Talk:Second Amendment to the United States Constitution

Reliable sources

WP articles must be based on reliable sources and so far only SaltyBoatr has provided any. Whether or not Malcolm's views are the final word, only reliable sources may be used to present alternative views. Some writers have claimed that the right to bear arms was an issue in Bacon's rebellion in Virginia, which was before the Bill of Rights 1689. However, I cannot find any scholarly sources to support this view. Blackstone's work cannot be considered a reliable source for law before the Bill of Rights, but that should not present a problem because we can use modern commentaries on his writing as sources. Also whether or not the right existed at common law, it was an auxiliary not unalienable right. There was no question that the Imperial Parliament had the power to limit or abolish this right. (Incidentally the Bill of Rights 1689 continued in force after the U. S. revolution.) TFD (talk) 00:54, 17 June 2010 (UTC)

Blackstone CANNOT be considered a RELIABLE source? What color are the pills you are on? Blackstone is THE source for law.96.237.120.38 (talk) 03:01, 17 June 2010 (UTC)

You should avoid making personal attacks. Blackstone was a legal scholar and his Commentaries on the Laws of England have influenced legal understanding in the U. S, But his interpretation of history has been questioned and he is seen as defending Whig history. If such a book were published today however it would be considered a tertiary source. Although Blackstone wrote in 1765-1769 that the right to bear arms existed under common law, he provided no examples of case law that establish this. Did he form this conclusion by reading the Bill of Rights 1689 or from reading through cases that predated the bill? Of course following 1689 the issue of whether the right existed under common law was moot. TFD (talk) 03:49, 17 June 2010 (UTC)

Every author cited in the article defending the militia based theory is also interpreting history. From all indications wrongly. Why can they be used and not Blackstone?96.237.120.38 (talk) 12:15, 17 June 2010 (UTC)

Because we do not know what degree of acceptance, if any, his views on this matter are accepted today. (Please see WP:NPOV.) However that should not present a problem for you. If his view is correct, then contemporary sources will confirm it. He also wrote, for example, "To deny the possibility, nay, actual existence, of witchcraft and sorcery, is at once to contradict the revealed Word of God in various passages both of the Old and New Testament." (Wendell's Blackstone's Commentaries, Vol. IV, p. 59. Stephen Abbott Northrop, D.D., A Cloud of Witnesses (Portland, Oregon: American Heritage Ministries, 1987), p. 33) We cannot use that as a reliable source that the Bible is the revealed word of God and that witches exist. Otherwise we would have to radically change most of the articles on science and ancient history. TFD (talk) 20:47, 17 June 2010 (UTC)

Opinion today is not the issue. Opinion when he wrote his material is the issue. Blackstone is a a reliable third party source on the law, easily verified. he is considered THE SOURCE by many. 96.237.120.38 (talk) 15:34, 18 June 2010 (UTC)

Joyce Lee Malcolm references in Heller

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

—Preceding unsigned comment added by 96.237.120.38 (talk • contribs) 03:17, 17 June 2010

That is all very interesting, but it is original research. You need reliable sources that state this. You must also be aware that it must be determined whether this is a consensus, majority, minority or fringe view and be presented properly according to neutrality. TFD (talk) 04:26, 17 June 2010 (UTC)

Original research is something original. This is the US Supreme Court referencing Malcolm, who in turn references Blackstone and others. All the text is copied verbatim from Heller.96.237.120.38 (talk) —Preceding undated comment added 12:11, 17 June 2010 (UTC).

Could you explain where in WP:RS it says that court decisions are reliable sources anything other than their decisions? In any case, observations by judges are obiter dictum, and therefore do not orm part of the law and are not binding on other courts. TFD (talk) 12:46, 17 June 2010 (UTC)

Could you explain where it says that court decisions ARE NOT reliable sources.96.237.120.38 (talk) 14:30, 17 June 2010 (UTC)

Court decisions are primary sources. They should be used for what the decision says, but not what it means. Offering an interpretation of a court decision that's not completely totally obvious (XYZ was found guilty of crime ABC) is OR. If the decision is even slightly controversial, interpretations of it should be based on secondary sources. Ravensfire (talk) 14:43, 17 June 2010 (UTC)

The text above comes directly from the US Supreme Court "opinion" in Heller. It summarizes the accepted views of the right to arms. What is your problem with that? Do you find the US Supreme Court "unreliable"?96.237.120.38 (talk) 14:52, 17 June 2010 (UTC)

Actually, many top experts writing in major law reviews and university journals say that Scalia's opinion attached to that US Supreme Court ruling is "a hollow sham"[1], "patently erroneous"[2], "simply foolish"[3] and "rife with absolutist rhetoric"[4] and "self-absorbed law office history"[5]. Considering the amount reliably sourced criticism we are seeing of this SCOTUS opinion, the policy WP:REDFLAG comes up, and we should be cautious when using it as a definitive source of history in this article. It is one opinion, but not the definitive opinion. SaltyBoatr ^{get wet} 15:07, 17 June 2010 (UTC)

and about as many think that Scalia did not go far enough. Now here is the $1,000 question: Why can YOUR use of Malcolm's work be OK, but the use of that work by the Supremes is not?

Is there significant reliably sourced criticism of Malcolm's book? If there was, then WP:REDFLAG would apply there too. SaltyBoatr ^{get wet} 15:28, 17 June 2010 (UTC)

I am asking you a simple question, If it is OK for YOU to use that book as a reference, why is it NOT OK for the Supremes to do the same?96.237.120.38 (talk) 15:38, 17 June 2010 (UTC)

Please, don't put words in my mouth. As I said, court decisions are primary sources. You can use them to talk about what was said/what was ruled, etc. You cannot interpret them without sourcing to a secondary source unless it's obvious. Summarizing what the SC said and attributing it to them based on that source is probably okay (haven't looked deep enough in this to say one way or the other). Offering an interpretation of that ruling needs a secondary source. Example - "SC said XYZ, which means that PDQ is good but ABC is not" where PDQ and ABC aren't the scenario in the ruling, but similar enough they probably are affected. Ravensfire (talk) 15:46, 17 June 2010 (UTC)

If you bothered to read the "quoted material" you would have noticed that it already contains a plethora of verifiable third party references in its text. Again: what is your problem?96.237.120.38 (talk) 15:52, 17 June 2010 (UTC)

What is your problem? Take a look at the question I was trying to help answer. It was asking about court decisions as reliable sources. That's all I answered. Sheesh. Pardon a guy for trying to help out here. Ravensfire (talk) 17:18, 17 June 2010 (UTC)

You QUESTONED using the statements of the US Supreme Court on an interpretation of law. That's like questioning the ability of a Nobel Prize winning chemist to answer a question on Chemistry. Sheesh right back at you!96.237.120.38 (talk) 15:43, 18 June 2010 (UTC)

Seems like Groundhog day, again. Must we keep on arguing whether third party reliable sources are needed? Or, can individual editors which hold strong personal opinions as to "the truth" insert it into the articles? Fundamentally, this boils down to the question of whether we are going to follow the WP:V policy. Show us the sourcing. SaltyBoatr ^{get wet} 14:03, 17 June 2010 (UTC)

Like "the truth" you keep pushing that the right to arms is militia based.96.237.120.38 (talk) 14:30, 17 June 2010 (UTC)

To correct what seems to be obviously boneheaded thinking by a number of posters, let me repeat that the title of this section is "Joyce Lee Malcolm references in Heller" and all text quoted is verbatim from the Heller opinion.96.237.120.38 (talk) 15:03, 17 June 2010 (UTC)

Actually, I am not pushing "the truth". I am simply asking that we give fair and proportionate treatment to all significant points of view which we see published in reliable sources. SaltyBoatr ^{get wet} 15:07, 17 June 2010 (UTC)

You do understand that the above can be taken to mean that you are pushing "a lie". And I am not particularly amused by the fact that every source you don't like is "unreliable".96.237.120.38 (talk) 15:17, 17 June 2010 (UTC)

If we disagree about what is or is not considered a reliable source, then let's take our disagreement to the reliable source noticeboard. I welcome outside opinion. SaltyBoatr ^{get wet} 15:28, 17 June 2010 (UTC)

Considering all the cites already in the article to US Supreme Court language, I don't see a need to further waste my time.96.237.120.38 (talk) 15:36, 17 June 2010 (UTC)

Lund seems to be suffering some sort of schizophrenia

Looking at SB's references above, I find one to be Merkel, who from all appearances is at best a second rate historian, and another to be by Lund, who seems to be of two minds. Lund states that the interpretations of Miller and Heller are irreconcilable, i.e so different that they cannot be reconciled, and then states that SCOTUS adopted the Miller opinion.

The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to adopt Miller’s interpretation of the Second Amendment,96.237.120.38 (talk) 15:34, 17 June 2010 (UTC)

The Levinson "simply foolish" by was directed at Justice Stevens, and not Scalia

Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish.96.237.120.38 (talk) 15:41, 17 June 2010 (UTC)

Tushnets "absolutist rhetoric" comment is about Scalia's failure to follow his own method of interpretation,thereby compromising the opinion.

Justice Scalia’s majority opinion is rife with an absolutist rhetoric about the methods of constitutional interpretation, but the compromises embedded in the opinion are inconsistent with that rhetoric.96.237.120.38 (talk) 15:47, 17 June 2010 (UTC)

English History section dispute

Enough of the bickering. The focus here should be reaching consensus on the dispute over the wording of the English History section, (needed to lift the article lock). A few thousand words above the bickering, Hauskalainen restated once again what he wants written in the article. I restated once again that I need to see it confirmed in third party reliable sourcing. How can we break this impasse? SaltyBoatr ^{get wet} 16:30, 17 June 2010 (UTC)

So when I take this to arbitration you will have no comment?

The issue is the structuring of the article to tall these myths. If you want to continue with this nonsense that there was no right to arms in England before the 12th century you had better have something stronger than a one liner from a professor sympathetic to the gun lobby and the protection of gun holders rights. That's a bit POV I'd say. Also, you had better have some stronger evidence for the claim that the Bill of Rights was a GRANTING of new rights amd not a restitution of pre-existing ones. If you lose that argument then you'll lose the right to tell the myth of progression too because it SIMPLY DOES NOT STAND UP TO SCRUTINY. Sorry.

You'd do better to discuss the points that I have made with some sincerity and stop using arguments of rules of content to try to block this. My words are not intended as content but as something to stand before a body of people examining my claims. I will provide plenty of evidenece when we get to that stage and I think you are clear in your own mind that I can do so. Hence your admission that there may indeed be something in what I am saying.

I will keep my comments under the main headings of the dispute and will not comment any further in this section. I suggest you and others do the same.--Hauskalainen (talk) 20:00, 17 June 2010 (UTC)

Saltyboatr's position is reasonable. If you want to put an interpretation of history into the article then you must find a reliable source (not a court judgment or a 200 year old account), but a contemporary peer reviewed article in an academic journal or a book published by the academic press. Saltyboatr has provided one such source and if you want other views presented, you must provide sources also. It may well be that scholarship favors your view, but without sources we cannot present it. TFD (talk) 21:12, 17 June 2010 (UTC)

If that source is Malcolm,look up what the Supremes said that she said. It should be easy. I put it on this discussion page.96.237.120.38 (talk) 15:31, 18 June 2010 (UTC)

What English case before the Bill of Rights 1689 established that the right to bear arms existed? TFD (talk) 16:56, 18 June 2010 (UTC)

The "case" of English public opinion. Nearly every major English law protecting peoples rights was won, as Blackstone put it "sword in hand". The Magna Carta and Bill of Rights were not exceptions. In case you missed it, King James II was run out of England, this time GUN IN HAND, partially for disarming Protestants while arming Catholics (his power base/support group).96.237.120.38 (talk) 20:17, 18 June 2010 (UTC)

I am not sure who you are addressing this question. The thing you are likely to find with the answer is that there are different answers depending the point of view. We, per policy, need to neutrally address all significant points of view.

Also, an ambiguity of the phasing of your question is that "bear arms" has different meanings to different people, and indeed in different time frames. Certainly, in recent decades "bear arms" most commonly means "having guns", or similar. One POV believes that this 'guns' meaning is universal over centuries of time. Another POV believes in the English Language of centuries ago, "bear arms" (with a few rare exceptions) almost always means to "serve military duty". See the famous 1995 Garry Wills article[6] about this. One familiar example is the usage of the term "bear arms" in the Declaration of Independence where the term was used to describe service on the deck of a warship by conscripted sailors[7] who for fear of mutiny against the British officers certainly had no access to guns or gun powder what-so-ever. In any case, we should give coverage to all the points of view.

Regarding "common law". It is striking that the AnonIP and Hauskalainen have repeatedly failed to provide third party reliable sourcing that having weapons (which is arguably not the same thing as 'bearing arms') is considered to be common law. Though, I suspect that if you looked hard enough you could find a source that said it was. Funny thing is that when I went looking to find a source that says that having weapons is considered to be protected by Common Law, I stumbled across a book that said exactly the opposite. It said that the crime of carrying weapons...may be considered part of the common law. (dating to 1328). In any case, we should give this coverage, AND we should covering all the significant points of view (not just the favorite POVs of the editors) and we should be checking all the content for verifiability. So, the next step is to find the reliable sourcing.

This is contentious and we should be careful to give fair treatment to all significant POV's. SaltyBoatr ^{get wet} 19:38, 18 June 2010 (UTC)

In the US the right to arm is not "common law". It is a part of the Bill of Rights and therefore "civil law".96.237.120.38 (talk) 20:17, 18 June 2010 (UTC)

I read your link and it states that under common law, it was a misdemeanor to carry weapons, the ruling does not say that one can't have weapons at home. 96.237.120.38 (talk) 20:22, 18 June 2010 (UTC)

BTW: that ruling you referenced was based on a "statute" and today would be considered a matter of "civil law", not common law. 96.237.120.38 (talk) 20:24, 18 June 2010 (UTC)

According to S. C. v. Dawson (1968),[8] "going armed with unusual and dangerous weapons to the terror of the people" is a misdemeanor at common-law. This offense was later incorporated in the statute of Northhampton of 2 Edw. III, ch. 3. (Riding or Going Armed Act 1328 c. 3). (See: List of Acts of the Parliament of England to 1601). Both of these laws continue in U. S. unless repealed or superceded. Blackstone wrote about the offense in his Commentaries, Book 4, chapter 11, para 9 (p. 149).[9] Still we need reliable contemporary sources that explain whether there was a common law right to keep arms and how this related to the common law misdemeanor of "going armed". (PS - IP, SaltyBoatr's source says, "the crime... may be regarded as part of the common law...." IOW, it is an offence under common law but is normally prosecuted under statute law, and common law prosecutions are extremely rare.) TFD (talk) 20:39, 18 June 2010 (UTC)

Exactly. Without sourcing, this hypothesizing about ancient rights is not anything more than irrelevant personal research. There is plenty of great high quality sourcing about the 2A, let's just read it all, then write an article that fairly captures all the significant points of view. (And you write: "keep arms" and "going armed" while per plenty of sources, it is not at all clear that this is the same thing as "bearing arms".) I am tired of hearing people's personal theories and the sloppy blurring of the distinction between "having guns" and "bearing arms". That personal chatter may be valuable, but it has no place on this article talk page. Ultimately, it is disruptive. Let's talk about what we read in the sourcing and how to improve the article. SaltyBoatr ^{get wet} 20:54, 18 June 2010 (UTC)

A gun is a "usual weapon" and not an unusual weapon. Also "self defense" is not "for the terror of the people". And by definition every weapon is "dangerous". If it wasn't it wouldn't be a weapon.96.237.120.38 (talk) 12:09, 20 June 2010 (UTC)

Cramer (who is mentioned in this article), argued that the common law right to keep and bear arms derived from common law, and adds, "Of more importance to a study of the liberal nature of the Second Amendment are the laws with respect to armed self-defense. "The Laws of Cnut ( 1020-1023) not only considered armed self-defense a right and duty," but provided for penalties for illegally disarming a man." (Cramer, Clayton E. For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms Westport, CT.: Praeger Publisher, 1994. p. 24.) His reference is to Norman A. V. B., and Don Pottinger, English Weapons & Warfare: 449-1660, (New York: Dorset Press, 1979), pp. 38-40. Unfortunately the only evidence he presents is Coke and Blackstone, and he does not mention whether Cnut's law confirmed existing common law or whether it continued in force beyond 1066. TFD (talk) 01:30, 19 June 2010 (UTC)

The Supreme Court stated that to "bear arms" means to "carry arms". This quote, from Heller, is included in the Article.

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.[165] —Preceding unsigned comment added by 96.237.120.38 (talk) 12:03, 20 June 2010 (UTC)

Dispute resolution

Gradually working our way through the steps of dispute resolution.

