Talk:Right to keep and bear arms/Archive 2

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Emerson quote still needs some work.

Moving this here for fixing, two big problems. It relies on a website with an unclear publication process, which is not allowed. And, it is exceedingly ambiguous, as to weight of authority, because specialized knowledge is needed to understand the weight, when reading directly from the court document. SaltyBoatr 22:44, 3 June 2007 (UTC)


pasted below-------- The United States Court of Appeals for the Fifth Circuit observed in 2001 that:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service." [1][2]


To help with this, I have been searching for secondary sources, with reliable publication process, which discuss this passage in the Emerson court documents. This is all I can find, the Findlaw Writ written by AKHIL AND VIKRAM AMAR. It describes that the Emerson court really on found one example of the 'personal guns' definition that existed prior to 1789. SaltyBoatr 22:51, 3 June 2007 (UTC)

Meanwhile, while this is being discussed here, have restored the properly cited information back into the article. Yaf 04:06, 4 June 2007 (UTC)
Incidentally, reviewed the Akhil and Vikram Amar hatchet piece. It claims that only one example existed, yet this is clearly NOT what the court found, by virtue of the quote from the court claiming "numerous instances", and by the legal review by the NRA in the second source. As for the NRA website, the second cited source, this is clearly a published website of a major U.S. protector of rights under the Bill of Rights and is certainly reliable and verifiable, also. I don't understand why you continue to insist on removing properly-cited information (with two reliable and verifiable sources, no less.) It is evident that the right to bear arms was not solely indication of participation in military service, contrary to what you insist on persisting to support with your POV pushing. Yaf 04:16, 4 June 2007 (UTC)
Yaf, neither I nor the article claims it solely meant military service. SaltyBoatr 15:40, 4 June 2007 (UTC)
And, per WP:V, websites, such at that of the National Rifle Association are not 'properly-cited'. You and I obviously disagree on this. Are you willing to join with me to seek out a neutral third party opinion on this question? SaltyBoatr 15:40, 4 June 2007 (UTC)
Of course. Yaf 21:05, 4 June 2007 (UTC)
As an related issue, I am curious exactly which incidents are counted by the Court for their 'numerous incidents' claim. Have you seen that amicus brief which found 300 instances with the term meaning 'military service'? (I have lost the reference, but will look it up for you.) I understand that the Findlaw-Writ article points out that only one of the Emerson Court exclusively 'self' meanings predates the Bill of Rights.
Everybody acknowledges that there are some instances of the meaning at this time included 'self', though I think the studies find the count is about 10 meanings including 'self', (or 'self' and 'state') compared with about '300' meanings of the 'military' sense. A ratio of 10 to 300 is why I favor the wording 'predominate meaning'.
I totally agree with you that we should not be claiming of 'solely' or 'exclusively', for the late 18th Century. Though, 10 of 300, hardly should be considered 'numerous' either. The major point I see from reading secondary research is that the meaning of 'bear arms' has changed through time, with the 'self' meaning just beginning at the time of the early 19th Century and trending up until the present time. SaltyBoatr 16:44, 4 June 2007 (UTC)
The issue, from my reading, is that the meaning of the right to bear arms was largely considered self-evident, until a goodly time after the Civil War, in that RKBA clearly applied to individuals, whether those "upon a journey" or those providing actual militia service. As we discussed so long ago in writing the other article, under your earlier identity, the turnabout really only started with Arkansas, although Kentucky was rather clear on the individual reading. The real turn in opinion only came with Kansas circa 100 years ago. Yaf 21:05, 4 June 2007 (UTC)

Also, of interest is this Findlaw-Writ article[1], a credible secondary source, directly commenting on the Emerson 'bear arms' text written by Law Professor Michael C. Dorf:

Founding Era Documents

Moreover, if one reads Founding Era documents, one finds that the phrase "bear arms" was almost always used to refer to military service. (The interested reader can try this himself or herself by searching for the phrase "bear arms" in the Library of Congress's database of congressional and other documents from the founding era.)

To be sure, one can find the occasional usage suggesting the right is not always related to military service — especially among Pennsylvanians. For example, the Pennsylvania Constitution of 1776 provided, in part: "The people have a right to bear arms for the defense of themselves and the State." Furthermore, as the Fifth Circuit noted, some Pennsylvania Antifederalists would have gone even further, proposing an amendment that stated, in part, "That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game."

Yet while these uses show that the phrase "bear arms" could be, and sometimes was, adapted to include activities outside of the organized military, they hardly cast doubt on the dominant Founding Era usage.

What about the fact that the Second Amendment protects not merely the right to "bear" but also to "keep" arms? The Fifth Circuit thought that "keep" certainly means "possess." But that is not necessarily correct.

At the Founding, "keep and bear" appears to have been understood as a unitary phrase, like other constitutional terms such as "cruel and unusual" or "necessary and proper." In my own research, I have not come across any documents of the Founding period that treat "keep" as adding a right to private possession distinct from the military notion of arms-bearing.

I think the term 'numerous' in the court document needs to be quantified. It is interesting to see the usages of the term 'bear arms' in the Library of Congress database of colonial era documents, as recommended in the Michael Dorf Findlaw-writ article. I recommend that you take a look. Clearly, the predominate usage during that time period was in the context of military. SaltyBoatr 16:02, 5 June 2007 (UTC)

Also, I am curious how the usage 'in defense of self and state' means individual use, considering that at that time (and in the prior generation) that a large role of the militia was for the defense of frontier farms from Indian attack, and the act of defending one's farm against Indians is a defense of self, held a clear militia/military context. SaltyBoatr 16:07, 5 June 2007 (UTC)
In defense of self and state is self-evident that it means individual use, since the defense of one's self is inherently an individual use. In defense of state, however, would have been solely in defense of the state, it being presumably a militia (i.e., a non-individual) usage. Yaf 05:18, 20 June 2007 (UTC)
If you wish to investigate further the numerous portion of the 5th Circuit's observation, that, of course, would be fine. But, stating that "the predominate usage during that time period was in the context of military" appears to be original research, contrary to what the 5th Circuit actually stated in its observation. Yaf 07:33, 19 June 2007 (UTC)

It is not up to me to 'investigate' the Emerson edit that you repeatedly re-insert into the article, it is you who has the burden of proof per WP:V. You have not yet pointed to a secondary source (that is, one with a reliable publication process) for your Emerson court document, though I do acknowledge your attribution to the National Rifle Association website. The burden is on you to rectify the problem that quoting directly from the court document requires some readers to have specialized knowledge to understand the weight of authority of those judges in that court.

Answering your question (I would appreciate if you could also answer mine): My attribution for 'numerous' comes from several places, but look no farther than immediately above, in the Michael Dorf analysis which describes the usage as 'almost always' referring to military service.

Also, your Emerson quote still needs some work. Could you please suggest an alternate compromise wording instead of repeatedly inserting the same text. That way, maybe, someday we could find a mutually acceptable solution. Playing ping pong with your same text over and over is not working. SaltyBoatr 13:57, 19 June 2007 (UTC)

The present wording is fine as I see it, as it uses a verifiable and reliable secondary source (the observation of the 5th Circuit) instead of the primary sources of the constitutions of the states themselves, and WP policy is to use secondary sources instead of primary sources whenever possible. This makes this observation be a more compact expression of the civilian practice of bearing arms in the state constitutions noted by the 5th Circuit, without having to find secondary sources relative to interpreting the constitutions of each of the numerous states in question regarding interpreting their state constitutions, As for the NRA website cite, I had removed that long ago previously, as it was a tertiary source, and only one secondary source was needed for meeting WP:ATT issues regarding citing this quote. It was, as you may recall, what I had inserted originally to address your earlier concerns since you felt that an additional source to the secondary source was needed; then, you had expressed that the NRA website (a valid tertiary source) was not acceptable to your way of thinking, despite being reliable, verifiable, and cited. So, I had removed the tertiary source previously, as it was largely redundant to the secondary source of the 5th Circuit. If you feel that the present wording still needs work, a better course of action is for you to edit it, rather than to keep deleting it wholesale, or suggesting that I "paint a rock". Thank you. Yaf 05:18, 20 June 2007 (UTC)

You make some good points, but you still do not fix the major problem that some readers lack the specialized knowledge which is required to properly understand direct quotes from court documents. This is a serious problem which must be fixed. I suggest that you find a reliable secondary source which synthesizes that court document. I found two, (the Amar and the Dorf Findlaw Writs) which are cited above. SaltyBoatr 15:14, 20 June 2007 (UTC)

