Talk:Second Amendment to the United States Constitution

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Mr. Cory

Dear readers:

Some idiot named Cory Bennet keeps inserting his name into this Article as a prank and I was wondering if we could revert back to the page before he decided to come mess with the article and ban him from wikipedia. —Preceding unsigned comment added by 206.74.245.210 (talk) 15:53, 12 October 2007 (UTC)

comma debate question

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)

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)

Dear fellow users: Yes, obviously there are differing text prints that do physically exist, as already documented in the article. I am saying that the article is simply deficient on two points: (1) the Wikipedia article should cite to specific reliable sources outside Wikipedia to show that someone outside Wikipedia actually has debated or discussed some sort of "with" and "without" meanings, and (2) the Wikipedia article should precisely state what those "with" and "without" meanings are.

Right now (unless I just missed it) the only sourcing in the article seems to show that different versions of the text exist -- without any real evidence that anyone outside Wikipedia even cares about the comma or lack thereof. If possible, the best sourcing would be an actual court decision, but there may little if anything available on that score. Second best would be discussion by legal scholars in peer reviewed journals, etc. Yours, Famspear 19:13, 23 January 2007 (UTC)

Presser v. Illinios misquote

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)

A little note about the District of Columbia decision and the 9th Circuit Precedent and Fundamental Libertarianism

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)

Actually, the D.C. Circuit is a very conservative circuit. Most of its decision agree with the philosophy of the conservative wing of the Supreme Court. 70.21.100.37 21:33, 21 September 2007 (UTC)

Minor terminology change

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)

PS: Obviously, as you have pointed out in your prior edits, the binding effect of a given court decision does depend on the jurisdiction of the court (i.e., only the U.S. Supreme Court decisions are binding across the entire USA). Famspear 15:01, 2 April 2007 (UTC)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

More Lead rewording

The old lead said "declares the necessity for a 'well regulated militia'..."

My new edit reads "declares the purpose of a 'well regulated militia'..."

No other changes have been made.

The first is not impartial, as it begins to introduce an interpretation of the militia as a necessity, when in fact the text of the amendment merely declares the purpose of a militia "being necessary to the security of a free State", it does not say directly that the militia itself is a necessity, only that it is a necessity "for the security of a free State." Anything further is interpretation, so please refrain and let the text of the Amendment speak for itself. Thank you. Trisweb 18:40, 18 April 2007 (UTC)

Yes. If we don't consider having a free State a necessity, then the Militia is no longer a necessitiy. Since such a rationalization is in no way possible for the founding fathers, it seems clear that a Militia was considered a necessity. Jimberg98 16:12, 3 May 2007 (UTC)

The 2A does not declare the purpose of a 'well regulated militia', but states it is necessary. This is a statement of necessity, not of purpose. Have reverted. (Incidentally, this was arrived at through consensus previously. Yaf 18:42, 18 April 2007 (UTC)

Thank you for the comment, and I understand that previous consensus has been reached, but previous consensus is not necessarily correct. I highly disagree with the impartiality of the wording as it stands and wish to discuss this further. In addition, by separating the clauses into two separate assertions (the militia statement, and the right to bear arms statement) the lead has already done the work of interpreting that they are separate, which is already biased and subjective. This needs to be changed. I take no side on the actual issue, I only care that this article remain impartial. Trisweb 18:47, 18 April 2007 (UTC)

I agree that it's a statement of necessity, but that does not preclude that the wording states that necessity in a way that the amendment does not, and adds further viewpoint bias to the sentence. It is in fact different to state that a "militia is a necessity" and that "being necessary to the security of a free State, a militia...". The two are not interchangeable. In addition I still contest the separation, and I put forth that the lead should include that the interpretation of the amendment if of great debate.Trisweb 18:51, 18 April 2007 (UTC)

Just to clarify, this is approximately what I have in mind:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms." The interpretation of the amendment is a subject of much debate.

I believe this is the best possible lead to this article, sticking to the wording of the actual amendment itself, refraining from interpreting, and declaring the main subject of the article which is in fact the controversy and not the amendment itself. Note I have kept the separation of the militia and the prohibition, though I still believe that separation is in itself an interpretation, because I cannot think of a way to make it impartial and say it in such a way that it is left to the reader to determine whether the RKBA is by purpose of militia or not. Currently it is reasonably worded, so I'll keep it.

Please comment, thank you. Trisweb 19:05, 18 April 2007 (UTC)

The opening you inserted was

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares the purpose of "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms.".

The current opening is:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares the necessity for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms."

This was arrived at previously through consensus through intentionally including ambiguity over which clause or part of the amendment takes priority, since taking sides in this ambiguity is definitely POV, as you agree. Furthermore, it was arrived at specifically to keep the dependency of the two parts as intentionally ambiguous as possible. The dual construct of "declares the necessity" and "prohibits infringement" reduces the implied relationship between the two parts better than by using the construct which you propose, which appears to link the two parts more formally. According to some, the first part is a statement of why the second part exists; in contrast, according to others, the second part is the underlying purpose, with the first part being merely a good reason for the second. Your proposed change is yet another position and would elevate both of the parts to the same importance, which is yet another POV. We should intentionally keep the present ambiguity to keep the lede NPOV. This way, the two parts can be either 1) part A is more important than part B, 2) part A is less important than part B, or 3) the two parts are of equal importance. Incidentally, after having gone through the original consensus building to arrive at the present intro, I believe that the Founding Fathers did much the same, intentionally including ambiguity, just to get the Second Amendment passed back in 1791 :-) Those guys were rather clever! Yaf 19:56, 18 April 2007 (UTC)

Trisweb makes good points, that I don't see as yet refuted by Yaf. The suggested Trisweb lead more precisely follows the wording of the 2A and therefore is more impartial. By the way, per the Constitution, the SCOTUS sets the gold standard of interpretation of the 2A and there is little ambiguity with them about the 'purpose' which trumps our petty POV opinions. SaltyBoatr 20:23, 18 April 2007 (UTC)

Thanks-- if I could I'd simply put the full text of the amendment in the lead, but that leads to more debate about where commas should be placed, etc, and I don't want to get into that. I think the way I've worded it above is the closest one can get without the full quote.Trisweb 20:52, 18 April 2007 (UTC)

Yaf, I'm not arguing the difference between the two interpretations nor for adding a third, simply that as worded now it's actually less ambiguous than mine above, and in fact includes predefined interpretation. I believe saying "declares the necessity of a militia" is not ambiguous, and is badly biased enough to require a rewording. I only mean to make the lead more accurate to the actual 2A text in any possible interpretation. I am still divided about how to word it to reduce the implied association between the two parts, but instead of trying to word it this way or that way, why don't we just say it right out that the relationship between declaration and the prohibition statements are ambiguous and up to interpretation? (Also, apologies for my own POV, but regarding the founding fathers, I'm not sure any of them thought it was ambiguous or even went through this thought process... if you think like an 18th century person and don't read too much into it, there's only one reading of the sentence that makes sense. It's not their fault that we've lost the ability to intelligently read and interpret the English language.)

I'm also beginning to think that we should word the lead even more ambiguously, something like:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, deals with the right of the people to "keep and bear arms." The interpretation of the amendment is a subject of much debate.

Simple, short, NPOV, true, unarguable. Further detail about the amendment and the controversy can be read after the amendment text itself is presented in the next section and in more encyclopedic, longer ways. But for the first sentence of the article, it is most important that we keep it simple and NPOV, and maybe that's the best way... Thank you both for your discussion. Trisweb 20:52, 18 April 2007 (UTC)

Also, please accept my retraction of my original edit (in "The opening you inserted was" above). It was not as well thought out as the ones presented here, so if you would be so kind as to forget about it :-) Thank you.Trisweb 20:55, 18 April 2007 (UTC)

Leaving out the militia part is likely to be perceived as being even more POV :-) Your second proposal above, namely

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms."

upon further review and reflection is actually quite good, and is better than the current lede. I suggest we use it. Comments? Yaf 21:04, 18 April 2007 (UTC)

Yes, I agree that leaving out any reference to militia is probably bad, and also agree that the lead (or lede? I don't know) I suggested as reprinted directly above is quite good, and I vote we use it (with or without the clause about the debate; though I prefer it with as I first presented it). More comments welcome, let's give people a chance before we change it. Trisweb 21:13, 18 April 2007 (UTC)

It never hurts to ask, how about this: Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits Congress from infringement of "the right of the people to keep and bear arms." Accurate and neutral. SaltyBoatr 21:18, 18 April 2007 (UTC)

This last one is not neutral. It presupposes the non-incorporation of the 2A, which may or may not be true. This non-incorporation was true in the late 19th Century, but lots of other Amendments were not incorporated then, either, that have subsequently been ruled to have been incorporated by the 14th Amendment. Since we haven't had a SCOTUS ruling on the 2A since Miller, I don't like this one. It presupposes that the status of incorporation vs. non-incorporation from circa 1873 still applies. I still prefer the version of Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms." Yaf 21:25, 18 April 2007 (UTC)

I agree. Keep as stated. Trisweb 21:29, 18 April 2007 (UTC)

Is the non-incorporation of the 2A credibly disputed? Can you cite this? SaltyBoatr 21:31, 18 April 2007 (UTC)

I was sort of hoping for an answer to my question. SaltyBoatr 16:46, 19 April 2007 (UTC)

Patience, grasshopper :-) All supreme court jurisprudence on the Second Amendment predates Due Process incorporation doctrine except US v Miller 307 U.S. 174 (US 1939), which was a challenge to a federal law unrelated to incorporation. Incorporation of Second Amendment was rejected in Presser v. Illinois, 116 U.S. 252 (1886) and United States v. Cruikshank, 92 U.S. 542 (1875). However the 1968 case of Duncan v. Louisiana, in dicta regarding the interpretation of the 1937 case of Palko v. Connecticut, indicates that all Amendments dealing with "ordered liberty" should be regarded as being incorporated according to the majority concurrence by Justice Black, and that the Second Amendment pertains to "ordered liberty". [1] According to this case, the 2A has been incorporated in essence, only that there hasn't been a case before the SCOTUS in which to declare it formally. Yaf 18:30, 19 April 2007 (UTC)

What you write is not credibly attributed. Also, I find it wildly unbelievable that, with 20,000 local gun laws presently in effect by some reports, that no case found a way to the SCOTUS. That incorporation of the 2A might someday occur involves reading a crystal ball. SaltyBoatr 21:48, 19 April 2007 (UTC)

