal theory of complaint for purposes of
standing analysis). We have repeatedly recognized that
proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C.
Cir. 2003); Am. Fed’n of Gov’t Employees, AFL-CIO v. Pierce,
697 F.2d 303, 305 (D.C. Cir. 1982). “Indeed, in reviewing the
standing question, the court must be careful not to decide the
questions on the merits for or against the plaintiff, and must
therefore assume that on the merits the plaintiffs would be
successful in their claims.” Waukesha, 320 F.3d at 235 (citing
Warth, 422 U.S. at 502). This is no less true when, as here, the
merits involve the scope of a constitutional protection.
The Second Amendment on its face makes the right to bear arms positively fundamental.  The dismissive attitude shown by a number of federal and state courts towards individual claims to this fundamental right is unseemly and demonstrative of the fundamentally anti-individual nature of our society.  For examply, many conservative right wing gun afficionados no doubt embraced John Ashcroft's ludicrous claim that the Patriot Act's Stalinistic invasion of individual rights would not be over-reached by the "forces of light" in the never-ending Crusade against the "dark side".  As recent events prove, you can never be too paranoid.  Any claim of federal (or state) hegemony over the right to bear arms is essentially a totalitarian power scam.  It is not a liberal or conservative issue--it is an essential libertarian issue that goes to the heart of democratic individualism. Elcajonfarms 04:59, 11 March 2007 (UTC)
thread_title: A little note about the District of Columbia decision and the 9th Circuit Precedent and Fundamental Libertarianism

message: Dear editor SaltyBoatr: Regarding a recent edit to this article: If the material is redundant, then perhaps it should be deleted. It looks like you instead left the material in the article, but changed the wording back to a prior version.
A precedent cannot be "variable," nor can it be "unsettled." A precedent is basically a court decision. You can, however, have different courts coming up with different decisions (different precedents) that conflict with each other, which is what I think is really meant in the article. The state of the law on a particular issue (here, the interpretation of the Second Amendment) can be "unsettled," in the sense that some courts are ruling one way and and other courts are ruling another way. I think that's really what you have here.
A given court decision itself, however, cannot really be "variable" or "unsettled." A decision is a decision, and is binding (until and unless overturned by a higher court decision, etc., etc.).
Now I see that editor Yaf has reverted back to my version. Anyway, your thoughts? Yours, Famspear 14:56, 2 April 2007 (UTC)
replies: text: Sorry for the editing error, moot now, but I see that you understand my point.  My goal is to keep the article NPOV, and the back and forth on this piece of text in the article stems from the POV push that existed there two weeks ago, when the text implied that the Emerson and Parker cases were precedent setting across the nation.  They are not, and I welcome all editors' collaboration to find the best wording to say this most clearly.  SaltyBoatr 16:55, 2 April 2007 (UTC)
replies: text: Yes, and I don't follow the edit history of this article closely (even though it is on my watch list), so I'm not always aware of the previous back and forth stuff very much. I know it's a constant battle in articles like this one to try to keep the non-neutral POV stuff out, as well as unverifiable statements about what courts actually ruled in one case or another. Yours, Famspear 17:13, 2 April 2007 (UTC)
replies: text: That list of "current precedents" is pretty lengthy in an already overly long article, and gets into a lot of details that don't create a clear picture overall.  Maybe it'd be easier just to say the current state of judicial precedents is that courts differ on whether the Second Amendment protects an individual or collective right, that the Supreme Court has not yet clarified that point in the face of conflicting interpretations of U.S. v. Miller, and that courts have not found the Second Amendment to preclude any local, state, or federal restrictions on firearms, with the exception of the D.C. Circuit, where current precedent is that the D.C. handgun ban is unconstitutional.  That's the bottom line, and I don't think listing all kinds of technical firearms restrictions in detail adds to it. PubliusFL 18:17, 2 April 2007 (UTC)

text: The 'bottom line' summary you present appears to be original research, but I welcome to learn of credible attribution for your idea.  I don't see that credible neutral experts see 'conflicting interpretations of U.S. v. Miller.  U.S. v. Miller has been settled law for several generations.  I concede that pro-gun partisans disagree loudly, but this article is supposed to present the neutral view, and I argue that the SCOTUS by definition has the arbitrary authority to set the neutral view.  SaltyBoatr 20:07, 2 April 2007 (UTC)
replies: text: What, if anything, the Miller Court was saying about the Second Amendment with respect to the individual versus collective issue is clearly a matter of significant debate.  Some scholars interpret it as intending that you have to be a militia member to have the right.  Others interpret it as intending that the weapon itself must have be useful for militia purposes, without prejudice to an individual right to own such weapons.  See, for example, Prof. Robert Cottrol from the GWU Law School versus Prof. Robert Spitzer from SUNY Cortland here, or Dan Abrams versus Prof. Eugene Volokh from the UCLA Law School here.  Prof. Sanford Levinson of the University of Texas Law School and Prof. William Van Alstyne from the Duke University Law School - both first-class constitutional law scholars - also take the latter view of Miller.  If we're going to be NPOV, we have to acknowledge that the meaning of U.S. v. Miller regarding the extent, if any, of an individual right to bear arms guaranteed by the Second Amendment is less than clear and the subject of significant scholarly and judicial (split circuits) debate.  Back to what I was saying in my previous comment, I don't think it'll be too hard to locate sources pointing out the uniqueness of Parker v. DC in striking down a gun control law on Second Amendment grounds.  I'll see what I can find.  PubliusFL 01:28, 3 April 2007 (UTC)