As to the cite for the word "observed",

"The court observed, "there are numerous instances of the phrase `bear arms` being used to describe a civilian`s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the `people` (or `citizen` or `citizens`) `to bear arms in defense of themselves (or `himself`) and the state,` or equivalent words, thus indisputably reflecting that under common usage `bear arms` was in no sense restricted to bearing arms in military service. And such provisions were enforced on the basis that the right to bear arms was not restricted to bearing arms during actual military service. . . . We conclude that the phrase `bear arms` refers generally to the carrying or wearing of arms. . . . The appearance of `bear Arms` in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, `the people,` and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of `bear arms` as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S. Ct. 1911, 1921 (1998); viz: `Surely a most familiar meaning (of carrying a firearm) is, as the Constitution`s Second Amendment ("to keep and bear Arms") and Black`s Law Dictionary, at 214, indicate: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."

from the cited reference. Yaf 14:31, 26 June 2007 (UTC)

citation from National Rifle Association

The burden of proof is on the editor Yaf to demonstrate that a website of the National Rifle Association is a source that meets the standards of WP:V. SaltyBoatr 15:18, 26 June 2007 (UTC)

Emerson

I still see that directly and selectively quoting from the primary court document, even with the more neutral verb 'wrote', to be violating WP:NOR. The average reader, lacking specialized knowledge, can be mislead whether what the court 'wrote' was an opinion, a ruling or fact. This is an important distinction of authority. Please use a credible secondary source. I have provided two (see above), or find your own. SaltyBoatr 15:11, 27 June 2007 (UTC)

Surely your "fact" tag can't seriously be intended to question whether the 5th Circuit actually wrote the quoted text in 2001. Can you point to which part of WP:NOR you believe is relevant here? PubliusFL 16:37, 27 June 2007 (UTC)

Look at the last paragraph of Wikipedia:No_original_research#Primary.2C_secondary.2C_and_tertiary_sources. My concern is that specialized knowledge is required to understand 'wrote' in the context of reading the primary court document. The question of whether what the court wrote being ratio decidendi or obiter dictum is critical to understanding a court document. That is why a credible secondary source should be used. I have provided you with two, or find your own. SaltyBoatr 17:19, 27 June 2007 (UTC)

I'm lost. We're talking about an appellate opinion, not a trial transcript. An appellate opinion would clearly seem to be a secondary source per your link. Appellate judges are not witnesses, they do not testify or present evidence. They analyze and comment on the record that has already been compiled by a lower court. The lower court record (transcripts of testimony, documents entered as exhibits, etc.) and the laws at issue are the primary sources being analyzed and commented upon. You may have a point about the importance of specialized knowledge, but that's tangential to the primary v. secondary source issue. Secondary sources often require specialized knowledge to fully understand. Most peer-reviewed academic journals, for example, are written at a level appropriate for scholars in a particular field, not laypersons, yet such journals are clearly secondary sources and not primary sources. PubliusFL 18:40, 27 June 2007 (UTC)

I appreciate that you grant that I may have a point about 'specialized knowledge' being required to understand direct quotes from court documents. Indeed I do have a point, in that an average reader cannot understand the context, weight and authority of the court. That is why I ask for you to use a credible secondary source. My concern is not with what the court wrote, but with the reader's ability to understand the weight of authority. A direct quote from a court document is primary, regardless of whether the court document refers to some other 'secondary' document(s). By your logic everything which an appellate or supreme court writes would be considered 'secondary', and that does not comport with WP:NOR.

Here are two credible secondary sources addressing the Emerson court document[2][3]. I realize they may not be favorable to your POV, so you are welcome to find another. You might also check the Uviller and Merkel book ISBN 0822330318. The NRA source provided by Yaf seems to fail the WP:V policy. Surely if the Emerson quote is notable there will be a credible secondary source for you to use. SaltyBoatr 19:48, 27 June 2007 (UTC)

I contend that an appellate court decision is a secondary source. You keep saying that "that does not comport with WP:NOR," but I don't see any support for your contention in WP:NOR. You keep arguing based on what an average reader can understand, but that has nothing to do with the WP:NOR definitions of primary v. secondary sources. A secondary or even tertiary source can be incredibly opaque for an average reader, but that does not transform it into a primary source. The hallmark of a secondary source is commentary on or analysis or synthesis of primary sources, and that's what appellate court opinions consist of (commentary, analysis, synthesis). Others present primary sources and original arguments to the court, and the court creates analyzes, synthesizes, and comments on those sources and arguments. If an appellate court is doing its job, nothing it says is truly original. PubliusFL 17:40, 28 June 2007 (UTC)
That is a big if, and you apply original research assuming it is true. The leading sentence prior to the quote and the quote does not comport with the last paragraph of Wikipedia:No_original_research#Primary.2C_secondary.2C_and_tertiary_sources. A reader needs to know the difference between ratio decidendi or obiter dictum for appellate opinions, requiring special knowledge. SaltyBoatr 17:54, 28 June 2007 (UTC)
I am applying no original research -- the same "if" applies to any secondary source. When citing to a journal article, you are assuming that the author of the article did not make up his sources. We expect appellate judges to do the same thing that we expect scholars to do: cite their sources. The paragraph of WP:NOR to which you point does not state that appellate court opinions are primary sources. Even if we assume for the moment that they are primary sources, WP:NOR does not say that primary sources cannot be used. It says that statements based on primary sources must "(1) only make descriptive claims, the accuracy of which is easily verifiable by any reasonable, educated person without specialist knowledge, and (2) make no analytic, synthetic, interpretive, explanatory, or evaluative claims." A simple quote from a primary source is only a descriptive claim about what the primary source says, which in no way violated WP:NOR. The distinction between ratio decidendi and obiter dictum is irrelevant here, because the quoted passage makes only a simple historical claim about "common usage" and what various historical documents said. The accuracy of such a claim is easily verifiable by any reasonable, educated person without specialist knowledge. If the quote were being used to comment on what the holding of U.S. v. Emerson was, your point would be well taken. PubliusFL 18:21, 28 June 2007 (UTC)
Thank you for acknowledging that my point is correct. Indeed, directly quoting the court can easily be read by a reader to comment on what the holding of U.S. v. Emerson was. That is why I insist on a secondary source versus a direct quote. SaltyBoatr 20:52, 28 June 2007 (UTC)

PubliusFL made a recent revert[4] with this edit summary (copied now to this talk page): "(rv - unfair to describe passage as "uncited." it most certainly is cited. you contend that the source is not of high enough quality.)" SaltyBoatr 17:49, 28 June 2007 (UTC)

Wrong, the sentence preceding the direct quote is indeed uncited and may be removed per WP:V policy. With that sentence removed, the quote left hanging lacks context and therefore should be removed. SaltyBoatr 17:49, 28 June 2007 (UTC)
Let me get this straight. You are contending that citing a quote to a 5th Circuit opinion from 2001 does not substantiate that the 5th Circuit wrote the quoted text in 2001? That's all the "uncited" sentence said. PubliusFL 18:21, 28 June 2007 (UTC)
Is the legal status of the Emerson quote 'opinion', ratio decidendi, or 'ruling', obiter dictum? Using the word 'opinion' without attribution violates WP:NOR.
Alternately, when you use the simple word 'wrote' instead of 'opinion', the reader is at a loss to know the ambiguous distinction without specialized knowledge. This is dragging on far too long, why do not you just use a true secondary source describing the legal status of what the court wrote? Please answer my question. SaltyBoatr 20:52, 28 June 2007 (UTC)

Perhaps this compromise[5] can solve the problem. Yaf reverted it in a micro-second, hardly enough time to read it, let alone consider it. I ask that you guys take a moment to WP:CHILLOUT and think about things before instantly reverting. Calling me a vandal does not help much either. We can work this out. SaltyBoatr 21:02, 28 June 2007 (UTC)