Please reply. You say 'in essence' which are weasel words often used to hide original research. Which page and paragraphs of your citation contain your attribution? I looked and couldn't see it. SaltyBoatr 15:36, 20 April 2007 (UTC)

You wrote 'hasn't declared it formally'. That amounts to 'hasn't declared it' because 'informally' doesn't meet WP:V. Something of this importance requires strict credible attribution, show me something like a law school text book that says that the 2A has been incorporated. SaltyBoatr 15:49, 20 April 2007 (UTC)

Can we please drop this debate in the interest of getting the NPOV lead up? The argument on the incorporation can take place after that. Leaving out "Congress" only makes it more ambiguous and closer to the original amendment text, which is a good thing. If and when anyone finds proof of Incorporation, they may add the word back in, but the burden of proof lies on the one who wishes to add a detail (SaltyBoatr in this case), not the one who wants to leave it out with reasonable doubt and no detrimental effect. In a few hours I will add the text without "Congress" unless definitive proof of Incorporation has been given (as agreed upon by the two of you, I don't even know about this stuff, I'm just being a mediator...) Thanks. 18:18, 20 April 2007 (UTC)

This discussion is exactly about the issue of NPOV. The second sentence of the article Bill of Rights reads "These amendments limit the powers of the federal government...". You mentioned the desirability of 'closer to the original', and with the SCOTUS concept of incorporation not appearing until 1897, including the word 'Congress' or 'federal government' is indeed more true to the original. It is only in relatively recent modern times has the argument that the 2A applies more broadly been contrived. Indeed, that concept is not adopted at all, and is at best hypothetical and is decidedly not mainstream. Leaving the word 'Congress' out of the lead is not neutral. You asked for burden of proof, I see this The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. text by the SCOTUS, in CRUIKSHANK[2] and that powerful precedence though old, still stands.SaltyBoatr 18:46, 20 April 2007 (UTC)

As I said I'm not fit to argue the case of either, but what you say makes sense. Thanks for explaining. I'm now perfectly willing to have the word Congress there, but without still makes it NPOV I think, since it may be inferred from the BoR that it's Congress as the subject of 'shall not be infringed' and it's a concept that can be discussed in further detail in the article if necessary. Out of curiosity, why do you believe it's so important to have in there? trisweb (Talk) 18:55, 20 April 2007 (UTC)

Why? Personally, as an editor, I am an WP:Policy idealist and take the WP:NPOV policy very serious. Especially when I see that certain WP articles attract revisionists as a soapbox and battleground, I then doggedly push for the neutral middle. I see that the role of WP is to accurately portray the 2A, not the popular myth of the 2A, or a hypothesis about a hoped for incorporation of the 2A which is favored by the extreme fringe. Constantly since 1789, per the only authority who has any say, (the Supreme Court), the 2A restricts only the federal Congress. SaltyBoatr 19:17, 20 April 2007 (UTC)

Sounds good to me, using your version. trisweb (Talk) 19:54, 20 April 2007 (UTC)

As a further note, the version with Congress will never be wrong, since the 2A most certainly always prohibits congress from infringement. Further information on whether or not it is incorporated can be discussed elsewhere. trisweb (Talk) 20:00, 20 April 2007 (UTC)

Inflection versus capitalization

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)

Precedents (material added by another editor)

An anoymous user added some new material at the beginning of the section on "Precedents." This material looks like POV commentary and possibly original research to me. However, I did not delete the material completely; I instead deleted the portions that appeared to me to be the strongest POV, and added a citation tag and some syntax tightening and corrections on spelling. Famspear 17:21, 20 April 2007 (UTC)

I actually still think it's fairly hard POV, and doesn't have much to do with the Precedents. The fact that it needs a citation pretty much gives that away... no one knows if the Founding Fathers believed it was a natural right, or simply being "necessary for the security of a free state" (which is what they wrote). Either way, it's discussed elsewhere in the article and need not be in the Precedents section, so I'm going to go ahead and revert it back to its former state. Thanks for your work in trying to incorporate it though :-) trisweb (Talk) 18:33, 20 April 2007 (UTC)

Sorry, but this section is complete fallacy. Claiming that the idea of an armed militia started in England, or that the second ammendment was modelled on English patterns is clearly ridiculously ill-informed. One can go back at least as far as Classical Greece for examples of manditory militia training and requirement to own arms. I really don't know what to do about editing it, aside from the deletion of most of it. I'll come back in a few weeks, and if nobody else has handled it, I'll see what I can do siranui

Modern Interpretations section

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 [[User talk:Paul Klenk|^talk 05:20, 22 June 2007 (UTC)

GREAT research resource

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)

Wait, what?

The article contains the question, in the list of points of question/"modern interpretations" regarding the text of the amendment, "What does 'shall not be infringed' mean?"

Wait, what?

This seems about on par with questioning wether or not 2 plus 2 does in fact equal 4.

I mean, yeah, NPoV and whatever, but the question, quite honestly, seems very stupid. —Preceding unsigned comment added by HeroofTime55 (talk • contribs) 17:08, 15 October 2007 (UTC)

The entire argument, legal or otherwise is pointless. The Second Amendment, like the first, is very very clear. The right to keep and bear arms shall not be infringed. Any court case interpreting the second amendment to mean anything other than a right of the citizenry to own weapons for their personal use is irrelevant, as nowhere in the Constitution is the SCOTUS empowered to rule on the Constitution, and certainly neither are the federal courts. —Preceding unsigned comment added by 24.243.37.23 (talk) 17:42, 22 October 2007 (UTC)

The amendment only states that the people shall not have its right infringed, not the individual. Furthermore, the vast majority of legal precedent has interpreted the militia clause to be a qualifying clause, so that the second amendment is only applicable under such conditions. —Preceding unsigned comment added by 75.69.118.1 (talk) 21:39, 23 October 2007 (UTC)

NPOV Lead

NPOV of the lead was broken in an earlier edit which inserted "Congress from". This implies that non-incorporation is a settled matter, which is non-neutral with regards to opinion of the 2A. If someone has a citation that establishes non-incorporation is the only valid view, please reference it. - Hoplon 03:21, 29 October 2007 (UTC)

Rather, if anyone has a reliable source that the 2A has been incorporated, please reference it. Otherwise, WP:NOT#CRYSTALBALL. Nothing new here Hoplon. This matter was discussed at length in April 2007 and consensus was reached. Your issue is whether the SCOTUS might, at a future date, incorporate the 2A. Again, WP:NOT#CRYSTALBALL, if the SCOTUS does that, the lede should be changed then, no need to pre-judge. SaltyBoatr 19:30, 31 October 2007 (UTC)

There are quite a few sources that suggest the 2A was incorporated. Actually it'd be a novel theory to suggest of all the bill of rights it alone was NOT incorporated, what would be such a justification? see for example: "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights" by Michael Kent Curtis, Duke University Press, 1990, ISBN 978-0822310358 Arthur 19:52, 31 October 2007 (UTC)

Arthurrh wrote: "Actually it'd be a novel theory to suggest of all the bill of rights it alone was NOT incorporated...". This is a breathtaking 'the world is flat' point of view. I would be willing to bet that 99.9% of legal scholars accept the fact that the SCOTUS has partially incorporated the Bill of Rights. Not all people like that reality, but the reality is that the SCOTUS has chosen partial incorporation. SaltyBoatr 20:30, 31 October 2007 (UTC)

I"d take that bet, you're clearly wrong. Bring me 1000 legal scholars and I'll find you 2 right now. I realize that U&M share your belief, but they are certainly not the final authority. Arthur 20:36, 31 October 2007 (UTC) additional ref from Curtis, Intro, p2,3 "mMong scholars who have studied the historical sources in detail, opinion is more divided. Most of this group seem to agree that the Fourteenth Amendment was intended to applly the Bill of Rights--or at least most of them--to the states." Arthur 22:57, 1 November 2007 (UTC)

I think you are confusing things. I absolutely agree that some legal scholars think that the SCOTUS should incorporate the 2A. That is irrelevant to the question of whether the SCOTUS has incorporated the 2A. The lede must represent what is real, not what some POV's hope will be real someday. SaltyBoatr 21:16, 31 October 2007 (UTC)

There are scholars who say it does, there are scholars who say it doesn't, there are scholar who say it shouldn't, and there are scholars who say it doesn't need the incorporation of the supreme court. That's a short list of the majority theories. Despite your "flat earth" attacks on this idea, it's quite common, as I've discussed elsewhere on this page. And I note that per current consensus, you seem to be a lone voice arguing for the conclusion of the POV "prevents congress" addition to the 2nd amendment. Arthur 05:32, 2 November 2007 (UTC)

Hopefully we agree that the final authority is the SCOTUS. Has the SCOTUS incorporated the 2A? (No) SaltyBoatr 20:58, 31 October 2007 (UTC)

To clarify, no we do NOT agree to your statement. IF and WHEN SCOTUS makes a ruling then and ONLY THEN is it the final authority. In absence of a SCOTUS ruling on a combined 2nd, 14th challenge, we have to take them as law. IE SCOTUS only rules when there is a challenge, it doesn't sit around deciding piece by piece which parts of the constitution mean what and which we should follow, even if it's a matter of heated public debate. They are severely limited in action by the cases brought before them. Arthur 22:55, 1 November 2007 (UTC)

That is a pretty simple question. Either the SCOTUS has incorporated the 2A or it has not. (Answer is: not.) Your POV is that the SCOTUS might potentially incorporate the 2A someday. That POV requires a crystal ball to predict the future. SaltyBoatr 21:11, 31 October 2007 (UTC)

By the way, that book is remarkably obscure, I couldn't find ISBN logged either in Worldcat or in the Library of Congress database. SaltyBoatr 20:09, 31 October 2007 (UTC)

Remarkably obscure? That's just plain silly - sometimes the easiest method is the best. Try eAmazon.com Arthur 20:11, 31 October 2007 (UTC)

Please. The Library of Congress is a truly great and comprehensive library, and it doesn't recognize that book. I don't deny that the book exists, but it is remarkably obscure to not be recognized by the Library of Congress. SaltyBoatr 20:26, 31 October 2007 (UTC)

Careful, your POV is showing. Arthur 20:30, 31 October 2007 (UTC)

I don't think you looked hard enough. The Library of Congress control number for the book is 86006309, and the call number is KF4757 .C87 1986. Looks like the Library of Congress has the hardcover edition (ISBN-10: 0822305992), while Arthur cited the softcover edition. PubliusFL 20:34, 31 October 2007 (UTC)

Thanks. Regardless, the fact is that the 2A has not been incorporated by the SCOTUS. SaltyBoatr 20:42, 31 October 2007 (UTC)