1 Avoiding disputes 1.1 Focus on content 1.2 Stay cool 1.3 Discuss with the other party

• Speaking for myself, see above for evidence, yes I have been focusing on content, keeping as cool as possible and patiently discussing. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2 Resolving disputes 2.1 Sensitive and privacy-related issues

• Avoiding the 'outing' the AnonIP. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.2 Editor assistance

• Requested editor assistance here [10] Reply was to set up a WP:3O and/or an RFC. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.3 Ask for a third opinion

• Opened WP:3O here[11], and the answer is here[12] in a nutshell we should be concerned with "What do the sources say, not what the truth actually is." SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.4 Ask about the subject

• Made a posting[13] on the Wikilaw discussion page requesting input here. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.5 Ask about a policy

2.6 Ask for help at a relevant noticeboard

• Requested input from the WP:NOR noticeboard[14]. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.7 For incivility

• Administrative actions against the AnonIP for WP:NPA and WP:DE, see [15][16][17][18][19][20][21]. SaltyBoatr ^{get wet} 16:11, 18 June 2010 (UTC)

2.8 Request a comment

• Initiated an RfC seeking outside comments. SaltyBoatr ^{get wet} 14:37, 22 June 2010 (UTC)

2.9 Informal mediation

2.10 Formal mediation

2.11 Conduct a survey

3 If the situation is urgent

4 Last resort: Arbitration

You are attacking this issue with lightening speed Salty. I cannot even keep up with the flow on these pages let alone chase the same issues at other places. I do not agree with the way that you have described the problem. In many cases you have completely changed the nature of the dispute.--Hauskalainen (talk) 05:31, 24 June 2010 (UTC)

Ancient English history of the US Second Amendment

For more than a month now, an ongoing dispute over sourcing requirements and neutrality concerns regarding the ancient English History of the US Second Amendment resulting in article lock down. Requesting outside help resolving this question and bring this dispute to resolution. Thanks. SaltyBoatr ^{get wet} 14:36, 22 June 2010 (UTC)

Salty, Can you include a brief/concise description/summary of what the debate revolves around? NickCT (talk) 20:12, 22 June 2010 (UTC)

From my perspective, this[22] talk page section captures the nature of this dispute pretty well. Hauskalainen and the AnonIP have opinions about a common law origin of the Second Amendment. This opinion appears to be entirely their original research. My repeated requests to be able verify their opinion by reading confirmation in reliable secondary sourcing have not been answered. Both of these guys feel very strongly that their opinion is "truth" and that any other opinion is "myth". The trouble I see is that a book written by Joyce Lee Malcolm published by Harvard University Press (To Keep and Bear Arms: The Origins of an Anglo-American Right. Cambridge: Harvard University Press. ISBN 0674893077) says quite clearly otherwise. She argues that the Second Amendment codifies a "right" that originated in 1689 with the English Bill of Rights. That 1689 document marked a milestone when the duty to serve in a militia changed for the first time into a "right" to have arms. And, I am open to the likelihood that this point of view expressed by Professor Malcolm is just one of the significant points of views. We are stuck on the problem that Hauskalainen and the AnonIP really have been unable to cite any third party reliable sourcing that verifies their strongly held personal opinions. SaltyBoatr ^{get wet} 20:42, 22 June 2010 (UTC)

Hmmmm.... the discussion sounds complex. Can you point a specific piece of content or proposed content that is under debate. Unfortunately the talk page above presents an intimidating read. Offering a summary or a piece of content under debate might help in getting more response to this RfC. NickCT (talk) 20:50, 22 June 2010 (UTC)

Sorry about the 50,000 words of talk page above, (and that isn't even counting what has been archived!) This dispute centers on Hauskalainen's opinion that the previous stable version of the English History section seen here[23] contains "myth". Hauskalainen prefers this[24] version. To support his assertion of "myth" he makes arguments, seen many places above, but perhaps are most concisely seen here[25] where he makes a presentation of his original research. SaltyBoatr ^{get wet} 21:13, 22 June 2010 (UTC)

The main issue is whether or not there was a right under English common law to keep and bear arms before the Bill of Rights 1689. The only reliable source provided was To Keep and Bear Arms (1996), which states that there was not. Hauskalainen and others are unable to provide any contemporary secondary sources that the right existed and insist on using primary sources like Blackstone's Commentaries (1765-1769), and modern legal cases. My position is that they must find a reliable contemporary book of legal scholarship that claims the right existed or accept the scholarship that says it did not. While I do not know whether the right existed, I am opposed to including unsourced material. All of the arguments by Hauskalainen above are original research from primary documents. TFD (talk) 21:48, 22 June 2010 (UTC)

To quibble a bit, the last stable version of this English History section[26] was sourced to several reliable books and the Encyclopedia Britanica, so it is not exactly accurate to say "the only reliable source was To Keep and Bear Arms (1996)". Though, that book alone is of very high quality and states very strongly that the right to bear arms evolved from what had previously been a duty to bear arms in 1689. Also, that book is cited by hundreds other books[27], confirming its weight as a WP:RS. SaltyBoatr ^{get wet} 22:33, 22 June 2010 (UTC)

I stand corrected. TFD (talk) 23:11, 22 June 2010 (UTC)

Every reputable source states that the Second Amendment protects a pre-existing right. In the same manner, the English Bill of Rights also protects a pre-existing right that had come into danger due to the actions of a Catholic King (James II) who disarmed his Protestant opponents while arming Catholic supporters. The people finding his actions contrary to their well being revolted, tossed him out and replaced him. As a result of his attempted disarming, the English codified their rights into the Bill of Rights of 1689. As a rule Bills of Rights protect pre-existing rights, they don't "create" rights. —Preceding unsigned comment added by 96.237.120.38 (talk) 11:58, 23 June 2010 (UTC)

Point of fact, "every" source does not agree about protecting pre-existing rights in 1689. The book Gun violence in America: the struggle for control by Alexander DeConde, Publisher: Northeastern University Press, 2001 ISBN 9781555534868 pages 13-14 examines the English Bill of Rights of 1689 and views that it was fundamentally a law designed to keep weapons out of the hands of undesirable people (Catholics) and as such it was not really a protection of a pre-existing right as it was an early example of a gun control law. Certainly that is not the universal POV about this, but it is one significant POV about this that disagrees with AnonIP. Our duty is to fairly represent all significant POV's, even those we personally may disagree. SaltyBoatr ^{get wet} 15:56, 23 June 2010 (UTC)

Point of fact AGAIN: Every reputable source states that the Second Amendment protects a pre-existing right.96.237.120.38 (talk) 18:05, 23 June 2010 (UTC)

Well this debate seems rather indepth and it would probably take a while to offer an opinion that was worth much. My initial impression is this; isn't this debate a little esoteric to be having here? It seems to me that this topic is only partially notable in the context of the second ammendment. I wonder if this debate might better take place in an article called 17th Century English Gun Rights or Historical basis for the 2nd Ammendment. This issue strikes me as being somewhat too scholarly to be of interest to the average Joe wikipedia user looking for information about the second ammendment. Has anyone considered summarizing and forking this section? NickCT (talk) 13:48, 23 June 2010 (UTC)

Since the Second Amendment does not create a right but protects an existing right, the nature of that right is important to the article. Was the right it protects created by the Bill of Rights 1689 or did the right exist from time immemorial? What is the right that is protected? These issues are relevant to the article. TFD (talk) 14:39, 23 June 2010 (UTC)

This article is supposed to reflect what the reliable sources say about this topic. Looking at these sources, it is very common to see coverage of the origin of the "right to bear arms" being traced back into English history. Therefore, so should we.

The elephant in the room now is that the sources divide into two (or three) POV camps. One of the camps, favored by Hauskalainen, is that "the right to bear arms" is fundamentally a right of self protection, with ancient roots. Unfortunately, Hauskalainen neglects to use third party reliable sourcing to make his case. Another very major POV is that "the right to bear arms" is an individual right which evolved out of a tradition of militia duty, this described by Joyce Lee Malcolm in her famous book. A third POV is that in the era of the drafting of the Second Amendment in 1789, "the right to bear arms" was overwhelmingly considered to be a miltia based collective right, and this milita has fallen into disuse, see the Uviller and Merkel book. We have a duty to represent all significant points of view, and Hauskalainen insistence two of these significant POV's are "myth" and therefore must to be deleted from the article violates WP:NPOV policy. SaltyBoatr ^{get wet} 15:41, 23 June 2010 (UTC)

Your second and third POV's are the same old tired militia based garbage created by the gun control groups. The US Supreme staked that POV through the heart in Heller and plainly stated that the right to arms was NOT based on militia duty. The right to arms is an individual right unconnected with the militia. 96.237.120.38 (talk) 18:13, 23 June 2010 (UTC)

@TFG - "These issues are relevant to the article" Things which are relevant to something are not always notable. Note in Third Amendment to the United States Constitution and First Amendment the "historical context" of the ammendments are either not addressed or touched on briefly. I would suggest this article should take the same direction.

SaltyBoatr - "This article is supposed to..." I'm sure you'd agree that the article is not meant to reflect what EVERY RS has to say on the issue. In my mind WP articles should give basic and concise background information regarding an article's title. The content under debate seems to go above and beyond "basic and concise". I'd still be for a WP:FORK. NickCT (talk) 16:40, 23 June 2010 (UTC)

All of the rights in the 1st and 3rd amendments were created by those amendments with one exception: the "right of the people peaceably to assemble, and to petition the Government for a redress of grievances". These are covered under related articles, the Right to petition in the United States, which mentions the history of the right and the Freedom of Assembly, which does not. If these rights had been listed as separate Amendments then I would expect those articles to contain a history of those rights. However, it is not the history of the right that is notable but the nature of the right. Since the 2nd amendment protects an existing right, the nature of that right is important. That of course was the whole issue in the District of Columbia v. Heller. Whether or not the right to bear arms is an individual right depends on what right existed before the U. S. Bill of Rights. TFD (talk) 17:09, 23 June 2010 (UTC)

Absolutely disagree with the above statement that the 1st and 3rd Amendments created rights. Freedom of religion was a basic principle in the colonies and was included in the Virginia Declaration of Rights and many (if not all) of the original state constitutions. The 3rd Amendment upheld the old English tradition that a mans home is his castle and not subject to invasion against the wishes of the homeowner. Look up "Castle Doctrine" to see how deeply embedded this principle is in US law.96.237.120.38 (talk) 18:23, 23 June 2010 (UTC)

@NickCT. Agreed, there has been a problem of with this English Section, both versions really[28][29] (but more with Hauskalainin's), over time the push-pull of POV battles has lead to bloating with excessive quotes of primary documents (from Blackstone and Tucker for instance) which seek to give emphasis to one favorite POV by implication. We should be able to concisely and fairly summarize the three major POVs, and move on. The trouble is that modern political pressure over the correct meaning of the 2A depends on the correct framing of the historical origins. Witness the extreme pressure here and now to frame it as being based on ancient self defense. SaltyBoatr ^{get wet} 17:27, 23 June 2010 (UTC)

I again dispute the insinuation that Blackstone's Commentaries are primary documents.96.237.120.38 (talk) 18:24, 23 June 2010 (UTC)

Then you should read WP:Primary sources. You might want to look up the meaning of insinuation too. TFD (talk) 18:30, 23 June 2010 (UTC)

Blackstone was probably not even born when the English Bill of Rights was passed, and was most likely dead when the US Bill of Rights was created. He was therefore not an "insider" connected to either. Insinuate - force one's way into. Synonyms: curry favor, edge in, fill in, foist, get in with, horn in, infiltrate, infuse, ingratiate, inject, insert, instill, intercalate, interject, interpose, introduce, muscle in, slip in, wedge in, work in, worm in. I do believe that SB was attempting to foist, insert, muscle in his own pet belief on this matter. 96.237.120.38 (talk) 18:51, 23 June 2010 (UTC)

Just so there is no confusion: Primary sources are very close to an event, often accounts written by people who are directly involved, offering an insider's view of an event, a period of history, a work of art, a political decision, and so on.96.237.120.38 (talk) 18:58, 23 June 2010 (UTC)

I also dispute the continued and repeated attempts by SB to "frame" the Second Amendment question in a manner that would support his POV slant. ALL the Justices of the US Supreme Court have stated, in the opinion and in both dissents, that the right to arms is an "individual right". Most of those Justices have further stated that it is a pre-existing right unconnected with service in the militia.96.237.120.38 (talk) 18:30, 23 June 2010 (UTC)

The issue is whether the right existed under common law. TFD (talk) 18:33, 23 June 2010 (UTC)

The fact that the English were disgusted enough to revolt and depose a King, because he in part violated that right, indicates that THOSE English thought it was a right.96.237.120.38 (talk) 18:54, 23 June 2010 (UTC)

@Salty - re "The trouble.......... historical origins. " - I'd agree with this. But I don't think this article is the correct place to be having this debate. Surely we could come up with some suitably vague summary for this discussion (i.e. "Some historians have pointed to English common law as providing the basis for the second ammendment"), then forking to page like Historical Context for the Creation of 2nd Ammendment (or some other suitable title). NickCT (talk) 19:07, 23 June 2010 (UTC)

Re: "The fact that the English were disgusted enough to revolt and depose a King..." Can you please stick to actual history. Re: Blackstone. Blackstone is a primary source for how the law was understood when he wrote the Commentaries. Of course he was born long after the Glorious Revolution and relied on Whig history for his interpretation of 1688. There are however scholars who have written about Blakcstone and these are secondary sources. NickCT: They do not see common law as providing the basis for the second amendment, but see the 2nd amendment as protecting a common law right. Notice the wording: "the right... shall not be infringed". TFD (talk) 19:31, 23 June 2010 (UTC)

Blackstone is a SECONDARY source on law. He was not its author, and recorded the prevailing views on that law. That makes his a secondary source. RE: The fact that the English were disgusted enough to revolt and depose a King... Can you please stick to actual history. --- That the English revolted in disgust IS ACTUAL HISTORY!96.237.120.38 (talk) 20:09, 23 June 2010 (UTC)

@NickCT I couldn't agree more! When I said "the trouble is..." I was referring to the fact that this article has long been a magnet for advocacy editors and zealots who insist that the article's point of view must be "truth" as seen from their personal point of view. The flip side of that coin is that very few editors have the stomach to withstand the onslaught of advocacy editors drawn here. SaltyBoatr ^{get wet} 19:35, 23 June 2010 (UTC)

Advocacy like your discedited militia based views.96.237.120.38 (talk) 20:09, 23 June 2010 (UTC)

Re: "Some historians have pointed to English common law as providing the basis for the second amendment". Unfortunatately the editors saying that a common law right existed are unable or willing to provide any sources to back up that statement and instead provide countless arguments like, Re: "Some historians have pointed to English common law as providing the basis for the second amendment". Unfortunatately the editors saying that a common law right existed are unable or willing to provide any sources to back up that statement and instead provide countless arguments like, "History states that Ugh the Caveman had a right to his spears and clubs". TFD (talk) 19:58, 23 June 2010 (UTC)

I continue to ask if Ugh the caveman had a common law right to his clubs and spears and if this right predated the English Bill of Rights.96.237.120.38 (talk) 20:09, 23 June 2010 (UTC)

Actually, the Common law did not come into place until the Middle Ages in England, and therefore no, a caveman did not have any rights under common law. SaltyBoatr ^{get wet} 20:18, 23 June 2010 (UTC)

Oliver Wendell Holmes seems to think that "common law" is quite a bit older then you think. Pardon me for having more faith in him then I have in you. http://legal-dictionary.thefreedictionary.com/Oliver+Wendell+Holmes In The Common Law, Holmes traced the origins of the common law to ancient societies where liability was based on feelings of revenge and the subjective intentions of a morally blameworthy wrongdoer. For example, Holmes observed that in such societies creditors were permitted to cut up and divide the body of a debtor who had breached the terms of a contract.96.237.120.38 (talk) 21:00, 23 June 2010 (UTC)

So what law protected his right to his property (spears and clubs)? I hope that we don't disagree that Ugh the cavemen is included in "people".96.237.120.38 (talk) 20:33, 23 June 2010 (UTC)

@TFD Agreed. Can I also make a suggestion that might allow us to calm the waters. A repeated problem here is that when people speak of "the right", they are talking of different things. To some "the right" means armed self defense. Or, "the right" to have guns for hunting. To others, "the right" means a right of revolution. To even others, "the right" means the right for the states to keep well regulated militias. When we toss the word "right" around without distinguishing which version of the right is being spoken of, we too often spin up and out of focus while arguing personal opinion. Let's get disciplined, and focus on an article that neutrally and fairly covers all significant points of view, strictly using the most reliable sources. SaltyBoatr ^{get wet}

Common law right to arms prior to English Bill of Rights

http://www.guncite.com/journals/caprec.html

THE RIGHT OF THE INDIVIDUAL TO BEAR ARMS: A RECENT JUDICIAL TREND by David I. Caplan

Copyright © 1982 Detroit College of Law Review. Originally published as 4 Det. L.R. 789-823 (1982