Trying again, removing the opening sentence resolves the 'undue weight' issue, and still conveys the message I think. Some tweaking of the text might help, but this is a step forward I hope. SaltyBoatr 16:11, 29 June 2007 (UTC)
Yaf reverted[6] this again, giving the edit summary "(rv; improper use of quoted material without indicating quotes; Undid revision 141415695 by SaltyBoatr (talk))". Please explain what is improper? The court record is not copyrighted.
Also, instead of a plain revert, try to offer a compromise, that way we can work towards a settlement. The back and forth revert war is not working. SaltyBoatr 17:35, 29 June 2007 (UTC)
Simply copying text verbatim from anywhere, and not properly attributing it with quote marks and a reference, is improper academic behavior which is not permitted on Wikipedia. Doing this makes it look like a student is plagiarizing and/or being academically lazy. Even adding a cite to this failure to indicate what was copied verbatim is then just another step along the same improper path next to the cliff of plagiarism. A citation without quotes is for when an idea is paraphrased. Copying an idea in its entirety, word for word, but failing to indicate that it is copied by punctuating with quote marks, is improper academic behavior and is not permitted on Wikipedia. It is not about copyrights entirely; it is also about academic courtesy and Wikipedia policy regarding citations and permitted uses of copied material taken in their entirety from another source. There is nothing wrong with just using quote marks, attributing the quote to the source, and then providing a cite for a reference. Why stoop to plagiarizing material to obscure the origin? Yaf 18:28, 29 June 2007 (UTC)
Thanks Yaf, I really appreciate your willingness to discuss this because I truly believe that we can work out a mutually agreeable compromise here. First, a verbatim copy isn't important to me and I would happily accept a rewording which restates the idea without using the exact wording. Second, I don't see the written policy behind what you describe as 'not permitted on Wikipedia'. Could you point to that policy exactly? And third, I would welcome it if you could please acknowledge my concern about a reader needing specialized knowledge to understand the authority of that court. My removal of the opening sentence and the quotation marks was an attempt to fix that problem. SaltyBoatr 17:51, 30 June 2007 (UTC)
One instance of the policy on quotes is found at: Wp:cite#When_you_quote_someone. I have seen others, but don't remember them off the top of my head. As for specialized knowledge being needed to read the summary of the content of the state constitutions of at least 10 states that is contained in what the 5th Circuit wrote, this is not the case, as only a reading ability in English is needed to comprehend this general statement. Yaf 23:31, 30 June 2007 (UTC)
Please try again to understand me. I am concerned with the reader understanding the authority of that court, not understanding their statement. Do you understand me? SaltyBoatr 20:12, 1 July 2007 (UTC)
Have reverted the vandalism of blanking properly cited content without gaining consensus, restoring the 5th Circuit quote. (See: WP:vandalism#Types of vandalism.) The authority of the court is not at issue, here. The statement by the court is cited in accordance with Wikipedia guidelines. It is up to the reader to decide whether or not to believe properly cited content; it is the reason that content must be cited, so as to permit a reader to make an intelligent decision regarding the veracity of sources relative to claims or quotes. Yaf 22:08, 1 July 2007 (UTC)
A little progress, thanks. Is there any difference between ratio decidendi and obiter dictum? Yes, a huge difference. Yaf says we should let the reader make an intelligent decision, but how can a reader know the difference between ratio decidendi and obiter dictum? Special knowledge is required for the reader to know the difference. SaltyBoatr 23:59, 1 July 2007 (UTC)
As noted by PubliusFL previously, "The distinction between ratio decidendi and obiter dictum is irrelevant here, because the quoted passage makes only a simple historical claim about "common usage" and what various historical documents said. The accuracy of such a claim is easily verifiable by any reasonable, educated person without specialist knowledge." It appears that the consensus is that the quote should stay. Have restored it once more. Yaf 00:28, 2 July 2007 (UTC)
Both you and PubliusFL have simply denied my complaint without addressing my point. Please address my point. SaltyBoatr 14:10, 2 July 2007 (UTC) The reason the distinction is important is that some users could be confused that the court has a great authority, (when it may not), with regard to the definition of 'bear arms'. Evidence that my concern may be true is seen by the fact that the political action website of the NRA seeks to raise the profile of this quotation presumably to promote their political agenda. There is an appearance that you may be parroting this political agenda. I invite you to dispel this odd appearance. SaltyBoatr 16:05, 2 July 2007 (UTC)
To be perfectly honest, I never even found the NRA website with the mention of the 5th Circuit quote until you asked for a tertiary source in addition to the secondary source of the Emerson document. I found it only while searching for another source in addition to the Emerson document itself. If anything, I would add that the NRA might be parroting this article, as this article with that statement goes back for many months now, perhaps prior to the NRA putting up their article, or perhaps not. I honestly don't know when the NRA put up their article. You are seeing an odd appearance only in your interpretation. Please assume good faith. Yaf 04:09, 3 July 2007 (UTC)
I would like to assume good faith, but it is hard to do so considering that I see this Emerson quote used extensively, exploiting the illusion of court authority, on so many of the gun rights blogs. You could help me see (versus assume) actual good faith if you were willing to show a willingness to compromise. SaltyBoatr 17:21, 3 July 2007 (UTC)

If what you say is true, it appears that only the message of the court document is important, then will you accept an accurate paraphrase of what the court wrote? Then, you get what you want and at the same time resolve the WP:NOR problems that I see. SaltyBoatr 14:09, 2 July 2007 (UTC)

I'm not sure that would work. If it takes specialist knowledge to interpret court documents then it must surely take even greater specialist knowledge to accurately paraphrase court documents.--LWF 03:15, 3 July 2007 (UTC)
Exactly. That is why I beg you to use a credible secondary source for attribution of your selective quote from the Emerson court document. Your direct selective quoting, and omission of explanation of orbiter dictum creates an illusion and distortion for readers that lack specialized knowledge. We have gone back and forth over this dispute to no avail for far too long, do you agree to follow dispute resolution procedures so we can actually find a compromise? SaltyBoatr 17:12, 3 July 2007 (UTC)

Edit request

{{editprotected}}

replace:

Still, the military usage of the term 'bear arms' was not exclusive. In at least ten early states constitutional provisions or state declarations of rights the term is used to describe the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or similar words. Thus it is seen that at under common usage 'bear arms' was not exclusively restricted to bearing arms in military service. [3]

with:

The Fifth Circuit of the United States Court of Appeals wrote in 2001 that[4]:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service." [5]

since the present wording copies ideas and content without properly citing source of who made the claim, which borders on plagiarism. Yaf 21:49, 9 July 2007 (UTC)

As discussed extensively above, the direct quotation from a court document requires the reader to have specialized knowledge to understand the authority of the court. (In violation of WP:NOR). This is disputed among editors. Perhaps a compromise can be found. Yaf, will you agree to follow a dispute resolution to find that compromise? SaltyBoatr 23:42, 9 July 2007 (UTC)
WP:NOR seems not to be what you suggest. It says:
"Original research (OR) is a term used in Wikipedia to refer to unpublished facts, arguments, concepts, statements, or theories. The term also applies to any unpublished analysis or synthesis of published material that appears to advance a position"
none of which seem to apply to your argument. I can't see how use of an official court document can constitute a problem under WP:NOR as you suggest. It certainly doesn't fall under the "what is excluded" section. Indeed, it is the antithesis of original research. In fact it says that public hearings are a primary source. Your continued insistence to dis-allow use of court documents looks less like an attempt to keep the article accurate than an attempt to assert a particular POV by excluding primary sources you disagree with. Arthurrh 00:15, 10 July 2007 (UTC)

As this page was protected for edit warring, it would be inappropriate for any admin to make significant changes until it is unprotected. To achieve that, you need to find consensus about the content and then go to WP:RFPP. — Carl (CBM · talk) 00:35, 10 July 2007 (UTC)

SaltyBoatr, would you agree with consensus and allow this change to be made? It seems you are the only editor who objects, and, by my count, 4 other editors have attempted to make this same change, but you have reverted repeatedly, thereby causing the page to be protected in perpetuity. Original research is not at stake here, per the comments above. Thank you. Yaf 03:20, 10 July 2007 (UTC)
Please do not misuse the word 'consensus'. "Consensus decision-making is a decision-making process that not only seeks the agreement of most participants, but also to resolve or mitigate the objections of the minority to achieve the most agreeable decision." There is no consensus here. By the way, my minority objection is very modest. That is that you use an alternative secondary source that doesn't rely on your direct selective quotation, (your original research), from the primary court document. I have even provided you with three credible secondary sources to use. Or, alternately I have offered to simply rephrase the wording, but this you refuse. This dispute can be easily resolved if you make a small compromise. You even refuse to acknowledge my offers of dispute resolution, preferring apparently to engage in edit warring. Edit wars do not solve disputes. SaltyBoatr 17:15, 10 July 2007 (UTC)
Simply directly quoting a legal document is not a violation of WP:NOR, in fact it is specifically listed twice in that section as allowable. "Primary sources that have been published by a reliable source may be used in Wikipedia". Are you suggesting that the court document is inaccurate? If so, please help us by showing why you think so. Your suggestion of adding a secondary source can be helpful, but denying users of Wikipedia information that is clearly accurate and factual and allowable under WP:NOR is not helpful. Arthurrh 17:31, 10 July 2007 (UTC)
You write 'specifically listed', but I just looked and do not see it. Be more specific. SaltyBoatr 18:20, 10 July 2007 (UTC)

Examples of primary sources include archeological artifacts; photographs; historical documents such as diaries, census results, video or transcripts of surveillance, public hearings, trials, or interviews;

and

there are rare occasions when they may rely on primary sources (for example, legal cases).