And the fact is that it doesn't need to be. It would need SCOTUS to be "not incorporated". Otherwise it is part and parcel of "the privileges or immunities of citizens of the United States". Arthur 22:45, 1 November 2007 (UTC)

Incorporation (Bill of Rights) states categorically that the 2A "has not been incorporated". Sorry, I know that some people claim the world is flat too, but 2A incorporation is determined by the SCOTUS, and no one else. Incorporation of the 2A is a radical fringe POV and doesn't weigh in a NPOV decision. Someday in the future they may incorporate, but they have not done so yet. SaltyBoatr 20:05, 31 October 2007 (UTC)

To use your own logic about sources Wikipedia is not allowed as a source in an article. Not to mention that the source used there doesn't say it is "not incorporated" merely that it hasn't yet been held to be incorporated. Arthur 20:13, 31 October 2007 (UTC)

Key word 'yet'. And, WP:NOT#CRYSTALBALL. Do you have a source that says that the SCOTUS has incorporated the 2A? SaltyBoatr 20:22, 31 October 2007 (UTC)

You asked for a source, I gave you one. You claimed it was obscure, you were shown it's not. You claimed it's fringe, flat-earth, etc. As I've seen in the past, you simply change the criteria to avoid inclusion of an opposing point of view to your own, it seems like there isn't a source that will satisfy you. Arthur 21:18, 31 October 2007 (UTC)

Please quote the passage from the Curtis book. I am guessing that he is arguing that the 2A should be incorporated by the SCOTUS, again needing a crystal ball. Does Curtis argue that the 2A has already been incorporated by the SCOTUS? Or, that he hopes they will do so some day in the future? Curtis actually writes the contrary, they state that the 2A is not incorporated. SaltyBoatr 21:32, 31 October 2007 (UTC)

Not at all. You misunderstand. He DOES discuss the "positivist" view of things that the amendment only applies after SCOTUS says it does, and explains why such a "minority view" is incorrect. In actuality, as I've discussed elsewhere here, so say that SCOTUS would rule that the 14th doesn't include the 2nd would require a crystal ball. You have it precisely backward. Arthur 22:42, 1 November 2007 (UTC)

Strictly speaking, incorporation is something that is done by the 14th Amendment, not by the Supreme Court. For the purposes of U.S. law, the Supreme Court has the final say in what the 14th Amendment means (including which provisions of the Bill of Rights the state governments are prohibited from violating thereby), but, as Justice Frankfurter wrote, "The ultimate touchstone of constitutionality is the Constitution itself and not what we (the Supreme Court) have said about it." You are conflating two questions ("does the 14th Amendment incorporate the right to bear arms?" and "has the Supreme Court ruled that the 14th Amendment incorporates the right to bear arms?") that are really subtly but vitally different. The answer to the second is clearly "no." Although most scholars rely on cases like Presser to answer the first question in the negative as well, it is a matter of serious debate, and some major, credible constitutional scholars disagree. I agree with Arthur, Yaf, and Hoplon that it is more NPOV to stick as closely as possible to the actual language of the amendment in the article intro. Certainly, "Congress from" is less POV than saying "Congress and state legislatures from" would be, but leaving the incorporation debate to the body of the article is even better. PubliusFL 22:20, 31 October 2007 (UTC)

No I don't follow that subtle distinction. I understand that partial incorporation means interpretation of how the 14th incorporates the Bill of Rights, regardless: The SCOTUS has the duty and sole authority to interpret the touchstone 'Constitution itself' (including the 14A), and they had done so. Thanks for the explanation, though 1) You do not cite reliable secondary sources. (& my request for a specific passage in the Curtis book remains unanswered) and 2) What exactly is this 'incorporation debate'? It appears to be a debate about what should be. (future tense) Not a debate about what things are. Indeed, there appears little doubt about the present tense reality of partial incorporation, and the 2A is not incorporated. That the 2A restricts the Federal, not the States is practical present tense reality. We should not weasel word the lead to succumb to accommodate a debate about what the 2A should be, or might be someday in the future, under a charade of NPOV. WP:NOT#CRYSTALBALL We should accurately and concisely describe what it is now. That there is a debate among some scholars about whether the SCOTUS presently has it wrong doesn't belong in the lede, it belongs in the body. SaltyBoatr 15:21, 1 November 2007 (UTC)

You misrepresent how the constitution works. Laws mean exactly what they say as enacted until and unless the supreme court says otherwise. To say the supreme court would NOT uphold a 14th amendment challenge tied to the 2nd amendment would requires a WP:NOT#CRYSTALBALL. SCOTUS does not write law, it does not even explain or clarify law in a general sense. It only handles interpretation WHEN there is a specific challenge. The lack of a case/challenge does NOT make a law invalid, quite the opposite. The law is valid as written until overturned or otherwise clarified by SCOTUS. Arthur 17:01, 1 November 2007 (UTC)

You write 'the law is valid as written'. Which law? SaltyBoatr 17:53, 1 November 2007 (UTC)

By the way, I haven't read the Curtis book, but availing the 'limited preview' service of Google Books I see on page 203 that Curtis states: "By the end of the 1960s most of the guaranties (of the Bill of Rights) had been applied to the states. Those that had not included the rights to bear arms, against quartering troops in private homes (an issue that has not often arisen), the Fifth Amendment right to a grand jury, and the Seventh Amendment right to a civil jury trial. Of these, the Second Amendment right to bear arms and the Seventh Amendment right to a jury trial were regarded by the framers of the Fourteenth Amendment as particularly precious rights, a view less in vogue today." This passage from Curtis clearly supports my assertion that the 2A has not been incorporated. SaltyBoatr 15:40, 1 November 2007 (UTC)

I'm afraid you're incorrect. I have the book, it clearly articulates through the whole of it that the 14th applies to the second, other than when it explain opposing points of view. The quote from 203 is in a section where he's describing the non-incorporation movement. To say that Curtis suggests the 14th does not apply to the 2nd is to take him extremely out of context and is serious POV pushing. Arthur 05:38, 2 November 2007 (UTC)

That passage says nothing at all about the 14th not applying to the 2nd. That's WP:OR on your part, applying your own POV analysis to what you think Curtis may mean, without having the source in hand. I don't have my source with me, I'll have more for you in a couple of days. Arthur 17:03, 1 November 2007 (UTC)

Pardon me, that excerpt from the Curtis book directly speaks to the question of using the 14th to partially incorporate the Bill of Rights. That process of using the 14th to incorporate portions of the Bill of Rights is what they write of when they write "had been applied". They are describing the status of incorporation as of the end of the 1960's. SaltyBoatr 17:53, 1 November 2007 (UTC)

The preview you saw mislead you. The book clearly states repeatedly that the 14th applies to the entire bill of rights. For example in the "Foreword" (page numbers are based on my paperback, apologies to this with different version where numbering my be different. YMMV) It speaks about various positions re the 14th and the BofR and reads on p.IX "The strongest of these positions is of course that of full association (or incorporation as it is called)." and further "Mr. Curtis does not think that that foundation is shaky at all. To the contrary, he believes it is sound--indeed that it is overwhelming. In this book he undertakes to show why." Throughout the book he explains why the view you have, which is listed in the book as a "minority view" is incorrect, namely SCOTUS doesn't pick which rights are part of the 14th, they merely uphold or disallow challenges based on that amendment. I can provide further references from the book if you need, but it would literally be a mass of them, because it is all over the book. Arthur 22:40, 1 November 2007 (UTC)

Try to make your case. Please avoid OR in the process. I am not interested in hypothesis of what should be, the lede should describe what is now. My quote above from Curtis, powerfully and clearly states that presently the 2A does not affect any government other than the Federal. SaltyBoatr 01:18, 2 November 2007 (UTC)

I'm using all kinds of non-primary sources. The fact that I summarize them here for you is not OR and certainly is allowed by wiki standards. There is no way NOT to have copyvio withouut restating, summarizing, etc. Again you purposely misunderstand and change arguments constantly in your effort to portray your POV as the one true answer. It is merely another POV and while it should be represented in the article, the idea that the 2nd amendment applies to the states is covered by scholars as well as the authors of the 14th amendment. Yes, there is different opinion, that opinion should be covered as well. But your suggestion that this view is flat-earth frankly contradicts the original authors frank and clear statements about the amendment. Arthur 05:29, 2 November 2007 (UTC)

Bingham, who helped draft the 14th said (Curtis, p.162 quoted from from Cong Globe, 24d Cong, 1st session appendix 84, 1871):

Mr. Speaker; that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contra distinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.

Note that it is congress that creates law, not SCOTUS, who is only there to interpret when there is disagreement. Arthur 23:16, 1 November 2007 (UTC)

This is analyzing a primary source, and is OR per WP:NOR. Do you have a reliable secondary source? SaltyBoatr 01:18, 2 November 2007 (UTC)

Are you seriously suggesting that SCOTUS creates law, not congress? See PubliusFL comments above. What is YOUR source for that? Is there no end you'll stop at to make sure that all views other than yours are not heard? Arthur 05:29, 2 November 2007 (UTC)

See also: "Reconstruction: Americas's Unfinished Revolution by Eric Foner". Arthur 05:38, 2 November 2007 (UTC)

NPOV lede - section break

First, please avoid the ad hominem arguments. Second, please stop ignoring and evading my requests for citations from reliable secondary sources, short direct quotations would be helpful, or even page numbers (I am willing to read books in the library if needed).

Also, could we focus and agree on what is being discussed here. I added the POV tag. The long standing April, 2007 consensus lede has recently reverted[3] by Hoplon without discussion. The issue that lead to the April 2007 consensus, was that the present state of implementation of the 2A only limits the Federal Congress. That core issue remains the same.

For instance, among the hundreds (if not thousands) of relevant state and local laws, there is not one non Federal law that has been struck down by the SCOTUS on 2A constitutional grounds. To suggest otherwise is a 'flat earth argument' that does not carry weight in a NPOV balance calculation.

In essence the argument presented by Arthurrh (and others) above is that there is scholarly attention to theories where the 2A can be brought to limit state and local laws, at some time in the future. Sorry, speculating on the future is inappropriate in the lede sentence. (Though I accept that those theories deserve coverage in the body of the article.) SaltyBoatr 16:16, 2 November 2007 (UTC)

There are no ad hominem attacks. Note that your constant assertion that a mainstream view of the constitution is "flat earth" is a serious POV attack. Reliable sources have been given above. Just because you don't like the sources conclusions doesn't make them not reliable. Explain why Curtis, Foner, the Congressional Globe, and others are unreliable if you choose to exclude them. Arthur 17:02, 2 November 2007 (UTC)

Consensus does change over time. I haven't yet seen anyone else chime in currently to support your version of the lede. If someone does, please add your comments to help understand current consensus. Arthur 17:03, 2 November 2007 (UTC)

Again, the "flat earth" accusation that has nothing to do with the issue, and is an attempt to state that your POV is the "true and correct" one that must dominate.

