Talk:Second Amendment to the United States Constitution
The subject of this article is controversial and content may be in dispute. When updating the article, be bold, but not reckless. Feel free to try to improve the article, but don't take it personally if your changes are reversed; instead, come here to the talk page to discuss them. Content must be written from a neutral point of view. Include citations when adding content and consider tagging or removing unsourced information. |
This is the talk page for discussing improvements to the Second Amendment to the United States Constitution article. This is not a forum for general discussion of the article's subject. |
Article policies
|
Find sources: Google (books · news · scholar · free images · WP refs) · FENS · JSTOR · TWL |
Archives: Index, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36Auto-archiving period: 9 days |
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. | ||||||||||||||||
| ||||||||||||||||
Current status: Delisted good article |
This article has not yet been rated on Wikipedia's content assessment scale. It is of interest to the following WikiProjects: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Please add the quality rating to the {{WikiProject banner shell}} template instead of this project banner. See WP:PIQA for details.
Please add the quality rating to the {{WikiProject banner shell}} template instead of this project banner. See WP:PIQA for details.
Please add the quality rating to the {{WikiProject banner shell}} template instead of this project banner. See WP:PIQA for details.
Please add the quality rating to the {{WikiProject banner shell}} template instead of this project banner. See WP:PIQA for details.
|
This is the talk page for discussing improvements to the Second Amendment to the United States Constitution article. This is not a forum for general discussion of the article's subject. |
Article policies
|
Find sources: Google (books · news · scholar · free images · WP refs) · FENS · JSTOR · TWL |
Archives: Index, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36Auto-archiving period: 9 days |
Trial of the Wards (1854)
Yaf: Which former U.S. Atty. Gen. expressed an opinion about Bliss that related to the 2A? Please quote what he said. Thank you. Yaf's statement: "the early 19th Century interpretation was that any infringing...was prohibited by the Second Amendment...thereby precluding any regulations...by state law," is incorrect. Show us a state law that cites the 2A as authority for it, or a state legislative record where the 2A was considered when enacting a state firearms law. Or a state or federal court decision where a state law was determined to have violated the 2A. If no editor can produce such evidence, all state court cases must be removed from this article.
Ward was not about the 2A, it was about whether the Ward brothers had violated a state law, or acted in self-defense, in the shooting-death of Mr. Butler. (Truwik (talk) 12:55, 20 March 2009 (UTC))
- Have to disagree with the total removal of "all" state court cases. Many of them, such as Nunn, do in fact rule on the right to "keep and bear arms". Ward and at least one other, do not, and need to removed.141.154.12.116 (talk) 14:20, 20 March 2009 (UTC)
I agree. I meant all state cases that made no mention at all of the 2A, such as Bliss, Buzzard and Ward. I actually added this topic this morning, the talk-page topic list didn't have the first Ward entry. Now its back, if you would like to delete this and keep all this together that would be fine. My opening statement here is at that topic now. (Truwik (talk) 21:40, 20 March 2009 (UTC))
- The former U.S. Atty. General was John J. Crittenden of Kentucky. He was lead counsel on Ward's defense team. As for an example, the Kentucky state law on trial with Bliss was viewed by some as having violated the Second Amendment to the US Constitution. Crittenden's defense in Ward simply built on the defense first advanced in Bliss, coming along a few years later. Yaf (talk) 21:49, 20 March 2009 (UTC)
- If he had something to say regarding the intent or purpose of the Second Amendment then that comment may have a place in the article. However that place s not under case law, or judicial interpretation or whatever you next decide to change the title to in order to bolster your position. Judicial interpretation is by definition interpretation by the judge. An attorney general in not a judge and further is not even a member of the Judicial Branch. Please now tell us what that something is, that he said, that is so important, that it merits a place in the article.141.154.12.116 (talk) —Preceding undated comment added 13:16, 21 March 2009 (UTC).
- Yaf, if John Crittenden said something at the Ward trial, that related to the 2A, then quote him and cite the source for that info. Citing Bliss as an example of how 'some' viewed another Kentucky law as violative of the 2A, is, at best, hearsay. And with no one at the Bliss trial mentiioning the 2A, either, it's hearsay twice-removed. If Bliss was so 'viewed-by-some', then name and quote them, and cite a source. (Truwik (talk) 16:22, 21 March 2009 (UTC))
I just removed 'Ward'. (Truwik (talk) 14:18, 1 April 2009 (UTC))
- And I restored it. The cited quotation due to the former US Atty General was contained in the content that was removed. This interpretation of 2A history is highly relevant. It belongs here. Yaf (talk) 20:18, 1 April 2009 (UTC)
- Yaf, please take a moment to explain why coverage of this obscure 19th Century incident in state law is relevant in this federal article? I dispute that it is "highly relevant", it is at best a minor curiosity, trivial today. Point to the reliable sourcing gives "highly relevant" coverage, I have looked and the coverage is brief and passing at best. The Ward case (as with Bliss) are too trivial to give coverage in this mainstream article, clear violations of WP:UNDUE policy. Explain your WP:OWN defensive for this passage, going on for more than a year now. SaltyBoatr (talk) 20:30, 1 April 2009 (UTC)
- The content in question is:
Reference to Bliss is seen in the defense argument subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky and former attorney general of the United States. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”[1]
- The importance is that the successful defense in this case by a former US Atty General specifically provides an example of state law being guided by an interpretation of the Second Amendment to the US Constitution. Saul Cornell is considered reliable sourcing by most historians. "Hearsay" is not applicable here. Rather, "hearsay" in terms of published content in reliable and verfiable sources is instead citeable in terms of supporting article text regarding this early interpretation of the Second Amendment. Subsequent article text then states that this early interpretation of the Second Amendment has largely vanished, save for two states. Seems highly relevant to me, unless one supports the goal to suppress much of the early history of Second Amendment interpretations. But, Wikipedia is not supposed to be censored. Yaf (talk) 20:52, 1 April 2009 (UTC)
- The content in question is:
- ^ Cornell, Saul (2006). A WELL-REGULATED MILITIA — The Founding Fathers and the Origins of Gun Control in America. New York, New York: Oxford University Press. pp. 147–149. ISBN 978-0-19-514786-5.
- If a historian isn't aware of the usage of the term "well regulated" during the Revolutionary War ere, then he can hardly be called a reliable source. If he knows what it means and then lies in order to push is pet theory, then he is most certainly NOT a reliable source.68.160.162.23 (talk) —Preceding undated comment added 16:00, 3 April 2009 (UTC).
Yaf, you said: "The cited quotation due to the former US Atty General was contained in the content that was removed." Where? Your Ward-case account quotes the Kentucky court and what Cornell said about it, but there is nothing therein that is attributed to "the former US Atty General." Your next statement: "...this case by a former US Atty General specifically provides...an interpretation of the Second Amendment..." is pure POR. The Ward trial made no mention of the 2A, and you obviously have no reliable source to backup your claim, that it did. Remove the Ward case. (Truwik (talk) 16:47, 4 April 2009 (UTC))
At the time of the Ward trial, John J. Crittenden was a U.S. Senator - not the U.S. Atty. General. The Ward trial transcript contains no mention of the Second Amendment, by anyone. Sen. Crittenden gave the defense's closing summary to the jury, but his "exhaustive speech" which preceded his conclusion is nowhere to be found. A book at Google.com stated: "Hon. John J. Crittenden closed the case for the defense. His argument dealt almost exclusively with the facts of the case. ...after an exhaustive speech to the jury, Mr. Crittenden concludes:" The next 6 pages in this book (pp. 171-177) have his conclusion which dwelt compassionately on Matthew Ward's fine character, his fine upbringing and education, and what a shame it would be to end his life with a verdict of "guilty." But nowhere was any reference made to the 2A, he rather quoted a Psalm and some other scripture. When he finished, the crowd inside wept and when the "not guilty" verdict was announced, they cheered. The thousands amassed outside, made effigies of the Ward brothers, set them on fire, and threw them against the court's entrance door, setting it on fire. Yaf's statement that this is "an example of state law being guided by an interpretation of the Second Amendment" is pure imagination. The state law in Ward required the "death penalty" for "murder." (Truwik (talk) 16:08, 6 April 2009 (UTC))
(After I removed 'Ward', Yaf restored it (6 hrs. later). Then 12 minutes after Yaf restored it, SaltyBoatr asked Yaf to explain why this old case is relevant to this Article. Then (22 minutes later) Yaf explained, which probably took most of that time to type and save it. It's like Yaf and SaltyBoatr are in the same room.) All editors should agree to remove this Ward case. If we start adding all state cases that involved use of weapons, to this Article, it will be an encyclopedia in itself. (Truwik (talk) 17:29, 13 April 2009 (UTC))
- This WP:OWN defensive editing pattern regarding the "Early Commentary in State Courts" case has nearly a two year history here. Beyond question of the Ward case is also the relevance of the Kentucky state law case "Bliss" here in a federal article, the Bliss relevancy hinges on Yaf's 1967 Google snippet quote which no one here appears to have actually read in full context. Huge WP:REDFLAG problems never addressed. SaltyBoatr (talk) 17:56, 13 April 2009 (UTC)
- I don't see any Court opinion out of Ward that justifies it with a place in the article. I continue to believe that there is no reason to keep it. 141.154.15.7 (talk) 18:16, 13 April 2009 (UTC)
- Bliss is well cited as being an interpretation that the Second Amendment applied within states against state laws. Ward is further well cited as providing relevance and additional information that even a former US Atty General felt that the Second Amendment protected a right to keep and bear arms within states, and that he agreed with the interpretation from Bliss. Bliss clearly is relevant for the early interpretation that the Second Amendment protected concealed carry against infringement by the state. Ward is relevant since it established that Bliss was not an anomaly. Of course, these early interpretations of the Second Amendment did change, and, eventually, laws governing concealed carry within states were deemed not to infringe on the right to keep and bear arms all the way up through the SCOTUS, and thus were not in violation of the Second Amendment. Yet, the original interpretation of the Second Amendment clearly had held that such laws were violative of the Second Amendment. These cases clearly belong in a discussion on the early interpretations of the Second Amendment. Other cases, at the state level, however, do not belong here, unless there is some relevance to the Second Amendment in those cases. Bliss and Ward are both highly important in understanding the early history of Second Amendment interpretations, and belong here. Other cases at the state level may or may not belong here, depending on their connections to the Second Amendment. Yaf (talk) 18:59, 13 April 2009 (UTC)