The first limitation in England on the right of a law-abiding person to keep and bear arms was enacted as one of the provisions in the 1181 Statute of Assize of Arms.[14] It prohibited the possession and ordered the disposition of all coats of mail or breastplates in the hands of Jews.[15] The next prohibition apparently came in the 1328 Statute of Northampton under King Edward III,[16] and banned all private persons from using any force in public "in affray of the peace," or from going or riding armed in public at all.[17] This Statute of Northampton was re-enacted with increased penalties Under King Richard II;[18] in its re-enacted version the statute focused solely on going or riding armed, that is, regardless of an affray of the peace. Nevertheless, by 1686 the English common law courts had placed a judicial gloss on these statutes and required, for a conviction thereunder, that the accused had gone armed "malo animo" (with evil intent) or "to terrify the King's subjects."[19] Specifically, in Rex v. Knight[20] the accused had been charged with violating the Statute of Northampton by "walk[ing] about the streets armed with guns, and go[ing] into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."[21] Under the judge's instructions, that an essential element of the crime of violating the Statute of Northampton (p.795)was "go[ing] armed to terrify the King's subjects,"[22] the jury acquitted the accused.[23] The court further noted that the Statute of Northampton was "but an affirmance" of the common law.[24]96.237.120.38 (talk) 21:16, 23 June 2010 (UTC)

also of note from Caplan

Among other things, this legislative history demonstrates that the English Bill of Rights' provision on the right to keep arms was a reaction to previous seizures of privately held arms, and that the solemn understanding was reached that such seizures should never occur again. Thus, the initially proposed purpose of this right for their "common Defence"[66] was transformed into a right "for their Defence,"[67] that is, to include an individual right of armed self-defense as had obtained under the common law. It is noteworthy that an apparent attempt to restrict the right to keep and bear arms, in the United States Bill of Rights, to "the common defence"[68] was defeated just 100 years later, in the first Senate of the United States in the floor debates on the proposal for what became the second amendment.96.237.120.38 (talk) 21:30, 23 June 2010 (UTC)

What is your point? TFD (talk) 21:40, 23 June 2010 (UTC)

I seem to remember quite a bit of bitching about no sources for the common law right to arms. Quite recently as a matter of fact. Like today! Just think this also satisfies your "Will you stick to history" bitch. Among other things, this legislative history demonstrates that the English Bill of Rights' provision on the right to keep arms was a reaction to previous seizures of privately held arms, and that the solemn understanding was reached that such seizures should never occur again.. It seems that I was sticking to history.96.237.120.38 (talk) 21:56, 23 June 2010 (UTC)

Notice the reference to the 1328 Statute of Northampton, which is an early gun control law[30]. This cut and paste above, if anything, undercuts the premise that a right to arms is considered protected under common law in England. That 1328 Statute[31], controlling arms, is part of common law. SaltyBoatr ^{get wet} 21:59, 23 June 2010 (UTC)

And the courts chose to interpret the law in a way that is upheld prior "unwritten" common law, and not in a way that "supplanted" prior common law. The court further noted that the Statute of Northampton was "but an affirmance" of the common law.96.237.120.38 (talk) 22:11, 23 June 2010 (UTC)

The question is whether the right to bear arms was created by the Bill of Rights 1689 or whether it existed earlier. Your quote and comments support the view that the Bill created the right. TFD (talk) 22:02, 23 June 2010 (UTC)

@TFD The 1689 Bill of Rights uses the wording "have arms" not the wording "bear arms". There is a difference. SaltyBoatr ^{get wet} 22:05, 23 June 2010 (UTC)

You still don't get the Supreme Court language on your position do you. Again: The short version direct from the US Supreme Court.The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter.96.237.120.38 (talk) 22:14, 23 June 2010 (UTC)

If the first recorded violation of the right to arms happened in 1181 against Jews, then it is reasonable to state that prior to 1181, this right existed for all, and was not created in 1689. I personally can't see how something written in 1689 can create something that existed before 1181. If you can do so, please explain. 96.237.120.38 (talk) 22:09, 23 June 2010 (UTC)

Sourcing please. Your modern political Libertarian viewpoint of universal rights needs to be cited in third party reliable sourcing. I believe that most sourcing identifies the origin of the concept of individual liberty came during the Age of Enlightenment, with Thomas Hobbes, and did not exist as a concept back into the mists of time. SaltyBoatr ^{get wet} 22:23, 23 June 2010 (UTC)

The sourcing is the first sentence of the material cited above The first limitation in England on the right of a law-abiding person to keep and bear arms was enacted as one of the provisions in the 1181 Statute of Assize of Arms.[14]96.237.120.38 (talk) 22:38, 23 June 2010 (UTC)

I am trying to follow logic, but see a big gap. You seem to be arguing that there existed a common law right to arms prior to 1181. By this logic there was a 500 year gap in this right until it was restored in 1689 with the English Bill of Rights? That seems incredible. And David Caplan is arguing that The first limitation in England on the right of a law-abiding person to keep and bear arms was enacted (in) 1181 , yet when I check the Oxford English Dictionary the earliest example of the term 'bear arms' being used in the English Language was 400 years later 1568. How can the first limitation on bearing arms happen before the term 'bear arms' was coined in the English language? WP:REDFLAG And, this is relevant to judgement as to the source is 'third party', the author of that article is famous in part for his service on the board of directors of the National Rifle Association. SaltyBoatr ^{get wet} 00:59, 24 June 2010 (UTC)

The right always existed, before and after 1181, and before and after the English Bill of Rights. The English Bill of Rights did not restore that right. It protected it from those that would violate it, like James II. To bear arms means to "carry" them. If you can find the word or phrase used for a person going about his business with a weapon on his person, in use before 1568, then your problem is solved. I hope we can agree that people went around armed prior to 1568. Similar words is use may have been "borne, born, bore, bare" and likely other words as well.96.237.120.38 (talk) 01:48, 24 June 2010 (UTC)

In the Canterbury Tales the term for holding a weapon was "beren" See Ch 51 line 25. Was wont to beren in his hand a bowe.96.237.120.38 (talk) 02:08, 24 June 2010 (UTC)

Of additional note from the cite above is the following: It is noteworthy that an apparent attempt to restrict the right to keep and bear arms, in the United States Bill of Rights, to "the common defence"[68] was defeated just 100 years later, in the first Senate of the United States in the floor debates on the proposal for what became the second amendment.. It looks like the US Senate examined making the right to arms a "collective right based on militia service" and said "Thanks but no thanks".96.237.120.38 (talk) 23:13, 23 June 2010 (UTC)

IP, please provide a source that states there was a right under common law re: arms and provide the name of the case where this issue was decided. TFD (talk) 01:16, 24 June 2010 (UTC)

From above: Specifically, in Rex v. Knight[20] the accused had been charged with violating the Statute of Northampton by "walk[ing] about the streets armed with guns, and go[ing] into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."[21] Under the judge's instructions, that an essential element of the crime of violating the Statute of Northampton (p.795)was "go[ing] armed to terrify the King's subjects,"[22] the jury acquitted the accused.[23] The court further noted that the Statute of Northampton was "but an affirmance" of the common law. 96.237.120.38 (talk) 01:24, 24 June 2010 (UTC)

I have already explained this several times. It was an offense under common law to bear arms (usually), and the common law offence was codified under the Statute of Northampton. Nothing to do with "rights". TFD (talk) 02:30, 24 June 2010 (UTC)

TFD, I think you wrote "bear arms" when you meant "carry guns". To be precise, these are not synonymous terms. SaltyBoatr ^{get wet} 13:19, 24 June 2010 (UTC)

According to the US Supreme Court "to bear" means "to carry". Something you should be familiar with by now. Yet again: Straight from the US Supreme Court. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If "bear arms" means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ("for the purpose of self-defense" or "to make war against the King"). But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter 96.237.120.38 (talk) 13:36, 24 June 2010 (UTC)

The accused in Rex v Knight walked around ARMED, also went to church ARMED, was charged under the Statute of Northampton and was ACQUITED. For the dense: Acquitted means he was found innocent of a violation. Since he was acquitted, it is safe to say that the court decided he had every right to go around ARMED and even go to church ARMED.03:08, 24 June 2010 (UTC) —Preceding unsigned comment added by 96.237.120.38 (talk)

Again, without a source, there are a number of American states that incorporate the English common law as it was in 1789, and have no "open carry" laws, and by consequence, in those areas, open carry is legal. I find the notion that there was a common law prohibition on open carry, with nothing else, a little extreme. That's all kind of irrelevant to this article though, and perhaps we should focus on the discussion as to what "bear arms" right (or those that bear on that right) existed prior to the constitution's adoption. Shadowjams (talk) 06:05, 24 June 2010 (UTC)

He was acquitted because he did not "walk about the streets armed with guns... to terrify the King's subjects". He probably intended to protect himself, not threaten other people. Therefore he was not guilty of the offense of bearing arms, which exists both under statute and common law. Nothing about a "right to bear arms". Same thing if you were charged with being drunk and were acquitted - it does not establish a right to drink. TFD (talk) 06:39, 24 June 2010 (UTC)

Everything about the "right to bear arms". If he can walk around armed then he has the right to bear arms.96.237.120.38 (talk) 13:17, 24 June 2010 (UTC)

Well, I don't think that at all proves that carrying a weapon was not permitted by the common law. I'd refer to my above point, and of course, as you said below, we need modern commentary on this, and I think the fact that the absence of prohibitions on open carry exist in a number of American states (and that they feel the need to be expressly outlawed in the others) suggests that the common law did not prohibit open carry in and of itself. But like we said, that's not the real point. Let's focus on those historic arguments (source of this whole argument) and their sources. Shadowjams (talk) 06:44, 24 June 2010 (UTC)

Blackstone's Commentaries are a SECONDARY SOURCE

Blackstones Commentaries are a set of books where Blackstone published his "course lectures" for teaching law. His Commentaries are therefore the equivalent of textbooks used to teach a class on law. Textbooks are about as "mainstream" secondary sources as you can get. Per the text below, one can take it that wiki policy on questions of law is to use primary sources in preference to secondary ones as only primary sources are authoritative and precedential, while secondary sources are only persuasive at best.

http://en.wikipedia.org/wiki/Secondary_source

Law

In the legal field, source classification is important because the persuasiveness of a source usually depends upon its history. Primary sources may include cases, constitutions, statutes, administrative regulations, and other sources of binding legal authority, while secondary legal sources may include books, articles, and encyclopedias.[17] Legal writers usually prefer to cite primary sources because only primary sources are authoritative and precedential, while secondary sources are only persuasive at best.[18]96.237.120.38 (talk) 22:44, 23 June 2010 (UTC)

That is the equivalent of claiming that the federalist papers are a secondary source for interpreting the U. S. Bill of Rights. Instead of relying on modern academic research we would have an argument between Birchers and other extremists about how they interpreted it. TFD (talk) 01:23, 24 June 2010 (UTC)

The Federalist Papers are in fact a secondary source for interpreting the Bill of Rights, but the ANTI-Federalist papers are an even better source. Both have been used by the US Supreme Court and other courts for that very purpose. BTW: What do the Birchers say about the Second Amendment? Perhaps, that it protects a pre-existing individual right? Sounds like exactly what the US Supreme Court said. Imagine that!96.237.120.38 (talk) 02:20, 24 June 2010 (UTC)

Please read what I wrote above: "According to S. C. v. Dawson (1968),[32] "going armed with unusual and dangerous weapons to the terror of the people" is a misdemeanor at common-law. This offense was later incorporated in the statute of Northhampton of 2 Edw. III, ch. 3. (Riding or Going Armed Act 1328 c. 3). (See: List of Acts of the Parliament of England to 1601). Both of these laws continue in U. S. unless repealed or superceded." Under common law, bearing arms is an offence not a right and this was confirmed by the Statute of Northampton. TFD (talk) 02:05, 24 June 2010 (UTC)

Please read what I referenced above: Specifically, in Rex v. Knight[20] the accused had been charged with violating the Statute of Northampton by "walk[ing] about the streets armed with guns, and go[ing] into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."[21] Under the judge's instructions, that an essential element of the crime of violating the Statute of Northampton (p.795)was "go[ing] armed to terrify the King's subjects,"[22] the jury acquitted the accused.[23] The court further noted that the Statute of Northampton was "but an affirmance" of the common law.!96.237.120.38 (talk) 02:21, 24 June 2010 (UTC)

What the court meant by "the Statute of Northampton was "but an affirmance" of the common law" was that it was an offense under the common law to carry weapons, and this law against carrying arms was codified under the Statute of Northampton. That should be clear enough and please stop presenting obscure objections. TFD (talk) 03:28, 24 June 2010 (UTC)

Absolutely NOT. If it was an offense to simply carry weapons the accused would have been found guilty and fined or imprisoned (whatever the punishement was). He was instead ACQUITTED. The court therefore stated that it was OK for him to go around armed. Under "common law" it was perfectly legal to carry weapons, even unusual weapons, as long as it was not for "the terror of the people" .96.237.120.38 (talk) 12:26, 24 June 2010 (UTC)

Just relying on the excerpts posted above, I don't think TFD's extrapolation is really all that correct, nor, regardless of my opinion, is any of that supported by third party reliable sources. Let's not debate this here like that, but talk about sources we find and evaluate those. Shadowjams (talk) 06:02, 24 June 2010 (UTC)

I don't see how anyone can claim that Blackstone is anything other than a secondary source. He is not a source of law!--Hauskalainen (talk) 05:28, 24 June 2010 (UTC)

Blackstone was perhaps at one point a source of law, but yeah, this is ridiculous. No, he's hardly a primary source here, and he's certainly a valid, and reliable, secondary source. I imagine 10 minutes on lexis will find you dozens of articles about pre-English Bill of Rights common law self-defense and right to bear arms articles. I don't have anything to back this up, but I wonder if the "bear arms" and "keep arms" language was as specific in the 17th century as it was at the time of the constitution, or even later, at the time of the 14th amendment. But 96... it's worth doing a little bit of that research instead of just making those arguments. This isn't the place to have the debate, let's use this to bring forth some sources and make the article better. Shadowjams (talk) 05:49, 24 June 2010 (UTC)

Hauskalainen, Shadowjames, are you aware that since Blackstone wrote his Commentaries a quarter of a millenium ago that other writers have written about the law? Are you aware that after 250 years that there have been legal precedents that have altered the common law? If either of you become "attorneys" may I suggest that you familiarize yourself with judgments made within the last 250 years because more recent precedents may have changed the law. BTW, Soloman v. Soloman, Carlyle vs. Carbolic Smoke Bomb, Roe V. Wade, and many other important cases have been decided within the last 250 years. Do you know what the terms common law and case law mean? TFD (talk) 06:07, 24 June 2010 (UTC)

Don't be rude. I've discussed with you before, and I thought we had a mutual respect. Is your point that Blackstone's irrelevant on the pre 1689 sources because he wrote after that? That's a valid argument, I was just suggesting his commentaries are hardly primary sources. In fact, that he wrote after the fact only supports that. I don't sense a substantive disagreement on this point. Shadowjams (talk) 06:12, 24 June 2010 (UTC)

Shadowjams:You wrote Is your point that Blackstone's irrelevant on the pre 1689 sources because he wrote after that? That's a valid argument How can someone write about something BEFORE it happens?96.237.120.38 (talk) 12:38, 24 June 2010 (UTC)

I think Carbolic Smoke is still good law :) Shadowjams (talk) 06:16, 24 June 2010 (UTC)

My point is that if we discuss Blackstone's views, we should use modern scholars. What is the problem? if no modern scholars share our view of Blackstone then our view is wrong. If our view of Blackstone is correct, then some scholars will support it. That is the same with any subject. We use the latest literature, not something that is 200 years old. TFD (talk) 06:32, 24 June 2010 (UTC)

Aside from the point that Carbolic Smoke Ball is still good law, I agree with you, and that's a valid point. Those ideas need to be backed up with modern commentary (certainly modern meaning post 1780s), but let's also not excise Blackstone from the article either. Shadowjams (talk) 06:38, 24 June 2010 (UTC)

Agreed. Fortunately, there is plenty of modern scholarly analysis of those 250 year old Blackstone writings. (Even reading modern legal treatises can be a challenge, but when written in antiquated English, it can be tricky.) The problem here in the past with the use of Blackstone was that editors here were tending to make selective quotes editorializing, being interpretive, to advance their personal POVs. If we stick closer to what the third party secondary sourcing says about Blackstone and its meaning to the 2A we should be able to figure this out and keep WP:NOR and WP:NPOV. SaltyBoatr ^{get wet} 13:15, 24 June 2010 (UTC)

The Above Mess is Evading the Main Point

The subject of this article is a matter of US law, which, by definition, is as interpreted by the Supreme Court. By definition, most of the "questions" which Salty Boar seems to be endlessly shopping the world for tangents and irrelevant-to-the-US-law-topic alternate opinions and debates on, are, by definition not questions....they (such as the meaning of the wording of the Second Amendment), by definition, have been answered in and by by and are defined by the Heller decision. Those tangents might be relevant to a section of what some people wish the law was, but not to the main article which is on what it is. The open question (and of the McDonald case) is only the applicability of the Amendment to state and local laws.

