Talk:Second Amendment to the United States Constitution/Archive 21

Archive 15

←

Archive 19

Archive 20

Archive 21

Archive 22

Archive 23

→

Archive 25

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))

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 [[1]] 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)

Just seeing if people object to moving the material. 68.162.209.121 (talk) 13:51, 11 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))

I glanced through Dred Scott, and it is about a slave trying to get his freedom by arguing that since he was taken to a place where slavery was illegal,that he should now be a free man. The court ruled that he was property and that taking him to a slave free location was not sufficient cause to deprive the owner of his property. It will be interesting to see what the court will say if confronted with the Dred Scott ruling, if someone is brought before a court for legally possessing pot (medicinal use) in his own state, takes it to another state, and there is deprived of it, because there it is illegal. Per Dred Scott precedent he cannot be deprived of his property.68.162.209.121 (talk) 14:02, 11 May 2009 (UTC)

An interesting what-if. As to slavery, Art. IV, Sec. 2, Cl. 3 read: "No Person held to Service or Labour in one State, under the laws thereof [e.g., Missouri], escaping into another, shall in Consequence of any Law or Regulation therein [e.g., Illinois],be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." (This was changed by the 13A but back then it surely would have applied to Scott whether he was taken to Illinois or 'escaped' to that State. However, the Court rather relied on Scott's lack of citizenship and thus lack of standing to sue in a federal court.)

Art. IV, Sec. 2, Cl. 1 provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States," but the BoR rights are not P and I (they pre-dated the Constitution) and, again, Scott was not a citizen.

In Bach v. Pataki, (2005), Bach wanted to carry his handgun from Virginia (where no license was required) to New York (where licensing was required). He argued the NY law violated the 2A and the P or I's of the 14A, but the 2nd Circuit said: "we hold that the 'right to keep and bear arms' [the 2A] does not apply against the States, and affirm the district court's dismissal of Bach's Second Amendment claim."

In Maloney v. Rice, (2009) (over whether outlawing nanchuka sticks, in NY State, violated the 2A) the Court stated: "It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on the right." (Truwik (talk) 18:40, 13 May 2009 (UTC))

POV problems, still unresolved, May 2009

The POV problems, see above, still remain.

1. Excessive reliance of the theory of originalism and textualism.
2. Excessive original research concerning "concealed carry" theory.
3. The neutrality tone is in violation of WP:NPOV policy.
4. Deletion of the militia history.
5. The handling of Cruikshank, Miller, Heller and Nordyke all are written with a pro-gun bias.
6. Intent of the Founders given excess emphasis.
7. 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.
8. 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.
9. 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.

1. 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)
2. "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.
3. quintessentially vague. vague claims don't help your fellow editors in correcting these problems.
4. 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".
5. "pro gun bias" is a political advocacy term. probably not the best wording to use when claiming issues of POV, n'est ce pas?
6. define "excess".
7. "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.
8. 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".
9. 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)

first, we must deal with/dispense with your eight other complaints. please either withdraw them, or modify them, or whatever - respond in some fashion to the concerns voiced. if the only real neutrality issue is the "tone" of the article, then lets have that stated boldly and affirmatively. if you agree to withdraw some of the complaints, and not others, thats fine - but we need your voice to be heard, one way or another, on them. as to the "tone", that will require likely significant third-party opinion, or mediation, in order to winnow down a truly neutral list of truly reliable sources, and the content therein, and how that matches up with the article. absent something more concrete than a claim that the "tone" is faulty, i don't see this complaint ever being satisfied, which is why i have suggested that i believe it is gaming the system - but that's for mediation to resolve. Anastrophe (talk) 19:27, 10 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)