- Yaf claims "Bliss is well cited as being an interpretation that the Second Amendment applied within states against state laws." The "well cited" cite is to an exceedingly obscure 1967 document only visible in snippet view at Google Books, that no one around here seems to have read in context. This obscure cite (footnote 93) is notable in that it is an extreme outlying source, and after exhaustive search no other source has been found that says similar. I object based on WP:REDFLAG, and ask for more corroboration that Bliss pertains to the federal Second Amendment. Yaf? Please answer. SaltyBoatr (talk) 20:32, 13 April 2009 (UTC)
Neither Bliss nor Ward mentioned the Second Amendment because it has no application within the States. Yaf is attaching the entire subject of arms to the 2A because he apparently believes everything that is said about weapons somehow adjusts the meaning of the 2A to accommodate it. He focuses on the Right, not the Restriction. However, in our entire history, no state law has ever been held as violative of the 2A, by any court - state or federal. That fact alone proves the 2A's restriction applies only to the federal government, and that needs to made clear in this Article by removing these two cases. Thank you. (Truwik (talk) 21:13, 18 April 2009 (UTC))
Heller cited "Bliss v. Commonwealth, 2 Litt. 90, 91-92 (Ky. 1822)" in footnote 9, of the opinion (p. 12), then said: "These provisions demonstrate - again, in the most analogous linguistic context - that "bear arms" was not limited to the carrying of arms in a militia." The Court cited Bliss, and cases from 6 other states, there, as evidence that the right was being exercised by individuals who were not associaed with militias. It did not quote anything from those 7 state cases. Thus, Yaf's "Bliss is well cited as being an interpretation that the Second Amendment applied within the states against state laws" is pure hokum. It's an attempt to extend jurisdiction over the right to federal courts - the very thing the Bill of Rights was intended to prevent. (Truwik (talk) 17:14, 19 April 2009 (UTC))
In Crukshank, at page 552, the Court cited these 8 cases as pecedents which held the Bill of Rights restrictions do not apply to the States:
1. Barron v. City of Baltimore, 32 U.S. 243, 247 (1833), Mr. Chief Justice Marshall: “The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states…the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” 2. Lessee of Livingston v. Moore, 32 U.S. 469, 551-2 (1833) Mr. Justice Curtis: “As to the [Bill of Rights] amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that these amendments do not extend to the states.” 3. Fox v. Ohio, 46 U.S. 410 (1847) Mr. Justice Daniel: “The prohibitions contained in the [first ten] amendments to the constitution were intended to be restrictions upon the federal government, and not upon the authority of the states.” 4. Smith v. Maryland, 59 U.S. 71, 76 (1855) Mr. Justice Curtis: The oath requirement before warrant to arrest in the Fourth Amendment “restrains the issue of warrants only under the laws of the United States, and has no application to state process.” 5. Withers v. Buckley, 61 U.S. 84, 89-90 (1857) Mr. Justice Daniel: “To every person acquainted with the history of the Federal Government, it is familiarly known, that the ten amendments first engrafted upon the Constitution had their origin in the apprehension that in the investment of powers made by that instrument in the Federal Government, the safety of the States and their citizens had not been sufficiently guarded…the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States…These amendments demanded security against the apprehended encroachments of the General Government, not against those of the local Governments.” 6. Pervear v. The Commonwealth, 72 U.S. 475 (1866) Mr. Chief Justice Chase: The question was: Are “fines and penalties imposed and inflicted by the State law for offences charged in the indictment are excessive, cruel, and unusual” under the Eighth Amendment. Said the Court: “Of this proposition it is enough to say that the article of the Constitution relied upon in support of it does not apply to the State but to National legislation.” 7. Twitchell v. The Commonwealth, 74 U.S. 321 (1868) Mr. Chief Justice Chase: Twitchell had claimed rights and privileges under the 5th and 6th Amendments of the U.S. Constitution. The Court cited and quoted Fox v. Ohio, Smith v. Maryland, and Withers v. Buckley then held: “They [those previous findings] apply to the sixth as to any other of the amendments. It is certain that we can acquire no jurisdiction of the case of the petitioner by writ of error, and we are obliged therefore to refuse the writ.” 8. Edwards v. Elliot, 88 U.S. 532 (1874) Mr. Justice Clifford: A state law was deemed to be in violation of the Sixth Amendment “right of trial by jury” where the “value in controversy exceeds twenty dollars.” The Court held: “it does not apply to trials in the state courts.”
This original understanding of the Bill of Rights has never changed in State or Federal courts. All that changed was whether the "shall not be infringed" federal restriction in the Second Amendment applied to all arms or only military arms. But either way, it still only applied to federal legislation. (Truwik (talk) 19:40, 20 April 2009 (UTC))
- Not exactly true. The original understanding of the Bill of Rights in state courts has changed over time. In 1822, the interpretation in Kentucky was as noted previously in Bliss, subsequently confirmed in Ward, that the Second Amendment forbad infringing on the right to keep and bear arms to such an extent that it even prevented states from regulating concealed weapons. But, this early viewpoint largely changed over the next 50 or so years, in most states. By 1875, when Cruikshank came along, the shift had been nearly completely made to your interpretation. Yet, there would still be the later SCOTUS dicta addressing this change, too, namely in Robertson v. Baldwin, 165 U.S. 275 (1897), regarding that regulations that regulated concealed weapons were not in violation of the Second Amendment. After 1897, there was nearly an universal interpretation that was as you state. But, between 1822 and 1875, there was a shift occurring in opinion. And, it is worth mentioning that there were/are two states that even to this day forbid regulating concealed weapons, based on their original interpretation of the Second Amendment, consistent with the decision in Bliss. The original interpretations in these two states has not ever changed, either. So, your statement that the "original understanding of the Bill of Rights has never changed in State or Federal courts" is not exactly the correct interpretation, despite being technically true. The interpretations in 48 other states has changed, however, from the original interpretation in Bliss, and even the interpretation in the Commonwealth of Kentucky has changed from what it was in 1822. So, lets not confuse readers as to what happened in the past with what happened during Reconstruction and later, and as to what is the interpretation in 48 of the 50 states today. Yaf (talk) 20:09, 20 April 2009 (UTC)
- Yaf, you appear to be describing a WP:Fringe theory, notable only because of the novelty, Kentucky justice. The concept of an early 19th Century incorporation, prior to Reconstruction, is an extreme fringe POV, given very much too heavy an emphasis in the article. Fixing this problem is one step necessary in order to fix the longstanding WP:NPOV policy violations with this article. Can you suggest some mutually acceptable compromises that might lead us out of this impasse? SaltyBoatr (talk) 21:02, 20 April 2009 (UTC)
- The "courts" interpretation has changed - BUT - what the Founders wanted done, remains what the Founders wanted done. History can't change that.68.163.100.160 (talk) 21:06, 20 April 2009 (UTC)
- Sure. Here is a possible solution. Acceptance of the current article text with cites verifying the text taken from reliable and verifiable sources, rather than a continual attempt to re-write history in this article. That would solve the problem in its entirety. The cited history is not fringe theory, being properly cited. It is simply fact. And, it is not about incorporation, either, that being a later, 14th Amendment and later, concept. However, I fail to see what Alaska and Vermont have to do with your use of "Kentucky Justice", though, as the description. (They are the two states that have kept to the original interpretation of the Second Amendment first expoused in Kentucky, having never changed from the early interpretation of the Second Amendment that was common among several states in the early years (e.g., KY, GA, etc.).) ("Kentucky Justice" was just the pejorative used in one of Saul Cornell's books, among other pro gun-control textbooks for denigrating the Bliss case. There were other, later cases, in other states that also agreed with this same interpretation, too.) Yaf (talk) 21:14, 20 April 2009 (UTC)
Yaf, by repeating this dead issue, you're sounding like a broken record. Neither Ward nor Bliss said a word about the Bill of Rights, and that includes Sen. Crittenden's Speech to the Ward jury. He asked: "What is the law applicable in this case?" He went on to describe "Murder" and "manslaughter," but stated: "I shall contend that the case made by the evidence is neither murder nor manslaughter, but homicide in self-defense. He went on for another 8 pages (16 pages in all) but nowhere did he mention the U.S. Const., the Bill of Rights or the Sec. Amend. At the end he said: "This is [a] constitutional right, a natural right, a right given by our Creator, and which no human legislation can take away" (i.e. concerning Matthew Ward's inalienable right to possess pistols). He had said earlier to them "You are a jury of Kentucky...This is a Temple of Kentucky justice." How can these two cases be construed so "that the Sec. Amendment...even prevented states from regulating concealed weapons" when neither even mentioned the amendment, strongly suggests you believe the Right and the amendment are one-and-the-same thing. (You need to recall here that courts always cite and quote the law that has supposedly been violated. The fact that neither of these cases cited the amendment, proves it had nothing whatsoever to do with their decisions.) Your philosophy that changes in state arms-laws indicate how the 2A was viewed differently back then - without even mentioning it - is weird. Robertson' Dicta mention of the 2A had nothing to do with their decision, nor did it affect the meaning or purpose of the 2A. (Truwik (talk) 23:04, 20 April 2009 (UTC))
All editors should agree to remove the Ward case from this Article. The Article isn't about the right to arms, it's about to whom "shall not be infringed" applies. However one feels about arms, shouldn't enter into the equation. (Truwik (talk) 15:53, 24 April 2009 (UTC))
I would submit that Yaf's purpose for retaining the Ward case in this Article is to illustrate the deadly consequences of private ownership of arms. While the Ward case is certainly evidence of that, it isn't relative to this 2A Article. Let's remember, "This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence" (Cruikshank, at 553). And the Heller Court, citing its precedents Presser and Miller v. Texas reaffirmed that. The Wards' right to arms had no legal relationship to the 2A. They were born with the right. (Truwik (talk) 14:27, 29 April 2009 (UTC))
