Talk:Second Amendment to the United States Constitution

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Former good article Second Amendment to the United States Constitution was one of the Social sciences and society good articles, but it has been removed from the list. There are suggestions below for improving the article to meet the good article criteria. Once these issues have been addressed, the article can be renominated. Editors may also seek a reassessment of the decision if they believe there was a mistake.
Article milestones
Date Process Result
July 10, 2006 Good article nominee Not listed
October 14, 2008 Good article nominee Listed
December 17, 2008 Good article reassessment Delisted
Current status: Delisted good article


Anti-federalist vs. federalist, i.e. state's rights vs. federal rights[edit]

I believe the section on ratification debates does not sufficiently set the scene of the vicious polarized debate over ratification of the constitution, particularly in ratification conventions in Virginia and New York, which were the tipping point. This is a point strongly emphasized in histories which I would suggest to cite in the article. According to these sources, the Bill of Rights was demanded by foes of the constitution as a precondition for ratification, as Alexander Hamilton led the federalist fight for ratification in the battleground state of New York (see pp. 261 in "Alexander Hamilton", Chernow). Stevens' dissent in Heller emphasizes a central point that the amendment "was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States." To give fair historical context to this view, held by four of the justices, this article should add detail from historical sources to the effect that:

- the ratification was a very close and hard-fought protracted political battle over many months, hinging on Virginia, New York and New Hampshire.

- the two sides were very organized, with the opposition Anti-federalists supporting fundamentally a position of states' rights over federal rights, their central objection being that the constitution unnecessarily strengthened the federal government over the states when compared to the much weaker central government then in existence under the articles of confederation.

- the bill of rights was offered as a concession to the anti-federalists to protect states' rights to secure their vote for the constitution

- note that the 2nd amendment, as interpreted by stevens, is primarily a concession to uphold states' rights over federal rights

- that per Stevens interpretation, a pro-states right position gives the states strong rights to pass legislation without federal interference

- to cite historical sources that political considerations of the polarized fight over states rights were the driving force in the debate and negotiation within the ratification conventions and congress over wording of the bill of rights.


While it is not critical to the article, I'd advocate as a point of interest, to make the article more engaging reading, to reference sources that note the irony that a pro-states rights position on the second amendment favors allowing states to pass legislation on guns, and an anti-states rights position on the second amendment asserts federal authority to prohibit states from making their own choices on gun legislation. (The irony lying in the fact that states rights is traditionally a conservative cause.)

While each of your points may have merit (depending on sourcing) stringing them together like that is WP:SYNTH unless you have a source making that entire argument. Steven's interpretation in particular carries no legal weight as it is a dissent. That general viewpoint (a collective state right) was explicitly rejected by the majority. But even still we cover that POV (indeed, extensively quoting Stevens) in the article already Second_Amendment_to_the_United_States_Constitution#Notes_and_analysis . To put additional WP:WEIGHT on the losing argument would be WP:UNDUE. Additionally your argument for the bill of rights as a whole to be considered an anti-federalist bargaining chip makes no sense for the vast majority of the amendments, which clearly describe and protect individual rights, not a preservation of state power. That interpretation (individual) has been repeatedly reinforced as each amendment was incorporated against the states. Also, please sign your comments by adding 4 tildes to the end of your comments. ResultingConstant (talk) 18:54, 23 January 2017 (UTC)

Thank you. I would cite Federalist paper 84, Hamilton, the preeminent Federalist, argues the Bill of Rights is superfluous: "Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?" This Federalist viewpoint (later overruled) was that the Constitution already sufficiently guaranteed rights as the power to abridge these rights were not explicitly granted by the Constitution. Anti-federalists demanded more explicit protections against Federal power. All of this highly political argument followed the axis of strengthening federal power versus strengthening restrictions on federal power (and leaving that power to the states). I agree that its questionable whether anti-federalists more strongly sought protection of states rights versus individual rights in the 2nd amendment, per Stevens argument, but I would assert it's a historical fact that the Bill of Rights was in fact a bargaining chip yielded to foes of the constituion in the ratification battle. [1]