"...it is unlikely that Salty Boatr will accept anyone elses version of what constitutes a representative sample." If we cannot even start this process by proposing a representative sample of reliable sources, we certainly cannot agree at a correct in proportion to the prominence balance point as required by policy. And, yes, I am willing to engage in mediation towards resolving this POV problem. Further, I direct attention to the many thousands of words of explanation I have already written about the nine problems I have identified, in several cases many times over. I don't see how re-writing these descriptions and examples here yet again here will help. I also would like to point out that a major player in this neutrality dispute, historically is absent here. Also, Clayton Cramer directing the focus at me seems personal and diversionary. SaltyBoatr (talk) 16:06, 12 May 2009 (UTC)

your "many thousands of words" are meaningless as a basis for improving the article if you refuse to provide specifics. you are making claims of POV issues, none of which you've identified with specifics. the article today is not the same article as a year ago. without specifics, your fellow editors cannot correct the issues. therefore, your claim is moot, and appears to be merely gaming the system, in order to keep the article perpetually tagged. you may make generalized claims over and over (we are all aware that you've complained about these things before), but without specifics there is nowhere to go but mediation. i'm not sure what "major player" you're referring to, but i'm not aware that editors are required to participate anywhere in wikipedia.Anastrophe (talk) 07:31, 13 May 2009 (UTC)

Don't be coy. One huge specific example, (among many others) is the WP:OWN problems with the 1967 violative Bliss passage. I recall about a year ago that you agreed that there appeared to be WP:REDFLAG problems with this violative assertion. You also know which editor. Who is gaming this? SaltyBoatr (talk) 15:27, 13 May 2009 (UTC)

wait, now you're changing this to WP:OWN, rather than WP:NPOV? under which of your nine complaints does the Bliss issue fall? you seem to be changing the argument midstream. yes, i am still bothered by the Bliss passage, but that's a different issue from what i thought we were discussing. if not, then please affix a number to it, so we can deal with that specifric item, and resolve it. i'm baffled by your last comments. are you referring to yaf? if so, why not just say "yaf"? talk about being coy, why is it me who's gaming things when you're coyly referring to 'major players' and claiming anonymous IP's are specific people? this is ridiculous. either withdraw your eight other complaints - which you've yet refused to provide a single specific for, or allow the POV dispute tag to be removed. if you refuse to provide specifics, then you prevent your fellow editors from fixing the problems you claim exist. that's textbook obstructionism. do you really want to go down that path again? Anastrophe (talk) 07:39, 14 May 2009 (UTC)

No. See number 2. Yes, Yaf. See talk page above for specifics. I am not obstructionist. I am willing to participate in WP:DR as needed to resolve this, are you? Is Yaf? SaltyBoatr (talk) 18:11, 14 May 2009 (UTC)

actually, you're entirely obstructionist. which is why i'm bowing out. let the damned POV tag stand, life is too short to waste bickering with wikipedia editors. i'd rather be in philadelphia. Anastrophe (talk) 04:22, 16 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))

The Congress wouldn't be "required" to do so; it would merely have the authority to do so and then only if the State or local law at issue was inconsistent with SCOTUS case law (see City of Boerne v. Flores). SMP0328. (talk) 19:08, 10 May 2009 (UTC)

For truwic. The Second DOES protect the right to own guns. I agree that it does not ORIGINATE that right, however it does protect it. In the same way that the 5th protects the right to remain silent, the 4th protects against unreasonable search and seizure, the 1st protects the right to be free to worship as you choose, the 2nd protects the right to own a gun. All these amendment tell the federal government that it is not ALLOWED to mess with those rights. 68.162.209.121 (talk) 20:59, 10 May 2009 (UTC)

It would depend on how the 2A was worded. If it read: "The right of the people to keep and bear arms, shall not be infringed by any State," then Congress would be bound to notify the States if their law had so-infringed. (Without "any State" being there, isn't that how the 2A is, here, being viewed?)

If the 2A read: "The right of the people to keep and bear arms is hereby protected against infringement by the States," wouldn't Congress be bound to declare any and all state laws so-infringing as violative of the 2A? (But without "protected" and "by the States" being there, isn't that how the 2A is being viewed?)

If it read: "The right of the people to own arms is an inalienable right, that is not dependent, in any manner, upon this amendment for its existence, shall not be infringed." (Wouldn't Congress still be bound to enforce that within the States?)

Then for one wild and crazy moment, suppose it read: "The right of the people to keep and bear arms, shall not be infringed." (Wouldn't that require Congress to protect the right within the States, if that was its intent?)