- Totally bogus commentary, bordering on a personal attack, while additionally presupposing or assigning a "motive" to another editor. And a false assumption at that, bordering on WP:SOAPBOX issues, too, regarding the "motive", I might add. No, the right to keep and bear arms is not granted by the constitution; it is an inalienable right that comes from the Creator. However, an attempt to usurp this right did occur in Bliss and again in Ward, contrary to the protections of this right provided by the Second Amendment against infringement as it was then interpreted. So, this is where the Second Amendment importance comes in, for, in the early courts, any infringement of the right, whether by federal, state, or local government, was viewed as being in violation of the Second Amendment. This interpretation is important in understanding the history of interpretations of the Second Amendment. Of course, this early interpretation subsequently changed (which is also already noted in this article, I might add.) Namely, over time, the view that the Second Amendment applied only to the Federal Government, and not to state and local governments, came to be. Also, the view that regulating concealed weapons likewise did not infringe upon the right to keep and bear arms in violation of the Second Amendment likewise changed. It is important to a reader's understanding of the history of interpretations of the Second Amendment that Bliss and Ward and Robertson all are discussed in this article. Otherwise, a reader is left thinking that only the recently widely-supported interpretation, prior to the 9th Circuit's incorporation against the states I might add, is the only historical interpretation of the Second Amendment. This would be false, and misleading. No, the content that is here regarding Bliss, Ward, and Robertson is all highly pertinent to understanding the Second Amendment and should clearly remain. And, let's focus on discussing improvements in the article, instead of falsely assigning "motives" to other editors on the talk page, OK? Yaf (talk) 15:09, 29 April 2009 (UTC)
- I agree with Yaf, that issues surrounding personal editors are not important here. Improving the article is important. To that end, can we improve the sourcing in the article for the Ward/Bliss passage? Can we remove the portions which are off topic to the federal 2A? Can we improve the 1967 'violative of the Second Amendment' source? I challenge that 1967 snippet as a WP:REDFLAG. No one here appears to have actually read the original 1967 source, or if they have, they refuse to disclose details from this very obscure reference. If anyone has read it, please answer: Who is speaking? In what context are they speaking? Are they reliable? What question are they answering? SaltyBoatr (talk) 15:38, 29 April 2009 (UTC)
Well! I was mistaken, Yaf, and I apologize for misunderstanding your motive. If I paraphrase your view of Ward, it would be: You believe, back then the 2A was interpreted as protecting the right within the states, and the Ward case was attempting to usurp this right from the 2A's protection. Is that correct? (You said, back then "any infringement of the right, whether by...federal, state or local government, was viewed as being in violation of the 2A.") (You also said "it is an inalienable right that comes from the Creator.") So my first question would be: What occurred in Ward that was an attempt to usurp the right from its 2A protection? (Truwik (talk) 21:20, 29 April 2009 (UTC))
Yaf, the write-up of Ward begins: "Reference to Bliss is seen in the defense argument...," when neither the defense nor the prosecution mentioned Bliss. And Cornell's: "Ward's lawyers took advantage of the doctrine advanced in Bliss...," when Ward did not cite Bliss or quote anything from that case, appears to be Cornell's speculation. Unless you can quote this "doctrine" (from Bliss) and quote (in Ward) where it was utilized, then establish that this "doctrine" somehow affects the 2A's purpose, there is no reason for Ward being in this 2A Article. (Truwik (talk) 15:17, 1 May 2009 (UTC))
I still say the only reason for the Ward case being in this Article is to demonstrate how one can wrap himself in the "constitutional right to bear arms," then murder someone and get away with it. Yah, now, says this case illustrates "an attempt to usurp the right...contrary to the protections of this right provided by the Second Amendment." This theory not only defies logic (even simple understanding), it was never even mentioned in the case's write-up. I suggest Yah is grasping at straws, here, to save an otherwise lost cause. The Second Amendment is about a restriction the Founders placed upon Congress, not the unfortunate ways firearms may be used. (Truwik (talk) 13:16, 10 May 2009 (UTC))
Nordyke
Anybody have some reliable secondary sourcing concerning the Nordyke case? All I see is the primary document. SaltyBoatr (talk) 18:58, 20 April 2009 (UTC)
- I know I said I was boycotting this page until the full protection is lifted, but this is too important to wait. Here are two sources and a link to the opinion.
- Sources: http://www.scotusblog.com/wp/second-amendment-extended/#more-9270 and http://volokh.com/posts/1240247034.shtml. Text of opinion SMP0328. (talk) 23:22, 20 April 2009 (UTC)
- Notice that ScotusBlog writes: "Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home", which is already protected in at least 42 States due to their respective States' Constitutions. The 9th Circuit covers nine states, and all nine of these States already have a protected right to bear arms in their respective Constitutions so this appears to be 'belt' and 'suspenders' as far as the Ninth Circuit is concerned. What might be the grounds for appeal to the SCOTUS? I wonder.
- And the court concluded that: "banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,”", which makes me ask what will be the real world effect of this ruling? The only tangible effect I see is that this ruling confirms the Constitutionality of the banning of gun shows from municipally owned properties. This is getting to be a trend, this case, like a hundred other cases so far found that existing laws fit within the 'Heller exception/longstanding prohibition' paragraph. Waiting for more secondary sourcing. SaltyBoatr (talk) 04:04, 21 April 2009 (UTC)
- Are you claiming that Nordyke has little value? Just because the challenged law was upheld does not mean the part of that decision which held the Second Amendment to be incorporated is not a "tangible effect" of the decision. SMP0328. (talk) 16:38, 21 April 2009 (UTC)
- Mostly, I am waiting for the dust to settle. Let's read what the secondary sourcing says. It is tempting to speculate on what Nordyke will mean in real world applications. One thing that is plainly evident is that it has direct effect only on the nine states covered by the Ninth Circuit. And, all those states already have protection of the right to bear arms in their own State constitutions. Therefore the only tangible effect that I can imagine would be any state law that might conflict with a federal precedent, like the 'longstanding prohibitions' clause in Heller. The state law in principle could now be struck down under federal precedence. The other effect, which is simply hypothetical, would be if any of these nine states had a gun ban in private homes, like the DC had, but I don't think any of these nine states have a ordinance like the one which was struck down in Heller. In short, Nordyke increases federal control over states' rights in these nine states because their states based rights to bear arms now appear to be trumped by federal law. SaltyBoatr (talk) 18:02, 21 April 2009 (UTC)
- You're deluding yourself. The opinions from any US Court are applicable to all states and can be used as precedent anywhere in the US.141.154.78.247 (talk) 18:17, 21 April 2009 (UTC)
- This reveals why we should stick to reliable secondary sourcing. My understanding is different than yours, in that I think what we have now is an "inter-circuit split", that is the Ninth Circuit holds a ruling different than the other Circuits. Per stare decisis the lower courts in the Ninth are bound by the precedence of the Ninth, but the other Circuits are not. SaltyBoatr (talk) 20:35, 21 April 2009 (UTC)
- None of this conjecture belongs in the article anyway. But for sure it is not possible that an constitutional amendment applies to some states but not to others through incorporation. There is no legal theory to really justify such a thing, and no case where such has ever happened. AliveFreeHappy (talk) 21:59, 21 April 2009 (UTC)
- There is a name for it: an "inter-circuit split"[1]. SaltyBoatr (talk) 22:06, 21 April 2009 (UTC)
- SaltyBoatr is correct regarding stare decisis. Nordyke is only binding within the states covered by the Ninth Circuit, although other courts and states could choose to treat it as "persuasive precedent". Ultimately, the issue of whether the Second Amendment is to be incorporated nationally will be determined by the Supreme Court. SMP0328. (talk) 23:55, 21 April 2009 (UTC)
- And more, only the 'holding' of Nordyke v. King is binding. The holding definitely included the conclusion that banning gun shows from municipal property is legal. I don't know if the statement about incorporation is part of the holding or part of the dicta. If it is part of the dicta, it is not binding on anything. SaltyBoatr (talk) 03:25, 22 April 2009 (UTC)
- It's not dicta. If the court had not ruled in favor of incorporation, it would simply had upheld the ordinance because the Second Amendment wasn't applicable. It's like when a court rules that a plaintiff has standing, but then rules for the defendant on the merits; the ruling on standing is not dicta. Neither part of Nordyke is dicta and so all of it is binding on all state and local governments in the Ninth Circuit, as well as all lower federal courts in the Ninth Circuit. SMP0328. (talk) 03:34, 22 April 2009 (UTC)
- SaltyBoatr is incorrect in stating, "... nine states covered by the Ninth Circuit. And, all those states already have protection of the right to bear arms in their own State constitutions." California has no such right in its state constitution.[2] - Davodd (talk) 05:17, 22 April 2009 (UTC)
- Thanks for correcting me, I was working from memory and my memory failed. My mistake. SaltyBoatr (talk) 13:50, 22 April 2009 (UTC)
- (Nordyke v. King is only a precedent in the Ninth Circuit. If the Nordykes appeal the decision to the Supreme Court [I expect they will] and the High Court accepts their writ, and affirms the 9th Circuit's opinion, then Nordyke would be a precedent in all 50 states. If the Supreme Court denies their writ, Nordyke would remain a precedent only in that Circuit's nine states.)
- The Circuit court said: "There are three doctrinal ways the Second Amendment might apply to the states: (1) Direct application, (2) Incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) Incorporation by the Due Process Clause of the same Amendment. [The] Supreme Court precedent [Heller] forecloses the first option...We are similarly barred from considering incorporation through the Privileges or Immunities Clause...we are therefore persuaded that the Due Process Clause of the Fourteenth Amendment...incorporates the Second Amendment and applies it against the states and local governments...[But] the question remains whether such application invalidates the specific Ordinance the Nordykes challenge."
- The Court said the Ordinance: "does not meaningfully impede the abilities of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it," and upheld the Ordinance, which forbade possession of firearms on public property, in this case, the Alameda County Fair Grounds.