Arthurrh 18:35, 10 July 2007 (UTC)
Thanks for your reply. How is this article one of the 'rare occasions' which warrant usage of a primary source? This article is not about a legal case. It would be much easier to just use a secondary source instead. SaltyBoatr 19:02, 10 July 2007 (UTC)
Far too much has been written by me to answer similar questions to yours, yet you ask again. Your question misses my point, which is not the 'accuracy' but rather the risk of misunderstanding. See above, but in short a reader needs specialized knowledge to understand direct quotes from court documents. The average reader does not know the distinction between ratio decidendi or orbiter dicta. User:Arthurrh, you appear new to this dispute, will you agree to follow dispute resolution? SaltyBoatr 18:13, 10 July 2007 (UTC)
Risk of misunderstanding seems not to be the point of WP:NOR, perhaps you're referring to a different policy? You address repeatedly a question of "reader needs to know specialized knowledge to understand" but that is not what WP:NOR says. What it does say is:

For that reason, anyone—without specialist knowledge—who reads the primary source should be able to verify that the Wikipedia passage agrees with the primary source

In other words, they should be able to look at a direct quote from a court transcript, find the transcript themselves, and verity that the quote is indeed accurate. I believe this passes that tests. They do not need to know the distinction between ratio decidendi or orbiter dicta in order to quote a legal document. In fact, legal documents are quote extensively in Wikipedia. Denying relevant information like this to end-users is a detriment to them. I'm happy to follow dispute resolution, in fact I think it's probably a good idea since what seems to be at issue is not the info but Wikipedia policy. However, take not that I have not made any edits, so I don't know what affect the resolution would have without User:Yaf being involved. Arthurrh 18:35, 10 July 2007 (UTC)
I would gladly be involved. Yaf 18:42, 10 July 2007 (UTC)
Could you suggest a way to avoid this dispute? SaltyBoatr 19:02, 10 July 2007 (UTC)

Risk of misunderstanding is at the heart of WP:NOR. Quoting from WP:NOR "For that reason, anyone—without specialist knowledge—who reads the primary source should be able to verify that the Wikipedia passage agrees with the primary source. Any interpretation of primary source material requires a secondary source." In Yaf's preferred text 1) His act of choosing a highly selective quote from the court ruling is a form of interpretation. 2) Also, his choice of wording creates a real risk that some readers, lacking specialized knowledge necessary to understand court documents, may reach a false conclusion about the authority of that court. It would be much preferable to use a credible secondary source. Please read Wikipedia:Resolving disputes, the best and first option is avoidance. Simply using a credible secondary source could easily avoid this dispute. SaltyBoatr 19:02, 10 July 2007 (UTC)

"Highly selective quote" suggests that there are other parts of the opinion which, if considered along with the quoted part, would create a different impression than the quoted part alone does. Selective quoting is quoting the isolated bits of a source which support one's point, while ignoring other bits which would support an opposite conclusion. Is there some other part of the Emerson opinion that you think relates to the historical use of the phrase "bear arms," and effectively makes Yaf's quote misleading? PubliusFL 19:17, 10 July 2007 (UTC)
PubliusFL, will you agree to dispute resolution? If yes; step 1, could you suggest a way to avoid this dispute? SaltyBoatr 20:30, 10 July 2007 (UTC)
The quote certainly is highly selective because it leaves to the reader's imagination whether it is quoted from the ratio decidendi or the orbiter dicta portion of the primary court document. The former carries a lot of weight, the later very little. Which is it? (And, the distinction is vital.) SaltyBoatr 20:22, 10 July 2007 (UTC)

Perhaps a better reference for this is http://www.ca5.uscourts.gov/opinions%5Cpub%5C99/99-10331.cr0.wpd.pdf I prefer this because the other site requires registration. Also, there was some sentiment above that perhaps the transcription on that site could be suspect. This is the official site for the Fifth Circuit, so I think we can regard it as canonical. Arthurrh 20:40, 10 July 2007 (UTC)

This new cite is still primary, and does not fix the problem. Again, please use a credible secondary source. I have provided three already (see above) or find another. Alternately, I have suggested just paraphrasing the courts wording (the present 'protected' status quo text), but Yaf didn't like that. Again, I am very open to compromise. But, the option offered is the exact Yaf wording, no compromise. There must be some possible negotiated middle ground here. If you don't like mine, please suggest some compromises of your own. SaltyBoatr 21:07, 10 July 2007 (UTC)
Again, I don't mind the addition of a secondary source as you put it, but to do it in place of a primary source actually diminishes the reliability of this article, not enhances it. The secondary source should be used in addition to the primary to support it. In some cases a secondary source ends up almost as hearsay. I'd rather have a direct quote from a court opinion than "Bob says that the court says..." as a secondary source alone. A few comments I've found re this issue are: http://rpc.senate.gov/_files/GUNSmc101701.pdf and http://writ.news.findlaw.com/dorf/20011031.html and http://www.cato.org/dailys/10-27-01.html Arthurrh 21:22, 10 July 2007 (UTC)

Just to be clear, the text in this diff says exactly the same thing as Yaf's text, but solves the problem of 'weight of authority'. What is wrong with that wording? It says the same thing as Yaf wants and avoids the dispute. SaltyBoatr 21:14, 10 July 2007 (UTC)

I have no problem with that statement, but it doesn't change the factual basis that the 5th Circuit has legally supported this position. It seems to be key to overall understanding of this issue, at least as "bear arms" relates to the USA. Arthurrh 21:25, 10 July 2007 (UTC)
Your statement 'legally supported' is ambiguous, but in any case it is original research. Can you cite a credible secondary source supporting your statement? Almost for sure you could do that easily. Fine, use that source as your source for the edit. I would be OK with that. Problem over! SaltyBoatr 21:32, 10 July 2007 (UTC)
first of all, I really don't need a secondary source to say "the court said" when we have the courts actual published opinion, which if definitely more authoritative than someone else describing what the court said. Secondly, see my above references for supporting what the meaning is of what the court said. But let's get over the somewhat ridiculous idea that quoting from a legal document is original research. It most certainly is not. Arthurrh 21:43, 10 July 2007 (UTC)

Open Issues

There seem to be a couple of open issues in contention. Most if not all parties seem open to some kind of dispute solution. I propose that we try to separate them and handle them individually. Please feel free to add to this list if I've missed an issue dear to your heart.

  • 1. Can/should legal documents be used in Wikipedia articles. Additionally there is much discussion about whether such documents are primary, secondary, or tertiary sources. I think that is not as critical as the main discussion of the actual use of the document.

IMO legal documents from reputable sources are good sources of information. It's great to add additional sources where possible, both for validation and for ease of understanding. But I think to forgo use of legal documents because we assume a reader will misunderstand them does no one any good. I'd prefer to give them the reference and make up their own mind.

It'd be great if those reading this page would simply add their yes or no, as well as reasoning if they feel it necessary. Let's see if there is any kind of overall agreement.

  • 2. What does "bear arms" mean. It seems that there is a scholarly difference of opinion on this topic. If that's the case, aren't we obligated to present both sides, and possibly specifically list it as in dispute? I've seen several other pages use this tactic. Can we agree that there is a scholarly difference on this issue, that it's not clearly resolved in either direction?

Please check in on your opinion on this issue.

  • 3. Does the 5th circuit opinion increase a users understanding of the subject matter.