Has Congress ever done that? When San Francisco banned handguns did Congress advise its mayor that he had violated the 2A? When NY State only allowed certain citizens to own handguns, did Congress (in an uproar) threaten to arrest its governor for violating the U.S. Constitution? When Massachusetts had a mandatory one-year jail sentence for possession of a handgun therein, did Congress do anything about that? When Chicago suburbs banned handguns 30 years ago, did Congress say a word? Even within their own jurisdiction, when the District of Columbia banned handguns (33 years ago) did Congress even say "Oh my Goodness"? Has Congress ever protected the right within the States? Has the federal judiciary ever held a state firearm law in violation of the 2A? (Truwik (talk) 14:14, 14 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"[2]. 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.[3] - 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)

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):

1. 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.
2. If so, does the Alameda County Ordinance unconstitutionally violate the Nordyke’s Second Amendment rights? Court Holding: NO.
3. 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.
4. 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))

WP:NOTAFORUM

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:

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.

SMP0328. (talk) 19:53, 8 May 2009 (UTC)

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)

Palko v. Connecticut, (1937) was a double-jeopardy case where Palko claimed that the 5A protected him through the 14A, and also argued that any violation of the BoR "(Amends. 1 to 8)" would, "by force of the 14A," also be unlawful "if done by a state." The Court said: "There is no such general rule," and held Palko's conviction "is not in derogation" of the 14A's protection.

Duncan v. Louisiana, (1968) was about whether "the 6th and 14th Amendments...secure the right to jury trial in state criminal prosecutions" (Duncan had been denied a jury trial). Said the Court: "we hold that the 14A guarantees a right of jury trial in all criminal cases...we hold that the [U.S.] Constitution was violated when appellants demand for jury trial was refused."

SMP0328 is overlooking the Court's rejection of Palko's contention of a blanket application of the BoR to the states: "There is no such general rule." The High Court did not apply the 5A's double-jeopardy restriction part to Connecticut but, it did apply the 6A's jury trial right part to Louisiana. Neither of these cases applied the entire 5A and 6A to a State, and neither said anything about the 2A.

In Nordyke, the 9th Cir. held that "direct application" of the 2A to the states was foreclosed by "Supreme Court precedent[s]" namely: Barron v. Balt., U.S. v. Cruikshank, Presser and Heller. (This is clear evidence the 2A has been treated differently than the others.) Just after that, is where the Court said: "Therefore, the Second Amendment does not directly apply to the States" and cited those precedents.

Just because the Court said "the DPC...incorporates the 2A and applies it against the states," does not mean it applies "directly" to the States because the Court expressly said that way to apply the 2A was foreclosed. SMP0328's quarrel isn't with me, he is attempting to overrule Nordyke by replacing the 9th Circuit's opinion with a fraudulent opinion. (Truwik (talk) 20:40, 11 May 2009 (UTC))

Do you have a reliable source to back up your reading of Nordyke? I have provided a source to back up my reading, but you have not for your's. So far, your unique reading of Nordyke is simply your opinion. SMP0328. (talk) 00:23, 12 May 2009 (UTC)

SMP0328, if I may ask: Where the 9th Circuit said the "direct application" was foreclosed by Supreme Court precedents, what does that mean to you? And when, just after that, the Court said: "Therefore, the Second Amendment does not directly apply to the States," what does that mean to you? Then finally: If there are three ways the 2A may be applied to the States, does it make any difference which way is used? If you would answer those questions, maybe I could better explain what the Court did. Thank you. (Truwik (talk) 21:58, 12 May 2009 (UTC))

If you could please stop. No one wants to read your explanation[4] of what the court did. SaltyBoatr (talk) 22:07, 12 May 2009 (UTC)

I am simply trying to protect SMP0328 from future embarrassment. (I'm assuming he composed the Nordyke v. King write-up.) (Truwik (talk) 16:59, 13 May 2009 (UTC))

You still have not provided a source for your claim that the Ninth Circuit did not incorporate the 2A. I did provide a source for what I claimed (incorporation did occur). BTW, disagreeing with you is not embarrassing to me, but thanks for your concern. SMP0328. (talk) 18:48, 13 May 2009 (UTC)

SMP0328, I didn't say incorporation had not occurred, I said it didn't occur in the way you have assumed. Nor did I mean you should be embarrassed for disagreeing with me, I was referring to the reaction of future readers (with more savvy of Court lingo) to the write-up of the Nordyke case.

As SMP0328 stated above: "The 9th Circuit's use of...'directly' was a reference to whether the 2A applied to the States on its own authority. (In other words, the Court just made a passing comment that the 2A being mere ink on paper can't apply itself to the States, so the Court'll have to do it. That's ludicrous.)