- The Court said that the right is not dependent on any constitution for its existence (i.e. the right is fundamental and inalienable) and thus that the Second Amendment could not be directly incorporated in the states. The Court said the Second Amendment remains an exclusive restriction on the federal government. (This is a classic illustration of 'incorporation' not meaning what most think it means.) (Truwik (talk) 20:52, 22 April 2009 (UTC))
- The Ninth Circuit did incorporate the Second Amendment. The fact that it said the RKBA "is not dependent on any constitution for its existence" means the Constitution didn't create the right. That's true of all rights in the Constitution. The Constitution protects rights, rather than creating them. The protection provided by the Second Amendment is now applicable to the areas covered by the Ninth Circuit. SMP0328. (talk) 21:09, 22 April 2009 (UTC)
- This reveals why Wikipedia WP:NOR policy (for the large part) disallows editorial interpretation of primary documents, like this Nordyke v. King court ruling. SaltyBoatr (talk) 21:31, 22 April 2009 (UTC)
- I wasn't interpreting Nordyke v. King, I was informing what the case held. The Court's: "we are therefore persuaded that the Due Process Clause of the Fourteenth Amendment...incorporates the Second Amendment and applies it against the states and local governments...," doesn't need interpretation, it means what it clearly states. My closing comment - meant to explain the 'due process' type of incorporation - apparently was misunderstood. Sorry. (Truwik (talk) 14:29, 23 April 2009 (UTC))
- SMP0328's: "The protection provided by the Second Amendment is now applicable to the areas covered by the Ninth Circuit" overlooks what the Court said and held. For the 2A's protection to extend to states, the Court would have had to use the "(1) direct application" doctrine of incorporation. But it said: "[The] Supreme Court precedent [Heller] forecloses the first option. The Bill of Rights directly applies only to the federal government. Barren v. Baltimore...[etc.] The Supreme Court has never explicitly overruled Barron... Therefore, the Second Amendment does not directly apply to the states. (See Cruikshank also Presser)." For that reason, the Circuit Court used the 'due process' method of incorporation which left the 2A's restriction solely applicable to the federal government. (Truwik (talk) 18:22, 23 April 2009 (UTC))
- That's true of all of the BOR (1A-9A). Barron v. Baltimore has never been overruled, so no provisions of the BOR standing alone apply to the state and local governments. What the Supreme Court has done is ruled that most of the BOR applies at the state and local level via the DPC of the 14A. Since the 1960s, the Court has held that when a part of the BOR is "incorporated" it applies to state and local governments in the same way as it does regarding the federal government. So, technically speaking, none of the BOR applies on its own authority at the state and local level. However, most of the BOR applies to state and local governments via the DPC of the 14A. The Ninth Circuit has done that regarding the 2A. I hope that cleared this up for you. SMP0328. (talk) 19:03, 23 April 2009 (UTC)
- To clear things up, SMP0328 would muddy the waters. Of the three ways "the Second Amendment might apply to the states: (1) direct application,... [The] Supreme Court precedent [Heller] forecloses the first option. The Bill of Rights directly applies only to the federal government Barren v. Mayor of Balt., 32 U.S. 243, 247-51 (1833). ...the Supreme Court has never explicitly overruled Barren... Therefore, the Second Amendment does not directly apply to the states. See United States v. Cruikshank, 92 U.S. 542, 553 (1875)(citing Barren as a basis for the conclusion that '[t]he second amendment...means no more than that [the right to keep and bear arms] shall not be infringed by Congress'); See also Presser v. Illinois, 116 U.S. 252, 265 (1886)(concluding that the Second Amendment 'is a limitation only upon the power of Congress and the National government, and not upon that of the State')." This is an abundantly clear statement that the Circuit Court could not - and did not - apply the Second Amendment to this case.
- SMP0328's "most of the BOR applies to state and local government via the DPC of the 14A," is thus sheer poppycock. The Ninth Circuit bluntly stated "[t]he Bill of Rights directly applies only to the federal government." And...the 'due process' clause only prohibits states from depriving "any person of life, liberty, or property, without due process of law." Alameda County had a law, thus they did not violate the DPC. If citizens there don't like that law, they should remove Supervisor Mary King from officee and replace her with someone who will void it.
- (Bottom line? There is now no lawful or logical reason why the exclusivity of the amendment's "shall not be infringed" should not be included in this Article's lede.) (Truwik (talk) 15:13, 24 April 2009 (UTC))
- please review No legal threats. please stop making legal threats. i'm prepared to move forward with sanctions if you continue on this path. Anastrophe (talk) 15:31, 24 April 2009 (UTC)
- Agree with Truwik, Lead needs to be changed.68.160.172.63 (talk) 15:45, 24 April 2009 (UTC)
- I fail to see how Anastrophe can construe that as a 'legal threat.' The reason given for not including to whom "shall not be infringed" applies (in the intro) was that, through incorporation, it might also apply to the States. Now, after Nordyke v. King (9th Cir.) has declared that "direct application" of the Second Amendment to the States was "foreclose[d]" by Heller, there is no reason not to include it. If there is some other reason why Anastrophe doesn't want that active part of the amendment's Operative Clause in the intro, he should declare it, so we can discuss its pros and cons. Thank you. (Truwik (talk) 20:01, 24 April 2009 (UTC))
- You fail to understand how incorporation works. As that article's Introduction puts it:
Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
- That's how parts of the BOR are made applicable to the States and that's what the Ninth Circuit did regarding the 2A in Nordyke. SMP0328. (talk) 02:54, 25 April 2009 (UTC)
- The confusion, here, results from how "incorporation" is defined in dictionaries, versus how it's used by courts relative to the BoR. For example, the Nordyke Court said "we are therefore persuaded that the Due Process Clause of the Fourteenth Amendment...incorporates the Second Amendment and applies it against the states and local governments" (which, to most readers, would mean the 2A now applies to states just as it applies to the federal government). However, the Court also said the "Supreme Court precedent [Heller] forecloses the first option [i.e., "direct application"]. The Bill of Rights directly applies only to the federal government" (which seems to say the opposite and would force readers to choose one and reject the other - apparently SMP0328 has rejected the latter). In Court lingo, 'incorporation,' here, just means the Right was considered. Both statements are true. The 14A's "nor shall any State deprive any person of life, liberty, or property, without due process of law" refers to the due process of State law (with which Alameda County had complied). Nordyke held that state law didn't deprive any person, there, completely of the right, as did the Ordinance in the District of Columbia. (Truwik (talk) 14:08, 25 April 2009 (UTC))
- In Nordyke, the statement: "the Ninth Circuit ruled that the Second Amendment was incorporated as an individual right against the states" is incorrect. Circuit Judge O'Scannlain stated no such thing. Individuals in California had been exercising their inalienable right to arms from that State's beginnings. The Nordyke Court simply upheld an Alameda County Ordinance which prohibited firearm possession on county-owned property. Stating that "the court also did this, is untrue - it's all the Court did. And stating that "This decision stands in contrast" to 2nd Circuit decisions, that limited the 2A's restriction only to the federal government, is also not true. The Nordyke Court clearly stated the "Supreme Court precedent [Heller] forecloses the first option [i.e., "direct application" of the 2A]. The Bill of Rights directly applies only to the federal government." We should report what the Court said - not some blogger's propaganda - this write-up must be corrected. The 2A still only limits the authority of the federal government. (Truwik (talk) 17:22, 25 April 2009 (UTC))
- The Nordyke Court (at p. 4508) held: "We AFFIRM the district court's grant of summary judgment to the County on the Nordykes' First Amendment and equal protection claims and, although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court's refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case." Thus the 2A can be incorporated through the 'due process' clause of the 14A, but it was not done in this case. How could that possibly be construed as incorporating "an individual right against the states?" (Truwik (talk) 20:23, 25 April 2009 (UTC))
- You still don't understand "incorporation". Pursuant to Barron v. Baltimore, the BOR "directly" (i.e., standing alone) applies only to the federal government. However, most of the BOR has been ruled by the Supreme Court to have been made applicable to State and local governments by way of the DPC of the 14A. For example, the First Amendment "directly" only applies to the "Congress". The Supreme Court has ruled that it nonetheless applies to the entire federal government. It has also ruled that it applies to State and local governments by way of the DPC of the 14A.
- In Nordyke, the Ninth Circuit ruled that the 2A doesn't "directly" apply outside of the federal government. However, it also ruled that the 2A did apply to Alameda County (a locality within the State of California) by way of the DPC of the 14A. I hope that clarifies the difference between when the BOR applies "directly" and when it applies through "incorporation". SMP0328. (talk) 00:28, 26 April 2009 (UTC)
- Exactly. There is 1) "direct" application - "Congress shall make no..." which is federal only, and 2) "incorporation" under the 14th Amendment where "No State shall make or enforce any law..." - Davodd (talk) 08:22, 26 April 2009 (UTC)
- In Nordyke, the Ninth Circuit ruled that the 2A doesn't "directly" apply outside of the federal government. However, it also ruled that the 2A did apply to Alameda County (a locality within the State of California) by way of the DPC of the 14A. I hope that clarifies the difference between when the BOR applies "directly" and when it applies through "incorporation". SMP0328. (talk) 00:28, 26 April 2009 (UTC)
- I understand 'incorporation' completely, here, it would be where a federal court applies the 2A's "shall not be infringed" to a state's firearm law. The Nordykes, indeed, asked the District Court for permission to amend their petition, in order to include a claim that the Alameda Ordinance had violated their 2A right, but the District Court refused. At the appellate level, the 9th Circuit reviewed the lower court's refusal, then, as concerning the Nordykes' First Amendment and equal protection claim, and that lower court refusal, held this (at p. 4508):
- "For the foregoing reasons, we AFFIRM the district court's grant of summary judgment to the County on the Nordykes' First Amendment and equal protection claims and, although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court's refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case."
- Thus Nordyke v. King did not incorporate the 2A against California - as some are saying. The Court just used bad grammar. When reporters and bloggers read "indeed incorporated" they apparently read no further and went to press. The 9th Circuit simply held the Second Amendment is indeed incorporatable against the states, under the "due process" clause of the 14th Amendment, but not in that case.