Again, let everyone know where you stand, and maybe we can build some kind of consensus. Arthurrh 21:17, 10 July 2007 (UTC)

1. Yes; 2. Yes, as there is a long history of disputed meaning; presenting only one side as SaltyBoatr wishes to do is not serving Wikipedia's readers. 3. Absolutely; the 5th Circuit's words definitely present one side of the dispute, albeit contrary to what SaltyBoatr wishes to see in the article. Yaf 22:23, 10 July 2007 (UTC)
Please re-read WP:V and re-ask your question. Quoting directly from a primary court document is original research. Per WP:V you should use a reliable third party published source. That might be a law journal discussing the Emerson case (there are two prominent articles of which I am aware), or perhaps a book like that by Uviller + Merckle which has a whole chapter discussing this case. SaltyBoatr 21:43, 10 July 2007 (UTC)
I just re-read WP:V as you suggested. I don't see anywhere that it says you cannot quote from court documents. The statement that info comes from a third-party source doesn't mean it should come from a tertiary source. It speaks to the reliability of the source, as evidenced that WP:V is about verifability. Once again it looks as if you're suggesting that the goverment court website cannot be trusted as to it's own publishing. It's to much of a stretch to say that you cannot use legal documents for direction quotations. I have read all your assertions in this page, and haven't yet found any justification for your position. IE you can challenge under WP:V if you believe the source is not reliable, I don't think that's what you're saying. You can challenge under WP:NOR if you believe that the editor is promoting their own ideas, such as "The US has firmly decided that the 2nd ammendment means xxx based on decision xxx" but in this case, it's merely a line that says "the court decided" and then directly quotes the court opinion. Without editorial or opinion, it cannot be classified as WP:NOR. You can challenge under WP:ATT if you believe there is no source or no reliable source, again, I don't think this is what you're saying, IE that the court's own published opinion is an unreliable source for the courts opinion. Certainly the court doesn't fall under "questionable source" but it does appear to fall under "Professional self-published sources" in WP:ATT. Using WP:RS to question an article leads back to WP:V. I don't see the grounds for your insistence that the courts opinion on this issue cannot be included. Arthurrh 23:35, 10 July 2007 (UTC)
The actual primary sources here are the declarations of rights and constitutions in at least 10 states. The court summary is a secondary source to the topic at hand, relative to the primary sources. Quoting directly from a verifiable and reliable source, even if it is a court case transcript, is not original research. Besides, it is easy for any reasonably-intelligent English-language-speaking reader to verify for himself whether or not the cited statement from a reliable source is, in fact, true. No issues exist here at all. On the contrary, it appears that what we have is a WP:TE issue. Yaf 22:23, 10 July 2007 (UTC)
Can someone point out what specific documents are being discussed? As a general rule of thumb, primary sources such as court transcripts, affidavits, and other court documents should not be quoted directly, unless described on secondary sources. OTOH, a high court opinion could be cited directly. ≈ jossi ≈ (talk) 15:01, 11 July 2007 (UTC)
One of the reasons for not quoting directly from primary sources is the issue of editorializing, cherry-picking quotes, and quoting out of context, all of which would violate WP:NOR. That is why it is always preferable to cite a reliable secondary source instead. On the subjects covered in this article I will be surprised if there is no abundant secondary sources that describe such court cased. Use that, instead. Now, if there are no secondary sources that describe these court cases, then do not cite them as we will indeed violating WP:NOR if we do: if no scholar, author, historian covers the subject, neither should we. ≈ jossi ≈ (talk) 15:08, 11 July 2007 (UTC)
And, using a secondary credible source which describes the court decision could be soooo easy. There are several. The article[7] by law professor Michael C. Dorf and the article[8] by Akhil Amar and Vikram Amar. Also, the book Uviler & Merkel ISBN 0822330318 is a good source. SaltyBoatr 15:52, 11 July 2007 (UTC)

Interestingly, the sticking point is not the message from the court, because I agree that this message belongs in the article to present that point of view to maintain neutrality. That message, presently[9], is in the article. Rather, the dispute here is: Should the article create the risk of confusion about the authority of the court to the average reader, or not? Also, my concern about this risk of confusion has been repeatedly evaded. Let's resolve this dispute now, stop evading this key issue. SaltyBoatr 15:51, 11 July 2007 (UTC)

Perhaps instead of just saying The Fifth Circuit Court, we could say, "The Fifth Circuit Court whose authority extends to..."

Extends to what? To say 'what' requires original research or a secondary source. Also, putting the 'court says' in the lead sentence is redundant, the footnote covers the attribution adequately. The mention of 'the court wrote' in the lead in sentence is confusing to some readers who think that the court has authority to rule on this. Whether the court does have authority, or not, or to which extent, is original research. SaltyBoatr 16:03, 11 July 2007 (UTC)
It's hardly original research to say where a court has jurisdiction.--LWF 17:25, 11 July 2007 (UTC)
This...

Still, the military usage of the term 'bear arms' was not exclusive. In at least ten early states constitutional provisions or state declarations of rights the term is used to describe the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or similar words. Thus it is seen that at under common usage 'bear arms' was not exclusively restricted to bearing arms in military service. <ref>[http://laws.findlaw.com/5th/9910331cr0.html http://laws.findlaw.com/5th/9910331cr0.html]</ref>

... is a good example of WP:OR... i.e. citing a primary source to support a viewpoint. Find a secondary source that describe this issue instead. Surely there should be plentiful.≈ jossi ≈ (talk) 16:41, 11 July 2007 (UTC)

I totally agree. That diff is a snapshot in time frozen by the edit war protection lock on the article. I favor revising the attribution to the three cites I have mentioned above, fixing this OR problem. Unfortunately, the three cites I found do not fix the NPOV problem. I totally accept that the pro-gun POV should be represented. The wording and the cites are negotiable. But WP:NOR and WP:V are not negotiable. SaltyBoatr 17:07, 11 July 2007 (UTC)
Precisely. Which is why I favor, instead, using the form,

The Fifth Circuit of the United States Court of Appeals wrote in 2001 that[6]:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service." [7]

This version is not an OR issue. The first cite was put there to address SaltyBoatr's concern on the word "wrote", as he claimed it was original research to say "wrote" without citing the word "wrote". Previously, it had said "observed", instead of "wrote" but this, too, was criticized as being OR by SaltyBoatr. Then, a cite from the NRA website was used to support the word "observed", quoting directly from the NRA website, but SaltyBoatr claimed this was OR, too, as the NRA FAQ website published as an information service was deemed by him to be a disallowed website, and another source had to be found. Then, the word "wrote" was substituted instead, with a cite added to the appellate court writings was put in also. Yaf 17:17, 11 July 2007 (UTC)
You again evade my issue that readers can easily misunderstand the authority of the court. Also, the NRA website is not allowed per WP:V. The NRA has no apparent reliable publication process. You also evade that we both agree we should include the court's message. We really are only arguing about the sourcing of the leading sentence. I don't agree to include the leading sentence without credible secondary sourcing. SaltyBoatr 17:40, 11 July 2007 (UTC)
Two questions. First, how do you conclude that this is a primary source? As I've discussed above, appellate court opinions would seem to be secondary sources. The appellate court here is analyzing, synthesizing, or commenting on other (primary) sources ("early state constitutional provisions or state declarations of rights"). That's the hallmark of a secondary source. Second, the language you quote is a very close paraphrase of what was originally a direct quote from the court opinion. Do you think paraphrasing the court opinion rather than using a verbatim quote makes the OR mitigates or exacerbated the OR issue? PubliusFL 17:00, 11 July 2007 (UTC)
It mitigates the OR problem, some. It mitigates the OR problem related to the risk of confusion by the reader as to the sense of authority if the court. Still, using a true secondary source would be better. SaltyBoatr 17:15, 11 July 2007 (UTC)
You confuse the academic concept of secondary source from the Wikipedia concept of secondary source, they are different. See this discussion for more on this. SaltyBoatr 17:07, 11 July 2007 (UTC)
No, I'm using the Wikipedia concept of secondary source, sources that "draw on primary sources to make generalizations or interpretive, analytical, or synthetic claims" (WP:OR). That's exactly what an appellate court opinion does, therefore an appellate court opinion is a secondary source in Wikipedia terms. No one in the discussion you link to suggests otherwise. The primary sources on which an appellate court opinion is based include the lower court record (including trial transcripts, which are undisputedly primary sources), statutes, and briefs submitted by the parties. I make no claims about other concepts of primary v. secondary sources. PubliusFL 17:33, 11 July 2007 (UTC)
There is no access to the source provided, so I cannot comment. ≈ jossi ≈ (talk) 17:04, 11 July 2007 (UTC)
For verifiability, please add the original quote as a footnote. ≈ jossi ≈ (talk) 17:05, 11 July 2007 (UTC)
A court opinion from a high-court could be considered a secondary source in some cases. I would still prefer to have a scholarly source in which that court case is described. ≈ jossi ≈ (talk) 17:15, 11 July 2007 (UTC)
Again, I don't really have a problem with the court's message. The pro-gun POV needs to be included in the article per WP:NPOV . Yet, I see a problem that our readers need specialized knowledge to know the weight of authority of the court's message. SaltyBoatr 17:22, 11 July 2007 (UTC)