There is significant detail and clarity in the Heller decision on this topic. It reaffirms what my 4th grade sentence structure teacher already knew, that endless creative theories about the preamble to the 2nd Amendment are irrelevant to its operative clause. North8000 (talk) 02:43, 24 June 2010 (UTC)

Totally off the mark. The issue is what right the amendment protects - is it a right under common law or one created by the Bill of Rights 1689. DC v Heller does not decide that. TFD (talk) 03:37, 24 June 2010 (UTC)

The "issue" is "what is the topic of this article?", and then see above. North8000 (talk) 10:51, 24 June 2010 (UTC)

I somewhat agree with Four Deuces, but want to point out that Heller's dueling history is (judges doing history is another issue) a good reason why we look for some sources, rather than making the arguments in the talk page. If the supreme court can't reach an agreement, we certainly won't. The argument isn't settled simply on the side of the majority opinion in Heller because it was the majority. In the article we need to talk about those underlying sources (only using secondary sources of course), and while a discussion of whether or not the right predated the English Bill of Rights is relevant, it can't be argued sua sponte here, but needs some sourcing so we're not just having our own judicial conference... but instead improving the article. Shadowjams (talk) 05:55, 24 June 2010 (UTC)

What "argument"? If you're talking about the 2nd Amendment, the Supreme court decided it. I suppose folks who don't like a decision would try to say that if it wasn't unanimous, it wasn't a decision, but that's not how the court works. If the "argument" is whether people should be allowed to have guns, or the "world history of firearm rights" you're in the wrong place, this is an article about a particular US legal instrument. North8000 (talk) 10:58, 24 June 2010 (UTC)

Wow. "The Supreme court decided it." Since when does the Supreme court trump WP:NPOV policy at Wikipedia? No. If we see significant POV's in reliable sourcing we must include them fairly in the article. The (latest opinion) of the Supreme Court, Orbiter dicta, describes just one of the significant POVs. You are not talking about the holding of the court here. SaltyBoatr ^{get wet} 13:07, 24 June 2010 (UTC)

You are creating a red herring argument by mixing two different things. The Supreme court (in the areas of question that it ruled) is the definer of that which is the subject of the article. Like the last election defined who is the President of the United States. NPOV might call for alternate opinions or endless discussions like "John McCain should have been President", but it does not call for airing opinions or endless discussions claiming that John McCain IS the president of the United States. North8000 (talk) 14:14, 24 June 2010 (UTC)

@North800 Wrote: "The areas in question it ruled". The SCOTUS did not "rule" on the meaning of history. Their ruling (properly called, their "holding") was about one municipal ordinance in the District of Columbia. This is the court's holding, quote: "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." And no, the court did not rule on the meaning of history. The court wrote their opinion of history, non-binding Obiter dictum about history. If we disagree about the policy here whether the non-binding opinion of the Supreme Court trumps WP:NPOV policy, then that question should be put to the NPOV noticeboard. I don't see how non-binding opinion of a court can justify deletion from this encyclopedia of significant points of view seen in reliable sourcing. SaltyBoatr ^{get wet} 14:36, 24 June 2010 (UTC)

Who said "rule on the meaning of history"....another red herring argument. I said that it ruled on the meaning of the words of the Second Amendment, in areas where such was in question. And whoever said that a supreme court ruling trumps NPOV policy with respect to WP content? Nobody!.....another red herring argument. My analogy on the presidential election / who is the current president of the USA above applies here. NPOV wight dictate covering "McCain should have become the President" views, but not "McCain IS the President" views. North8000 (talk) 15:09, 24 June 2010 (UTC)

Neither did the court rule on the meaning of the Second Amendment. Their holding is quoted above "In sum, we hold...", and pertains to a municipal gun ordinance. Their obiter dictum is something else, and yes that dicta does discuss the Second Amendment, and yes it does describe one significant point of view which deserves coverage in this article. Which policy are you thinking of that says that their point of view should be the only point of view described in this article? Or, am I missing your point? SaltyBoatr ^{get wet} 16:05, 24 June 2010 (UTC)

My point is that that, on the topic at hand (meaning of wording in a US legal instrument)the Supreme Court DEFINES the reality, it is not an "opinion" on the reality. One can oppose what they did, but not deny what they did, ditto for WP coverage. I think that I communicated my point, you are ignoring the key points of what I said and instead inventing straw man arguments that I did not make and arguing against those. I think I'm signing out now. I just dropped in because I heard elsewhere about the issues raised regarding what you are doing to this talk page. North8000 (talk) 16:45, 24 June 2010 (UTC)

The court did in fact rule on the meaning of the Second, because the contested law was contested as being contrary to the Second, and the Supreme Court so ruled and the law was made null and void.96.237.120.38 (talk) 16:14, 24 June 2010 (UTC)

The law was not null or voided, rather per the court order the law was revised to remedy the constitutional problems. These new "presumptively lawful regulatory measures" (Heller, pg. 55) were deemed "regulations ... as permissible" (Heller, pg 63). Dick Anthony Heller then sued the District over this, (see Civil Action No. 08-1289), and he lost that case on March 26, 2010[33]. Presently, the District of Columbia has one of the most restrictive set of gun control laws in the country, all found to be Constitutional per the Heller ruling on March 26th, 2010. It remains illegal to have a handgun outside the home in DC. Strict registration requirements remain. It remains nearly impossible to purchase a handgun in DC. Even pistols remain to be illegal everywhere in DC including inside the home. You still must keep your handgun inoperable and locked or disassembled within your home at all times, with the one exception being if you are facing immediate threat, and even then gun must be directly accessible such as in a holster or being held in your hand. Those handgun regulations exist today and are Constitutional.SaltyBoatr ^{get wet} 19:44, 24 June 2010 (UTC)

The Supreme Court upHELD a lower court ruling which stated that the DC regulations were contrary to the Second, therefore unconstitutional and thus null and void. DC Appealed to the Supreme Court, which upHELD the lower court ruling.96.237.120.38 (talk) 20:13, 24 June 2010 (UTC)

Actually, read the ruling, pg 63. The SCOTUS only ordered the District to use "permissible" regulations, while at the same time stating that essentially all conceivable regulations were declared to be "presumptively lawful regulatory measures" (Heller, pg. 55). Scores of federal court cases have been heard[34] in the last two years where gun laws were deemed "presumptively lawful regulatory measures" and fully Constitutional. The District did this, revising their regulations. This was tested in court with Civil Action No. 08-1289, and the new regulations were found to be Constitutional on March 26, 2010[35]. The District presently has some of the most restrictive gun control laws in the country, and they have been deemed Constitutional. The net change amounts to the use of a revolver (though not a pistol) inside the home only during an event of immediate threat. Essentially nothing else in the DC law has changed. If you don't believe me, read Civil Action No. 08-1289 (RMU), No. 23., 25[36]. SaltyBoatr ^{get wet} 20:42, 24 June 2010 (UTC)

The lower court ruled that the original regulations were unconstitutional and thus null and void. The US Supreme Court upHELD that ruling. How many times do I have to repeat this before it sinks in?96.237.120.38 (talk) 21:02, 24 June 2010 (UTC)

And, that same lower court subsequently held that the revised strict gun control regulations were constitutional under Heller, see Civil Action No. 08-1289[37]. My point is that this article should reflect the current condition, seen in reliable sourcing[38], that essentially any conceivable gun control regulation is considered "permissible" and were deemed "presumptively lawful regulatory measures" by the Heller decision. The article gives undue emphasis to the symbolic "individual right" portion of the dicta, but the "presumptively lawful" words in the dicta have been cited as the practical and operative words taken from Heller in more than eighty court cases so far. See the article in the UCLA Law review for a detailed examination of this trend in lower federal courts interpreting Heller these last two years. ...this celebrated landmark decision (Heller) has had almost no effect on the constitutionality of gun control. To date, the federal courts have yet to invalidate a single gun control law for violating the Second Amendment right to bear arms, despite scores of cases." SaltyBoatr ^{get wet} 21:46, 24 June 2010 (UTC)

Sad to say you still don't get it. The US Supreme Court upHELD the lower court ruling which declared the original DC laws contrary to the Second Amendment and thus null and void. 96.237.120.38 (talk) 22:01, 24 June 2010 (UTC)

Yes, I accept that you are right, the lower court was upHELD by Heller. I don't deny that. And, I haven't close my eyes to the events since 2008. Things have happened in the courts during the last two years. That same lower court found the new strict DC gun control laws to be entirely Constitutional. Plus, eighty+ other federal court cases pointed to the "presumptively lawful" wording in Heller and upHELD essentially every gun control law brought before them. Read the UCLA Law review article[[39] which examines post-Heller court cases. SaltyBoatr ^{get wet} 22:16, 24 June 2010 (UTC)

Aren't there a few Chicago area laws that got struck down as well? If so your selective blindness knows no bounds!96.237.120.38 (talk) 22:47, 24 June 2010 (UTC)

Not exactly struct down. Post-Heller, some gun laws in the Chicago vicinity towns of Morton Grove, Wilmette and Evanston, Illinois were voluntarily repealed by those town councils when faced with the cost of defending the lawsuits against deep pockets of the NRA. The big deal now is the one Chicago lawsuit that did go to trial. On Monday the verdict of the one remaining gun law, McDonald v. Chicago is likely to be announced. SaltyBoatr ^{get wet} 13:27, 25 June 2010 (UTC)

Modified regulations exist today which may or may not be constitutional. The original regulations were struck down.96.237.120.38 (talk) 20:13, 24 June 2010 (UTC)

I don't care where this right came from, I just care that we provide reliably sourced information about it. IP's personal theory that Ugh the caveman had the right to bear arms is just disruptive converstation. IP, could you please stop wasting everyone's time, and provide actual sources, rather than treating this like a blog page on the John Birch Society website. TFD (talk) 06:14, 24 June 2010 (UTC)

Common law is derived from the "common practices" of the people. If Ugh the Caveman had the right to carry around his spears and clubs, then that was a "common practice". Same for Vikings and their axes, Mongols their bows, and more recently, cowboys their revolvers and farmers their shotguns. Anyone want to point to a case where Billy the Kid was brought before a judge for carrying a weapon?96.237.120.38 (talk) 12:21, 24 June 2010 (UTC)

The common law developed from case law. At some point Sheriff Barney Rubble tried to take Ugh's guns away from him and Mr. Justice Fred Flintstone said that Ugh had a right to have guns or he did not. It appears that Flintsone J. ruled that he did not. TFD (talk) 13:42, 24 June 2010 (UTC)

And that case law is based on whether something is punishable or not. For Ugh carrying weapons was not a punishable act. After J Flintosne ruled in that manner he was then tarred and feathered and tossed from the tribe, and Ugh got his stuff back. HHMMM! Sounds like what happened to King James II.96.237.120.38 (talk) 13:59, 24 June 2010 (UTC)

Selective Blindness

SB- Above you wrote Even pistols remain to be illegal everywhere in DC including inside the home. You still must keep your handgun inoperable and locked or disassembled within your home at all times,,

The Washington Post states otherwise on both counts http://www.washingtonpost.com/wp-dyn/content/story/2008/03/17/ST2008031702809.html?sid=ST2008031702809

The city has already repealed a ban on semiautomatic pistols, he said, and allows residents to keep loaded guns in their homes. 96.237.120.38 (talk) 23:01, 24 June 2010 (UTC)

That article is about a law proposed by Congress, not about what Heller says about the Constitutionality of gun control. What I wrote about the regulation of pistols being Constitutional is relative to the Heller ruling, not laws that Congress might enact. The situation was that the Heller allowed the regulation of high capacity handguns like automatic loading pistols. The District sought to regulate these pistols, and when some members of the US Congress learned this they sought to pass a law overriding the District Council, and the District reacted to the political threat from Congress by loosening their gun control more than Heller would have required per the Constitutional requirement. That article is a bit vague about the exact specifics of the current DC gun law. Do you know of a good source that describes the exact condition of the DC gun law now? I would like to learn more that I can glean from that newspaper article. SaltyBoatr ^{get wet} 13:18, 25 June 2010 (UTC)

SB- You wrote Even pistols remain to be illegal everywhere in DC including inside the home. You still must keep your handgun inoperable and locked or disassembled within your home at all times The Washington Post states otherwise on both counts.96.237.120.38 (talk) 14:41, 25 June 2010 (UTC)

I apologize for imprecise and incorrect wording. I concede your point. Sorry. You are right. I hope you feel better now. You won. And, you seem more concerned with battling me personally than improving this article.

That said: The topic should not drift away from the Second Amendment. My point, which I wrote incorrectly, remains true. In this post-Heller era per the Supreme Court nearly every conceivable gun control regulation is constitutional, including banning of semi-automatic pistols. This new found constitutionality hinges on the words "permissible" (see Heller page 63) and the words "presumptively lawful regulatory measures" (see Heller page 56). Since the Heller ruling, scores of court cases challenging gun control laws have been heard in the last two years and not one has been overturned on Second Amendment grounds. Typically these courts have pointed to page 56 "presumptively lawful regulatory measures" when ruling against the plaintiff who typically was arguing for "individual rights". See this UCLA Law Review article[40] examining the gun control court rulings in the post-Heller period for confirmation of this fact. This article seems to give a undue emphasis on the words "individual rights" from the Heller ruling, and based on the events of the last two years[41], the operative words from Heller have been "presumptively lawful regulatory measures". We should correct this POV balance issue in the article. SaltyBoatr ^{get wet} 15:16, 25 June 2010 (UTC)

I am interested in squashing what seems a never ending distortion of facts on your part.96.237.120.38 (talk) 18:14, 25 June 2010 (UTC)

Thanks. Me to. I do not want to get my facts wrong. Please help me get my fact right. The best way to do this is to tell me what reliable sources I should be reading. Did you get a chance to read that UCLA Law Review article[42] which examines the court rulings that have been issued post-Heller? It is an interesting read because it describes the evolution of the court interpretation (and political interpretation) of the Second Amendment during these last two years. This encyclopedia article could be improved by giving coverage to this modern evolution in the legal interpretation of the 2A. SaltyBoatr ^{get wet} 19:46, 25 June 2010 (UTC)

Perhaps you should read one of those cases where the Supreme Court states that "the plain meaning of the law IS the law".96.237.120.38 (talk) 13:34, 26 June 2010 (UTC)

I sounds like you may have read that UCLA Law Review article, because it has a similar criticism. The author questions the Supreme Court's "plain meaning of the law" relative to the fact that the Heller ruling protects only self protection within the home, and excludes the security of self protection in public. (see page 1569) "The amendment says 'security of a free state' not 'security of a free home'." Scalia's viewpoint of the 2A as written Heller is the "plain meaning": security of a free home . Selective blindness, indeed. SaltyBoatr ^{get wet} 14:56, 26 June 2010 (UTC)

Will wonders never cease. We agree that Heller did not go far enough.96.237.120.38 (talk) 19:41, 26 June 2010 (UTC)

Dispute over wording of the English History section.