- SMP0328's first paragraph is correct but offpoint. He second paragraph "the 2A did apply to Alameda County...by way of the DPC of the 14A" is not correct. The 9th Circuit clearly stated the Nordykes were not allowed "to add a Second Amendment claim in this case." (Truwik (talk) 18:02, 26 April 2009 (UTC))
- Truwik, are you claiming that a BOR provision can not be incorporated until a State or local action has been ruled, by a federal court, to have violated that BOR provision? I refer you to Gitlow v. New York for an example of where incorporation occurred without anything being declared Unconstitutional. SMP0328. (talk) 18:40, 26 April 2009 (UTC)
- Truwik, you are mistaken (which is not uncommon and another reason why law school is graduate-level in the U.S. ... this truly is hard stuff to master). Where you are having a problem, in my opinion, is that you are seeing a single result to this opinion - Alameda County's gun ban was upheld. Rest assured, the 9th District did incorporate the Second Amendment to the states as an individual right to keep and bear arms. After that was done - they used a test to determine whether this right was violated by the Alameda ordinance. In all, there were four holdings (not one) in this case; you can break it down like this:
- ISSUES DECIDED UNDER NORDYKE V. KING (V):
- Whether the Second Amendment to the Constitution of the United States guarantee individual civil rights that must be honored by the states. Court Holding: YES.
- If so, does the Alameda County Ordinance unconstitutionally violate the Nordyke’s Second Amendment rights? Court Holding: NO.
- Whether the Alameda County Ordinance unconstitutionally violates the Nordyke’s constitutionally protected right to First Amendment freedom of speech/expression by banning guns from gun shows - effectively eliminating that form of public expression. Court Holding: NO.
- Whether the Alameda County Ordinance violates constitutional equal protection rights when it allows other groups to have firearms, but not gun shows. Court Holding: NO.
- Hope that clarifies things for you. - Davodd (talk) 07:02, 27 April 2009 (UTC)
- SMP0328, if I understand your question correctly, I would answer "yes," only a federal court may apply the BoR restrictions to state laws. In Gitlow v. N.Y., Mr. Gitlow was indicted for violating a "criminal anarchy" statute of N.Y. State. At the trial court, Gitlow had contended that the state statute had violated his rights of free speech and press, without due process of law, under the 14A. The appellate court held that his anarchistic speech and papers were not lawful and thus were not protected. The case was then appealed, on writ of error, to the U.S. Supreme Court. There, the Supreme Court held: "For present purposes we may hold and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment by the States." Then: "Finding...that the statute is not...unconstitutional, and that it has not been applied in the present case in derogation of any constitutional right, the judgment of the Court of Appeals is AFFIRMED."
- Thus the 'incorporation' process was started by Gitlow's contention in state court, but it was effected by the Supreme Court's affirmation. Any future contention would also have to be affirmed by the High Court, unless it was identical, then the Court would just decline to grant the writ. Exceptions to that could be by laws of Congress enacted pursuant to Section 5 of the 14A, which may authorize state enforcement.
- In Nordyke, the Nordykes (in their petition to the trial court) did not claim that the Alameda Ordinance had violated the 2A. The 9th Circuit affirmed the district court's refusal to grant the Nordykes leave to amend their complaint, to add a 2A claim to their case. (See above Circuit Court holding.) Thus, the 2A was not 'incorporated' in Nordyke v. King. The Ordinance was held as not violative of their fundamental individuals rights (which all Americans have at birth) it was not violative of the 2A. (Truwik (talk) 20:53, 27 April 2009 (UTC))
- What matters is that the Ninth Circuit ruled that the 2A was "incorporated" and that the Alameda County ordinance was Constitutional. The second ruling (ordinance is Constitutional) does not undermine or nullify the first ruling (incorporation). They are separate rulings. SMP0328. (talk) 01:09, 28 April 2009 (UTC)
- Davodd, you're putting words into the court's mouth. The U.S. Supreme Court held concerning arms-rights: "This is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence" (Cruikshank, at 553). Citizens in California have the right to arms by virtue of their birth in the United States, not because of the 2A. The U.S. District Court, there, honored the Nordykes' right to arms, but held that the Alameda County Ordinance did not unreasonably restrict their right. Davodd, you are ignoring what the 9th Circuit Court of Appeals held. It "AFFIRMED" the district court's refusal to allow the Nordykes to add a 2A claim to their case. No 2A claim was made by the Nordykes at the trial court, and appellate courts have no authority to add any issue that wasn't addressed at the lower court.
- At page 4496, the 9th Circuit said of the right: "The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited." Thus the Court agreed that the right is fundamental, that is, it is inherited. The Court then stated:
- "We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments."
- Remember, the Court affirmed that the Nordykes did not make "a 2A claim in this case." The Court's persuasion that the DPC of the 14A incorporates the 2A, is thus dicta. The issue of incorporation was not addressed at the trial court, if it had been, the 9th Circuit's 'persuasion' would have been 'affirmed' in its holding. The 9th Circuit was asserting federal jurisdiction over the right, and was inviting other states in their circuit to outlaw gun possession on all property except in one's home. The write-up of the Nordyke v. King case has recorded the Court's 'persuaded' dicta, not what it held. (Truwik (talk) 14:18, 28 April 2009 (UTC))
Anybody have some reliable secondary sourcing concerning the Nordyke case? I might have missed it mixed in above, but I can't bring myself to read that volume of WP:OR speculation. I see several thousand words of banter and WP:Original Research. Please, direct pointers to reliable secondary sourcing which I can read off the talk page. Thanks, but no thanks to the original research, it just clutters up the talk page and is a waste of time to read. Lets stop that please. I want to read secondary sourcing on Nordyke v. King, hopefully a scholarly journal on paper, thanks. Not the primary document court ruling. I repeat, please cut out the banter and focus on direct pointers to reliable secondary sourcing. SaltyBoatr (talk) 14:51, 28 April 2009 (UTC)
- SaltyBoatr says he doesn't care what the 9th Circuit Court said, just what 'a scholarly journal' might report about it. At page 4501, the Court said: "These [Heller] considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile." This is absolute proof that the Nordykes made no 2A claim, and also that the 9th Circuit Court, with its 'incorporation' dicta, was just announcing what the Court would have ruled, if they had made such a 2A claim. The only way around that is to close one's eyes, and pretend it doesn't exist. (Truwik (talk) 15:39, 28 April 2009 (UTC))
- Actually not. A better way to put it is that I don't give any weight to personal editor opinion. Zero. You have written volumes about your personal opinion. Enough already. We all know what you think. Quit cluttering up the talk page by telling us what you think about primary documents (like this court ruling). The excess of chat about what editors personally think about primary sources on the talk page gets in the way of trying to edit a WP:Verifiable article. Please stop. If you can rephrase your ideas using references to reliable secondary sourcing, I will read. Otherwise, I will ignore. SaltyBoatr (talk) 17:40, 28 April 2009 (UTC)
- Here's a source for my belief that incorporation occurred in the Ninth Circuit. SMP0328. (talk) 20:25, 28 April 2009 (UTC)
- Considering that this is a current event, that Volokh Conspiracy blog posting is apparently the best available source. As this 2A article is relatively high profile in Wikipedia, hopefully we can upgrade to a better quality source as soon as one becomes available. SaltyBoatr (talk) 14:58, 29 April 2009 (UTC)
- Volokh is also wondering about the lack of media attention to Nordyke. SMP0328. (talk) 00:35, 1 May 2009 (UTC)
- SaltyBoatr complains of 'speculation' and mere 'banter' as being original research. I agree. We must report the Nordyke v. King case truthfully. I'll start by admitting my view of that case was skewed because I didn't like the decision. The 9th Circuit did violate the Rules of Procedure for appellate courts by ruling on an issue that was not first litigated at the trial court. However, the Nordykes did try to add a 2A claim to their complaint, so they could not, now, challenge what the 9th Circuit held, by an appeal to the Supeme Court. I've read elsewhere that that decision has cost the Nordykes thousands of dollars, thus they obviously didn't like the decision either. They thought the 2A would protect their gun show business, but it didn't. Instead, that decision has opened the door for other similar laws in the 9th Circuit that could cost them even more. They sought protection, they got infringement. (Truwik (talk) 13:23, 29 April 2009 (UTC))
- I appreciate the honest recognition that personal points of view skew our ability to edit here objectively. I readily admit to having the same challenge too. I disagree that we must report 'truthfully', as 'truth' is a subjective thing meaning different things to different people. Your truth may not equal another persons truth. The threshold for inclusion in Wikipedia is verifiability, not truth—that is, whether readers are able to check that material added to Wikipedia has already been published by a reliable source, not whether we think it is true. SaltyBoatr (talk) 14:58, 29 April 2009 (UTC)
- What I meant by reporting Nordyke truthfully, is simply reporting what the Court held. Which was "the Second Amendment does not invalidate the specific Ordinance before us." I fail to see how anyone could disagree on what that means. It verifies itself. (Truwik (talk) 15:46, 1 May 2009 (UTC))
- The write-up of Nordyke v. King states: "...the Ninth Circuit ruled that the Second Amendment was incorporated as an individual right against the states." That statement was then contrasted with Bach v. Pataki and Maloney v. Rice, which held the 2A only limited the authority of the federal government. Which makes it appear, to readers, that California's individuals didn't have the right prior to Nordyke. That's utter nonsense - a classic example of ignoring what the Court said, and substituting one's own ignorance for the law. (Here's a hint: From the state's beginnings, up to and after Nordyke, California's individuals were exercising their right to bear arms - having lived there for ten years, I can personally attest to that.) (Truwik (talk) 20:17, 1 May 2009 (UTC))
- This article is about the 2A. Whether Californians had an individual RKBA via their State Constitution is not relevant to this article. The 2A did not apply to their State Government until Nordyke. So it's possible that Californians have had an individual right to RKBA since "the state's beginnings" even without the 2A. Also, your attitude needs to change. You need to reread this. SMP0328. (talk) 00:45, 5 May 2009 (UTC)
- Here in a nutshell, is Nordyke v. King. At p. 3, the 9th Circuit stated: "We must decide whether the Second Amendment prohibits a local government from regulating gun possession on its property."