Again incorrect. In esssence the argument is that the doctrine of incorporation is not law in the way that the constitution is. To state that the 2A is not binding on the states because the SCOTUS as never said that is would be use use a crystal ball and speculate on the future. For some reason your lede sentence wants to use a narrow definition exclusing other POV's, where the broader definition would not only be more inclusive, but also closer to the actual text of the amendment. I'm sorry if your POV isn't supported by using the actual amendment, but it IS a broader explanation. Arthur 17:02, 2 November 2007 (UTC)

In fairness, the Supreme Court did rule in the past that the 2A does not bind the states (in Cruikshank and Presser). Of course, both of those cases came from a period when the Supreme Court held that nothing in the Bill of Rights limited the states, which is obviously not the current state of the law. But even if the intro were to be based on the Cruikshank/Presser interpretation of the 2A, "Congress from" would still be incorrect. It would have to at least be "federal government from." PubliusFL 17:28, 2 November 2007 (UTC)

Since you already went to the trouble of creating a section break, I will respond to your earlier comment to me here.

• "The SCOTUS has the duty and sole authority to interpret the touchstone 'Constitution itself' (including the 14A), and they had done so." They have the responsibility to interpret the law within the U.S. system of government. So if Wikipedia were a resource for lower-court judges in the U.S., or for U.S. executive branch officials who have a responsibility to comply with the law as it is currently being interpreted within the U.S. system of government, you would have a stronger point. But Wikipedia is not so limited. If Wikipedia had existed in 1857 (when the decision in Dred Scott v. Sandford was handed down), Wikipedia policies would not have required us to take the position that the Missouri Compromise was actually unconstitutional, just because the Supreme Court said so. Lower courts in the U.S. were bound to rule consistently with Dred Scott (until it was overturned), but Wikipedia would have been bound to discuss the meaning of the constitution with respect to the Missouri Compromise from a neutral point of view.
• "1) You do not cite reliable secondary sources. (& my request for a specific passage in the Curtis book remains unanswered)." If I meant for my comment to be incorporated into the article, I would have cited reliable secondary sources. But this is a discussion on a talk page, where WP:RS, WP:OR, and WP:V do not apply. I am not proposing inserting anything into the article.
• "2) What exactly is this 'incorporation debate'? It appears to be a debate about what should be. (future tense) Not a debate about what things are." On the contrary, it is a debate about what the meaning of the Second Amendment actually is. The idea that the Constitution actually means what the Supreme Court says it does, and nothing more or less (the idea that, for example, the Missouri Compromise actually was unconstitutional for as long as the Supreme Court said it was, and then actually became constitutional when Dred Scott was overturned, because the meaning of the Constitution itself changed when the Supreme Court's interpretation of the Constitution changed), is itself the POV of particular schools of constitutional interpretation and not a neutral POV. Other schools of constitutional interpretation (e.g. many "originalists" and "strict constructionists") hold that the Constitution has an objective meaning independent of what the Supreme Court says about it.
• "That there is a debate among some scholars about whether the SCOTUS presently has it wrong doesn't belong in the lede, it belongs in the body." Precisely. The lede should not say that the Second Amendment "prohibits Congress and the state legislatures from infringement of 'the right of the people to keep and bear arms.'" And it should not say that the Second Amendment "prohibits Congress from infringement of 'the right of the people to keep and bear arms.'" Either would be taking a particular side in the debate. Instead, the debate belongs in the body of the article, and the lede should be phrased in the most neutral terms possible, not inserting interpretation that goes beyond the actual text of the amendment.

In response to your latest comment please recall that the "April 2007 consensus" consisted of two editors, yourself and trisweb. In view of the recent discussion of the intro, it hardly seems fair to call that a consensus anymore. You say that the "present state of implementation of the 2A only limits the Federal Congress." That may be true, but the lede does not discuss the "present state of implementation." It creates the impression that limiting only Congress is what the 2A actually means. Which represents a particular POV. To clarify the present state of implementation of the 2A would require dramatically expanding the intro. I conclude that the lede should remain as it currently stands, tracking the actual language of the amendment as closely as possible, and leaving discussion of the intepretation, application, and enforcement of the 2A to the body of the article. PubliusFL 17:24, 2 November 2007 (UTC)

Certainly. I am actually talking of the historical and present 2A. Just not the potential future 2A. And, yes, sorry, the April 2007 consensus wording was , and prohibits Congress or any other government agency from infringement . And, no, the April 2007 consensus was not just me and Trisweb, it also include much collaboration with Yaf. SaltyBoatr 18:08, 2 November 2007 (UTC)

SaltyBoatr, anyone who scrolls up this talk page can see that the version proposed by you on 18 April read Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits Congress from infringement of "the right of the people to keep and bear arms.", that Yaf specifically objected to your version on the basis that it "presupposes the non-incorporation of the 2A, which may or may not be true," that Trisweb originally agreed with Yaf, and that Trisweb ultimately said on 20 April "I'm now perfectly willing to have the word Congress there, but without still makes it NPOV I think." There was no discussion of "any other government agency," the only people who supported your "consensus" with respect to the words "Congress from" were you and Trisweb, and Trisweb agreed that the version without "Congress from" would also be NPOV. Yaf opposed your version, then and now. PubliusFL 18:23, 2 November 2007 (UTC)

Trying to move this forward, is there possible compromise wording? I do not discern any specific WP:RS based assertion that the 2A presently affects any law but the Federal. Further, thousands of Local & State laws exist which regulate 'militia' and 'arms'. To hold otherwise seems like a 'flat earth' argument. Suggest a compromise please. SaltyBoatr 19:32, 2 November 2007 (UTC)

Please cease the "flat earth" argument. References have been given, you simply refuse to accept them. The original authors of the 14th in both the house and the senate have said in reliable publications (listed above) that the 14th included the first 8 amendments. A compromise wording should be the broadest to include all major POV without presupposing that one of them is correct. It seems to do that now. Arthur 21:52, 2 November 2007 (UTC)

References have been given? Show me the diffs please. I would like to read these references. SaltyBoatr 00:38, 3 November 2007 (UTC)

No answer. I see a general reference to Curtis, and to Foner, please cite the specific page numbers. Thanks. Also, to help move this forward, can you please state concisely what your POV is? I am left guessing. It appears that your POV is that the 2A restricts state and local governments from regulating guns. Is that a fair restatement of your POV here? SaltyBoatr 22:23, 3 November 2007 (UTC)

I don't know how my POV is relevant here, but no, that is not an accurate description of my POV. It's possibly an accurate description of a POV that pro-gun-control advocates attribute to pro-gun-rights advocates. If you replace "regulating" with "infringing" then you'd be closer. Clearly regulation is allowed even if the 2A applies to states, the same way regulation is allowed against other amendments in the BofR, such as restrictions on speech, etc. Arthur 18:00, 6 November 2007 (UTC)

No answer. SaltyBoatr 16:24, 5 November 2007 (UTC)

References have been given above, you can simply scroll back and see them. Arthur 17:57, 6 November 2007 (UTC)

I propose this text as a neutral worded lede paragraph:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits federal government from infringement of "the right of the people to keep and bear arms."

Comments? SaltyBoatr 16:24, 5 November 2007 (UTC)

"Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms." is a much more neutrally-worded lede paragraph, for it avoids the POV that the 2A only prohibits infringement by the Federal Government. After all, the Parker case is wholly predicated on the view that the 2A even prohibits cities from infringement of the 2A. It would be best not to push either POV in the lede, but to have the wording simply state that the 2A prohibits infringement, with details contained in the body of the article. Yaf 06:38, 6 November 2007 (UTC)

Thanks for the reply, I appreciate that this question of lede POV neutrality is still up for discussion. I am confused at your analysis that Parker pertains to local (city) law. Parker v. District of Columbia pertains only to jurisdiction of the District of Columbia which is a federal district. Therefore your argument actually bolsters my assertion that 'federal government' in the lede paragraph actually meets the policy of WP:WEIGHT. Any assertion that the 2A limits state and local jurisdictions runs contrary to plain fact. Fact: There are presently thousands of state and local gun laws in the United States[4]. The 2A has not ever, and does not presently pertain to state and local jurisdictions. To justify your POV you must present reliable secondary sourcing that shows that the 2A in the past or the present effects anything other than the federal government. And, you have not done so. I see that your POV that the 2A just might someday affect state and local law to be entirely wishful thinking and part of a POV push which does not bear weight in a POV balance calculation. SaltyBoatr 16:51, 6 November 2007 (UTC)

The 2-1 decision in Parker struck down parts of the District of Columbia Firearms Control Regulations Act of 1975, which is a local law enacted pursuant to District of Columbia home rule. Mayor Fenty of DC is an elected official, not a Federal appointee, and he is the official leading the fight for the city of Washington, DC against Parker. I fail to see how these conditions equate to an interpretation of only "federal government" being prevented from infringement. As it presently exists, the local law was struck down on the basis of the 2A. For these reasons, I don't see that the lede should include the "federal government" clause that you are insisting should be included. There is not a "just might someday" issue here; the 2-1 decision in Parker has already occurred. It is not appropriate to speculate on whether the SCOTUS will rule otherwise at this time, under WP:NOT considerations. "Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms." is by far the more neutral and balanced lede at this time. Yaf 17:44, 6 November 2007 (UTC)

Using the phrase "prevents infringement" is the least POV, most inclusive phrase because it doesn't pre-suppose any particular POV, and allows for "only the fed" as well as "fed and states" interpretations. Putting "prohibits congress" pre-supposes the correctness of a particular POV. Arthur 18:02, 6 November 2007 (UTC)

Yaf attempts to suggest that the District of Columbia is a local jurisdiction and not federal, yet Yaf cites no sourcing. Fact: The district is federal per Article 1 Section 8 Clause 17 of the Federal Constitution "in all cases whatsoever". The Federal Congress controls the district. Even when the Federal Congress devolves local control to the district, lacking a Constitutional Amendment, that devolvement is subject to Federal Congress repeal. The 1973 District of Columbia Home Rule Act is a federal law. Therefore, the POV push that the 2A limits any other jurisdiction but the federal is OR and remains uncited. SaltyBoatr 18:22, 6 November 2007 (UTC)

Yaf is arguing 'local' and Arthurrh is arguing 'state'. Please defend these POV's by citing reliable sources. SaltyBoatr 18:25, 6 November 2007 (UTC)

These POV's do not need to be defended on the talk page. Sources have frequently been given, but aren't necessary, because they are tangential to the issue. The version that you're pushing for is to make the lead state as fact a particular POV that apparently no other editors currently agree with. Others here are simply arguing for a non-POV inclusive lede paragraph. Your desire to inject "congress" into the lede promotes a particular POV and should not be included. It's been discussed in length now, and you appear to be the loan supporter of version. At some point consensus should reign and the POV tag should be removed. —Preceding unsigned comment added by Arthurrh (talk • contribs) 18:31, 6 November 2007 (UTC)

Please don't misuse the concept of consensus. And, suggestion that the 2A affects anything but the federal is indeed a POV. therefore, please take the trouble to cite reliable sourcing for your POV. Thanks. SaltyBoatr 18:44, 6 November 2007 (UTC)

Yes, and a suggestion that the 2A only affects the federal gov is ALSO a POV. So the lead should reflect the possiblity of both POVs. The lede you suggest precludes any POV other than yours, making it seriously violate NPOV. Arthur 18:55, 6 November 2007 (UTC)

The POV that the 2A limits only the federal is well sourced, see WILLIAMS, D. C. (2003). The mythic meanings of the Second Amendment taming political violence in a constitutional republic, Page 80. New Haven, Yale University Press.