I would appreciate further detail on the UNDUE weight considerations; specifically is it our explicit understanding that when the supreme court makes a ruling the balance of page-space of this article should change accordingly, and if so, should that split be 5/4 or should that split be, for example 90/10 since only the majority opinion carries? I only make this point to say that Stevens is a gifted legal scholar (as is scalia), so to me is a very credible source for analysis, and I believe a great deal of research went into that argument. So, I'm not convinced that the layout of historical/legal arguments for hotly debated interpretations within a Wikipedia article should leap to a different distribution of page space (i.e. 10/90 back when Miller held precedent and 90/10 now that Heller has carried by 5/4). To me the two sides should still carry comparable page space. THank you again for taking the time to make your thoughtful and considerate response. 108.51.128.84 (talk) 20:33, 23 January 2017 (UTC)

Well, Heller does not contradict Miller, so the swing is not as extreme as you indicate, but at a high level yes. Across all of wikipedia, the most current understanding is given the most weight, with prior understandings given weight as appropriate to document the historical flow. Stevens is a notable minority viewpoint, and we should cover it. We do cover it. But there have now been multiple SCOTUS rulings which confirm Heller, Steven's viewpoint has well and truly lost at this point (which does not rule out the possibility that it will win later, but thats unlikely, especially with Trump). As a more general rule, WP:WEIGHT dictates that we should cover various viewpoints in proportion to the amount of coverage (especially scholarly coverage) they have gotten. Since Heller, which viewpoint do you think has gotten more ink? ResultingConstant (talk) 21:11, 23 January 2017 (UTC)

Thank you for the lively discussion. I would summarize my position as this: I believe the second amendment is a politically sensitive topic. This would explain its continuing designation as a semi-protected article. I believe the reason it is politically sensitive topic is because there are two differing sides on how to interpret the meaning of the words, and that both political sides claim aspects of the history of the amendment's creators to defend their side of the argument. I would also say that it was a controversial topic in 2008 and it is still a controversial topic in 2017. I would therefore argue that a neutral point of view is still called for.

In my view, in 2008, all justices and their clerks had access to essentially the same historical and legal record as we do today, and the court was split politically on how to interpret the history along similar lines that different contributors to this wikipedia article are split. Both Scalia and Stevens looked at the same history and read it different ways. Per SCOTUS history since Bush v. Gore especially, the two opinions are adversarial and neither side makes much effort to present counter-evidence in their review of history, as each can rely on the other side to do so. In my personal, opinion, Stevens' argument (and the many law articles commenting on it) is an excellent summary of the amendments' history along which to structure an article representing that side's view. To me, the 5/4 decision and others since are reflective of political numbers on the courts and do not effect the underlying history that occurred before 2008 nor the validity of both sides' underlying legal interpretation of the history.

To the argument that 2008 and subsequent are now precedent and have thus "won" the argument, I would quote Stevens' 2008 dissent:"Since our decision in Miller (1939), hundreds of judges have relied on the view of the Amendment we endorsed there... Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself,... would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

In Stevens' view, the majority in 2008 broke from precedent and formulated a new reading of the amendment. I would assert that this issue is likely to be further re-interpreted as the political balance in the SCOTUS may change at some point in the future, and that the ideological question is still contested and not "settled". Therefore the wikipedia article should still give equal or 5/4 or similar coverage of both viewpoints, and so I think for the pro-gun side to claim 90% of the page space to the historical underpinnings of the arguments is a politically-influenced "overreach" in its interpretation of the guidelines and not in the spirit of neutral-point-of-view.