- At p. 4: "The [Alameda County] Ordinance makes it a misdemeanor to bring onto or to possess a firearm or ammunition on county property."
- At p. 8: "Thus, the Nordykes appeal not only the district court's grant of the County's motion for summary judgment, but also the district court's denial of their motion for leave to amend their complaint to add a cause of action pursuant to the Second Amendment."
- At p. 9: "Therefore, the Second Amendment does not directly apply to the states. See United States v. Cruikshank, 92 U.S. 542, 553 (1875) (citing Barron as a basis for the conclusion that '[t]he second amendment...means no more than that [the right to keep and bear arms] shall not be infringed by Congress'); see also Presser v. Illinois, 116 U.S. 252, 265 (1886) (concluding that the Second Amendment 'is a limitation only upon the power of Congress and the National government, and not upon that of the State')."
- At p. 32: "If we apply these principles here, we conclude that although the Second Amendment applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property."
- At p. 34: "These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile."
- At p. 41: "For the foregoing reasons, we AFFIRM the district court's grant of summary judgment to the County on the Nordykes' First Amendment and equal protection claims and, although we conclude that the Second Amendment is indeed incorporated against the states, we AFFIRM the district court's refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim in this case. AFFIRMED."
- Yet the write-up of Nordyke v. King states: "...the Ninth Circuit ruled that the Second Amendment was incorporated as an individual right against the states." That goes from silly to hilarious. The Court did not rule against any State or against anything in a State. It rather upheld a County Ordinance that made it unlawful to possess a firearm on County property. Nor did the Court incorporate an individual right, the inalienable individual right had always existed in California. (Truwik (talk) 16:57, 4 May 2009 (UTC))
- You quote page 41 of Nordyke, yet you still fail to understand it. The court said that "although [it] conclude[d] that the Second Amendment is indeed incorporated against the states" it upheld the Alameda County ordinance. Those are separate rulings (incorporation & upholding law). It's like when a court rules that a plaintiff has standing, but rules for the defendant on the merits. If the 2A wasn't incorporated, the Ninth Circuit would simply have dismissed the 2A claim rather than deciding if the Alameda County ordinance violated the 2A. SMP0328. (talk) 00:45, 5 May 2009 (UTC)
- SMP0328, sorry I wasn't more clear. Of course the 2A was incorporated. The Court's "the Second Amendment is indeed incorporated" settled that. I took exception to the case write-up's "incorporated as an individual right." The issue before the Court was whether a County Ordinance had infringed on the right - not whether an individual right was lacking. I read the write-up as conferring a right that already existed. Was the intent of "individual right" to convey that the Nordykes and the Ordinance were unrelated to militias? I also took exception to "against the states," because "against" says the Court ruled against the Ordinance when, in fact, they upheld it. How about this:
- The Ninth Circuit incorporated the Second Amendment through the due process clause of the Fourteenth Amendment, but upheld a California County Ordinance which outlawed possession of firearms on county-owned property. This included the Alameda County Fair Grounds, where the Nordykes had sponsored annual gun shows which featured all types of firearms. Said the Court: "[T]he Second Amendment does not invalidate the specific Ordinance before us."
- As to the closing sentence, all 3 cases (Nordyke, Bach and Maloney) held the 2A limited only the federal government, thus there was no 'contrast' in that regard. In Nordyke the 2A was incorporated (but not 'directly') (see p. 9) "The 2A does not directly apply to the states." Where Nordyke differed from Bach and Maloney is incorporation, under the 14A. (NY State is on slim grounds, next they'll outlaw ballbats.) Hope this clears up my position. (Truwik (talk) 14:23, 6 May 2009 (UTC))
- The Ninth Circuit's use of the word "directly" was a reference to whether the Second Amendment applied to the States on its own authority. That's separate from whether it so applies via the DPC of the 14A (i.e., incorporation). The court ruled that the 2A did not "directly" apply, but that it did apply via incorporation. As for your requested wording change, a reference to Nordyke's upholding the challenged law would be fine. SMP0328. (talk) 00:00, 7 May 2009 (UTC)
- At p. 9, the Court stated: "There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application, (2) incorporation by the Privileges or Immunities clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same Amendment."
- At pp. 9-10: "Supreme Court precedent forecloses the first option. The Bill of Rights directly applies only to the federal government. Barron v. Mayor of Balt.,...(1833). ...the Supreme Court has never explicitly overruled Barron. ...Therefore, the Second Amendment does not directly apply to the States. See United States v. Cruikshank...(1875); see also Presser v. Illinois...(1886)..." (This also establishes that Nordyke agreed with Bach and Maloney, of the 2nd Cir. on this point.)
- At p. 10: "We are similarly barred from considering incorporation through the Privileges or Immunities Clause. The Clause provides that '[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' ...this language protects only those rights that derive from United States citizenship, but not those general civil rights independent of the Republic's existence...The former include only rights the Federal Constitution grants or the national government enables, but not those preexisting rights the Bill of Rights merely protects from federal invasion...The Second Amendment protects a right that predates the Constitution; therefore, the Constitution did not grant it. See, e.g. Heller, ...('[I]t has always been widely understood that the Second Amendment...codified a pre-existing right.')."
- The Nordyke write-up statement: "The Ninth Circuit ruled that the Second Amendment was incorporated as an individual right against the states" is thus contrary to what the Court stated. (Truwik (talk) 12:34, 8 May 2009 (UTC))
- You forgot about the DPC of the 14A:
SMP0328. (talk) 19:53, 8 May 2009 (UTC)We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
- Your quote was just after the Court had determined that the "liberty" of the DPC, did include the fundamental right to keep and bear arms, and thus was eligible for DPC incorporation. But that statement did not preclude the Court's: "The Bill of Rights directly applies only to the federal government...Therefore the Second Amendment does not directly apply to the States." Both are true statements.
- You seem to be implying that, by whatever way the 2A is incorporated, it would accomplish the same thing. Not true. Incorporation through the DPC simply assures that states have not deprived their citizens of life, liberty or property "without due process of law."
- Since Alameda County had a bonafide ordinance, they did not violate the DPC of the 14A. That incorporation did not, however, alter the fact that "the Second Amendment does not directly apply to the States." The Court said such "direct application" of the Second Amendment to the states was foreclosed by Supreme Court precedents. Thus, I didn't forget the DPC incorporation, rather, you have ignored what the Court said about the other two ways of incorporation being foreclosed. (Truwik (talk) 17:32, 10 May 2009 (UTC))
- Read Duncan v. Louisiana (specifically, footnote #14 thereto). The Supreme Court no longer makes a distinction between a right and the part of the BOR protecting it. In the past, a right might be incorporated only to the extent it was "implicit in the concept of ordered liberty" which would end up having that right apply to States and localities less than that right applied to the federal government (e.g., Palko v. Connecticut). That is no longer the case. When incorporation occurs, the Supreme Court has made it clear that it is the BOR provision that is being incorporated and that is being applied to all three levels of government in the same fashion. SMP0328. (talk) 18:21, 10 May 2009 (UTC)
Dred Scott in Reconstruction part of article
The case as heard in 1856, 4 years before the start of the Civil War. 68.160.143.198 (talk) 02:47, 27 April 2009 (UTC)
- That material is about what relationship there is between the Second and Fourteenth Amendments. The reference to Dred Scott is part of explaining the intent of the drafters of the Fourteenth Amendment. That's why the Dred Scott reference is in that part of the article. SMP0328. (talk) 03:00, 27 April 2009 (UTC)
- There is a good explainer of the Dred Scott case in regard to Second Amendment incorporation on page 5 of attorney Donald Kilmer's Nordyke Brief. - Davodd (talk) 07:15, 27 April 2009 (UTC)
- I am not asking for removal from article, I am just pointing out that it is included in the WRONG time frame.68.160.143.198 (talk) 13:22, 27 April 2009 (UTC)
- With incorporation, it may be best to start a new section or subsection on the relationship between he 2nd and 14th and put the Dred Scott material there.68.160.143.198 (talk) 13:25, 27 April 2009 (UTC)
- As background, Dred Scott v. Sandford had nothing to do with rights. When Sandford took Scott from Missouri (a slave state) to Illinois (a free state), abolitionists, there, argued that Scott was thus free. The U.S. Supreme Court dismissed that suit for lack of jurisdiction because Scott wasn't a citizen and thus lacked standing to sue in a federal court. (See Art. III, Sec. 2, Cl. 1.) (No non-whites were citizens back then.) The High Court didn't deny Scott citizenship, it just pointed out (by quoting federal citizenship laws) that Scott was not then, and could not be, a citizen even if he were free. That, and other incidents, led to the Civil War (1861-1865). The 13A (1865) freed the slaves, but that didn't make them citizens, because of federal laws to the contrary. The 14A (1868) made them (and all non-whites) citizens: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This made all non-whites, born here, citizens but it did not extend to them, automatically, all the rights that whites had. For instance, many States did not allow blacks to possess firearms (e.g., Louisiana).