When the Court stated: "There are three doctrinal ways the 2A might apply to the states: (1) Direct application, (2) Inc. by the P or I's Clause of the 14A, or (3) Inc. by the DPC of the same Amendment," it was not listing options, from which it was free to choose.

Just after enumerating those three ways, the Court stated: "Supreme Court precedent forecloses the first option. The BoR directly applies only to the federal government. Barron v. Mayor of Balt., 32 U.S. 243, 247-51 (1883)." ['Forecloses' means: "to shut out." The Court then quoted this]: "Although the Supreme Court has incorporated many clauses of the BoR into the DPC of the 14A, the Supreme Court has never explicitly overruled Barron. Nordyke III, 319 F.3d at 1193 n. 3 (Gould, J. specially concurring). Therefore, the 2A 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 2A is a limitation only upon the power of Congress and the National Government, and not upon that of the State')."

The Nordyke write-up states: "This decision stands in contrast with Bach...and Maloney...in which it was ruled that the 2A limited the authority only of the federal government." (That is diametric to what the 9th Circuit ruled.)

The write-up also states: "the 9th Circuit ruled that the 2A was incorporated as an individual right against the states." (The 9th Circuit did not rule "against the states"; it did not rule against any state; nor did it rule against Alameda County within the state. It ruled against the Nordykes and upheld that county's ordinance which banned gunshows.) (Nor did the 9th Circuit incorporate the 2A "as an individual right." Californians were born with the right.) (Truwik (talk) 15:11, 15 May 2009 (UTC))

Ferrylodge and I have changed the wording of the first sentence of the Nordyke material, so it now reads:

On April 20, 2009, the Ninth Circuit ruled that the Second Amendment does apply to the states.

As for "directly" and "on its own authority", I was referring to the Second Amendment being a limitation of government authority without the help of any other provision of the Constitution. The entire Bill of Rights "directly" and "on its own authority" limits the authority of the federal government. On the other hand, the Supreme Court, in Barron, said that wasn't the case regarding state and local governments. A provision of the Bill of Rights applies to them only if it is "incorporated". Truwik, do you believe the Ninth Circuit ruled in favor of "incorporation" regarding the Second Amendment? SMP0328. (talk) 19:25, 15 May 2009 (UTC)

I still disagree with "does apply to the states" but the Ninth Circuit did say that. The Court said "there are three...ways the Second Amendment might apply to the states." But, it also stated: "Therefore, the Second Amendment does not directly apply to the states." The first was a preface to the actual three ways enumerated, while the last was a statement of lawful fact based upon High Court precedents. Thus the Second Amendment does not apply 'directly' to the states, but it may apply in a figurative sense.

I believe the Ninth Circuit incorporated the Second Amendment through the 'due process' clause of the Fourteenth Amendment, as it pertained to the Alameda County Ordinance, in the State of California. And without similar proceedings in other areas of that circuit, that is the extent of its effect.

In Barron v. Baltimore, 32 U.S. 243, at 247 (1833), the Court said: "...the Fifth Amendment must be understood as restraining the power of the general government, not as applicable to the states." At pp. 248 & 250-1, we read: "...the plaintiff in error insists, that the constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. ...We are of opinion, that the provision if the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation of the exercise of power by the government of the United States, and is not applicable to the legislation of the states."

The Barron Court said nothing about 'incorporation' of the Bill of Rights into the States. That case was 35 years before the Fourteenth Amendment of 1868, which made incorporation possible. The 'corporation' mentioned was Mr. Barron's. Maryland had taken some of the corporation's property without justly compensating for it, and Mr. Barron assumed (like folks today) that the Fifth Amendment protected him from such State actions. The Court said, no, and dismissed the suit for want of jurisdiction.