Please provide a reliable source cite for your "other" POV. SaltyBoatr 19:11, 6 November 2007 (UTC)

Have you actually looked at the sources ALREADY in the article that describe this "other" POV? And do you have a valid reason for wanting to insert non-inclusive text you suggest into the lede? No one has questioned that your POV exists, yet you are continually questioning a POV that obviously also exists based on sources already given in this dicussion, already listed in the 2A article and already used in several other articles in wikipedia. The issue here is NOT whether there is a POV that says the 2A applies to states, the issue is whether the insertion of "congress" into the intro makes it more or less neutral. Arthur 19:23, 6 November 2007 (UTC)

No, the issue is how to determine the neutral balance point per WP:WEIGHT. You evade my requests that you show a reliable secondary source for your POV that the 2A limits the States. (Indeed, it does not, except in wishful thinking of those pushing a non-RS fringe POV.) Without a published reliable source, per WP policy, your POV cannot be weighed in the balance calculation. SaltyBoatr 19:30, 6 November 2007 (UTC)

I do not evade your requests, there are at least two sources already given above. Plus there are several already in the 2A article in the references section. And in either case, your attempt to insert "congress" into the 2A is to make it a less-inclusive statement which has the result of pushing a particular POV, which is why the current version is actually less POV than what you're suggesting. The current version does not preclude your POV, it simply doesn't pre-suppose it. Arthur 19:46, 6 November 2007 (UTC)

Actually, you have evaded my request to specifically cite your sourcing. Pointing to entire books is not good enough to allow me to verify your cite. SaltyBoatr 21:13, 6 November 2007 (UTC)

Second Amendment application to the states sources

For convenience a new section. Feel free to add sources. Arthur 20:21, 6 November 2007 (UTC)

1. Right to Keep and Bear Arms, Judiciary Committee Senate report, February 1982
2. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. ISBN 0-8223-0599-2.
3. Cong Globe, 24d Cong, 1st session appendix 84, 1871
4. Reconstruction: Americas's Unfinished Revolution by Eric Foner, Harper Perennial Modern Classics
5. Amar, Akhil Reed (April 1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal: pp. 1218. {{cite journal}}: |pages= has extra text (help)
6. Kerrigan, Robert (June 2006). "The Second Amendment and related Fourteenth Amendment" (PDF): 16-19. {{cite journal}}: Cite journal requires |journal= (help)
7. Levinson, Sanford (1989). "The Embarrassing Second Amendment". Yale Law Journal. 99.Section II The Thetorical Structures of the Right to Bear Arms under "D. Doctrine"
8. Aultice, Patrick L. "United States vs. Miller: Court Opinion & Documents".
9. WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, MEMORANDUM OPINION FOR THE ATTORNEY GENERAL, August 24, 2004
10. Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun, by Jeffrey R. Snyder, Cato Policy Analysis No. 284
11. Adamson v. California, 332 U.S. 46 (1947) Adamson v. California
12. Crosskey, "Charles Fairman, 'Legislative History,' and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954)

Thanks for the start. This will take a bit of time to verify. 1, 2, 3, 4 & 6 are to vague to be satisfactory without page numbers. Please cite page numbers. Also, your link to the 1982 Senate report points only to an abridged copy, could you help find a full copy? #3 appears to be a primary source, not allowed per WP:V. SaltyBoatr 20:56, 6 November 2007 (UTC)

1 is rife with such info all throughout it. The entire purpose of 2 is about how the 14th applies to the states, it would be non-sensical to simply start listing page numbers. 3 is congressional glove, which is analagous to the congressional quarterly and is both allowed as a source in wikipedia and legally defined as a secondary source. Not to mention that the globe quotes, as has been mentioned above, appear in Curtis as well as in Foner. Arthur 20:59, 6 November 2007 (UTC)

I doubt you have read the entire #1, as the version in your link is abridged. And, please cite specifics. SaltyBoatr 21:02, 6 November 2007 (UTC)

I'm sorry, I have a printed version of #1. The convenience link to #1 is what was provided in the article's reference. I don't know offhand of a link to the full version, perhaps someone else can suggest. Arthur 23:25, 6 November 2007 (UTC)

Regarding #5 at page 1218 does not claim your POV to be true. All it describes is one line of reasoning about how the SCOTUS might analyze the 14A at some point in the future, and this is irrelevant because Wikipedia is not about predicting the future. Also, your "SAF" link appear it may have been abridged. Is it a true copy? SaltyBoatr 21:09, 6 November 2007 (UTC)

I am NOT claiming that a particular POV is true or not true. I'm claiming that such POV's clearly exist. This nitpicking trying to prove that it doesn't exist is a waste of time. That's why I proved the Cornell quote below. You'd be hard-pressed to find a scholar who doesn't believe that there is a difference of opinion over various facets of the 2A. Source 5 at 1218 makes precisely the point that there IS a POV that believes that the 14th includes the 2A. Shoot, the original authors in house and senate BOTH believed the 14th includes the 2A. That alone establish the existence of this point of view. This has nothing to do with predicting the future, it has to do with respecting the actual legal documents of the past. As has been mentioned earlier, SCOTUS has unarguably made incorrect decisions in the past, mentioning that those are incorrect is not now and would not then have been any crystal ball issue. And to reiterate one more time, I am NOT working to prove that any POV is correct, you on the other hand seem to be trying very hard to say that at POV is not correct, which makes it difficult to maintain NPOV. Arthur 22:47, 6 November 2007 (UTC)

Again, please provide the missing page numbers. Thanks. SaltyBoatr 21:09, 6 November 2007 (UTC)

Could you please identify the publisher for #8? It appears to be a website document without reliable publication process. Also, which specific passage are you citing? I see (at slightly past halfway) in #8 the statement: "The Second Amendment...declares that it shall not be infringed by Congress" which strongly supports my POV and undercuts your POV. What? SaltyBoatr 21:21, 6 November 2007 (UTC)

I don't know the publisher for #8, it's presently already used in the 2A article, along with other sources that support this opinion. It basically says that the 2A is an individual right, and that individual rights are protected, and this applies as other amendments do. Note that the individual right concept of the 2A is generally accompanied by a belief that it applies to the states, as do all the other individual rights. Again, I do not do this to say this is correct, true, etc. Merely to state that it is a known POV that needs to have allowance in the lead. Arthur 22:54, 6 November 2007 (UTC)

Once again, most of these are already cited in the article. Curtis alone is enough to establish that there is an opinion that the 14th applies to the 2nd, as are many of the others. Are you disputing that there is a POV that says that the 2a applies to the states, and that there is a POV that says that the 14th makes the 2a apply to the states (not necessarily the same POV)? Arthur 22:41, 6 November 2007 (UTC)

Yes I dispute. You have only shown a POV that the 14th should apply to the States, not that it does apply to the States. Also, it would be helpful if you could point to specific page numbers in Curtis. I am left to guess your meaning when you refuse to do so. By the way page 203 of the Curtis book undercuts your reasoning. Please be specific. SaltyBoatr 22:49, 6 November 2007 (UTC)

See the quote below - it address this point directly. There ARE different POV's regarding the 2A. P203 of Curtis does NOT undercut my reasoning, I've explained that before earlier. You seem to want to discuss the veracity of a particlar POV as to whether it's correct or not. This is not allowed under wiki guidelines. It's a form of POV pushing to try and exclude other POV's. Take it to an RFC and ask if there is a variety of opinions as to the meaning and applicability of the 2A. Virtually every source that talks about the 2A covers this concept. And don't forget the frequently afore mentioned quotes from the sponsors of the 14th in the house and senate that unequivocally say that the 14th applies to the 2nd. You may argue that they're incorrect, but it is verifiable fact that they said it. I've provided secondary and third-party sources for those statements earlier. Arthur 22:57, 6 November 2007 (UTC)

From source #9 (memorandum, in case the numbers change): "The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." (introduction) and "This history indicates that it was widely recognized that the right to keep and bear arms was to be protected by the Civil Rights Act and the Fourteenth Amendment, and that that right was understood to belong to individuals." (p. 100) Arthur 23:24, 6 November 2007 (UTC)

From source #10 (Snyder): "the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, . . . including the constitutional right to bear arms, shall be enjoyed by all the citizens of such State or district without respect to race or color or previous conditions of slavery." Later, in introducing the Fourteenth Amendment, Sen. Jacob Howard explained that its purpose was to protect "personal rights," including "the right to keep and bear arms" from state infringement." (in section "Relevance of the Constitution") Arthur 00:14, 7 November 2007 (UTC)

From source #11 (Adamson): Hugh Black wrote in dissent "I would follow what I believe was the original purpose of the Fourteenth Amendment- to extend to all of the people of the nation the complete protection of the Bill of Rights." Arthur 00:14, 7 November 2007 (UTC)