- The relationship between Dred Scott and the 2A is nil, between Scott and the 14A, it is an example of cause and effect. Before and after the Civil War, the 2A was, and is, only a restriction on Congress. To-date, no State law has ever been held violative of the 2A, which proves it does not apply to them. Nor does incorporation alter that. (Truwik (talk) 16:18, 2 May 2009 (UTC))
Does anyone object to moving Dred Scott to the pre-Civil section frmo the post civil war section? I believe that the court cases referenced in the article should, if at all possible, appear in cronological order. —Preceding unsigned comment added by 68.162.209.121 (talk) 13:26, 8 May 2009 (UTC)
- This is yet another example where any mention of "arms" is automatically thought to be related to the 2A. This is the thought-pattern of those who believe the 2A is the right to bear arms. The Dred Scott trial was over citizenship, not rights. It certainly belongs in the pre-Civil War slot - but not in this Article. The trial transcript went on for over 240 pages, most of which was historical dicta. It's an excellent source of early American history, from a racial viewpoint, but has no relationship to the 2A's "shall not be infringed." (Truwik (talk) 19:15, 8 May 2009 (UTC))
- The way wiki works, it is damn near impossible to get rid of material once it makes its way into the article. Since it is unlikely to be removed, we can at least show it in the proper time period.68.162.209.121 (talk) 13:17, 9 May 2009 (UTC)
- And yet scholarly pieces such as [[3]] and Encyclopedia of American Civil Liberties, Paul Finkelman, CRC Press, 2006, ISBN 0415943426 page 721 seem to believe that Dred Scott is linked to the 2A. AliveFreeHappy (talk) 19:50, 9 May 2009 (UTC)
- The Dred Scott "Nor can Congress deny to the people the right to keep and bear arms" is a true statement about the amendment, but it is not a "Source on the Second Amendment" as Volokh implies. Nor does Mr. Finkelman's belief that Dred Scott is linked to the 2A, make it so. All that is expressed by these sources, can be learned by simply reading the amendment itself. (Truwik (talk) 18:04, 10 May 2009 (UTC))
"of" vs. "to"
i don't think it should be "Second Amendment to the United States Constitution" as the title. what i mean is the to in it. Second Amendment of the United States Constitution seems to be proper English. i don't want to change it because i think it should be over looked then someone can change it him self —Preceding unsigned comment added by 71.220.137.158 (talk) 17:44, 29 April 2009 (UTC)
- The word "to" is correct. Amendments are made to the Constitution. The word "of" is used regarding the original articles (e.g. Article Two of the United States Constitution). SMP0328. (talk) 20:30, 29 April 2009 (UTC)
- I agree with SMP0328, it should be "Second Amendment to..." (Truwik (talk) 19:21, 8 May 2009 (UTC))
New Montana law limits federal powers
and bars the feds from regulating guns manufactured in Montana, for use in Montana
Law relates to the 2nd, 9th and 10th Amendments as well as the Commerce Clause.
http://www.rense.com/general85/mont.htm
AN ACT EXEMPTING FROM FEDERAL REGULATION UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES A FIREARM, A FIREARM ACCESSORY, OR AMMUNITION MANUFACTURED AND RETAINED IN MONTANA; AND PROVIDING AN APPLICABILITY DATE. —Preceding unsigned comment added by 68.160.176.169 (talk) 04:12, 5 May 2009 (UTC)
- This probably belongs in the Montana article. What it all means is anybody's guess I think. It will be interesting to see this play out, considering that Montana is in the 9th Circuit, and presently in the 9th Circuit the Federal Second Amendment is incorporated onto the state of Montana. Does anyone know of reliable sourcing that answers the question of whether a state has the authority to 'opt out' of an incorporated federal Second Amendment, (or the Commerce Clause of the federal Constitution) at this point in time? SaltyBoatr (talk) 16:02, 5 May 2009 (UTC)
- Unless I misread the law, Montana is "opting in" to the original meaning on the 2nd. Federal regulation of firearms is NOT WELCOME in Montana.68.162.209.121 (talk) 01:50, 6 May 2009 (UTC)
- Here's an article about this law. It appears to be more about resisting federal authority than the Second Amendment. SMP0328. (talk) 02:22, 6 May 2009 (UTC)
- Correct. Resisting illegal US laws infringing on the right of the people of Montana to have guns. Last year Montana threatened to secede from the Union if the Supreme Court decided wrongly on Heller. 68.162.209.121 (talk) 13:05, 6 May 2009 (UTC)
- Here's how incorporation may spread. The Nordyke Court simply upheld a county ordinance that outlawed possession of firearms on county-owned property, which included the Alameda County Fair Grounds. If other counties in the 9th Cir. would like to ban gunshows at their fairground, they could pass a similar ordinance, and it would be so-banned. Then if someone, in that county, took offense at that and challenged the ordinance in court, that county's Respondent could cite Nordyke v. King as precedent, and win easily. Any county or local government, in the 9th Cir., could do that.
- On the other hand, if Alameda County replaced Sally King with someone who is pro-gunshows, and this someone got that ordinance repealed, the Nordykes would be back in the gunshow business, and the 2A would unincorporated.
- As for Montana exempting its firearm practices from federal regulation by Interstate Commerce laws, such would be held unconstitutional because the States delegated that power to the federal government (Art. I, Sec. 8, Cl. 3). If hailed into court, Montana could argue that Congress was misusing its commerce power just to circumvent the 2A's restriction (which - if you will read the BoR Preamble - is just what the 2A was supposed to prevent). (Truwik (talk) 20:32, 8 May 2009 (UTC))
- If the Supreme Court ruled this Montana law to be Unconstitutional, would Montana resist such a ruling? California is doing so regarding Gonzales v. Raich and now is considering fully legalizing marijuana. I don't think the federal judiciary is capable of making the States toe the federal line. SMP0328. (talk) 20:50, 8 May 2009 (UTC)
- The U.S. Atty Gen., upon notice that Montana had not ceased to ship such prohibited items in interstate commerce, would first indict the offending company, then a district court trial would undoubtedly find that company guilty of violating the U.S. Commerce statute involved. (It wouldn't be held unconstitutional, because no constitutional law would have been involved. Unless, of course, Montana raises the argument that Congress has violated the 2A restriction by the unconstitutional use of its Commerce Power. Does shipping silencers, short-barreled arms, etc. really impair commerce?) (Truwik (talk) 00:36, 9 May 2009 (UTC))
- I believe the company would be able to challenge the Constitutionality of the charges brought against it; Montana wouldn't need to get involved. Anyway, do you believe this Montana law should be mentioned in the article? SMP0328. (talk) 02:54, 9 May 2009 (UTC)
- Montana is barring federal regulation of items manufactured and used in Montana. The law does not apply to items shipped out of state. For items not shipped out of state, there is NO interstate commerce going on. Any attempt by the feds to void a state law regulating INTRA state commerce, goes beyond the Commerce clause and would (at least in my opinion) be unconstitutional.68.162.209.121 (talk) 13:47, 10 May 2009 (UTC)
- I agree. The Montana company could challenge the constitutionality of the U.S. Commerce Statute which, under the guise of regulating commerce, was actually infringing of the right to arms, in direct violation of the Second Amendment's restriction on Congress. (I meant the Montana law could not be held violative of the U.S. Constitution, because only federal laws can violate it.) The Montana company, at arraignment, must plead 'not guilty' (no one is bound by an unconstitutional federal law). At the district trial court, the company would file a Motion to Dismiss based upon the unconstitutionality of the Commerce Statute, with a brief setting forth that argument. (I'm sure the district and appellate courts would deny the Motion, but at the Supreme Court, who knows. It declared a D.C. ordinance in violation of the 2A, why not an Act of Congress?) And you're right, the State of Montana wouldn't be involved. And yes, it should be in this Article, it's a direct aftermath of Heller. It's about the amendment's purpose and its scope, not the right. At last! (Truwik (talk) 13:04, 9 May 2009 (UTC))
- Even if the Montana law doesn't "apply to items shipped out of state" it would still be construed that way, if it is moving on an interstate highway - whether it leaves the state or not - definitions have changed. Back in 1939, when Miller drove from Oklahoma to Arkansas with that short-barrelled shotgun, he perfected the crime by crossing a state line. If he had stayed in Oklahoma, with it, there would have been no crime. No longer. Now, being on an interstate highway constitutes being in interstate commerce. If Montanans don't know that, they're in for a rude awakening. (Truwik (talk) 18:37, 10 May 2009 (UTC))
Removed unsourced material
I have removed the following material from the Reconstruction subsubsection of the Early commentary in state courts subsection of the Judicial interpretations section:
In contrast, New York University law professor William Nelson has argued that there were two different views of the meaning of the Fourteenth Amendment. One conception pointed to a notion of equality of rights, while another pointed to something like a core of basic rights protected by the first eight Amendments.[citation needed] The argument of Nelson's book, The Fourteenth Amendment: From Political Principle to Judicial Doctrine, represents one side of the incorporation debate.[citation needed] The opposing viewpoint is represented by the work of Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.[citation needed]
This material is unsourced and has been cited as such for weeks. Once proper sourcing is added, this material can be restored to the article. SMP0328. (talk) 02:47, 7 May 2009 (UTC)
POV problems, still unresolved, May 2009
The POV problems, see above, still remain.
- Excessive reliance of the theory of originalism and textualism.
- Excessive original research concerning "concealed carry" theory.
- The neutrality tone is in violation of WP:NPOV policy.
- Deletion of the militia history.
- The handling of Cruikshank, Miller, Heller and Nordyke all are written with a pro-gun bias.
- Intent of the Founders given excess emphasis.
- The "common sense gun law" point of view about the 2A is a major view in reliable sourcing, but it is entirely missing from the article.
- Another problem (related to 6 above) is that the modern political history of the Second Amendment during especially the later half of the Twentieth Century has been scrubbed from the article.
- Failure to define and distinguish the term "individual rights" from the political slogan "individual rights".
SaltyBoatr (talk) 15:29, 6 May 2009 (UTC)
Additional POV issue With ALL Supreme Court Justices in agreement that the Second Amendment protects an individual right (see Heller opinion and dissent) it seems to me that the "collective right" viewpoint is now over-represented in the article. No lower court is now going to opine that the right to keep and bear arms is a collective right.68.162.209.121 (talk) 13:38, 7 May 2009 (UTC)
- What does the reliable sourcing say? Does this new found individual right component replace the collective civil components? Is there no longer a collective state based militia protection found in the Second Amendment? I have not read that anywhere. In other words, in this post-Heller environment, is the federal government now allowed to legislate against collective state militia? Where does the reliable sourcing say this? Or, does individual firearm use replace the role of militia in society. Are militia officially obsolete now? (Uviller and Merkle argue that the militia were effectively made obsolete by the act of congress of 1903.) Does the reliable sourcing say that now 'effectively obsolete' has become 'officially obsolete' and no longer protected by the Second Amendment? SaltyBoatr (talk) 15:32, 7 May 2009 (UTC)
The article suffers from failure to define and distinguish the term 'individual rights' from the slogan 'individual rights'. This is a POV problem because the definition in reliable sourcing is varied, and is blurred with the definition used by advocacy organizations, which do not meet WP:RS standards. SaltyBoatr (talk) 15:32, 7 May 2009 (UTC)
- Reliable sourcing (aka ALL Supreme Court Justices) states that the right has ALWAYS been an individual right. Your pals over at he Joyce Foundation FAILED to rewrite history. Live with it!