Third-party comment

Comment from an outsider: I caught wind of this dispute through the grapevine. It seems like the "primary/secondary source" distinction really doesn't help here, and the salient question is simply whether it is appropriate to directly cite Emerson.
SaltyBoatr (I think) correctly indicates that sometimes it is not a good idea to directly quote from case law, because analysing a decision (and its value as binding authority) can be complicated, even for lawyers. For example, you have to be careful to distinguish the Holding from Obiter dicta and other minutiae that may not carry the full weight of law. Direct analysis of case law is seen by many as beyond the scope of Wikipedia, hence law review articles or other published works may be necessary.
Nevertheless, given the scope and nature of this article topic, the direct quote proposed seems reasonably appropriate for a WP article, especially since the article acknowledges that there are differing positions in U.S. case law, and that point is substantiated with at least a couple adequate references. Also the cite appears to enhance the balance of article content, as already mentioned.
WP contributors should, however, be careful not to offer what some general audience readers might misconstrue as a direct analysis of case law. dr.ef.tymac 18:43, 11 July 2007 (UTC)
If a direct quote carries risk which can be easily avoided, I disagree that it reasonable to make a direct quote. Take the safer route. The question of needing balance is an entirely separate matter. All agree we should add more balance to the article. SaltyBoatr 20:12, 11 July 2007 (UTC)

Other Basic Issues

Ok, just for a moment to leave alone the issue of quoting from the 5th circuit, which I think will work itself out eventually... I have a couple of other problems with this article.

First, it's not supposed to be a primarily USA focused article, so all of the hooplah surrounding US legal sources should probably not be in the main paragraph anyway. Probably there should be a subsection in the US section of the article that says "US interpretation of bear arms" and then discusses that there is a difference of opinion in the US, and how both sides.

There is already a US section, see here: Right_to_bear_arms#United_States_of_America

Secondly, as it stand the article is extremely POV. It ignores almost entirely the fact that there is a scholarly difference of opinion on the subject in the US, and the only mention of the opposing view is given without a supporting reference, in fact, the reference with the opposing view is one that argues against the oppossing view.

I have studied this a lot and do not see this scholarly difference. Please point specifically to what you are reading. SaltyBoatr

Here's another one, it's from a newspaper, so maybe you'll like it. There is a major debate among scholars and judges involving two competing views of the Second Amendment. from http://www.washingtonpost.com/wp-dyn/content/article/2007/03/13/AR2007031301508.html, so the Washington Post seems to think there is a scholarly debate. Arthurrh 00:44, 13 July 2007 (UTC)

First, if there wasn't this difference, the whole dispute would not have arisen. Note for example that the 5th circuit opinion in question differs from this view. You can check the references included in the opinion. I believe this may be the reason you're reticent to include the direct quote from the court, because it stands in opposition to your view.
There is plenty of opinion on the other side as well. I'm not saying one side or the other is correct. I'm saying where there is a difference of opinion wikipedia needs to document rather than say one side is fact and the other is false. See for example the references I've included both above and below in earlier discussion on this page.
Another useful source is http://www.constitution.org/mil/rkba1982.htm which is the report of the subcommittee on the constituation of the united states sentate - 97th congress, second session, Feb 1982. "Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms". Also you can read the article on the second amendment for other sources as well. I think it's very clear that there isn't a consensus on this opinion. Arthurrh 20:17, 11 July 2007 (UTC)
Again, please cite from reliable, third-party published sources with a reputation for fact-checking and accuracy, per WP:V. The 1982 Strom Thurman report you mention is a primary political document, hardly scholarly. The Constitution.org website you used is a partisan blog with no apparent fact-checking. Try using books and journals published by well known publishing houses and universities with a reputation for fact checking. We need to be careful to separate the smoke from the fire, and lots of blogging and partisan writing on this topic exists. Lets stick to most reliable sourcing please. SaltyBoatr 20:42, 11 July 2007 (UTC)
This is a discussion page, not an article. Therefore we are free in the midst of our discussion and attempt to understand to refer to and quote from a variety of sources. An official document from the senate quoting literally hundreds of reliable sources is hardly to be dismissed out of hand. On the other hand you are simply choosing to reject any and all evidence that your opinion is not the only one. I'm not even saying which side is right or wrong, but that there is a controversy over the theory you mention is self-evident. There are mentions of "bear arms" as old as 1689 that I have seen (Gul. & Mar., sess. 2, (1689)) that do not mean "military service". Does this mean that that all old references are non-military? Of course not. Does this support Rowland's thesis that all references are military? Also not. Arthurrh 21:11, 11 July 2007 (UTC)


So can move the US-related controversy to the US section and present both sides without anyone getting upset? Does someone want to take a crack at this and put a suggested revision of the two sections here first so we can see how it works? Arthurrh 17:18, 11 July 2007 (UTC)

That sound sensible to me. Move all US related stuff to the US section, summarize the whole article in the lead as per WP:LEAD, and expand on significant viewpoints pro and con in the US section and other country-specific sections. ≈ jossi ≈ (talk) 17:22, 11 July 2007 (UTC)
I welcome improvements and collaborative editing of this. And, we must face the fact that 'bear arms' is an English term, and it naturally has origin and history which strongly parallels the English legal jurisdictions. (I also see some significant early associations to the Roman, especially found with the Spanish.) SaltyBoatr 17:30, 11 July 2007 (UTC)

Ok, it looks like we have at least an agreement in principle that we should try this out. Is there someone in the group who is experienced with WP:LEAD and wants to take a crack at it? Arthurrh 17:48, 11 July 2007 (UTC)

Another basic issue that needs to be addressed, and I point to the Amar article as my secondary source for this idea, is that the term 'bear arms' has undergone an evolution in meaning. Back in time, it rarely meant an individual right and predominately (almost exclusively) meant military service; and now in modern usage it typically means a limited individual right to arms. This transition of meaning needs to be covered in the article. SaltyBoatr 18:24, 11 July 2007 (UTC)