From source #2 (curtis): "The strongest of these positions is of course that of full association (or "incorporation" as it is called). from the Foreword p. vix, and "A reasonable reader might conclude that the Fourteenth Amendment was intended to change things so that states could no longer violate rights in the federal Bill of Rights. The reader might think this was what was intended by the language, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I believe that reader would be right". p2 and "Among scholars who have studied the historical sources in detail, opinion is more divided. Most of this group seem to agree that the Fourteenth Amendment was intended to apply the Bill of Rights--or at least most of them--to the states." p. 2,3 (italics from original) and "In Adamson Justice Black argued that the Fourteenth Amendment was intended to overrule earlier Supreme Court decisions and to make the first eight amendments to the Constitution a limitation on the states." p. 5 and "Although scholars often accept most of Fairman's negative conclusions, many refuse to accept his argument that a selective incorporation was intended." p.6 and "Republicans accepted the following tenets of antislavery constitutional thought. First, after the passage of the Thirteenth Amendment abolishing slavery, blacks were citizens of the United States. Republicans held this view even though the Dred Scott decision was to the contrary. Second, the guaranties of the Bill of Rights applied to the states even prior to the passage of the Fourteenth Amendment." p.7 and "Statements made about the equivalence of the bill and the amendment are consistent with application of the Bill of Rights to the states." p8 and "Crosskey insisted that the amendment should be understood in light of "old Republican" constitutional ideas. These included a reading of the privileges and immunities clause of article IV, section 2 to mean that the citizens of each state would be entitled to all rights of citizens of the United States in every state"..."finally, a belief that the guaranties of the Bill of Rights were limits on the states even prior to the framing of the Fourteenth Amendment." p.8 (emphasis added) and "When they passed the Freedman's Bureau bill, they provided that blacks should have, among other things, "full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms."" p.72 (italics in original) and from Senator Howard who "presented the amendment on behalf of the committee" ... "Such is the character of the privileges and immunities spoken of in the section section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be--for the are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution" p.88 and "The weight of the evidence from the Thirty-ninth Congress supports the conclusion that the Fourteenth Amendment was designed to require the states to respect all the guaranties of the Bill of Rights." p.129 and "Most Republicans believed that the states were already required to obey the Bill of Rights. They did not accept the 'positivist' notion that the Constitution was merely what the Supreme Court of the moment said it was." p.130 and by Senator Yates, a close ally of Lincoln "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States where they reside. And then it goes on to provide that their rights shall not be abridged by any State." p.226 and "In Adamson Black argued taht the Fourteenth Amendment was intended to overrule earlier Supreme Court decisions and to make the first eight amendments to the Constitution a limitation on the states." p.201 Arthur 00:33, 7 November 2007 (UTC)

You are sourcing the wrong point. You are arguing different things:

1) Whether the 2A pertains to an 'individual right'. On that, I agree. There are various POV's. But, this is not the question.

2) The question is: Whether the 2A pertains to the federal jurisdiction, or does the 2A also pertain to state and local jurisdictions.

I see that you have only proved that a POV exists that the 14A should be interpreted in such a way as to incorporate the 2A to bear on the State and Local jurisdictions. You have not proved that the 2A is presently incorporated. Please point explicitly to your sourcing that the 2A is presently incorporated. SaltyBoatr 17:30, 7 November 2007 (UTC)

You misunderstand the sources. They do not argue that it "should be incorporated" they argue that the 14th "does" cover the 2A. Some POV's argue even further, that article IV section 2 covers the 2A. I certainly do not need to pove that the 2A is incorporated, that is POV pushing. NPOV means we do not judge the truth/accuracy of particular POV's, merely that we air them. "he neutral point of view is a point of view that is neutral, that is neither sympathetic nor in opposition to its subject. Debates within topics are described, represented and characterized, but not engaged in." So in that context, arguing whether the 2A is incorporated is violating WP:NPOV. Arthur 18:06, 7 November 2007 (UTC)

Huh? I don't follow your logic. If the 2A does presently pertain to the States, how can there be thousands of State and Local firearm laws? SaltyBoatr 18:14, 7 November 2007 (UTC)

Because the 2A doesn't prohibit any/all regulation. Arthur 17:44, 14 November 2007 (UTC)

Interesting note re 2A POV

From a source in the 2a article: "Rather than search for a single meaning for the right to bear arms it makes more sense to recognize that this right could be interpreted in radically different ways by spokesmen for different groups within American society." Cornell, Saul (2001). "Constitutional History After the New Cultural History: A New Paradigm for the Second Amendment". {{cite journal}}: Cite journal requires |journal= (help) Arthur 20:36, 6 November 2007 (UTC)

Key words: "could be interpreted". Presently we are phrasing the lede summary as a concise statement of what the 2A is now. I suppose we could reword it to be more open, stating how it 'could be interpreted'. How would you phrase such a paragraph? SaltyBoatr 21:16, 6 November 2007 (UTC)

Again, I'm not proposing that we interpret it in a particular way, I'm merely supporting the assertion that there is a legitimate difference of opinion, which you seem to have disputed above. Cornell's statement seems reasonable to me, I think that the intro needs to be broad enough to incorporate the basic POV's as plausibly correct. Arthur 22:38, 6 November 2007 (UTC)

Would you please concisely state your POV? You have not ever done so. Thanks. SaltyBoatr 22:51, 6 November 2007 (UTC)

My personal POV is not relevant to the discussion. My POV is that there are several different interpretations of the 2A and the 14A. My POV is that the article should discuss these interpretations in a NPOV way, which means that the intro should not pre-suppose the accuracy/validity/truth of any particular POV. Arthur 23:02, 6 November 2007 (UTC)

No. The question is how shall we establish the proper neutral POV balance. You are arguing that the balance is wrong. For instance, a 'flat earth POV' must not carry weight when determining the balance point because it fails a WP:RS standard. But significant POVs which meet a RS threshold do carry weight when determining the balance point. Therefore you should explicitly describe which POV's must be weighed to achieve balance. It appears you are using a 'flat earth POV'. (If you dispute this, you can easily dispel the appearance by itemizing the "several different interpretations of the 2A" that you are weighing.) Please answer explicitly. SaltyBoatr 17:15, 7 November 2007 (UTC)

Your continued use of "flat earth" is highly prejudicial. Again, NPOV does not allow us to judge whether a POV is correct or not. I have provided a mountain of RS that shows that this POV exists. To call it "flat earth" in the presence of numerous sources simply is inaccurate. Arthur 18:02, 7 November 2007 (UTC)

Again, you refer vaguely to numerous sources, yet you have not provided even one source that claims that the 2A is presently incorporated. I apologize for 'flat earth' seeming prejudicial, let me restate. What I mean is that your assertion that the 2A presently pertains to the States is an assertion that has no reliable source, in shorthand a 'flat earth' opinion. (I accept your sourcing that people argue that it should pertain, but that is a separate question entirely.) If you insist that we cover 'should pertain', perhaps my suggested wording below can be an acceptable compromise. SaltyBoatr 18:10, 7 November 2007 (UTC)

There is no vagueness. Reliable sources are listed in proliferation above in their own section and I could continue ad naseaum. I have even on many of them added specific pages for your benefit. Your argument that the POV doesn't exist is disingenuous. I am NOT sourcing people arguing that it "should pertain', in fact, I don't believe that "should" appears in any of the sources I gave, although it might. For example, yet again, the two original authors of the 14th said that it "does". So does Curtis. So does the congress subcomittee report. So does Foner. You seem to feel that the 14th does not cover the 2A, and so you're saying that their belief that is does is incorrect. Such an assessment does not take into account NPOV. Arthur 18:16, 7 November 2007 (UTC)

You claim you have proved that a POV exists that the 2A presently pertains to State and Local jurisdictions. How then is that we see thousands of state and local firearms laws? This defies common sense. Though I would easily accept a claim that a POV exists that the 2A 'should' presently pertain to State and Local jurisdictions. SaltyBoatr 18:40, 7 November 2007 (UTC)

How about this suggested lede?

Considering that some editors feel it important to address the issue of incorporation, or lack of incorporation in the lede, I suggest this wording for comments. SaltyBoatr 17:40, 7 November 2007 (UTC)

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits federal government from infringement of "the right of the people to keep and bear arms." The Fourteenth Amendment has not been interpreted by the Court to cause the Second Amendment to bear on prohibiting the individual States from infringement, but some scholars argue that the Court should do so.

I disagree, it presupposes the correctness of a particular POV and introduces other POV's as marginal views. NPOV means that we don't get to judge who is right and wrong. Inserting "federal government" is writing something into the 2A that isn't actually part of it, but merely one POV. Arthur 18:00, 7 November 2007 (UTC)

Suggest a compromise wording then. I am looking for acknowledgment and balance of the dominant POV which is: The 2A presently pertains to the federal jurisdiction and not to state or local jurisdictions. SaltyBoatr 18:18, 7 November 2007 (UTC)

You are correct that the lead doesn't cover the issue WP:LEAD states that the lead includes "briefly describing its notable controversies". So maybe we could take this tack, with some massaging.

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits infringement of "the right of the people to keep and bear arms." There is currently a difference of opinion over who is prohibited from infringement, whether it's Congress or Congress and the States. In addition there is controversy whether the right is an individual or a collective right. There are various interpretations of the meaning of the militia clause, and there is ambiguity over what is infringement and whether any regulation constitutes infringement. —Preceding unsigned comment added by Arthurrh (talk • contribs) 18:26, 7 November 2007 (UTC)

There is no doubt that the dominant existing POV is that the 2A has a federal jurisdiction, not a state and local jurisdiction. In short, the 2A has not yet been incorporated. Your suggestion does not give proper weight to this dominate POV about the present lack of incorporation of the 2A, and therefore fails WP:WEIGHT. SaltyBoatr 18:44, 7 November 2007 (UTC)

I have a problem with the weasel word ambiguity about 'there is a current difference of opinion' which blurs the weight of opinion of the current state of the law with the opinion of bystanders. The opinion of the SCOTUS deserves more weight. SaltyBoatr 18:51, 7 November 2007 (UTC)

SaltyBoatr, shall we give our typing fingers a few days off, see what others suggest in addition to your comments, and circle back in a few days to rework the lead? Arthur 19:00, 7 November 2007 (UTC)

I've enlisted the help of a writer friend to make a suggestion, I'll post it when it's available. Non-binding, just an attempt to write it better than I could. Unfortunately no one seems to be chiming in here, now's your time people. Arthur 23:24, 12 November 2007 (UTC)

Amendment II (the Second Amendment) of the United States Constitution’s Bill of Rights declares a well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." One key controversy revolves around who is prohibited from infringing upon this right: the dominant view is that the Second Amendment is limited to federal jurisdiction, but some contend that it extends to state jurisdiction.

Another major point of contention is whether it is an individual or collective right: the prevailing view and court precedence favor the "collective" interpretation, but the "individual" interpretation is supported by recent court cases such as United States v. Emerson and Parker v. District of Columbia.