Plainly we need to continue our work on this talk page in order to resolve our dispute through discussion, as opposed through revert war. I encourage that we negotiation the details by working out the details using the Talk:Second_Amendment_to_the_United_States_Constitution/english_history_sandbox sandbox section previously started. See the discussion above, but another editor suggested[43] that we start by working with the last stable version as the starting point, and I agree this is wise. Let's work through the details please. SaltyBoatr ^{get wet} 01:01, 26 June 2010 (UTC)

I have not been absent from those discussions and actually initiated quite a few of them. --Hauskalainen (talk) 01:51, 26 June 2010 (UTC)

hey! What's this?... http://en.wikipedia.org/w/index.php?title=Wikipedia:Requests_for_page_protection&diff=370176136&oldid=370175853

You write as though I have been a bad boy and have not tried to participate in the resolution of the dispute about this section. This http://en.wikipedia.org/w/index.php?title=Talk%3ASecond_Amendment_to_the_United_States_Constitution&action=historysubmit&diff=370179326&oldid=367507099 is the list of changes to the Talk page since the protection was added. I have made many contributions to the discussions above. I count TWENTY OR MORE sections or sub sections that have been added to the TALK page where I and my fellow editors have tried to reason with you and others about this issue. I am shocked that you should now go running to an Admin saying

"may I suggest another page protect to force Hauskalainen to collaborate with editors on the talk page rather than hs (sic) "negotiation" through revert war"

Enough is Enough Salty!--Hauskalainen (talk) 01:57, 26 June 2010 (UTC)

When I look at this talk page (admittetdley a superficial look at the zillion words) I feel that if anybody is out of line it is Salty. This whole talk page looks like Salty wanting to eternally and incessantly debate /advance a particular point of view, and to seek "spin" in every discussion and subject towards that end. Even the article content itself seems secondary in that quest. Salty is very wiki-saavy in this quest, making this particularly hard to sort out. North8000 (talk) 02:59, 26 June 2010 (UTC)

Bingo!96.237.120.38 (talk) 13:36, 26 June 2010 (UTC)

I think it is fundamentally wrong for Salty to try to get around a page protection by editing the article in another place so that he can just paste his changes back to the article when the protection is over. Sandboxes are not places where we bypass the process of sorting out our differences as to what is in the article and what is not. Instead he should say now what, if anything, is wrong with the English History Section as it now stands. That is the proper thing to do and if we can do that we may, a last, get to a point where we agree some wording in advance which will not be rapidly unpicked later. --Hauskalainen (talk) 03:33, 26 June 2010 (UTC)

A sandbox area is an appropriate place to put a proposed modification for a protected article, so that the new proposal can be discussed. I have done this myself; it's a good way to collaborate on a draft and come to an agreement before the block is lifted. If SaltyBoatr failed to direct the discussion toward that sandboxed version, shame on him. ~Amatulić (talk) 04:59, 26 June 2010 (UTC)

You might work on a NEW VERSION after discussing the OLD VERSION. But he just wanted to carry on editing like he had before using an earlier start point (which meant he did not have to justify many of the changes he was making - i.e. as if he was going to mass revert without explanation and then carry on editing in a way that gets around the page protection and then just paste back the changes. THAT is inappropriate use of a Sandbox but it is what he tried to do.--Hauskalainen (talk) 12:33, 26 June 2010 (UTC)

If you guys are mad at me personally, take that out on my talk page, or at the appropriate noticeboard. This talk page is intended to be used to improve the article. Regarding the question of dispute about fixing the English History section, the policy here is to read reliable sourcing, (including the sourcing we may personally disagree) and to write an article that matches that sourcing. The problem I see with Hauskalainen latest suggestion is that it fails to connect with what the reliable sourcing, and neither does it fairly represent the various points of view seen in the reliable sourcing. Plainly, editors are drawn here who feel strongly in the cause of self protection with guns. Also, that reflects a significant point of view seen in reliable sourcing. It does not mean that this article should be a vehicle to promote that point of view. Compare the sourcing of Hauskalainen's latest proposal with the last stable version in the sandbox and the lack of NPOV balance and relative lack of citations stands out. Also, Hauskalainen's latest proposal shows a transparent intent to promote a personal point of view seen in his original research published here, see above.

To that end, may I suggest that we start by identifying the various reliable sources that discuss the English History behind the Second Amendment. We have talked at length above of the Joyce Lee Malcolm book, ISBN 9780674893078.. This Google book search might be helpful[44]. Other books I have read that cover the English History of the 2A in some depth are the Greg Carter book, ISBN 9781576072684. Garry Wills book, ISBN 9780684870267. Uviler and Merkel, ISBN 9780822330172. Books new to me seen in this Google Book search are Richard Holbrook's, ISBN 9781412006071 which describes the English origins going back to year 690 As long ago as 690 A.D., Englishmen were required to possess arms and to serve in the military. (If you don't like these books, tell which books you want me to be reading.) Plainly, a very common theme seen in these books is the role of the history English militia service in the formation of the Second Amendment (it is the dominant theme we should be matching). These sources don't much mention of an English History of "self protection" as playing a role in the origin of the Second Amendment. Show me the sources that discuss an English History of a right to self protection being discussed in context of the origin of the Second Amendment please. SaltyBoatr ^{get wet} 14:38, 26 June 2010 (UTC)

As I mentioned before, Clayton Cramer' s book, For the defense of themselves and the state (1994)[45] could be used to present the view that the right existed under common law. TFD (talk) 15:54, 26 June 2010 (UTC)

Has anyone here read that book? When I paged through it with the "look inside" Amazon feature, it seems to be more a book exploring the American history of the 2A, not the English History. @TFD: Which page numbers in that book are you speaking of? SaltyBoatr ^{get wet} 17:40, 26 June 2010 (UTC)

Giving this a bump. I am interested in reading all the reliable sourcing we can find. TFD mentions this book by Clayton Cramer, ISBN 9780275949136. The nearest public library that stocks it is located two counties away, a 100 mile trip for me. Has anyone around here read this book? If yes, can you transcribe a bit of what it says about the English History relative to the Second Amendment. Thanks. SaltyBoatr ^{get wet} 20:12, 28 June 2010 (UTC)

(from Salty above) "The problem I see with Hauskalainen's latest suggestion is that it fails...." - Pray, Sir, what latest suggestion?

See here, I put your latest version here[46]. Let's work out the problems. SaltyBoatr ^{get wet} 15:47, 27 June 2010 (UTC)

So tell us what is wrong with it then? Which bits need reliable sourcing? Which are the the POVs that are not represented? Lets have that discussion in this new section--Hauskalainen (talk) 00:50, 28 June 2010 (UTC)

I inserted specific requests for citations directly into the [[History sandbox]. Would you please insert the citations directly there. (If you do not, I intend to continue my collaboration there too, so I will be removing unsourced portions.) You, I and other editors can collaborate on editing this passage into shape. This gives you plenty of time to work this out in the sandbox before it goes 'live' in the article. When the page lock lifts, this sandbox can be the basis for what we insert into the article. Hopefully, if we do our work now, this insertion can be mutually agreeable. If you continue a boycott of the sandbox, you might not get your input as you like. Collaboration on the sandbox can avoid surprises or reverts in article space as happened next time. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

All that will happen is that I will put stuff in and you or others will pull stuff out and then we are just editing in a place other than the article space. I would rather use the TALK space to discuss the issues YOU HAVE with the PRESENT content. The place to do that is here in the TALK space. It was you that called for the edit freeze for heavens sakes. Now you want to go on editing instead of sorting out the issues. That is NOT a proper way to behave. I do not think your ojections to the English History section content really warrants a freeze that covers all the other sections as well. --Hauskalainen (talk) 17:26, 28 June 2010 (UTC)

Issues with the English History section

1. "The right to bear arms in English history is believed to have been regarded as a natural right for the preservation of the person"

SaltyBoatr here wishes to dispute this.

Hauskalainen I am sure we can get a reference for this as I have read it many times. Bear with me a while or maybe someone eles can get me a reference.--Hauskalainen (talk) 00:44, 28 June 2010 (UTC)

andy85719 Is concerned that this position's use of the word "belief" renders it superfluous to the subtopics contents and wishes that all editors avoid using the words "believe" without citing several reputable, published, persons who share said belief.Andy85719 (talk) 03:26, 28 June 2010 (UTC)

Hauskalainen@Andy85719 I agree, which is why it needs a reference, which will be forthcoming. I don't think it is wrong though to use the word "belief" because history is always one of interpretation.

Haauskalainen offers citations sourced from the Supreme Court decision in the Heller case. In rejecting the defense claims that the meaning of the Second Amendment was limited to the militia ruled that “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. See Page 9 of the Opinion of the Court at http://www.supremecourt.gov/opinions/07pdf/07-290.pdf) which expands upon this and includes the following three citations which I offer as potential citations proving that it was believed to be a natural right of the person

A Compleat Collection of State-Tryals 185 (1719)

Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?

B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right:

This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own person’

W.Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists’ English rights:

The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation”

Do you want all three or will just one do? --Hauskalainen (talk) 13:33, 28 June 2010 (UTC)

SalthyBoatR @ Hauskalainen No. Instead Give us a specific citation to a modern, third party reliable source. I would appreciate the chance to verify this reading the full source in context. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr I just did. The Supreme Court of the United States in a majority finding in a recent case. You cannot get much more authoritative and more recent than that. That they used 3 sources more contemporary to the drafters of the Second Amendment is excellent. The SCOTUS document gives you all the information you just asked for.--Hauskalainen (talk) 17:34, 28 June 2010 (UTC)

SaltyBoatr @Hauskalainen Scalia writes on pg9: "The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service." I don't see that this matches your summary #1 above closely at all, you appear to have inferred too much here. SaltyBoatr ^{get wet} 22:02, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr Now you are deliberately playing games again. I did not point to that quote on the top of the page but the quote at the bottom and the note [7] attached to it (which goes on to the next page also). These 3 citations quoted by the the Supreme Court show that the right to keep arms was a personal one and for the purposes of self-preservation. It was NOT just for service in the Militia. I am sorry that this does not fit your beloved "developing rights" theory but that is no excuse for excluding them from the article.--Hauskalainen (talk) 23:11, 28 June 2010 (UTC)

2. "though one American historian has expressed a contrary view that the right developed over a period of 500 or so years beginning in the twelfth century".

SaltyBoatr here wishes to know who this is.

Hauskalainen. Well clearly I had intended it to be Malcolm and only in deference to your wishes that this be regarded as a POV if not an indisputable fact of history. I added this reference to an American Historian as I thought Malcolm might actually be rather ashamed to be associated with this view because I am not entirely sure that this really is her view. As I said earlier it sounds more like the insertion of a sub-editor or a dust cover writer. Personally I suspect she meant a "right backed up by legislation" because she looks back only through legislation for her sources of a right in law and has either ignored the natural right to have arms for self preservation or you have failed to show where else in her book this may have been referred to (I do not have the luxury of having her book but I have many on medieval English and Irish history. You claim that this is her POV so perhaps you can tell us which reference. I believe at least one other writer you have cited has a similar view but if I recall correctly that too was sourced to Malcolm. I am not sure that these other writers were historians or just other gun lobby fodder spewing out the myth. Maybe you can help us out here. If there are other historians with a similar view, please feel free to let us have the references for that too.--Hauskalainen (talk) 00:45, 28 June 2010 (UTC)

andy85719 I wish that, should an assertion be made as to the number of disputants of said position, an article should be cited to support this numerical assertion. Otherwise, it is conjecture.

@ andy85719. It would be OK to change it to "some" American historians if you can show me that there is another who has come to this conclusion independently (i.e. not some other historian simply citing Malcolm). --Hauskalainen (talk) 12:43, 28 June 2010 (UTC)

SaltyBoatr Just insert a compromise wording into the sandbox. Start by reading secondary sourcing, then write text that matches that sourcing. I can recall at least four sources that describe the English history of 'militia tradition' as being vital to the 2A. To comply with WP:NPOV, this militia theory needs to be given proper weight to match that balance of sourcing. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr Firstly, your sandbox is not a place to get embroiled in more rounds of furious editing to get around an edit freeze. Now I wish to understand what your complaint is. The first issue you raised about the sentence I have listed under point 2. was "who is the American historian"?. I don't mind if we name Malcolm. If you want to name others, please let us know who they are and the sources that show that these are independently arrive at opinions and not just a reciting of Malcolm as a source for that view.

There is no doubt in anyone's mind that there WAS a military connection to the drafting of both the Bill of Rights and the Second Amendment. Both came about due to the disarming of Militias by the King. If you like, we can add a sentence to that effect. How about if we replace this sentence

Scholars and lawyers recognize that the Second Amendment has its origins in the text of the English Bill of Rights of 1689 though one disputes its relevance

with this one

Scholars and lawyers recognize that the Second Amendment has its origins in the text of the English Bill of Rights of 1689 and that both of these texts were expressions of the right not to be disarmed and not the liberty to be armed. Who got that right and against whom it could be enforced differed slightly. The English Bill of Rights had been drafted to give Protestants the right not to be disarmed. English Protestants had recently experienced the Catholic King mis-applying the gaming laws to shore up Catholic strength by disarming the majority Protestants. The Second Amendment in the United States sought similar rights for the US people who had formed militias to protect their States but which had similarly suffered attempts by the English monarchy to disarm them. Who the right not to be disarmed could be enforced against differed in each country. In England the right was enforceable against the against the King and not parliament. Thus parliament could still act to modify the laws relating to arms. In the American law the right was enforeacable by the people against the new Federal Government. The drafters feared that this new creature might seek powers to disarm as the King had once done. Thus in the United Sates the Second Amendment right not to be disarmed was a right held against the Federal Government, which left the States still free to pass laws regarding the control of amarments within their territorial boundaries.

The above is quite long and as yet unreferenced but I think it gets to the heart of the issue. What the right was in each case (the right not to be disarmed), who got the right (protestants versus the entire People) and who the right was enforceable against (the King in England, and the Federal Government in the United States.

I assume that this is what you meant and not that militias are a new thing. I can assure you that people have gone armed into battle for as long as we can look back in history.--Hauskalainen (talk) 18:53, 28 June 2010 (UTC)

SaltyBoatr @ Hauskalainen Astonishing! Is this a circle game? Once again: Don't tell us what you think the reliable sourcing says. Tell us what reliable sourcing you are using! Let us read it. SaltyBoatr ^{get wet} 20:19, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr Stop playing WP:Game. You know that we are discussing the content and how to structure it. You asked for compromise wording to include reference to Militias and I provided it. We can put the sources in later. If you have a better way of telling your beloved "developing rights myth" steeped as it is in a myth of servitude blossoming into full freedoms, you tell us how you want it told. The only thing is that you must source it to Malcolm and it must be presented as a POV and not an accepted position.--Hauskalainen (talk) 23:29, 28 June 2010 (UTC)

3. "...contrary view that the right developed over a period of 500 or so years beginning in the twelfth century."

SaltyBoatr here wishes to put the militia tradition to much earlier as per other citations on this page.

Hauskalainen Personally I do not mind but as I have said earlier on this page, the right to act collective with arms to defend one's clan probably goes back to time immemorial. We should not say it began (for sure) in this year or that but just that these are some early examples of the collective right and duty appearing in the written record.--Hauskalainen (talk) 00:45, 28 June 2010 (UTC)

andy85719 Wishes that assertions as to time periods be made with a degree of certitude befitting a scholarly publication. Airy/flimsy assertions ought to be rejected as conjecture unless supported by a respectable source.

SaltyBoatr @Hauskalainen Again. What is the reliable sourcing for your idea? I want to verify by reading confirmation in sourcing. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr My idea!!! That is rich!!! This is your beloved Professor Malcolm's idea and it is pretty crooked. If you don't want to provide a reference for it or if you doubt that anyone has claimed that the right developed over a period of 500 years or so, or that anyone has ever postulated a "developing right" theory, then I will gladly delete the sentence once the page protection is listed. This was my concession to you Salty. I added it right up top so everyone could see it. If you don't want to see it there I can live without it.--Hauskalainen (talk) 23:20, 28 June 2010 (UTC)

4. "The period from the mid 1500s though to around 1700 was one of great instability based on religious divisions (between Catholics and the growing numbers Protestants) and differences that set parliamentarians (the landed gentry) against the King"

SaltyBoatr here asks for a citation claiming that this is original research.

andy85719 Wishes that citations were provided, even where a statement may seem obvious to the writer, as such is not always obvious to the casual reader.

Hauskalainen This sounded fairly innocuous and neutral to me. Which bit do you not believe to be a faithful representation? Let me break it up for you.

• That their were religious divisions that grew?
• That this happened between the dates given?
• That the religious disputes were between Protestants and Catholics?
• That the parliament was filled with the landed gentry? (the franchise being limited to Forty Shilling Freeholders - a lot of money in those days!!!
• That the parliament was in dispute with the King?

All I was doing was trying NOT to overwhelm the reader with unnecessary references. Do you really mean ALL of these? I could respond by being akward myself and asking for all the other obvious stuff in the wider article to have citations. That will keep you all busy! --Hauskalainen (talk) 00:45, 28 June 2010 (UTC)

SaltyBoatr Show us your sourcing! I want to be able to confirm as verifiable. Please read WP:NOR to be sure you understand the distinction between original research and third party reliable sourcing. Insert your footnotes directly into the sandbox. I will be beginning to remove your unsourced sentenced prior to the page lock lift, so please get started. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen @Saltyboatr Actually none of this is individually controversial. You know and I know that all these individual elements have been in the article for a very long time. Nothing I have written is inconsistent with anything in the article as it was before. Your refusal to call ALL of what I have written as somehow WP:OR is an action beyond the Pale. It just reeks of WP:Game.--Hauskalainen (talk) 22:56, 28 June 2010 (UTC)

Hauskalainen The items (1. to 4. above) are the first four objections cited by SaltyBoatr. To me, it hardly seems to be a list of objections so grievous that it warranted a request for a page protection.