Totally false, according to the 5th Circuit quote, among other sources. "Bear arms" commonly meant an individual right, being it was true for "numerous" instances by the 5th Circuit quote. This is the key POV trigger-point that seems to be the real issue here, in that the 5th Circuit quote is counter to your POV pushing, hence you won't agree to let this properly-cited quote stand. There is no transition in meaning; rather, it appears to be a modern gun-banner position that the meaning has somehow "changed". Yaf 18:32, 11 July 2007 (UTC)
It is interesting that you need to misquote the 5th Circuit to make your point. They did not write 'commonly meant'. SaltyBoatr 18:43, 11 July 2007 (UTC)
I did not misquote the 5th Circuit. I never claimed the 5th Circuit wrote "commonly meant" as you indicate, but rather that they used the word "numerous" in describing the situation, and that this is evidence that it was commonly meant. The WP:Wikilawyering and WP:TE stuff needs to stop. Yaf 19:16, 11 July 2007 (UTC)
See this diff for what you wrote, and now you deny. My point is that when the 5th Circuit wrote 'numerous', they are describing about 10 in 500 usages. I see this as about one fifth of one percent, a tiny amount. You see this as 'most commonly', and this is apparently your original thought. Can you cite something per WP:V that backs up your 'most commonly' assertion? My claim that the meaning has evolved is not my original thought, but rather refer to my citation, quote: "Law and language have evolved; today it is common to speak of nonmilitary arms-bearing. "[10] SaltyBoatr 20:09, 11 July 2007 (UTC)
Please re-read what I wrote. (I apologize for writing in a way to have caused you so much confusion in comprehension.) When the 5th Circuit wrote numerous, they meant a considerable number. That is, it was not a rarity. As for citing by your standards of Verifiability, that their "numerous" actually meant numerous, I fear that no source I ever could provide would ever budge your POV one iota. I am not opposed to a balanced presentation in this article; rather, I encourage it. However, it appears that you wish to strip out all mention of any balancing content. This approach is clearly not meeting the needs of readers and users of Wikipedia. We owe our users/readers an article that is written in an NPOV, having a balance, with all major viewpoints being presented. Tenditious editing, and disruptive editing, serves no one well. Yaf 21:18, 11 July 2007 (UTC)
The idea that the term has only recently come to mean an individual rights is not a fact, it is in fact one basis for the contention in this article. It needs to be listed appropriately, with opinions on both sides. Stating it as fact is POV. Arthurrh 19:18, 11 July 2007 (UTC)
Not at all original research. See the Amar article [11], quote "Law and language have evolved; today it is common to speak of nonmilitary arms-bearing. " Indeed, it is plainly obvious that language usage evolves over time. It would be more remarkable to claim that language usage does not change. I would like to see your WP:V credible sourcing of the POV that 'bear arms' has always meant 'an individual right to arms'. SaltyBoatr 20:20, 11 July 2007 (UTC)
May I suggest you check these sources? It will surely yield the information you are needing:
  • A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees, Book by Stephen P. Halbrook; Greenwood Press, 1989, ISBN 0-313-26539-9
  • For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms Book by Clayton E. Cramer; Praeger Publishers, 1994, ISBN 0-275-94913-3
  • The Politics of Gun Control. Book by Roberst J. Spitzer; Chatham House Publishers, 1998, ISBN 1-566-43021-6
≈ jossi ≈ (talk) 19:30, 11 July 2007 (UTC)
Yet another source, showing a different opinion -
  • Guns in America: A Reader, Book by Jan E Dizard, Robert Merrill Muth, and Stephen P. Andres, Jr.; New York University Press, 1999, ISBN 0-8147-1878-7 Arthurrh 20:00, 11 July 2007 (UTC)
  • Commentaries on the Constitution of the United States, 3 volumes by Joseph Story; Boston, 1833 ISBN-10: 0-89089-314-4 - Note the early date on this one re the the usage of "bear arms". I think it's clear that even 180 years ago it had multiple meanings. Arthurrh 20:32, 11 July 2007 (UTC)
You claim that the Joseph Story 3 volume Commentaries documents 'multiple meanings' of the term 'bear arms'. The full text of that treatise is in the public domain and searchable on Google Books. A search[12] only finds two instances of the two word term 'bear arms'. The first a direct quote of the Bill of Rights, and the second, on page 217, being a military usage. Please be specific in your claim that Joseph Story documented 'multiple meanings', I don't see it. SaltyBoatr 16:00, 12 July 2007 (UTC)
I'm afraid the source you're using may not be searching the entire text of Story's Commentaries. The text of the Constitution at the beginning of the work and section 301 contain the two instances you mention. But the bulk of the instances appear (naturally) in the chapter on amendments to the Constitution toward the end of the work. Section 1857 discusses the rights of Englishmen, with the language "that the subjects ought to have a right to bear arms" (what is described by Blackstone as "the right of having and using arms for self-preservation and defence"). Section 1889 quotes the Second Amendment in its entirety. And section 1890 contains Story's famous statement that the "right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers." PubliusFL 16:30, 12 July 2007 (UTC)
The unsaid debate here is what did 'bear arms' mean in 1789 (not 1830). At the time of Joseph Story, the issue of Negro rights to join militias had risen to the forefront in the US political discourse, and therefore the debate over arming of Negro's was much different in 1789 versus 1830. Which passages in your books are you citing, please mention page numbers and/or quotes. SaltyBoatr 01:36, 12 July 2007 (UTC)

The Spitzer book does not differ from Amar, Dorf and Uviller & Merkel, at least that I can see. Can you cite quotes and page numbers of what you view as 'different' opinion? SaltyBoatr 20:09, 11 July 2007 (UTC)

Can we find a compromise, and avoid continuing the edit war?

Can we find a compromise, and avoid continuing the edit war? SaltyBoatr 21:29, 11 July 2007 (UTC)

Simply stop vandalizing the article, removing properly-cited content that is needed to balance the POV of the article. Then, there is no edit war. Yaf 21:32, 11 July 2007 (UTC)
Try suggesting a compromise wording. Your repeated re-insertion of your text unchanged is not a way to find middle ground. SaltyBoatr 21:34, 11 July 2007 (UTC)
Look again. This is the older version from when the controversy started on May 16, 2007, when you started vandalizing the article. I am proposing we start anew from then. Yaf 21:35, 11 July 2007 (UTC)
Still, there is the problem that an average reader needs specialized knowledge to understand the authority of the court. Please fix that problem. My latests suggestion says almost exactly what you want to say. Try compromise. SaltyBoatr 21:38, 11 July 2007 (UTC)
Totally false. The average reader only needs to be able to read English, which is tacitly assumed for users of the English-language Wikipedia, to understand this statement. Your idea of compromise is to remove all balancing content counter to your POV; this is not compromise. Yaf 21:41, 11 July 2007 (UTC)
I don't understand the constant insistence that the reader need to understand the authority of the court, but no similar requirements are made of the research by those who say the term historically meant military only, such as Wills. This is an inconsistent requirement. If we must judge the authority of one side the the argument, then we must judge the other as well. Arthurrh 21:43, 11 July 2007 (UTC)
I have not removed all balancing content, I have slightly reworded your content. My text says almost exactly the same thing as what the court says. What is your problem with my text? As to your idea that the average reader only needs English to understand court documents is wildly off base. Even trained lawyers have trouble understanding authority of court documents. SaltyBoatr 21:46, 11 July 2007 (UTC)
The authority is not what is at issue here, contrary to what you claim. Rather, for balancing a major point of view with significant representation, the observation of the court is very much needed, indeed. My problem with your text is manifold. First, the text you proposed is original research in and of itself, attempting to push a modified POV, with a cite tagged onto the end to try and make it "right". Second, it pushes the bounds on plaigerism, through not using quotes properly, which are needed to give credit to the ideas and phrasing of the 5th Circuit's observation. Third, it attempts to remove balance in the article through making it appear that the numerous cases were not numerous or common, contrary to what the court actually said in its writings. Fourth, we should let the court speak for itself, with its own words. Trained lawyers are not the issue here. Yaf 21:56, 11 July 2007 (UTC)
Simply denying my concern does not resolve my concern. Please suggest alternate wording. Let us practice dispute resolution. SaltyBoatr 22:05, 11 July 2007 (UTC)
please explain which part of the quote you believe people have a hard time understanding. It seems pretty straight-forward to me. Plus I still think we should move the US-related understandings to the US section. And we might want to include more sources, since the "bear arms" military history has three. For example the more recent US Court of Appeals Parker case 04-7041. Arthurrh 21:59, 11 July 2007 (UTC)
The opening sentence, prior to the quote is ambiguous. Some readers will see that as if the court has a lot of authority, or not. This can be easily avoided by using a secondary source. Why you do not has not yet been explained. SaltyBoatr 22:03, 11 July 2007 (UTC)
You have still not explained why an understanding of holding v. dictum is necessary to understand this quote. The claim that "there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms" is not the kind of claim that requires legal authority to make. Similarly, a claim about "common usage" is a simple factual or descriptive claim, and not one that involves legal authority. I agree with you that more or different sources would be better on this point, and I have an idea where I can find one or two, but they do not appear to be available online and I have not yet been able to track them down. In the meantime, though, I see no reason to make the perfect the enemy of the good. The Emerson opinion is a reliable secondary source, and should not be purged from the article just because some better source is theoretically out there somewhere, although not yet available to us. PubliusFL 23:49, 11 July 2007 (UTC)
The flip side of your question is: Why then is phrasing it as a court quote so important? If your premise is true, then making the paraphrased statement without the false sense of authority should be equally informative and valuable. Regarding finding credible secondary sources describing the Emerson quote, they do indeed exist, I have identified three. Regarding 'why' authority of the court matters? The reason is that some readers will see that this is an official 'court' and falsely assume that there is a ruling here. SaltyBoatr 01:21, 12 July 2007 (UTC)
I don't see the matter of court authority as being important. It was a statement, not a ruling. If it were a ruling authority would be quite important, but it's not. It's just a statement the court made.--LWF 02:20, 12 July 2007 (UTC)
Also, how do you know it was just a statement, not a ruling? Your assertion is original research. SaltyBoatr 02:37, 12 July 2007 (UTC)
For the purposes for which the quote is being used, it doesn't particularly matter whether it was just a statement or a ruling. Because in this part of the article we're interested in what people wrote and said outside of the Constitution two hundred years ago, not what the current state of the law is. The two are by no means necessarily the same. But to answer your question, for me at least, phrasing it as a court quote isn't terribly important. That's why when the article was unprotected I restored your last paraphrase. PubliusFL 14:24, 12 July 2007 (UTC)
And for what purpose is the quote being used? I welcome your answer. I am guessing the answer is: To provide a pro-gun POV balance to meet the policy WP:NPOV. Yet, WP:NPOV is explict that only sources that meet WP:V are allowed. Per WP:V, Articles should rely on reliable, third-party published sources with a reputation for fact-checking and accuracy. Please provide evidence that this 5th Circuit ruling meets this condition, specifically: was subject to fact-checking. Their fact-checking has been credibly questioned, see Uviller and Merkel page 27, footnote 74 which explicitly states that the 5th Circuit ignored the fact. SaltyBoatr 16:17, 12 July 2007 (UTC)
No, the purpose of the section is to present various historical uses and definitions of the phrase "bear arms." Not to authoritatively declare what the current legal meaning of the phrase is in any particular law in which that phrase might appear. The quote in question (or a reasonable paraphrase thereof, as you have proposed before and which I would also support) serves the purpose of the section of the article in which it appears. Does that clarify my comment above? You mention that the 5th Circuit's scholarship has been questioned by Uviller and Merkel. I have seen Uviller and Merkel's scholarship on this point questioned by other scholars. Should we remove references to their book then? That's what happens in debates like this, scholars question each other's interpretations. PubliusFL 17:03, 12 July 2007 (UTC)
You should specifically identify your 'other scholars' that question Uviller and Merkel. Your vague and unspecific criticism has the appearance of a smear. By the way, Uviller and Merkel cannot be described as entirely biased, see for instance pages 212 through 225 where they examine in depth the 'failures' of Emerson from both points of view, writing: "...Thus the Circuit Court manages to craft a decision that is disappointment to both sides, and all the 'friends of the court'...". SaltyBoatr 17:53, 12 July 2007 (UTC)
I don't mean to smear them, only to point out that sharp disagreements and criticism are not atypical in this kind of debate, and we would soon be without any sources whatsoever on which to base articles on controversial topics if we had to disqualify all sources that have been strongly criticized by those holding opposing views. But regarding the "other scholars," I am thinking in particular of Nelson Lund, Robert M. S. McDonald, and Randy Barnett. The Gary Wills article from the New York Review of Books also drew harsh criticism in the same publication a couple of months later from Sanford Levinson, David C. Williams, Glenn Harlan Reynolds, and John K. Lattimer. But I would never think to excise the Wills reference from this article for that reason. PubliusFL 20:01, 12 July 2007 (UTC)
Not important to me, or not important to Yaf? If it is truly not important, why the huge struggle to include that 'the court wrote' text? If it is truly not important, then omitting 'the court wrote' text should not matter either way. SaltyBoatr 02:35, 12 July 2007 (UTC)