Other points of disagreement include the meaning of the militia clause and the meaning of infringement (does any regulation at all constitute infringement, or is reasonable regulation allowable).

Above is the result of my latest suggestion - comments? Arthur 00:59, 13 November 2007 (UTC)

I have a big problem with the "One key controversy revolves around who is prohibited". This is not is a key controversy. The key controversy is who should be. Presently, the 2A only affects federal government. It does not affect State governments. The controversy is not about who is prohibited, but rather who should be prohibited. Please show some reliable secondary sourcing that there is a credible POV of who is prohibited. SaltyBoatr 17:19, 13 November 2007 (UTC)

I disagree, one POV is that the 2A only affects federal government, as you have stated. It cannot be assumed to be the correct POV, that would be biased. The controversy is not about "who should be" but about "who is". The sources yet again:

1. Right to Keep and Bear Arms, Judiciary Committee Senate report, February 1982
2. Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. ISBN 0-8223-0599-2.
3. Cong Globe, 24d Cong, 1st session appendix 84, 1871
4. Reconstruction: Americas's Unfinished Revolution by Eric Foner, Harper Perennial Modern Classics
5. Amar, Akhil Reed (April 1992). "The Bill of Rights and the Fourteenth Amendment". Yale Law Journal: pp. 1218. {{cite journal}}: |pages= has extra text (help)
6. Kerrigan, Robert (June 2006). "The Second Amendment and related Fourteenth Amendment" (PDF): 16-19. {{cite journal}}: Cite journal requires |journal= (help)
7. Levinson, Sanford (1989). "The Embarrassing Second Amendment". Yale Law Journal. 99.Section II The Thetorical Structures of the Right to Bear Arms under "D. Doctrine"
8. Aultice, Patrick L. "United States vs. Miller: Court Opinion & Documents".
9. WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, MEMORANDUM OPINION FOR THE ATTORNEY GENERAL, August 24, 2004
10. Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun, by Jeffrey R. Snyder, Cato Policy Analysis No. 284
11. Adamson v. California, 332 U.S. 46 (1947) Adamson v. California
12. Crosskey, "Charles Fairman, 'Legislative History,' and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954)

I also have a smaller problem about the 'collective' wording in that it falsely implies there are people currently with a POV of a collective model. Rather, the mainstream POV is a modified collective model or similar.

Request for clarification - should we be listing 3 models in the intro? collective, modified, and individual?

(Beyond the fact that State regulations of firearms and militia is essentially unlimited at present by the 2A.) The reality is also that reasonable federal regulation of firearms is also allowed. Please show some reliable secondary sourcing that a credible POV exists that federal regulation of firearms is not allowed. I grant that a POV exists that it should not be, but I do not see a credible POV that it is not. Please show credible secondary sourcing of a it is not POV exists before we decide if it should bear weight in the determination of POV balance. SaltyBoatr 17:19, 13 November 2007 (UTC)

Obviously regulation is allowed. But some people don't believe that. I have seen the argument that goes "there are over 20,000 firearms regulations in place, and yet no 2A case at the supreme court, therefore the 2A doesn't apply to states" which argument only has meaning if you assume that ANY regulation is infringement. Yes, the groups that argue this tend to be the extremists, strangely enough on both sides of the argument. For example, U&M chap 2 note 4 (p. 37 in my copy) showing the view that "now and forever, in military pursuits and all others, guns are an individual entitlement immune from government curtailment." Maybe it's too small of an issue to be part of the intro. Arthur 18:27, 13 November 2007 (UTC)

Give me a chance to read that U&M quote in context, and my copy of the book is not within reach at the moment. The issue of distinction between 'should be' and 'is' is not small in my opinion, and I would like to find some compromise wording where the lede paragraph can neutrally and accurately represent that distinction. SaltyBoatr 19:25, 13 November 2007 (UTC)

Absolutely. There are certainly lots of "shades" of understanding about what the 2A "was", "is", and "should be". The 2A while being among the least heard of amendments for SCOTUS is among the most disputed. Clearly we don't want to cover everything in the intro, but at least cover the major issues. Arthur 20:36, 13 November 2007 (UTC)

We can't use this one, but I think it's helpful to the discussion.

For those unfamiliar with the relevant constitutional text, the Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”233 On their face, these twenty-seven words are less than crystal clear. What is the “Militia” and how is it to be “well regulated”? Who are the beneficiaries of this provision—the states, that need a level of security to remain free, or the people, whoever they may be? What exactly is meant by the term “keep and bear arms”? And what would constitute a full-fledged infringement on this right rather than, for instance, a reasonable limitation?

from page 94 of Luna, Erik (March 28, 2002). "The .22 Caliber Rorschach Test" (PDF). Houston Law Review. 39: 53–131. Retrieved November 13, 2007. Arthur 20:47, 13 November 2007 (UTC)

Again, this Erik Luna essay contains thoughts of what the 2A should be and downplays what the 2A objectively is, today. It is fair to summarize the range of 2A POVs as falling broadly into two camps, 'anti gun regulation' and 'pro gun regulation'. These two major POVs must be balanced per policy of WP:NPOV. Downplaying the reality that the 2A presently imposes no restrictions on gun regulations by the States, and just a degree of restriction on the federal, does not strike the proper POV balance. The mixing of what 'should be' with the reality of what 'is' has the effect of improperly skewing the POV balance towards 'anti gun regulation'. SaltyBoatr 21:20, 13 November 2007 (UTC)

It doesn't seem to me that Luna addresses either "what is" or "what should be", that's not his point. His point is to help understand the various schools of thought re the 2A, which I felt would be helpful to us, simply from the perspective of here's how another scholar wrote about it. Arthur 21:23, 13 November 2007 (UTC)

Regardless, the lede section must address the important reality of the empirical status of federal and state gun regulation under the 2A, and presently it does not. This is needed to give proper weight to the POV balance as required by WP:NPOV. SaltyBoatr 21:34, 13 November 2007 (UTC)

What you call "empirical status" is a particular POV about what the 2A means in a legal sense. That POV needs to be in the article, but it would be biased and incorrect to assume that it's the correct POV in an area where there is obviously so much contention, scholarly dispute, etc. Maybe we should setup an RFC. Arthur 21:38, 13 November 2007 (UTC)

Is there any scholarly dispute what-so-ever about the existence of state and federal gun regulations? No. I am not talking of "the correct POV", just the POV weight balance. The lede section presently, by ignoring the legal status quo of regulations, fails the WP:NPOV weight policy. Burying this major POV down in the article, and excluding it from the lede, violates WP:NPOV SaltyBoatr 23:11, 13 November 2007 (UTC)

Please elaborate on how you think the "legal status quo of regulations" could/should be incorporated (pun intended, sorry couldn't resist) into the intro. I'm don't think I'm following enough yet to make alterations based on that suggestion. Arthur 23:15, 13 November 2007 (UTC)

I suggest this simplest form:

Amendment II (the Second Amendment) of the United States Constitution, which is part of the Bill of Rights, declares a well regulated militia as "being necessary to the security of a free State", and prohibits Congress from infringement of "the right of the people to keep and bear arms."

This says it well, and neutrally. It accommodates the POV that the 2A prohibits only the Congress, while falling short of exactly saying the 2A only prohibits the Congress. Yet, it does not say that the States are not also prohibited, therefore it walks the middle line between the two POV's. SaltyBoatr 15:34, 14 November 2007 (UTC)

Actually it's not netural at all, it inserts "from Congress" as a main thesis, thus giving the assumption that this is the correct POV. Leaving "from congress out" is the most inclusionary broadest reading. Arthur 17:41, 14 November 2007 (UTC)

The issue is not the 'correct POV' but rather finding a weighted balance point between the credible POV's. The present lede sentence fails in this regard. It must be fixed in order for the POV tag to be removed from the article. SaltyBoatr 18:23, 14 November 2007 (UTC)

Also, I have had a chance to read your U&M quote[5] in context and am sad to see that you have selectively quoted, failing to include the portion of footnote 4 which states boldly: "Preeminently, three of the most respected members of the orthodox legal academy to embrace an individual rights reading of the Second Amendment emphasize that this right...should be subject to reasonable regulation." Would you care to try again to show credible secondary sourcing of the POV that federal regulation of firearms is not allowed? This is needed before we can decide if that POV should bear in a WP:NPOV calculation. SaltyBoatr 15:51, 14 November 2007 (UTC)

Perhaps you misunderstood. I was not suggesting that U&M think no regulation is allowed, merely showing that they acknowledge that such a POV exists. I had read the full foot-note, but in the context of understanding merely that the POV exists, the further information there adds absolutely nothing to the understanding. If the issue was do U&M believe in that POV as being correct, then the footnote would be necessary. Arthur 17:40, 14 November 2007 (UTC)

You yourself have used the argument that "How then is that we see thousands of state and local firearms laws?" Can you please clarify what this means since you are saying that the 2A does not preclude reasonable regulation? Arthur 17:59, 14 November 2007 (UTC)

There are two main issues here, 1) Does the 2A pertain to the States? and 2) Does the 2A prohibit reasonable federal firearm regulations? The diff you point to addresses 1). Your truncated quote of U&M addresses 2) SaltyBoatr 18:27, 14 November 2007 (UTC)

Pardon me, U&M do not say that this "no regulation allowed" POV exists. Your truncated quote creates that illusion, but if you read U&M including the footnote they clearly state that even the most notable scholars of your POV, (Glenn Harland Reynolds, Randy Garnett, Don B. Kates, Stephen P Halbrook, Joyce Lee Malcolm, Laurence H. Tribe and Akhil Reed Amar), all hold a POV that reasonable regulation is allowed. Who then is left to give weight to your POV? Please answer explicitly. SaltyBoatr 18:23, 14 November 2007 (UTC)

If the POV doesn't exist, as you assert, why then do U&M address it? Arthur 18:45, 14 November 2007 (UTC)

For example "One argument which is often used by pro-gun groups such as the National Rifle Association is that the Second Amendment of the United States Constitution prohibits any limitation on the individual’s right to possess a firearm.", "STATE FIREARMS REGULATION AND THE SECOND AMENDMENT" by Warren Spannaus, Hamline Law Review, vol. 6, no 2 1983 for convenience see http://www.saf.org/LawReviews/Spannaus1.htm Arthur 18:35, 14 November 2007 (UTC)