If anyone else has further objections then please add them in this section and number them from 5. onwards. I will try and keep all my comments on the subject of the English History Section to this section. It was NOT helpful to have 20 or so new sections added as happened during the last page protection period.--Hauskalainen (talk) 00:45, 28 June 2010 (UTC)

SaltyBoatR I want to see your citations for your entire work, which has appearances of your "original research". To be clear here, comparing your "original research" to the last stable version you reverted, I prefer the last stable version because it was well sourced, and because it reflects the full spectrum of points of view seen in reliable sourcing. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen Your preferred version was structured in line with the "developing right" theory. This is a theory that has emerged only recently and is contrary to what many others have long believed to be the case. It is not even a very widely supported theory and the alternative and much more long standing view (that the English have always had the right to carry arms and the Bill of Rights was not a particularly revolutionary in this regard) was not given any attention at all. It is WRONG to structure the article to fit with one theory and it was wrong to eliminate a long held view that the right to arms was a natural right in support of the similar natural right to life. We must present the material neutrally in a way that exposes the controversies to the reader as well as the commonly agreed facts. It is also wrong to claim as you have done above many times that my material is not sourced. As I have shown above you and others are complaining bitterly about sourcing but the article has said many of the same things and these have not been challenged. Your actions in getting me to dot every i and cross every t that have not been crossed before is just WP:Gamesmanship on your part. This is why the edits I have made are causing you so much grief and why the cabal at work on this article is joining you in your quest. Up with this I will not put. I know that this group of editors has seen off many other editors in their quest to preserve the article in their preferred mould. But this time will be different. The English section must reflect

English history and not one American historian's romanticised version of it which attempts to blow away a history of rights exercised without question.

Would you like me to get some English History scholars to join in with you? A half dozen or so could balance things out. I don't suppose this article has had much attention from them because Brits on the whole are rather satisfied with their arms laws and think the American obsession is absurd. In England Wales (population aout 50 million) in 2005 there were just 50 gun homicides annually;http://www.homeoffice.gov.uk/rds/pdfs07/hosb0207.pdf (Page 36)</ref> if the United States (population about 300 million) had as good a record as England & Wales there would have been about 300 American gun homicides. In fact there were more than 10,000 American gun homicides (http://www.fbi.gov/ucr/05cius/offenses/expanded_information/data/shrtable_07.html).The law in England and Wales has not, in fact, changed the general right to arms. Only the right to hold certain types of highly lethal arms, and especially firearms. I think it would be a good idea to highlight how American and British laws have differed over history since the Second Amendment. The British parliament has it seems preferred not to make a radical change to the law relating to the right to arms (it did not make it a constitutional right for instance) but has controlled the right to hold certain types of highly lethal weapons and in particular firearms. It would of course be wholly wrong to imply that the very big difference in firearm deaths is due to that difference but the British reaction has generally been to tighten the laws of access to firearms as public concern over firearms has risen. It probably is also right that the British have put the very personal Right to life as being more important than right to keep arms for personal defence even though this may mean more that there are more robberies and burglaries. Malcolm has written about this I think. --Hauskalainen (talk) 04:39, 30 June 2010 (UTC)

5. The article (whether in the English History section or the earlier Background section) could be more clear about "The developing right theory" (Added by User:Hauskalainen )

Hauskalainen I call it the developing right theory for want of a proper scholarly name for it. It is the elephant in the room in all of the discussions we have had. The dispute is about

• the rights (=liberties) of the Early English and Americans at various points in time to have arms
• the duties (=legal or moral obligation) of the English and early Americans at various points in time to have arms to defend their communities or others
• the meanings of the wording in two laws (the English Bill of Rights and the U.S. Second Amendment) as they affect rights.

These three things seem to have been interpreted differently acccording to which version of history you wish to believe is true.

One view (in part supported, allegedly, by Prof. Malcolm and parts of the gun lobby in the U.S.) broadly argues that

• People's and liberties expanded as the obligations given to them expanded
• The duties expanded from few or none towards an obligation to serve in a militia
• People feared their government would form a standing militia which would disarm them
• The laws granting explicit rights were drafted to guarantee the rights of citizens to bear arms (against the tytanny of governmment if necessary)
• That the rights won were so precious that they must be preserved

The other view (broadly supported by a large swathe of historical record and legal decsions) says that

• People have always had the right to use arms to defend themselves when in imminent threat of losing their life or limb - but not before that.
• People have always had an obligation to defend their communities. It was the developing legal system that caused these obligations to be written down.
• Across human history, peoples have armed themselves not just to protect their person but also against possible external threats to their group - i.e. they have formed militias. History shows that after virtually any conflict a peace has to be restored and the vanquished are disarmed by the victors, for obvious reasons.
• The laws in the 17th and 18th century did NOT grant a right to have arms. They instead protected explicit rights of citizens NOT TO BR DISARMED unlawfully.
• The People have the right to shape the laws that affect them according to their present circumstances and ought not to be bound by historical. Hence legitimate governments can change the law, but the U.S. constitution reserves this right to the States' legislatures and not to the Federal legislature.

These two versions of history should be discussed somewhere in the article, and probably in the English Hisory section or the Background saection.--Hauskalainen (talk) 12:08, 28 June 2010 (UTC)

SaltyBoatr Please stop telling us what you personally think. Take this elsewhere, it clutters the talk page. We need the chance to confirm these theories by reading them in third party reliable sourcing. SaltyBoatr ^{get wet} 14:44, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatR I am discussing what I believe should be the content of the article not ruminating about what I think. If there is a dispute between editors as to POVs then there are clearly POVs that need to be in the article. You wish the article to reflect only the Malcolm theory of a developing right. This has been criticized by other writers not just me. Especially the bit where Malcolm claims that the reference to ancient rights was a fiction made up on the spot. I have at least one reference which says that Malcolm has no evidence for this and that it flies in the face of other scholarship. You clearly do not want the myth of the developing right to be exploded in the Wikipedia article and you are doing your utmost to obstruct that. please be more positive.--Hauskalainen (talk) 21:53, 28 June 2010 (UTC)

The Four Deuces @Hauskalainen Could you please provide the name and page no. of the book or article that challenges Malcolm's book. TFD (talk) 22:11, 28 June 2010 (UTC)

Hauskalainen @The Four Deuces Try this one "IT ISN'T ABOUT DUCK HUNTING: THE BRITISH ORIGINS OF THE RIGHT TO ARMS, David B. Kopel (a critique of the Malcolm book) republished here

The main body of the book ought to be the portion that attracts controversy: In it Malcolm argues that the 1689 Convention tricked the next three centuries of Britons and Americans with its claim that the British right to arms was "ancient, true, and indubitable," rather than fabricated on the spot as a result of recent experience with oppressive monarchs and their standing armies. Because Malcolm's thesis contradicts the viewpoint of almost every scholar--pro-gun or anti-gun--who has written anything on the British right to arms, one might expect controversy. So far, however, no scholar has challenged Malcolm's conclusion in print.

Malcolm's argument is, on the one hand, irrefutable, because there is no known British legal document prior to 1689 that refers to a right to arms; all the official documents call bearing arms a duty rather than a right (p. 9). But, it is not impossible for a duty and a right to coexist. Jury service was certainly a duty, but many Britons also viewed it as "an ancient, true, and indubitable right."[68] It is possible that deeper inquiry into medieval social history materials might show a similar understanding of a duty-right to arms. While the 1689 Convention may have fabricated a right in a strict legal sense, some kind of rights consciousness regarding arms must have existed beforehand, or else the Convention's assertion of an "ancient, true, and indubitable right" would have been so self-evidently absurd as not to be worth asserting.

The argument Kopel uses is not that different to my argument about the right to keep milk in the fridge. Just because there is nothing written down giving me that right does not mean it does not exist. This is what Malcolm seems to have assumed. It is interesting to see that the author says that Malcolm's thesis contradicts the viewpoint of almost every scholar--pro-gun or anti-gun--who has written anything on the British right to arms.--Hauskalainen (talk) 22:45, 28 June 2010 (UTC)

The Four Deuces @Hauskalainen It is not a good source because it is a book review written after the publication of Malcom's book and as it says, "no scholar has challenged Malcolm's conclusion in print". However, the statement that Malcolm's view that the right originated with the Bill of Rights 1689 "contradicts the viewpoint of almost every scholar" was certainly true when she wrote the book, but we need a source that shows whether the earlier view is still held. All the evidence shows that it is not. Also, it is incorrect to say, "The argument Kopel uses is not that different to my argument about the right to keep milk in the fridge". He says that, "rights... arise by long-standing tradition from the ancient past". He is talking about legal rights, something that can be either the basis or to the defense to a claim. TFD (talk) 23:55, 28 June 2010 (UTC)

Hauskalainen @The Four Deuces Er.. you asked me to provide the reference to "the book or article that challenges Malcolm's book" and I did just that. Now you claim it is not valid because it was written after the publication of Malcom's book. It could hardly criticize the book before it has been published! Yes, Kopel says no scholar has challenged Malcolm in print but then he goes on to do just that. Therefore Kopel, an academic, does criticize Malcolm. You say "we need a source that shows whether the earlier view is still held". With respect, we do not. Unless you can find one that says that he or she has changed his/her position since Malcolm published, the best you could then argue would be that at least ONE has changed their mind. Otherwise we must leave the assumption of previous pulished positions being retained. I simply do not understand your point about why you think my right (liberty) to keep milk in the fridge is any different. If someone tried to prevent me keeping milk in the fridge I would have a right to go to law to understand how I lost that right, because in the absence of a law to the contrary I would be exercising my natural right to live as I please. So it was with right to keep arms. Yes, occassionally, people in the past were disarmed. Catholics and Protestants. And they protested. They didn't say "OK guv, your right, I shouldn't have had 20 rifles in my basement because I never had the right to do so" and leave it at that. But in times of war and civl war especially, there is a breakdown in law and we can understand why the niceties of the law were just ignored. It is hardly surpising that the English Protestants should have the right to hold against the King the right not to be disarmed after James II did what he did. It is interesting to note the US Supreme Court recognizes that the right was one against the King and not held against parliament. Hence parliament has been able to freely amend the law even though the Bill of Rights is one of the main documents making up the British Constitution. --Hauskalainen (talk) 06:25, 30 June 2010 (UTC)

If you read the book review section in your newspaper, you will notice that book reviews, although often written by experts in their field, are not peer-reviewed articles but are written to comment on recently published books. I have already explained the legal issues to you and your repetition of your opinions that are not based on any understanding of the law or any sources indicate that further discussion with you is pointless. TFD (talk) 06:48, 30 June 2010 (UTC)

6. The English Civil War did not totally resolve the powers dispute between the primarily Protestant parliament and the Catholic-leaning monarchy.

SaltyBoatr here commented "why lead with the English Civil War? Chronologially, earlier history should come first."

Hauskalainen @SaltyBoatr The reason is that the background to the 2nd Amendment was the same concern as the background to the English Bill of Rights (fear of disarmament) and we know that the drafters of the 2nd Amendment were in some sense copying the English Bill of Rights. The background to the English Bill of Rights was the disarmaments that had happened around the time of the English Civil War and afterwards. That is why it should begin here. This bit is not in dispute. I anticipate your motive is wanting to go back even earlier is to instill an idea, as Malcolm did, of "the developing right" theory. To construct an article section in that way without pointing out that this is a POV position with considerable problems associated with it would be unacceptable. I have no problem in the "developing right" story or myth being told in the article but it firmly belongs in the section that needs to be added regarding that particular theory.--Hauskalainen (talk) 22:23, 28 June 2010 (UTC)

Hauskalainen, the Second Amendment protected an existing right which was received into American law from English law. That is why English law is important. You should be aware that imperial and colonial law remained in force after 1776, and some of these laws are still in force, including all laws relating to the right to bear arms. TFD (talk) 05:44, 30 June 2010 (UTC)

A Developing right?

I have told you what the problem was with the way the history section was written and that is very plain. It is that it is structured to tell the Malcolm "story" of a "developing right", beginning (presumably) with zero rights and culminating in the Second Amendment which grants a right to all Americans. The problem us that this is highly POV. It does not even reflect the considered opinion of the Supreme Court which more than a hundred years ago (I think) decided that the Second Amendment did not create a new right but just a new protection against the Federal government interfering to remove or infringe an existing right. And the fact the Supreme Court judges themselves accepted that the right is an ancient one and the parallel in the English Bill of Rights was a similar PROTECTION of an existing right (for protestants) and not a grant of rights. The article as I edited today conveys right up front, your view, shared with Malcolm, that the right developed. But it also gives the alternative view, which we have to respect, (and with it the evidence) that the Bill of Rights was an attempt to preserve existing rights and so too with the Second Amendment. What I want to know is what is wrong with that presentation? It gives one view and it gives the other. It does not lend more weight to one over the other and I even removed text which you construed as OR (though I don't actually think it was).

The truth about collective self defense is that it has been going in in time immemorial. Just because we see written references somewhere to it (whether from the time of modern English Law - i.e. the first millennium CE onwards, or from sources even earlier than that) does NOT mean that habit of collective defense started then. All those motte-and-bailey castles strung across England going back more than a thousand years are indications that communities had well established collective defenses. The stories told by Bede of the early Saxons, the Danes, and the continual battles between the Britons and the Picts and the Celts show that early English history was fraught with battles that were certainly not faught without arms. It is, frankly, ridiculous for you to claim that they were (as they must of been had arming the community been "unlawful")-. You have continually ignored the fact that that all things are lawful until they are made unlawful. That nobody has given me a right to keep milk in the fridge does not mean that I do not have the right. That is the ludicrous consequence of your argument that I must somehow deliver a source showing that keeping a knife or a sword handy for defence) was, in the tenth century, lawful. Which is why I am not playing games with you. If you think it was UNLAWFUL then in fact the obligation is on you to show that it WAS. NOT the other way around. Are you prepared for us to take this element of our dispute to WP:NOR? I argue that obligation is on YOU to show it was UNLAWFUL not on me to show it was LAWFUL. --Hauskalainen (talk) 18:44, 26 June 2010 (UTC)

He explains it in Chapter II (p. 19) by claiming the origins are in ancient Germanic tribes for whom arms bearing was a right and a duty of free men. This right apparently continued under common law and was recognized by the Laws of Cnut, and confirmed by Edward Coke and Blackstone. He quotes Coke, ""the laws permit the taking up of arms against armed persons". Unfortunately, he does not go into great detail about this, but provides the only RS I could find. Hauskalainen, we have to stay with reliable sources. Incidentally, the Bill of Rights 1689 was an imperial law, and therefore applied to the American colonies and continued as law after independance, although of course it no longer placed a restriction on legislatures. Also, the discussion is not whether bearing or keeping arms was lawful, but that it was a right, which requires sources. TFD (talk) 19:06, 26 June 2010 (UTC)

Here is a link to Coke's Institutes, where he states, "And yet in some case a man may not onely use force and aremes, but assemble company also". (Cramer seems to be disingenuous by quoting only part of the passage. The common law right described by Coke only extended to defending oneself in one's own house.) TFD (talk) 02:26, 27 June 2010 (UTC)

"Right" has about a dozen different meanings, and so any use of the word is ambiguous. Generally, a right in the US constitution is an enumerated, explicit prohibition against the government prohibiting. It sounds like the farther back situation that you are discussing is where the societal norms were to consider it not allowable for the government to ban personal ownership/use of firearms, or to prohibit one from storing milk in the fridge, or to prohibit people with the name Weatherby from walking on the street. It is gaming the Wikipedia system to require references that state such things explicitly. North8000 (talk) 03:42, 27 June 2010 (UTC)

There is no doubt that the right protected by the Second Amendment is a "legal right". And gaming the system means using Wikipedia policies and guidelines in bad faith. So I do not understand what you mean. TFD (talk) 04:31, 27 June 2010 (UTC)

I have not analyzed the above zillion words well enough to make the strong statement that it happening here. But I was thinking about it more with regards to the discussion of rights pre-dating the constitution. There are some statements that an objective person would accept as true that are not wp:ver sourcable, e.g. "Barack Obama has never climbed the mountain K2". The majority of statements in Wikipedia are not directly sourced per wp:ver. If a person would want to knock out or keep out one of these statements ostensibly strictly on sourcing grounds, in reality they have another motive, and I would call such an action "gaming the system". North8000 (talk) 12:42, 27 June 2010 (UTC)

To North8000: A "protected right" in the US constitution is an enumerated, explicit prohibition against the government prohibiting. A "right" includes the primary rights of life, liberty, and property, and includes all lesser rights needed to keep those 3 rights intact. It is impossible to enumerate all these "lesser" rights and the 9th Amendment to the Bill of Rights covers protects them as follows The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.. —Preceding unsigned comment added by 96.237.120.38 (talk) 12:03, 27 June 2010 (UTC)

I think that I fully agree with you, except to note that it common practice to use the word "right" to refer to both of those, and so, in practice, those are 2 of the definitions of that word. North8000 (talk) 12:42, 27 June 2010 (UTC)

I really doubt that we will ever agree to anything when we continue this discussion of "I believe this". Can we bring this talk page to discussions of what we read in reliable secondary sourcing giving coverage of the English history as it relates to the Second Amendment. Then, can we discuss what we are reading? Let's stop discussing what I believe, it the goal is improving the article, it isn't working! SaltyBoatr ^{get wet} 15:38, 27 June 2010 (UTC)

North8000, this discussion thread is about "English History". Obviously that means reading what modern scholars say about the right to keep and bear arms as it existed in England. These scholars have written about common law, statute and the opinions of legal scholars, including Edward Coke and William Blackstone, whose works were and still are used to interpret the law. Whether or not the Second Amendment protects a legal right does not affect the section about English history. TFD (talk) 17:00, 27 June 2010 (UTC)

You are right. I just used the 2nd as example to make my point about the many definitions of the word thus it's ambiguity. North8000 (talk) 17:46, 27 June 2010 (UTC)

You should read the article on natural and legal rights. TFD (talk) 18:31, 27 June 2010 (UTC)

Thanks. I'll do that. North8000 (talk) 19:30, 27 June 2010 (UTC)

I would hate to think that this is going to boil down to an argument about the very shady lines about what constitutes Rights and what type of right the English had. There is in practice little difference from the personal point of whether the right to have a weapon or a defensive device is a Natural Right, a Constitutional Right or a right of claim. We have evidence that people were armed with knives and swords and long bows so where is the evidence that they had no right to use these? We can see clear evidence that Kings tried to assert authority through magistrates to resolve disputes peaceably and that the citizenry were expected to resolve disputes in this way rather than resorting to violence. That custom remains the same in our modern society. But where is Salty's evidence that the British had no liberty to have arms to protect themselves in the ultimate extreme? The answer is that he has nothing except vague notions emanating from those wishing us to swallow another modern myth based on very little evidence. If you read the early English Histories they are full of conflicts between various regional kingdoms (powerful local families and their allies) which resulted in many violent raids one upon the other, especially in the areas of regional differences (English vs Welsh, Cumbrian kings vs the Scottish Kings, those under Danelaw and those under West Saxon Law. England was not a land of peace loving, tree hugging farmers. Maybe they would have liked to have been but the reality is that they were all of a mixed genetic and linguistic heritage and were constantly warring.