Thank you again. (I feel a bit Hamiltonian that my answers keep getting more and more long-winded, my apologies.) 108.51.128.84 (talk) 22:32, 23 January 2017 (UTC)

The states' desire to keep the new federal government from usurping control of militias was a driving force behind the 2nd Amendment. While an individual right may be derived from a variety of sources, the militia issue should not be hidden. It's why the Amendment mentions militias. I was shocked to learn that it is not generally recognized that the state/federal power struggle was integral to the original debate. It's a really basic fact, like how fear of indeterminate arrest lead to habeas corpus. BillHaywood (talk) 19:05, 19 March 2017 (UTC)

You would need sources specifically about the Second Amendment rather than the bill of rights in general. There was no controversy about whether these rights existed, merely whether they should be protected. At the time, they did not know that the courts would be used to protect them. And there was very little discussion of the Second Amendment. Also, we should rely on legal historians to determine what the circumstances surrounding the enactment of the Second Amendment were. All that a majority of Supreme Court judges tells us is how legislation will be interpreted in the courts. TFD (talk) 20:42, 19 March 2017 (UTC)

I point out that some people, perhaps even well meaning educated people are using terms loosely that had different common usage then than now, and in some cases the written legal definition is different than the common usage now.

Militia- https://www.law.cornell.edu/uscode/text/10/246

"10 U.S. Code § 246 - Militia: composition and classes

Current through Pub. L. 114-38. (See Public Laws for the current Congress.) US Code Notes prev | next (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

This law definining the militia has been on the books in almost this exact form since the 1790s.

"Well Regulated" http://www.constitution.org/cons/wellregu.htm


"The meaning of the phrase "well-regulated" in the 2nd amendment

From: Brian T. Halonen <halonen@csd.uwm.edu>

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."


1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it. Montestruc (talk) 04:34, 25 June 2017 (UTC)

Additional point.

Commonly people make anachronistic assumptions about how societies worked in the past, presuming that modern institutions existed them, that are often simply factually wrong. Example, our modern ideas about police and public prosecutors.

http://www.daviddfriedman.com/Academic/England_18thc./England_18thc.html

"Part I: The Private Prosecution of Crime

England in the 18th century had no public officials corresponding to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. Attempts to create public prosecutors failed in 1855 and again in 1871; when the office of Director of Public Prosecution was finally established in 1879, its responsibilities were very much less than those of an American district attorney, now or then. In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyranical and, worse still, French.

Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial."

My point being that any modern reading of the history of that period and the actual intended meaning of the constitution must, for accuracy dispense with anachronistic assumptions.

The American colonies were if anything less civilized and modern than England. All citiens were the militia, all citizens had the duty to enforce the law, only "cowards" and "criminals" failed to do there duty to uphold the law. This is why the battle of Lexington & Concord took place, all of the townsmen and farmers in the area acted as if they were police officers and the British Regulars had just murdered several villagers in Lexington and they were committing a large scale armed robbery in Concord. This may help you wrap your mind around what was happening.

References

Montestruc (talk) 04:52, 25 June 2017 (UTC)

Please provide specific suggestions (e.g., what edits) as to how this WP article can be improved. Thanks. – S. Rich (talk) 05:40, 25 June 2017 (UTC)

The US v. Cruikshank case should be noted as that all aspects of that case have been overruled by subsiquent SCOTUS rulings, that the whole basis of the case was in effect ruling in favor of southern white supremacists who had murdered ~ 150 black militia attempting to defend election results at a courthouse in rural Louisiana in order to overturn the election.

Again - US v Cruikshank was in support of white supremacists who murdered ~ 150 black militia freedmen trying to defend their right to vote and the validity of their ballots. This would give reasonable and proper context to later claims to the validity of US v Cruikshank. Montestruc (talk) 06:22, 25 June 2017 (UTC)

Read the US v Cruikshank article for ref. Montestruc (talk) 06:23, 25 June 2017 (UTC)

The definition of militia in federal law should be explicitly cited as that is a matter of federal law and has been since the 1790 and is frequently misinterpreted as it appears to be in this article. Montestruc (talk) 06:37, 25 June 2017 (UTC)