text: I believe that the consensus among credible neutral 2A experts is that at the federal level the 'right' is somewhere between purely individual and purely collective, tending towards the collective. And that I favor saying this over the POV illusion that there are really 'two models'.  SaltyBoatr 20:07, 2 April 2007 (UTC)
replies: text: A few decades ago, the consensus in academia was clearly leaning toward the collective side.  In recent years things have shifted to more of a balance -- see Sanford Levinson (as discussed above) and Laurence Tribe as some of the big names in con law who have weighed in on the individual (i.e. Second Amendment has some significant individual right component) side.  But you're quite right that portraying the issue as individual v. collective is something of an oversimplification or false dichotomy. PubliusFL 01:28, 3 April 2007 (UTC)

text: But, as you allude, the vast majority of gun and militia regulations are not subject to the 2A, because the 2A has very little effect on state and local jurisdictions.  The importance of the "list of 'current precedents'" in the article, in my opinion, is to communicate the fact that local and state juridictions are allowed by the 2A to write thousands of gun and militia regulations almost at whim.  SaltyBoatr 20:07, 2 April 2007 (UTC)
replies: text: The problem with listing all those types of regulations under "current judicial precedents" is that it is not clear from the sources in the article whether they have all been examined by an appellate court and actually found to be permissible under the 2A.  There's no binding precedent if an appellate court hasn't actually ruled on the issue.  For most of these regulations, to the best of my knowledge, it's more accurate to say "no one has said we can't adopt any kind of regulations" than to say "the courts have said we can do this." PubliusFL 01:28, 3 April 2007 (UTC)
replies: text: State courts?  How could State courts rule on the 2A?  Or, Federal courts?  How could federal courts rule on state laws?  (I guess you are thinking that the 2A might someday be incorporated?)  The vast majority of gun regulations are State or local.  If your problems is with the word 'precedent' I agree it isn't precise enough, and could see using a more accurate word, status quo or some such.  SaltyBoatr 03:48, 3 April 2007 (UTC)

text: I see a POV push going on about Parker, which is of limited interest, because D.C. laws are federal, not of the States.  And, based on my reading the news I don't see it likely that Parker will be the nucleus that will over-turn Miller; mostly because strategically, pro-regulation politicians can simply repeal the 1976 law making the appeal of Parker pointless. For that reason, I don't see that Parker needs much more attention in the article than Emerson. SaltyBoatr 20:07, 2 April 2007 (UTC)
replies: text: Parker is notable for actually striking down a law, as the Emerson discussion of the Second Amendment has occasionally been criticized as "dicta" (you don't have to find an individual right in the 2A to uphold a gun control law).  But like you say, the D.C. law is not a state law, and the majority in Parker explicitly stated that they weren't gonna touch the incorporation issue, so even if Parker is upheld by the Supreme Court it's a big jump from there to getting state and local regulations struck down. PubliusFL 01:28, 3 April 2007 (UTC)
thread_title: Minor terminology change

message: I made a minor edit to the description of the two versions of the text of the amendment. The "inflection" does not vary between the two versions, as far as I can see. What varies is the capitalization and punctuation.
"Inflection" means, in the case of a noun for example, the declension of the noun. In the case of a verb, "inflection" means the variance based on the conjugation of the verb. I didn't catch any variances in nouns or verbs (in connection with declensions or conjugations) between the two versions of the text. I have never thought of variances in capitalization of a noun as a form of declension -- but I will stand to be corrected, if someone can show me I'm wrong. Famspear 17:08, 20 April 2007 (UTC)
thread_title: Inflection versus capitalization

message: This is a highly suspect and poorly sourced section.  It needs work.  All of these questions floating around! My oh my!
Questions?  Sez who.
This lacks factual information, and reads more like the prologue to a political screed.  Let's get to work on it.  paul klenk talk 05:20, 22 June 2007 (UTC)
thread_title:  Modern Interpretations section 

message: I used this page many years ago to do research for my high school debate team. It's a goldmine of information. There are hundreds of law reviews. It's not often that you can hyperlink to peer reviewed academic research like that. NB it's on a pro-gun website (David Kopel is a libertarian scholar) so there's comparatively much less on the other side, but most of the articles are themselves balanced and fact-oriented. Maybe we can bring this article up to FA status. :) --Smtomak 16:53, 10 July 2007 (UTC)
thread_title:  GREAT research resource