What is important is that it is incumbent on SaltyBoatr, if he wishes to continue to construct a myth that the English had no rights (by which I mean no liberty) to have arms for their self or collective defence in the period before the twelfth century, is to give us a clear reference which shows when and how that liberty was lost. --Hauskalainen (talk) 23:38, 27 June 2010 (UTC)

Isn't it equally incumbent upon you to prove that such a liberty did exist? The evidence either way is nebulous. Need we address this issue in the article?

No sources claim that the right to bear arms is a natural right. Also, could you please stick to reliable sources. Since articles can only be based on reliable sources, this lengthy discussion is pointless. TFD (talk) 12:56, 28 June 2010 (UTC)

The right to defend yourself is a natural right, and the right to arms is a right derived from that natural right. You cannot defend yourself unless you have in your possession weapons equal in power to those available to criminals. In this day and age that means guns. Depending on how far back you go, the weapons could be bows, spears, swords, and for Ugh the Caveman, clubs. The word criminals includes criminals in government who would use their power over the police and military, to in effect enslave you.96.237.120.38 (talk) 17:54, 28 June 2010 (UTC)

A definition problem again. One of the many working definitions of "right" is that which is not legally prohibited. In the beginning, this was everything. Under this definition, one would have to establish that the right was taken show in order to claim it did not exist. North8000 (talk) 13:17, 28 June 2010 (UTC)

Please provide a source that that definition was ever used in law. TFD (talk) 14:17, 28 June 2010 (UTC)

I am with TFD on this. I cannot follow the premise shown above by Hauskalaninen. Are we supposed to read and understand the Instituta Cnuti? Seriously? Hauskalainen is plainly engaged in original research. Stop it! Show us third party reliable sourcing that makes your point. Give us a chance to verify this Second Amendment theory from the Instituta Cnuti in third party reliable sourcing. Don't tell us what the sourcing says, just identify your sourcing and let us read it ourselves. SaltyBoatr ^{get wet} 16:41, 28 June 2010 (UTC)

Hauskalainen @SaltyBoatr and @The Four Deuces. Neither of you accepts it as a natural right? SCOTUS thinks it was and it cites Blackstone and others for this.

By the time of the founding, the right to have arms had become fundamental for English subjects. [See Malcolm 122–134]. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” [Alden v. Maine, 527 U. S. 706, 715 (1999)], cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.[See 1 Black-stone 136, 139–140 (1765)999. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” [id., at 139], and “the right of having and using arms for self-preservation and defence,”[id., at 140;see also 3 id., at 2–4 (1768)]. Other contemporary authorities concurred. [See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785)]. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence

(from http://www.supremecourt.gov/opinions/07pdf/07-290.pdf page 21)

What makes you think that you are right and the majority on the Supreme Court are wrong?--Hauskalainen (talk) 00:29, 29 June 2010 (UTC)

Nowhere in the Supreme Court decision or in the text you quote does it say that the right is a "natural right". Could you please look that term up and stop using it wrongly. Secondly, the reference you provide to "the right secured in 1689" is evidence that the right did not exist before 1689. TFD (talk) 00:43, 29 June 2010 (UTC)

Now you are playing WP:Game. The Supreme Court clearly quotes from 3 sources. Each of those sources says these things. I am not using the term wrongly. It is not right to say the right did not exist before 1689. It said it was SECURED in 1689. You cannot secure something which did not previously exist. The security was the constitional position that the King had no right to disarm proestant as he had previously done so. The Second Amendment only provides that the Federal Government shall not infringe the right of the people to have arms. It's about restrictions on the Federal government and not the grant of a new right to keep and bear arms. That right came from the common law (of which natural law is a part) and is subject to law set down by the States just as the right in English law can be modified in parliament. --Hauskalainen (talk) 01:36, 29 June 2010 (UTC)

Nowhere in DC Heller do the judges say that there is a "natural right" to keep and bear arms. And you cannot secure something that you already possess. (E.g., when you enter into a contract you secure the right to take possession of goods or services which may not yet have been manufactured or performed.) Please look up these terms. Also, please stop making accusations. TFD (talk) 02:01, 29 June 2010 (UTC)

I'm on the side of TFD and Salty here. Recognize too that those two, in my estimation, have very opposing political views on this issue (I could be wrong; that's my impression though). That said, Heller and again McDonald are relatively narrow, and it's a stretch to say that a modern court in a 1-justice majority is going to rely on a natural rights argument, particularly when that argument has been, since at least the 1940s, associated with "liberal" judges. Natural rights arguments have a role in this article, they're certainly relevant to any of the fundamental liberties, but it's a mistake to confound those natural rights with contemporary Supreme Court decisions, which are inherently original research/synthesis. Shadowjams (talk) 10:24, 29 June 2010 (UTC)

Answering Hauskalainen's question of 00:29 - We have discussed this same question several times now. Could you stop it with the delay game please? Get to work addressing my specific questions about the text you inserted into the article. Stop delaying. If you fail to reply, I will conclude shortly that you choose not to reply and I'll proceed to make edits deleting your problematic text.

The problem with your reliance on dicta in Heller is that there is much credible criticism[47][48][49][50][51] of the veracity of Scalia's dicta in Heller, which raises a red flag. If your "ancient 'natural right' in English history" thesis is sound, you should be easily be capable of finding confirmation in third party reliable sourcing, and not need to search out confirmation in primary court rulings. And, at most, Scalia's dicta in that primary court ruling is one opinion, and we still need to include not just your favorite POV, but we must fairly and neutrally include all significant POV's seen in reliable sourcing. SaltyBoatr ^{get wet} 13:26, 29 June 2010 (UTC)

@The Four Deuces We do not need the judges to say this in their judgement. I am using the judges to show that these are reliable sources. What the sources say is what they say, and that is that the right was regarded as a natural one.--Hauskalainen (talk) 06:49, 30 June 2010 (UTC)

SB continues his tried and true BS yet again. One of the above criticism is not a criticism of Scalia but a criticism of the dissent to Heller which obviously Scalia had nothing to do with.71.184.184.238 (talk) 15:07, 30 June 2010 (UTC)

My comments on those criticisms can be found here

http://en.wikipedia.org/wiki/Talk:Second_Amendment_to_the_United_States_Constitution#Lund_seems_to_be_suffering_some_sort_of_schizophrenia71.184.184.238 (talk) 15:11, 30 June 2010 (UTC)

@SaltyBoatr It would be helpful if you could bring your complaints about the text in the English history section here. I am not going to keep copying them over from the sandbox. I've done it enough times already. Now its your turn. You have had 5 days to do so since you had the article protected. If you want them discussed, bring the issues you have to the "Issues with the English History" section and number them in the series I have established. If you just want references for things that have been in the article for a long time then you can go back and add these yourself when the protection is lifted. I am not your nurse maid (though sometimes it fells like I am). If you think there are controversial statements that were NOT in the previous versions before my recent edits I'll be glad to get you a citation. If I have not done that by the time the protection is lifted,, just put a citation request into the article space at the appropriate point. Thank you for listing all those "credible criticism" articles re Heller. I have not read them all but the first one which I have read seems to support much of what I have been saying!! If you think that there are elements in these articles which dispute the presumption that the right to arms existed BEFORE the Bil of Rights then I think you must point out where this is said. As I read the first article you presented to us it seems to support my position and not yours. --Hauskalainen (talk) 06:49, 30 June 2010 (UTC)

No need. Please use the English history sandbox to see where citations are needed in your proposed text. I am not reassured by your statement "I'll be glad to get you a citation." Rather than a promise to do it in the future, you should just get the citations we have asked for now. Be aware, that per policy, the text which you have inserted that lacks verification can (and will) be removed after the page lock lifts. Also, I believe that should you revert to reinsert text that lacks citation, that will be considered to be disruptive editing. The purpose of this week of page protection is to allow us to work things out on the talk page, and stalling is a bad idea. Insert the requested citations now, or expect that the text will be removed. Neither should we be using this talk page to discuss your "issues" or "myths". It shouldn't take 100,000 words of talk to provide citations for ten sentences. Provide the requested[52] citations now! SaltyBoatr ^{get wet} 14:18, 30 June 2010 (UTC)

Back to the same old BS by SB! 71.184.184.238 (talk) 14:33, 30 June 2010 (UTC)

McDonald decision

The Supreme Court has ruled that the Second Amendment is incorporated (made applicable to the States) via the Fourteenth Amendment. 4 Justices vote for incorporation via the Due Process Clause, while Justice Thomas voted to do it through the Privileges or Immunities Clause; the 4 dissenters voted against incorporation.

The article needs to be updated, but first we should read the decision so we update it correctly. SMP0328. (talk) 14:31, 28 June 2010 (UTC)

No. We should be using reliable secondary sources. Directly reading the decision is using primary sources. SaltyBoatr ^{get wet} 14:45, 28 June 2010 (UTC)

Did I say "only"? We should read the McDonald opinions, in addition to using reliable sources, before updating the article. I'm sure everyone, other than you, understood my meaning in the original comment. SMP0328. (talk) 14:50, 28 June 2010 (UTC)

I apologize. Sometimes I have a hard time understanding what you write. What did you mean when you wrote: "we should read the decision so we update it correctly"? SaltyBoatr ^{get wet} 15:12, 28 June 2010 (UTC)

We should read the opinions so we can provide exact citations when referring to any part of any of those opinions. Of course, any such citations will be provided together with reliable secondary sources. SMP0328. (talk) 15:25, 28 June 2010 (UTC)

The Supreme Court violated WP:NOR and WP:NPOV and their opinion will not be permitted here until corrected by sources found to be reliable by all editors. In the meanwhile this article is a catastrophe. Go start reading at the top and tell me how far you have to go before you even find what the Second Amendment means. - McOrion (talk) 16:28, 28 June 2010 (UTC)

I believe that wikipedia must bow to the Supreme Court on a question of law and not the other way round.96.237.120.38 (talk) 17:57, 28 June 2010 (UTC)

I vote McOrion goes to Washington to order the Supreme Court to change its decision, so that it is in accord with wiki policies. 96.237.120.38 (talk) 18:01, 28 June 2010 (UTC)

Some press accounts of the outcome of the Bilski patent case have been laughably wrong to this point. Secondary sources definitely require a once-over. However, I would like to point out that the syllabus of the case at the beginning is a secondary source. It is not written by the Justices, but is the Court Reporter's own summary of what the Justices wrote, prepended to the actual text of the case. bd2412 T 17:10, 28 June 2010 (UTC)

McOrion, the Supreme Court is not bound by Wiki-policy and did cite secondary sources in its opinion. SMP0328. (talk) 17:38, 28 June 2010 (UTC)

Wiki allows use of primary sources A primary source may only be used to make descriptive statements that can be verified by any educated person without specialist knowledge.96.237.120.38 (talk) 18:10, 28 June 2010 (UTC)

On legal articles it looks like wiki policy prefers primary sources over secondary sources. http://en.wikipedia.org/wiki/Secondary_sources Law In the legal field, source classification is important because the persuasiveness of a source usually depends upon its history. Primary sources may include cases, constitutions, statutes, administrative regulations, and other sources of binding legal authority, while secondary legal sources may include books, articles, and encyclopedias.[17] Legal writers usually prefer to cite primary sources because only primary sources are authoritative and precedential, while secondary sources are only persuasive at best.[18]96.237.120.38 (talk) 18:19, 28 June 2010 (UTC)

In retrospect, for an article on the Second Amendment, the only primary source is the Second Amendment; any court decision explaining the underlying meaning of the Amendment would be a secondary source. Of course, the decision in McDonald would be a primary source for the article, McDonald v. Chicago. bd2412 T 19:14, 28 June 2010 (UTC)

"Legal writers usually prefer to cite primary sources...." Exactly. We are not legal writers. TFD (talk) 20:10, 28 June 2010 (UTC)

If you are writing about a legal issue, you are a legal writer.96.237.120.38 (talk) 20:39, 28 June 2010 (UTC)

That quote[53] is taken from a book written to help legal scholars in academic writing. It is not a guide for writing tertiary sources. We are editors, not writers. TFD (talk) 21:00, 28 June 2010 (UTC)

Let's be honest with each other. It seems that many editors around here favor quoting snippets from the obiter dictum of court rulings because they find it useful to advance the agenda of their personal ideology. That gets it backwards and would violate WP:NPOV. The policy here is to read all the sourcing (including that with which we disagree), then we are to write an article that matches the sourcing. SaltyBoatr ^{get wet} 21:18, 28 June 2010 (UTC)

Let's be honest with each other. It seems that at least one editor favors quoting from alleged historians because they find it useful to advance the agenda of their personal ideology. That gets it backwards and would violate WP:NPOV. The policy here is to read all the sourcing (including that with which we disagree), then we are to write an article that matches the sourcing. 71.184.184.238 (talk) 14:05, 30 June 2010 (UTC)

Exactly. The "exception" for primary sources as it's meant in those guidelines is for obvious stuff, like "the court voted x-x" or "Alito joined the majority", or "the court remanded". Things like that. Those are fine. It's not within guidelines to start drawing conclusions from an opinion, or worse yet, from a series of opinions. That's what law review articles are for, and if you want to be a legal writer and write a law review article, say hello to the library, goodbye to the sun, and we'll see you in 3 months. Shadowjams (talk) 22:11, 28 June 2010 (UTC)

while all this bickering continues, the article continues to state that 'a decision is expected soon', when a decision has already been rendered. rather than arguing nuances of reliability, a primary news source should certainly suffice to bring the article current. may i suggest http://online.wsj.com/article/SB10001424052748703964104575334701513109426.html ? (i leave it to others, as i'm long retired from editing this article, or engaging in the talk page circle-jerk). happy trails. Anastrophe (talk) 00:46, 29 June 2010 (UTC)

Ah, Anastrophe, if everybody abandoned the "circle-jerk" then we would be left with only one user jerking the article alone. P.S. I have to appreciate the sublime humor behind the fact that on the day of the most definitive court ruling in the history of the second amendment, the article here is locked behind another "crocodile tears" lock. It couldn't be more fitting if it had been planned. - McOrion (talk) 02:17, 29 June 2010 (UTC)

Haha... It's hardly "bickering", rather than uncontroversial applications of policy being discussed here. There's no hurry. Let's incorporate the obvious facts into the articles (seem to have been done quite well) and in time the scholarly output (trust me, it will be quick) will fill in the gaps. I always love the "I left the encyclopedia..." style talk page edits. If you're interested in the topic, responsible, and still here, then help, let's quit this meta debate bullshit. Shadowjams (talk) 09:54, 29 June 2010 (UTC)

If you want to see/source the wording of the amendment on the constitution, you look at / source the constitution, you don't go to a newspaper for it's opinion on what the wording is. Any rule that someone says says otherwise is etither faulty, or being misapplied. It is beyond a reliable source, it is by definition correct. Ditto for the Supreme Court's on it's meaning. North8000 (talk) 12:26, 29 June 2010 (UTC)

I'm not sure if I fully understand your point, but actually no, we don't go directly to the source. I said above that we do if that involves very basic facts, but Supreme Court decisions are hardly self explanatory. To think otherwise is a naive understanding of how case law works. Multiply that by the fact that a number of decisions, this one included, have a majority not agreeing on the precise way to reach the same conclusion. It's not sufficient to use primary sources and that's why we have policy about that. Shadowjams (talk) 20:40, 29 June 2010 (UTC)

The "meaning" of a Supreme Court opinion depends on interpretation of the Ratio decidendi versus the Obiter dictum. People spend big bucks and many years learning at expensive law schools, and they still don't agree about how to interpret this! It is almost always against policy here for editors around here to attempt to directly interpret the meaning of dicta in court rulings. The policy here is descriptive statements that can be verified by any educated person without specialist knowledge. Needing a law school education is considered 'specialist knowledge', I think. Fortunately, this is not a problem for us because there is sooooo much excellent secondary sourcing available for the 2A topic. It is typically easy to find the info you want by using secondary sourcing as opposed to directly reading the court document. SaltyBoatr ^{get wet} 20:56, 29 June 2010 (UTC)

Secondary sources which include alleged historians who couldn't find their ass with two hands, directions, a map, a gps and explicit instuctions.71.184.184.238 (talk) 14:08, 30 June 2010 (UTC)

Edit request from Usmc85, 29 June 2010

{{editprotected}} This section needs updating as of today due to another court ruling by the Supreme Court.

MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS. Supreme Court Decision today: http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf which seems to verify the Second Amendment to the US Constitution does give individuals the right to bear arms.

Usmc85 (talk) 05:20, 29 June 2010 (UTC)USMC85 Usmc85 (talk) 05:20, 29 June 2010 (UTC)

This looks like a good idea, but specific text supported by consensus of editors here (or at least unlikely to be opposed) is necessary before the article can be updated. This edit takes care of saying that the ruling is out now. - 2/0 (cont.) 07:53, 29 June 2010 (UTC)

That's a tricky criteria to use in this case. From the folks who did not like the ruling and its significance, and wish it wasn't so, accurate and on-target writing is the text most likely to be opposed. North8000 (talk) 10:03, 29 June 2010 (UTC)

The wording should more closely match the specific effect of the court ruling, which like Heller "...gives individuals the right to have handguns in the home for self defense." SaltyBoatr ^{get wet} 13:01, 29 June 2010 (UTC)

Heller does not "give" anything. At best it upholds the pre existing right to arms.71.184.184.238 (talk) 14:10, 30 June 2010 (UTC)

following the pattern of this article, how bout we just give the main meaning and concept an indirect sentence or two, and then give undue weight to discussing that it wasn't a unanimous opinion, discussing the dissenting minority opinion as much as the majority opinion. And then lots of undue weight coverage with a spin towards saying it has minimal relevance. Maybe use wiki-lawyering to keep the main concepts from getting in very much, and to give the above undue weight items lots of coverage. North8000 (talk) 13:33, 29 June 2010 (UTC)

Can someone at least update the last sentence of the lead. Rreagan007 (talk) 14:34, 29 June 2010 (UTC)

 Done by AliveFreeHappy. - 2/0 (cont.) 18:02, 29 June 2010 (UTC)

Let's just read the most reliable sourcing that discusses the ruling, and fairly represent what we read into the article. The dust might need to settle a bit, as I noticed that many of the news articles yesterday seemed shallow and hastily prepared. There should be some more in depth articles coming up, watch SCOTUSblog and some of the University Law Reviews. This whole issue is two years old now, with McDonald being an extension of the line of thought first seen in Heller. I found yesterday's Newshour interview between Paul Helmke (Brady) and Wayne LaPierre (NRA) transcript here to be particularly revealing. The commentator began with the assumption that LaPierre would see the ruling as "right" and Helmke would see the ruling as "wrong", but in the discussion that followed the reactions from Helmke and LaPierre seemed just the reverse! Clearly both these experts see that there will be a flurry of lawsuits this coming year, and they both agree that the lawsuits will center on the "presumptively lawful" exemption seen both in Heller and in McDonald. And, both those experts were well aware of the results of the scores Heller challenges which already have worked through the courts. LaPierre could see they would have to fight very hard, they have an up hill fight, as he put it: "a lot of work ahead". And, Helmke said (based on the experience seen with Heller) that: "they're going to lose most of those lawsuits". Bottom line after the dust settles is that we are seeing here that the SCOTUS with Heller and McDonald has protected handguns for self defense in the home, and has validated as "presumptively lawful" (essentially all) other gun control regulations as not being in violation of the Second Amendment. One law professor describes it as "...the Supreme Court believes that almost all gun control measures on the books today are perfectly legal", and LaPierre and Helmke both know this. SaltyBoatr ^{get wet} 14:52, 29 June 2010 (UTC)

That professor is an idiot since the Chicago laws are still on the books and based on the ruling, those "still on the books" laws will get deep-sixed.71.184.184.238 (talk) 18:14, 30 June 2010 (UTC)

McDonald as it pertains to the ancient English History section

Plainly, the McDonald court ruling is going to give fodder to this talk page debate over what the reliable sourcing says about the "true view" of English History behind the Second Amendment. (Or the 'myth'.) Obviously, it is early to say, but here is an analysis at SCOTUSblog[54] which has two themes. 1)There is tension between POV's as to the "self-defense" rational and 2) There is disagreement about timelines. Our 2A article must walk a neutral path, and present all significant POV's seen in reliable sourcing fairly. For instance, one POV places a greater emphasis on the "self-defense" rational than another POV. And, the bigger deal here, the point #2 describes how perceptions of the meaning of the 2A have evolved over the 220 year history of this country. The perception of the 2A during Reconstruction was entirely different than the modern interpretation. While some may argue that the true meaning of the 2A has been what they deem today to be the "original meaning", we see in this paper that another significant viewpoint is that the popular meaning has been changing. The conclusion of the SCOTUSblog article casts doubt on the value of law office history as being useful to academic historians. Our challenge is to fairly write these disparate ideas seen in these various sources into the article. SaltyBoatr ^{get wet} 17:33, 29 June 2010 (UTC)

Natural right

One editor continues to claim that the right to keep and bear arms is a natural right. Could they please provide a source for this. No source or judgment I have read describes it as a natural right. TFD (talk) 07:00, 30 June 2010 (UTC)

Rights derived from natural rights are themselves natural rights. Granted rights derived from granted rights are themselves granted rights. Two examples. The right to keep and bear arms is derived from the right to defend yourself. The right to defend yourself is a natural right, so the right to arms is a natural right. The right to food stamps on the other hand is a granted right. The right to spend your food stamp money is derived from the the granted right to food stamps and is therefore itself a granted right.

Snippets from them the McDonald opinion that may help understand the difference between defending yourself (a right you always have) and getting food stamps (a right based on income and also a right that did not exist prior to the passage of the food stamp laws).

It has always been widely understood that the Second Amendment, like the First and Fourth Amend-ments, codified a pre-existing right

Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner,The Unconstitutionality of Slavery

Heller’s conclusion that “individual self-defense” was “the central component” of the Second Amendment’s right “to keep and bear Arms” rested upon its view that the Amendment “codified a pre-existing right” that had “nothing whatever to do with service in a militia71.184.184.238 (talk) 14:29, 30 June 2010 (UTC)

If you accept that natural = fundamental then also see the following quote - Please note that citations have been removed for clarity

Heller explored the right’s origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,”. Blackstone’s assessment was shared by the American colonists. As we noted in Heller, King George III’s attempt to disarm the colonists in the 1760’s and 1770’s “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.” The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Anti federalist rhetoric.71.184.184.238 (talk) 14:45, 30 June 2010 (UTC)

If you accept that unalienable = natural then the following from the Declaration of Independence should also be of help

'"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.71.184.184.238 (talk) 14:49, 30 June 2010 (UTC)

Hauskalainen @ The Four Deuces I don't understand why you have made a new section for this when we have been discussing it earlier. Its not true that we have no sources for this. I have given you some already but you imply that you don't like them. But we have in addition Sir William Blackstone himself, the prominent jurist of his day who talked about the right to have arms being a "natural right of resistance and self-preservation",

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

This was repeated by W.Duer in "Outlines of the Constitutional Jurisprudence of the United States" pp 31–32 (1833)" (already cited to you in the previous section)

Then we have the Bill of Rights itself which says

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare... that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Admittedly this one does not explain the nature of these "ancient rights and liberties" but they are widely believed to be natural rights because they are not a right granted at any previous time in history. If your view is that the rights and liberties came along with the duties laid down in law then I must tell you that that is an entirely POV position and not supported by any contemporary document... it seems to have begun with Malcolm's book and has no basis in historical fact.--Hauskalainen (talk) 14:57, 30 June 2010 (UTC)

Neither of those sources says that it is a "natural right". Blackstone calls it an auxiliary right and the Lords call it an ancient right. Please find a source that calls it a natural right or stop claiming that it is one. Lysander Spooner's reference (from 1860!) to "the natural right" is not persuasive. Your argument, "Rights derived from natural rights are themselves natural right" is Sythesis. Please find a reliable source that calls them "natural rights". Your comment, "they are widely believed to be natural rights because they are not a right granted at any previous time in history" is false, not supported by sources. As for your statement, "your view is that...", I have no idea what you are talking about. When did I ever say that? I have not presented any views other than that we follow reliable sources. BTW I created this section because you keep claiming that they are natural rights. Could you please read up about what the term "natural rights" means so we can stop this unneccessary discussion. TFD (talk) 15:50, 30 June 2010 (UTC)

The right to self defense is an "ancient right" going all the way back to Ugh the caveman. It is a "natural right because nobody gives it you. It is an "unalienable" right because no one can take it away from you, and lastly, it is a "fundamental" right because if it wasn't someone would KILL YOU! 71.184.184.238 (talk) 17:57, 30 June 2010 (UTC)

and it is an "auxiliary" right because it is derived from the primary right to life. From the dictionary "auxiliary" - 1 a : offering or providing help b  : functioning in a subsidiary capacity. Do you GET IT yet?71.184.184.238 (talk) 18:00, 30 June 2010 (UTC)

It is frustrating that Hauskalainen seems incapable of pointing to third party secondary sourcing, and instead favors telling us over and over again using thousands of words his personal thoughts cluttering the talk page. That said, perhaps the compromise here is that the "natural rights" viewpoint of the Second Amendment does exist in reliable sourcing relative to modern times in the USA. Certainly in recent times advocates of one of the POV's have sought to frame a "natural rights" argument, and we could neutrally describe that they are doing this. It doesn't look like we can blindly parrot their 'originalism' assertion that this is an ancient connection. But, we can say that "persons X,Y&Z" claim it has an ancient connection in English history. SaltyBoatr ^{get wet} 16:48, 30 June 2010 (UTC)

Please provide a source that anyone calls the right to keep and bear arms a natural right. TFD (talk) 17:31, 30 June 2010 (UTC)

Funny thing! I did that this morning! Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner,The Unconstitutionality of Slavery

Did you miss natural right of all men‘to keep and bear arms’?71.184.184.238 (talk) 17:44, 30 June 2010 (UTC)

@TFD 17:31. You see it sometimes in discussions of a 'natural right' of revolution. See for instance the Williams book pgs 85, 121 and 145, ISBN 9780300095623, which discusses whether the 'natural right' of revolution is, or is not, considered by the framers to be protected by the 2A. (though this doesn't confirm the ancient English History in connection to self protection). The Lysander Spooner quote is the tip of an iceberg about discussion of the 'natural right' of 19th Century American slaves (and freed slaves) to have guns for self protection. (By the mid-19th Century 'bear arms' much more commonly meant 'have guns' than in the previous century.) See discussion of this Lysander Spooner premise in Saul Cornell's book ISBN 9780195147865, page 154. Again, this is not confirmation of the ancient English History, but rather confirmation of the advent of the "self protection" viewpoint of the 2A emerging in the mid-19th Century. This is touched on in the circularity of the "self defense" rationalization behind the lastest McDonald decision, see Alison LaCroix's criticism of the SCOTUS methodology here: "The suggestion is that we in 2010 now have access to what they in 1868 meant, even though a different “they” in the 1870s and 1880s had an entirely different idea about what people in 1866 meant.". SaltyBoatr ^{get wet} 18:09, 30 June 2010 (UTC)

I disagree in one respect. The right is the right to self defense. The Founders were more worried about self-defense from an abusive government. In the 19th Century the emphasis was placed on "self defense" from you fellow man. The right has always been about self defense. The emphasis on who you defend yourself from is the only thing that has changed.71.184.184.238 (talk) 18:11, 30 June 2010 (UTC)

IP, no I did not miss it. In fact I said, "Lysander Spooner's reference (from 1860!) to "the natural right" is not persuasive". I also said, "Please find a reliable source that calls them "natural rights" (my emphasis). No legal scholar from Coke to Blackstone to Story to Scalia calls it a "natural right". Saltyboatr, saying that people have a "natural right" to life, liberty and property is not the same as saying they have a natural right to bear arms or any of the other rights protected under the U. S. Bill of Rights. That is the understanding of all the scholars I presented and I have found no reliable source that holds differently. The most they say is that without these "auxiliary" rights, they would not be able to execute their natural rights. TFD (talk) 18:54, 30 June 2010 (UTC)

Lysander Spooner was in fact a noted legal scholar, whose works are still in print after 150 years.

http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Dus-stripbooks-tree&field-keywords=lysander+spooner&x=0&y=0

http://en.wikipedia.org/wiki/Lysander_Spooner - Lysander Spooner (January 19, 1808 – May 14, 1887) was an American individualist anarchist, lawyer, entrepreneur, libertarian, political philosopher, abolitionist, supporter of the labor movement, and legal theorist of the nineteenth century.71.184.184.238 (talk) 19:07, 30 June 2010 (UTC)

wikilink to "natural rights" article was again deleted

The English section "used to have" a wikilink to the natural rights wiki article. I know because I restored that wikilink after SB had deleted it. It seems someone wants no attention given to what a "natural right" is.

I will again restore it after the article is unprotected. http://en.wikipedia.org/wiki/Natural_and_legal_rights71.184.184.238 (talk) 18:06, 30 June 2010 (UTC)

Someone needs to source that the term "natural right" used by Blackstone centuries ago is the same as the term "natural right" today. I recall reading in reliable sourcing that there is significant differences between Blackstone's meaning and the modern meaning. Therefore the Wikilink is inappropriate WP:SYN. (I forget the precise source at this moment, but is discussed above. See above.) SaltyBoatr ^{get wet} 18:12, 30 June 2010 (UTC)

The Constitution is a contract. Contract law states that a contract MUST be interpreted based on the language used at the time that it was written. I hope you remember all the fuss you made about what "well regulated" meant.71.184.184.238 (talk) 18:16, 30 June 2010 (UTC)

BTW: Since you believe that the natural rights article is in violation of WP:SYN, why don't you go over there and delete it. I believe that I will LOVE the results of such an action. The fact that you won't will only add to my pleasure.71.184.184.238 (talk) 18:19, 30 June 2010 (UTC)

I have not read anything that says the meaning of natural rights has changed since Blackstone, and therefore see no reason to prove that the the terms has the same meaning. If you think it has changed then you should find an alternative definition used in modern writing. TFD (talk) 18:59, 30 June 2010 (UTC)

@TFD. Digging, I re-located the source I was remembering that questions the Blackstone 'natural right' argument familiarly used by the individual rights POV camp. See the Heyman article in the Chicago-Kent Law Review Vol76:237, pgs 253-255[55]. Blackstone discusses the natural rights in context of his essay on types of absolute rights. According to Heyman's analysis of Blackstone, the types of rights belonging to the individual are life, liberty and property. When Blackstone discusses the right to arms, he discusses it not as an 'absolute right' but rather as an "auxiliary subordinate right of the subject". Blackstone breaks down 'natural rights' differently than we do in modern times, and therefore the wiki-link is WP:SYN. At the least, we need to neutrally describe that scholar's of Blackstone hold differing interpretations as to Blackstone's meaning of 'natural right' and that the modern interpretation favored by the 'individual gun-rights POV camp' is just one significant POV, and not agreed universally. SaltyBoatr ^{get wet} 19:35, 30 June 2010 (UTC)

NH Constitution and Natural Rights

According to the NH Constitution, Article 2, self defense is a "natural right" and the rights to arms for defense is listed as a right "auxiliary" to that natural right. Notice that The right to arms is Article 2-a, making it "auxiliary" to Article 2. For the terminally stupid, there cannot be an Article 2-a if there is no Article 2.

http://www.nh.gov/constitution/billofrights.html

[Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin. June 2, 1784

Amended 1974 adding sentence to prohibit discrimination.

[Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. December 1, 1982

Hopefully this will stop what seems to be never ending bickering on "natural" rights, auxiliary rights, fundamental rights and whatever other kind of rights anyone cares to bring up.71.184.184.238 (talk) 19:24, 30 June 2010 (UTC)