And finally, I'll leave you with this. The right and the amendment are not the same thing. Admittedly, most Americans think it is, and we hear "Second Amendment Right" from both sides of the arms issue. But the right isn't dependent on the amendment for its existence, thus, legally there is no such thing as a Second Amendment Right. The right existed before the amendment, and would continue to exist if the amendment were repealed. When the Ninth Circuit said the Second Amendment does not directly apply to the states, it meant the amendment's restriction (shall not be infringed) does not apply to the states. When incorporating the amendment through the due process clause of the Fourteenth Amendment, the only consideration is whether a plaintiff has been deprived of his right "without due process of law." The Nordykes had not been so-deprived, thus there was no violation of the Fourteenth Amendment. (Truwik (talk) 13:10, 17 May 2009 (UTC))

Contradiction in Text section

I removed a good faith edit to the Text section because it contradicted the remainder of the section and the cite didn't support the contradiction. The current section includes the text as passed by Congress, with three commas, and a statement asserting that the "original hand-written copy of the Bill of Rights, approved by the House and Senate,...", which means that the "original" copy has three commas. The removed edit asserted that the "original copy" had one comma, but the cited web site didn't claim to present the original copy. Celestra (talk) 14:42, 16 May 2009 (UTC)

Reorganization

I've just reorganized the material in the article so that it's more chronological, so the most important stuff comes first, and so the stuff within each section corresponds to what the section headings say. I hope this reorganization won't be controversial. It just makes the article easier to read, IMO. Hopefully I'll soon have time to address the stuff that has led to the tag at the top of the article. Some of the blockquotes in this article are huge, so maybe the next thing would be to cut them down to size and/or summarize them in our own words.

I hope you like the animated GIF. Cheers.Ferrylodge (talk) 05:21, 18 May 2009 (UTC)

I have moved the Scholarly commentary section so it comes immediately after the Drafting and adoption section, rather than the Judicial interpretations section. I believe the Scholarly commentary section should be there, rather than in the middle of the material about the federal government. SMP0328. (talk) 21:12, 18 May 2009 (UTC)

How about if the "Scholarly commentary" section goes after (instead of in the middle) the stuff about the federal government? It just seems like the court cases are much more notable than the scholarly commentary, and so the court cases should come first.Ferrylodge (talk) 21:15, 18 May 2009 (UTC)

Courts take into account the type of material that is in the article, when ruling on the Second Amendment. That why I placed Scholarly commentary before Judicial interpretations. SMP0328. (talk) 21:34, 18 May 2009 (UTC)

I'll leave it the way it is for now, but would be interested in what other people think. Our audience here is the general public rather than judges. Anyway, judges do rely on precedent more than scholarly opinion. In terms of historical notability, what the courts say in a case like Heller is way more important than what someone like Saul Cornell or David Konig says.Ferrylodge (talk) 22:36, 18 May 2009 (UTC)

I'm also interested in knowing what this article's regular editors think of the recent changes to it. SMP0328. (talk) 23:58, 18 May 2009 (UTC)

I'm just an occasional editor, but I think this is much better. IMO, one of the biggest problems in the past has been that the article had a bickering tone, presenting alternate views in opposition to one another. The new organization is more neutral, it presents the facts rather than arguing them. What would you think of removing the "bear arms" and "well regulated militia" sections? Celestra (talk) 02:04, 19 May 2009 (UTC)

Why do you want them removed? Also, there may be editors who like that material and would quickly restore it if it was removed. SMP0328. (talk) 02:24, 19 May 2009 (UTC)

It might be a good idea to remove the section titled "The meaning of 'well regulated militia'" and move the long Hamilton quote from Federalist 29 up to the section titled "Experience in America prior to the U.S. Constitution" (where Federalist 29 is already quoted).Ferrylodge (talk) 02:40, 19 May 2009 (UTC)

They seem to me to be much less encyclopedic than the rest of the article, now. The etymological arguments about the meaning of "bear arms" or "well regulated militia" aren't central to the meaning of the amendment itself, yet the sections take up more than half of Scholarly Commentary. Including the "mad hatter" quote, in particular, seems out of place in a neutral presentation and the sections seem to just go back and forth several times presenting argument and counter-argument. But that's just my opinion...and the reason I asked what you thought rather than being overly bold. Celestra (talk) 02:46, 19 May 2009 (UTC)

Can that material be salvaged if reworded? SMP0328. (talk) 02:48, 19 May 2009 (UTC)

You would know better than me; you two are doing all the work right now. Since you ask, though, I think that the two "bear arms" sections could be reduced and combined. Celestra (talk) 03:03, 19 May 2009 (UTC)