In the face of four quick Yaf reverts diff #1 diff #2 diff #3 diff #4, I will restrain myself and not do a fourth revert in return. But please, again, lets find a compromise. This edit war has no prospect of success. Let's try some alternative. SaltyBoatr 22:01, 11 July 2007 (UTC)

Perhaps the small mention in the Three Models section of the Emerson decision could be expanded with part of the quote, perhaps reading, " The 2001 Fifth Circuit court ruling United States v. Emerson and the Ninth Circuit court 2007 ruling Parker v. District of Columbia, both of which introduce principles of an individual right to firearms, with the Fifth Circuit stating that, "there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms"."--LWF 03:57, 12 July 2007 (UTC)
Here[13], LWF calls it a 'ruling'. Yet here[14] LWF says it is not a ruling. This confusion proves my point about risk of confusion to the average reader. SaltyBoatr 17:02, 12 July 2007 (UTC)
I noticed.--LWF 17:03, 12 July 2007 (UTC)
I support LWF's suggestion. SaltyBoatr 15:50, 12 July 2007 (UTC)
Yaf, is this suggestion agreeable to you? Keeping in mind that the above example could be expanded further.--LWF 16:37, 12 July 2007 (UTC)

You have three options

  • I can protect the article for one week so that you can try and find common ground
  • I can block a couple of editors for disruption
  • You can engage constructively and civilly without admin intervention

Which one? ≈ jossi ≈ (talk) 23:52, 11 July 2007 (UTC)

I doubt #1 would work. #2 seems drastic. #3 might work. I confess that I don't know how to be more constructive, or more civil, but I can try and will accept advice. SaltyBoatr 01:13, 12 July 2007 (UTC)

Sometimes a page protection is very useful, as it affords editors to look for a common ground. Sometimes is only an impasse, to get to back edit warring as soon as protection is lifted. Sometimes, people do not learn unless their editing privileges are temporarily vacated. That is my experience. ≈ jossi ≈ (talk) 03:05, 12 July 2007 (UTC)
Can I suggest a fourth option? Move the disputed passage to the talk page for discussion and fixing. If you study the pattern of this specific edit war you will see that as soon as the text in the article matches the version favored by Yaf, he then withdraws and becomes silent. This frustrates attempts to find a negotiated compromise solution. If the disputed text is moved out of the article and onto the talk page, then all parties will share an interest in being engaged in finding a mutually acceptable solution. SaltyBoatr 15:47, 12 July 2007 (UTC)
If that is agreeable by all involved, I am no longer needed here. But if the editwar persists, I will take action to afford editors the possibility to discuss things without the pressure of an edit war. ≈ jossi ≈ (talk) 16:03, 12 July 2007 (UTC)
I appreciate your help. Though you offer me only a Catch 22. A) If I do not edit the disputed text, and Yaf is true to pattern, no dicussion will follow and the disputed text stays. B) If I do edit the disputed text, you threaten to block me for edit warring. C) I have repeatedly tried option 3, engage constructively and civilly, but continually fail because Yaf will not engage. Do I have other options? SaltyBoatr 16:28, 12 July 2007 (UTC)

I don't understand the continued behavior on the part of several editors to continually modify and revert disupted text. We have been discussing it here in depth, and obviously have not yet reached an agreement. I don't think it's helpful for anyone to continually add or subtract this text until we have better understanding. It seems to be an editor behavior issue. Jossi, your assistance has been helpful. Currently there has been a revised paragraph put in place, and I wonder if it's something everyone can live with. Arthurrh 17:20, 12 July 2007 (UTC)

No the current version is at the extreme edge of the edit war. I suggest we go with the neutral middle version proposed by PubliusFL two days ago, see this diff. SaltyBoatr 17:36, 12 July 2007 (UTC)

I have to disagree, I don't seem anything extreme at all. I know you don't like reference to court cases, but they are fact. The current paragraph seems very factual. Probably it should include both sets of info. I still think the whole US-related nature of both those paragraphs better qualifies them for use in the US section rather than the current location. Arthurrh 17:39, 12 July 2007 (UTC)

Pardon me? The edit war vacillated between having Yaf's passage all the way in, versus all the way out. The PubliusFL suggestion has 90% of Yaf's passage in. The present version has 100% of the passage in. I ask for a 90% compromise, during negotiations, and you insist on 100%. Can you appreciate that I find this to be not exactly a compromise? The truth is that per WP:V policy, see Wikipedia:Verifiability#Burden_of_evidence, the entire passage can be moved to the talk page during negotiations. SaltyBoatr 18:03, 12 July 2007 (UTC)

This is what you can do: Ask for other editors to comment via the WP:RFC process. I have created a section below.

  • Each involved editor makes a short statement about the dispute
  • Once that is done we place a notice for the RFC (I will do that to help you out and show you how it is done)
  • Then all involved editors, out of respect for the process keep relatively quiet waiting for editors' comments
  • Once you have two or three responses, consider the viewpoints offered. If you need to ask questions from the respondents, do so, but avoid re-starting your own dialog or dragging them down with long diatribes.
  • And then, hopefully, you can find an agreeable compromise.

≈ jossi ≈ (talk) 18:30, 12 July 2007 (UTC)

Thanks, I will cooperate. I need some time, hopefully less than a day, to concisely compose my thoughts. SaltyBoatr 20:01, 12 July 2007 (UTC)
Sure, no rush. ≈ jossi ≈ (talk) 20:45, 12 July 2007 (UTC)
I agree, an RfC is a good idea. PubliusFL 20:46, 12 July 2007 (UTC)
I also agree. I'm not sure which category I should respond in, since I've been involved heavily in the discussion recently, but haven't done any of the editing at all. Arthurrh 21:02, 12 July 2007 (UTC)

Saltyboatr: Please consider replacing your bullet points with your summary of the dispute. That way people responding to the RfC will have some clue of what is being discussed. ≈ jossi ≈ (talk) 00:00, 13 July 2007 (UTC)


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