Important note: I'm not convinced that the "reasonable regulation" info needs to be in the intro, as I've mentioned above. It should be in the article, but it may be a minor enough view that the intro isn't the right place to introduce it. The only reason I put it there is that so many scholarly papers seem to reference this POV as they explain why "reasonable regulation" is allowed. Why would they do this over and over unless they felt that someone out there didn't understand it? At any rate, as I've said, I'm not convinced it needs to be in the intro. Maybe someone from the NRA would disagree. Arthur 18:44, 14 November 2007 (UTC)

Additional quote: "The Comment argues, however, that federal firearms regulation is unconstitutional whether Second Amendment rights are interpreted as belonging to the individual or to the states." from "IN SEARCH OF THE LOST AMENDMENT: CHALLENGING FEDERAL FIREARMS REGULATION THROUGH THE STATE'S RIGHT INTERPRETATION OF THE SECOND AMENDMENT" by Gregory Lee Shelton, Florida State University Law Review, 1995 - for convenience see http://www.law.fsu.edu/Journals/lawreview/issues/231/shelton.html Arthur 19:11, 14 November 2007 (UTC)

Granted. Still, the issue is the weight calculation of the various POV's to establish neutrality. You are not convinced that a significant opposing POV should be included in the lede, yet WP:NPOV requires that significant POV's must be included. What you want appears at odds with WP:NPOV SaltyBoatr 19:19, 14 November 2007 (UTC)

Sorry, I must not have been clear. I'm not sure whether the regulation POV is significant, only that it exists. You seemed to be arguing that the regulation POV didn't exist, are you now arguing that it is significant? Arthur 19:23, 14 November 2007 (UTC)

I grant that a POV exists that "The 2A prohibits all regulation of firearms". I do not grant that this is a credible POV, (considering that, per U&M, the major 'individual rights' scholars do not share that POV), but no matter. My objection is that another POV is that 1) The 2A allows reasonable regulation of firearms and 2) The 2A pertains to the Federal government, not the States. Do you deny that these two POV's exist? Do you deny they are significant? Please answer these two questions explictly. SaltyBoatr 21:03, 14 November 2007 (UTC)

I don't know about "credible" POV, such value judgements aren't necessary. U&M use highly opinionated phrases throughout their work, so I normally discount their assessment in such areas (IE as relates to what is a view fringe, normal, etc). I agree that it seems to be the POV of more extreme views. I agree that the 2 POVs you mention "reasonable reg" and "federal application" exist absolutely and are significant absolutely. Again, I was probably unclear. Here's another attempt to try and explain what I was saying. This is ONLY in relation to the "reasonable regulation" issue, NOT to the "federal application" issue. You originally challenged my suggested intro re reasonable reg stating that the POV doesn't exist. What I was trying to convey is that perhaps the issue itself of reasonable reg doesn't belong in the intro. I personally could go either way on it. I was attempting to offer compromise by removing the issue since it was under contention. I can no longer be sure whether you want to keep or remove this issue from the intro. Awaiting clarification. If we agree it doesn't belong, we remove it.If we agree it does belong, then let's figure out how to best word it. Arthur 21:38, 14 November 2007 (UTC)

I want both these POVs included: The lede section should mention 1) That reasonable militia and firearm regulation is allowed, at both the state and the federal levels. And 2) That the entire Bill of Rights up until the Reconstruction affected only the federal. After Reconstruction, and the 14A, the Bill of Rights was gradually incorporated to pertain to the States, but that the 2A has never been incorporated. I accept that the contrary POV's should be included too. SaltyBoatr 21:46, 14 November 2007 (UTC)

Gotcha. Thanks for the input. I'll take another crack at latest version and get back. Hopefully today. BTW, this kind of clear statement is very easy for me to work with, thanks. Arthur 21:50, 14 November 2007 (UTC)

Proposal/support: Begin this article with the actual text. Anything else reflects POV.

There is no possible way to deconstruct the second amendment as written without introducing somebody's POV.

The 'unusual' construction of the one sentence Second Amendment reflects the debate as it existed among the Framers in the day.

From what I have read, the framers created this ambiguity on purpose. They were not grammatically incompetent -- this sentence was written the way it was knowing that it would be left to We The People to figure out what this means.

Breaking it into two separate ideas right up front reflects the POV of those who believe this amendment was unambiguously intended to confer unrestricted rights on individuals.

So...I'd like to propose that the article begin not with the "two sentence interpretation", but with the actual text as written.

riverguy42 19:24, 15 November 2007 (UTC)

We should not to favor introducing one POV over another. Instead we should measure the weights of the various POV's and present a balanced lede section. See WP:LS, just starting with the quote of the 2A fails to summarize the article into a concise overview as we should. Also, 'the framers' perspective is just small part of the topic. We cannot ignore how the 2A has changed over time, the 2A was different at its inception in 1789, versus the impact of the 14th Amendment and the Slaughter-House cases during the Reconstruction, versus in 1934 with Miller, then during the period of Incorporation 1940's - 60's, then during the 60's with the Gun Control Act, versus now with Parker v. DC. SaltyBoatr 22:58, 15 November 2007 (UTC)

Exactly, SaltyBoatr and I have been working for many days now trying to get this right. Please feel free to contribute and send suggestions. I'm a day or two behind on my latest rev, I will try to have it up tomorrow. I'm taking into account my previous proposal, plus the comments from SaltyBoatr from the previous topic on this talk page, and the issues being discussed in the previous paragraph. I'm taking clues from the intros for the other amendments in the Bill of Rights. Arthur 00:41, 16 November 2007 (UTC)

General comment (not directed at anyone in particular) - This article has long been well served by keeping the lead as ambiguous as possible. Any "deconstruction" (as Wndl42 puts it) tends to introduce POV. One wiki-solution to a controversy like this would be to simply lead with "The second amendment reads...", but in this case we also have the dispute over the placement of the commas. I think that most long-term editors of this article understand why we have settled on the somewhat ambiguous solution we have, but I suspect we will be seeing an increase in new editors to the article who might not be aware of this history. - Hoplon (talk) 19:06, 20 November 2007 (UTC)

I am well aware of that history, and still, I strongly disagree. 1) The so-called ambiguous lede is actually favoring the pro-gun POV by ignoring the reality that gun regulation is widely allowed by both state and federal courts. 2) An ambiguous lead also fails to follow WP guidelines to summarize the article and to present the various POV's. SaltyBoatr (talk) 19:17, 20 November 2007 (UTC)

Also, I had supported a 'limits only federal' lede as an ambiguous balance point compromise, but I object now that the balance point has shifted[6] towards a 'pro-gun' weighting. SaltyBoatr (talk) 19:24, 20 November 2007 (UTC)

In short, the minimalist opening induces a POV imbalance, favoring the strict Consititionalist, (Militia movement) POV which is arguably at the fringe. No offense intended to the several vocal editors here who hold that personal POV, only that it runs contrary to the vast majority of law and court. And, the minimalist opening fails to give balance to the mainstream POV which is: The 2A is exclusively federal, (certainly so in the minds of the Founding Fathers prior to Reconstruction), and also true after the Slaughterhouse cases up until the present. And more, the 2A is subject to reasonable federal regulation. Further, that the 2A provides essentially no limit on State law. SaltyBoatr (talk) 22:26, 20 November 2007 (UTC)

You, of course, have been familiar with this article long enough that I do not doubt you know the history. I disagree with you that the current lead takes a certain POV; I see it as little more than a reformatting of the key substings of the 2A in order to avoid conflict over where the commas go. Your "limits only federal" version would shift that sentence from strictly neutral to POV. Regarding your opinion that the balance point has shifted, what I perceive is that it has been restored. An ill-conceived edit made in April of this year simply took an unfortunate amount of time to be corrected.

I do admit that the current lead is extremely sparse. In comparing it to First Amendment to the United States Constitution, it seems that we are missing something akin the the second paragraph in that lead. If we could draft something without creating excess conflict, I think we should attempt to do so. - Hoplon (talk) 22:54, 20 November 2007 (UTC)

Article split outs, size trim.

Article size is presently 117kb 97kb (in excess of the 32kb max size guideline). Looking at the article I see one section (Early commentary about the right to bear arms in state courts. ) that is not directly on topic (the Federal 2A), and rather is on the topic: State based 'Rights to Bear Arms'. I suggest that this be moved to a new article Right to Bear Arms (United States) Also, much of the text in the Miller, Presser and Cruikshank sections could be moved to associated articles, United States v. Miller, Presser v. Illinois and United States v. Cruikshank with short summaries and 'see main article' links from here. -- SaltyBoatr (talk) 21:00, 16 November 2007 (UTC)

Excellent idea. -- Arthur (talk) 21:00, 16 November 2007 (UTC)

I am OK with this idea. Yaf (talk) 20:58, 19 November 2007 (UTC)

Large sections of this article could also be incorporated into the existing article, Firearm case law, along with some of the extensive quotations. I propose to move a large chunk of the caselaw into that article and summarize it in this one unless anyone objects.Bryantheis (talk) 21:18, 20 November 2007 (UTC)

• Support. SaltyBoatr (talk) 22:06, 20 November 2007 (UTC)
• Support. Arthur (talk) 00:46, 21 November 2007 (UTC)

Yet another proposed intro

Here's another intro proposal:

Amendment II (the Second Amendment) of the United States Constitution’s Bill of Rights declares a well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." The meaning of the Second Amendment is one of the most disputed among the entire Bill of Rights.

One key controversy revolves around who is prohibited from infringing upon this right: the dominant view is that the Second Amendment is limited to federal jurisdiction, (see United States v. Cruikshank) but some contend that it extends to state jurisdiction. The Supreme Court has never ruled whether the Fourteenth Amendment applies the Second Amendment to the states through the doctrine of Incorporation.

Another major point of contention is whether it is an individual or collective right: the prevailing view and court precedence favor the "collective" interpretation, but the "individual" interpretation is supported by recent court cases such as United States v. Emerson and Parker v. District of Columbia. There is also a "modified collective" view that says the right exists for individuals to bear arms based on their needs while serving in a militia.

Other points of disagreement include the meaning of the militia clause and the meaning of infringement (does any regulation at all constitute infringement, or is reasonable regulation allowable). All federal courts have found that reasonable regulation is allowable, while an outright ban is currently the subject of Supreme Court review in District of Columbia v. Heller.

Those who can assist on better or more thorough references, etc., please do so. I'd love to hear comments on this. I've tried to take into account comments from others, especially SaltyBoatr who has been the most active in discussing this. I've also taken into account WP:INTRO and the current intros to the first 10 amendments (only one of them, #1 currently mentions the "federal" vs "state" interpretation). Thanks to all. Please let me know what you think and let's finally get this done. Arthur (talk) 00:45, 21 November 2007 (UTC)