In the reliable sourcing, see Uviller and Merkle[5] and several others, the point to make here is that "bear arms" is different than "bear" "arms". The ambiguity of these meanings has importance to understanding the meaning of the Second Amendment over time. The vast majority of usages in the late 18th Century being "bear arms" and the vast majority of usages in the late 20th Century being "bear" "arms", reflects an evolution of the popular understanding of the meaning of the amendment. SaltyBoatr (talk) 17:17, 19 May 2009 (UTC)

(undent)I wish we could get to Heller faster. It just looks odd to be mentioning it so much before we even get to that section. The whole Commentary section seems like a magnet for POV concerns, because it's unclear how these scholars were selected, and whether they really represent a fair cross-section. If the commentary section were moved lower, we could get to Heller faster, and there would be less likelihood of complaints regarding the Scholarly Commentary section (I'm not complaining about it because I haven't researched the 2d Amendment scholarship enough).Ferrylodge (talk) 02:54, 19 May 2009 (UTC)

I'm fairly certain that at least one editor (not me) would claim "pro gun bias" if this article was edited so it "could get to Heller faster". SMP0328. (talk) 03:01, 19 May 2009 (UTC)

If that happens, I'd take it to any dispute resolution necessary. As you know, Heller is the leading Supreme Court case interpreting the Second Amendment. Whether one likes Heller or not, it's far more relevant than anything in the scholarly commentary section. And putting the Scholarly Commentary later would eliminate the problem of people having to plow through all that commentary stuff to get to the court cases (i.e. there would be less reason to prune the Scholarly Commentary).Ferrylodge (talk) 03:19, 19 May 2009 (UTC)

"As you know"??? Using WP:RS, please show us why Heller is the leading SCOTUS case. When I look I see many articles full of wishful thinking and speculation predicting a historic importance of Heller, but very little (if any) actual effect of Heller on present law. Certainly there has been the predicted flurry of cases[6] to sort out what Heller really means. The Scalia 'escape clause': "Nothing in our opinion, should be taken to cast doubt on longstanding prohibitions..." eviscerated the Heller judgment. We won't know the true effect of Heller until after the lower courts have sorted out what is a 'longstanding prohibition'. So far over 100 lower courts have ruled unanimously that all existing gun laws are constitutional under the Scalia 'longstanding prohibition' exemption. In short, the status quo remains in effect, and Heller has led to the overturn on Second Amendment grounds of just one ordinance in the District of Columbia, and no other. Per recent reliable sourcing: "(The) High court's Second-Amendment ruling has had little impact so far" SaltyBoatr (talk) 16:21, 19 May 2009 (UTC)

Saying that the "escape clause" resulted in the Heller judgment being "eviscerated" is "speculation" on your part. Five years after Brown v. Board of Education was decided, it didn't appear it had accomplished much. Racial segregation was continuing, as multiple States defied the ruling. Now, as we have recently marked its 55th anniversary, Brown is considered one of the greatest Supreme Court decisions in American history and nowhere is it being defied. How Heller will be perceived in 2063 (55 years after the handing down of Heller) is anyone's guess. SMP0328. (talk) 18:17, 19 May 2009 (UTC)

Heller is the leading case because it is the most recent case. Anyway, the point I was trying to make is that this article should get to the Supreme Court cases faster, without making people plow through so much commentary.Ferrylodge (talk) 18:27, 19 May 2009 (UTC)

Neither of you mention your sourcing. And, no the effect of the Scalia clause "Nothing in our opinion, should be taken to cast doubt on longstanding prohibitions..." is not original research. There have been several articles in reliable sourcing about this effect. My term 'escape clause' fairly describes a "Nothing in our opinion..." exception carved out by Antonin Scalia, an exception clause the size of a barn door. SaltyBoatr (talk) 18:45, 19 May 2009 (UTC)

What do you mean "your sourcing"? I did not write this article, and only became involved a few days ago. As you can see above, SMP0328 and I are having some disagreements.Ferrylodge (talk) 19:11, 19 May 2009 (UTC)

I know that the Court in Heller said that. I was saying, and am saying again, that it's "speculation" on SaltyBoatr's part to say that quote "eviscerated" Heller. It's too early to know what will be the enduring effect of Heller. SMP0328. (talk) 19:34, 19 May 2009 (UTC)

Probably wouldn't hurt to at least quote that sentence of Heller in our article. I don't think it's in our article right now.Ferrylodge (talk) 19:43, 19 May 2009 (UTC)