- As to your questions on whether the militia is obsolete, I'm fairly sure your STATE has statutes on who is in your STATE militia. Mine does. Who belongs in the militia is determined by the STATES and not the feds as the militia is a STATE organization which CANNOT be rendered null and void by the feds.68.162.209.121 (talk) 23:00, 7 May 2009 (UTC)
- as is the case every time you bring this up, you fail to provide definitive examples of your vague claims.
- define "excessive". you must provide objective metrics, otherwise your claim cannot be quantified, and thus is meritless (if you can't define it, nobody else will be able to meet the non-existent standard, and therefore can't assist in correcting the problem)
- "excessive" OR??? there should be zero OR in any article! if you are claiming OR, then you need to provide specific examples, not vague claims. i'll happily scrub any OR in the article. please provide actual pointers, rather than vague claims, to assist your fellow editors in cleaning this up.
- quintessentially vague. vague claims don't help your fellow editors in correcting these problems.
- some coverage of the militia is certainly warranted. i'd support inclusion of coverage, so long as we aren't later subjected to claims that the article is now "too long".
- "pro gun bias" is a political advocacy term. probably not the best wording to use when claiming issues of POV, n'est ce pas?
- define "excess".
- "common sense gun law" is a political/advocacy slogan, which should be covered in the article, properly identified as an advocacy slogan. i'm not aware of its having a non-advocacy meaning. i'd be interested in your sources that reference the term in a non-advocacy schema.
- no objection to expanded coverage of the modern political history, so long as we aren't later subjected to claims that the article is now "too long".
- examples, please.
Anastrophe (talk) 16:19, 7 May 2009 (UTC)
- SaltyBoatr will always claim this article is violative of NPOV. The POV problem is with him. Unfortunately, it's unlikely he will cease believing this article has a "pro gun bias" (whatever that means) or that Wikipedia will do anything to stop him. SMP0328. (talk) 18:20, 7 May 2009 (UTC)
- Attacking the messenger doesn't help resolve the nine problems I have explicitly itemized. SaltyBoatr (talk) 18:28, 7 May 2009 (UTC)
- Neither Anastrophe nor I are attacking you. We are criticizing you. There is a difference. SMP0328. (talk) 18:39, 7 May 2009 (UTC)
- Not much difference. Please work with me to resolve these nine problems I have identified. And before I begin to rewrite the 'examples' Anastrophe has asked for, I ask that Anastrophe re-read the talk page archives. This was provided before. SaltyBoatr (talk) 19:35, 7 May 2009 (UTC)
- vague claims of POV violations, without providing contemporary examples from the article, are not helpful to your fellow editors. we cannot fix that which is not explicitly detailed. the article has changed in numerous ways in the intervening months since you last tag-bombed. if you are unwilling to provide contemporaneous examples, then i would ask that you withdraw your claim - we are not here to try to pry the details from you, nor to do ill-defined busywork for you. if you will not provide concrete examples, then your claim is moot, and can likely be characterized as gaming the system. i mean, seriously - "The neutrality tone is in violation of WP:NPOV policy." - do you expect us, your fellow editors, to take each sentence of the article one by one, reproduce each here, and ask you to give us your definitive 'yea' or 'nay' on whether each meets your definition of tone, until such time as every sentence has been vetted by you? Anastrophe (talk) 02:03, 8 May 2009 (UTC)
- One of the nine identified neutrality problems is the neutrality tone. The policy says Neutrality requires that the article should fairly represent all significant viewpoints that have been published by a reliable source, and should do so in proportion to the prominence of each. To evaluate 'in the proportion of prominence', we need to work on a representative list of the reliable sourcing. The problem, I strongly suspect, that the reliable sourcing used by editors here is found by Google searching of blogs and websites, which disproportionately hit on advocacy sources resulting in systemic bias.
- An interesting example of this, Anastrophe over the last year has provided very little, nearly zero, evidence of what sourcing he is reading. I can recall two cases: Anastrophe in the last year in one instance cited a editorial by the vice president of the National Rifle Association, and in the other instance cited from a decade old television show, which features prominently in a NRA press release and is carried on many pro-gun advocacy blogs, but which appears otherwise unavailable in transcript form. This is not evidence of conscious bias, but it is evidence of systemic bias when the sourcing is drawn from Google searches.
- This mistake that has occurred is that the neutrality tone of the article presently represents the weight of personal opinion of the editors. This is wrong per policy. The article should ignore the personal opinion of editors, and represent the balance of opinion of the reliable sources.
- The next step, is for us together to put together a representative balanced list of published reliable sources, and then compare the neutrality balance in the article to the neutrality balance in the sources. I am willing to participate in this, are other editors willing to collaborate on this task? SaltyBoatr (talk) 14:35, 8 May 2009 (UTC)
- your "interesting example" is a misrepresentation, likely due to bias. i mentioned an editorial, i didn't cite it, citing is for article space. yes, it happened to be by someone from the NRA, written in the San Francisco Chronicle. there is no 'other instance', that mention was in reference to the selfsame interview on 60 minutes. i like how you characterize it as "old television show", as if i'm using 'I Love Lucy' as a reference. 60 minutes is a highly respected news program, an eminently reliable source. it's quite clear from your wording that you wish other readers here to believe that i'm some camo-wearing redneck who reads nothing but gun nut blogs. i resent the implication, but at the same time, i've come to expect such underhanded characterizations from editor saltyboatr, so...whatever. i also recently mentioned in talk space a slew of reliable sources, all scholarly books, which saltyboatr conveniently seems to have forgotten. but i digress. the next step is not as you suggest, not at all. the next step is for you to clarify the eight other complaints you lodged, to provide specific examples, or to withdraw the claims. i suggest the latter for several of them, as your own bias appears to have clouded your judgement (suggesting that "common sense gun law" is a well-referenced POV rather than a political advocacy term suggests your own prediliction for that POV). so, how about lets dispense with your eight other complaints via some specifics, before we have this article wikilawyered for the next ten years as you vet every sentence and instruct your fellow editors as to what the "correct" tone of it should be. okay? Anastrophe (talk) 15:52, 8 May 2009 (UTC)
- (correction, the slew of reliable scholarly cites were in article space - on a different, but related article. nevertheless, what matters is the reliable sourcing an editor uses in articles, not self-congratulation in talk space regarding the books they read. making specious, leading characterizations about editors based on selective recollections of talk space discussion is not helpful.) Anastrophe (talk) 18:10, 8 May 2009 (UTC)
- So. Do you agree to use a representative sample of reliable sources to measure the correct neutrality balance? I presume your answer is yes, as that is the policy here. To that end, if you have an opinion about proper neutrality balance for this article you must have some reliable sourcing that you have read. What is it? SaltyBoatr (talk) 19:52, 9 May 2009 (UTC)
- The next step, is for us together to put together a representative balanced list of published reliable sources, and then compare the neutrality balance in the article to the neutrality balance in the sources. I am willing to participate in this, are other editors willing to collaborate on this task? SaltyBoatr (talk) 14:35, 8 May 2009 (UTC)
- This is going to go nowhere. First, it is unlikely that Salty Boatr will accept anyone elses version of what constitutes a representative sample. Just in Heller you can take a sample of the Justices opinions, all stating that the right is an individual right, or you can look at the number of briefs for each side, about 2 to 1 in favor of the individual rights viewpoint. You can Google seconds amendment and either collective right or individual right, and the results are about 5 to 1 in favor of the individual right. Then there is the number of article. There you have the issue of whether to count the articles or to count the authors. One prolific author can skew the balance. etc etc etc. Unless Salty Boatr HIMSELF comes up with the benchmark, he will not be satisfied with the proportions, and even then he will have to HIMSELF examine the article to make sure that this proportion is what is actually in the article. I am quite sure that he will not like MY version of what constitutes reasonable percentages. I believe that that until Salty Boatr comes up with some reasonable proportion for viewpoints that other editors can agree with, that those other editors ignore this issue and live with the POV logo. Anything else would be a waste of their time.68.162.209.121 (talk) 14:04, 10 May 2009 (UTC)
Re:Pro gun bias of 2A. A law protecting the right to own guns is by DEFINITION pro gun.68.162.209.121 (talk) 13:32, 8 May 2009 (UTC)
- I see the POV problem as failure to recognize what this Article is about. It has evolved into a debate over whether the right is a good thing or a bad thing. Both sides have legitimate arguments - the increasing misuse of firearms, which then increases their need for self-defense. However, whether one loves or hates firearms doesn't alter the historical fact that U.S. citizens have the right to bear arms, which pre-dated their creation of the federal government. The point? This Article isn't about the right, it's about to whom "shall not be infringed" applies, and when does that entity's laws, regulating such right, become infringement and thus violative of the Second Amendment?
- SaltyBoatr's nine POV problems are all aimed at the right, not the amendment's purpose. In problem 5, all of the cited cases (Cruikshank, Miller, Heller and Nordyke) have each unequivocally stated that the "Second Amendment does not directly apply to the states," which certainly wasn't referring to the right. They were referring to the amendment's restriction. (Truwik (talk) 15:37, 8 May 2009 (UTC))
- Concerning the "Pro gun bias of 2A: the Second Amendment doesn't protect "the right to own guns," that's a state function. It only protects the right from federal infringement. If it protected the right to "own" guns, that would require Congress to oulaw all State laws that deny possession, which Congress has never done in its entire history. (Truwik (talk) 18:58, 10 May 2009 (UTC))
- Wikipedia controversial topics
- Delisted good articles
- Former good article nominees
- B-Class law articles
- High-importance law articles
- WikiProject Law articles
- B-Class United States articles
- High-importance United States articles
- B-Class United States articles of High-importance
- WikiProject United States articles
- WikiProject templates with unknown parameters
- B-Class U.S. Congress articles
- High-importance U.S. Congress articles
- WikiProject U.S. Congress things
- B-Class Firearms articles
- High-importance Firearms articles
- WikiProject Firearms articles