Done, with the full quote. SMP0328. (talk) 20:08, 19 May 2009 (UTC)

English background

I appreciate the attempts to fix the English Background section non-neutral emphasis on the fringe 'right of revolution' theory of the Second Amendment, though they still improperly present the Magna Carta as the origin and unquestioned foundation of the 2A. Most other reliable sources point elsewhere, which is the English common law tradition of a duty to "bear arms", that is a duty towards military service in defense of community. This duty later evolved, into a right with the English Bill of Rights 1689. From the years 600 to 1689, this was initially and primarily a duty of military service in defense of community, and only incidentally to defend community against unlawful tyrants, and one POV advocacy groups favors the latter and suppresses the former. Per WP:NPOV policy the English background section should be worded, not to present the 'right of revolt' as fact, but rather as one hypothesis says this, the other more dominnant hypothesis says 'from years 600-1689 a duty of military service in defense of community'. SaltyBoatr (talk) 16:36, 21 May 2009 (UTC)

I don't think this article presents the Magna Carta as the origin and unquestioned foundation of the 2A. The article is chronological, so Magna Carta happens to come first.Ferrylodge (talk) 17:37, 21 May 2009 (UTC)

Did you check the source[7]? The Magna Carta comes third. SaltyBoatr (talk) 18:23, 21 May 2009 (UTC)

This article does not mention the Anglo-Saxon tradition that began in 600-700 AD, nor does it mention the Assize of Arms. If this article did mention those things, then they would belong before Magna Carta. We're just giving a summary, so doesn't Magna Carta seem like a more notable landmark than the 600-700 tradition, or the Assize of Arms? We could put those two things in the article if you want, but they don't seem as notable as Magna Carta.Ferrylodge (talk) 18:38, 21 May 2009 (UTC)

Exactly. And, most reliable sourcing typically points to the Assize of Arms as the origin, not the Magna Carta. See Bodenhamer[8], and many others. The Manga Carta is favored by the extremist fringe favoring a right of revolution theory. (Notice that the article does not give any sourcing other than the primary document as to the Magna Carta origin, which is a violation of WP:NOR too.) And, this is a bias that is one of many reasons for a POV warning on the article. SaltyBoatr (talk) 20:05, 21 May 2009 (UTC)

Well, fine, go ahead and put in the Assize of Arms. Have you tried before and been reverted?Ferrylodge (talk) 20:18, 21 May 2009 (UTC)

Yes. Not only reverted, but also personally threatened and harassed. SaltyBoatr (talk) 20:29, 21 May 2009 (UTC)

Did I suggest deleting all reference to Magna Carta? No. I suggested mentioning the Assize of Arms. You've also inserted six new footnotes, and as far as I can tell only one of them has the full text available online, which is very frustrating for other editors who would like to check your sources.Ferrylodge (talk) 20:31, 21 May 2009 (UTC)

No, I deleted that passage per WP:NOR. The Assize of Arms passage I inserted is just a restoration of the earlier article passage of a stable version of the article from June 2008. Sorry, it is dangerous to rely on online sources relative to the Second Amendment because so many are advocacy pieces which fail the WP:RS 'reliable published source' quality standard and contributes to the systemic bias problem here. Reading paper books sometimes is needed. SaltyBoatr (talk) 21:25, 21 May 2009 (UTC)

Many paper books are available online. I've linked several of the ones you added. The passage that is now in this article about Magna Carta is adequately cited, it seems to me. You provided the cite above, on this talk page. Ferrylodge (talk) 21:35, 21 May 2009 (UTC)

section break

Editor Saltyboatr wrote "I have identified several specific POV problems throughout the article". actually, no, that is not the case. you've identified several general and vague POV complaints you have with the article, none of which provide any specifics, which are necessary for fellow editors to correct the problems. this is why i (and likely others) deem your POV complaints as obstructionist and disruptive. if you would like to work with your fellow editors to fix these problems, then lets begin. copy & paste a portion of the article that you deem problematic here into the talk page (ideally under a new section, perhaps entitled "problematic section: xyz. please review". annotate or highlight the specific portions that are problematic; identify the problem. vague characterizations should be avoided. other editors can review the material and your annotations, and work with you to fix the issues - if there really are issues. absent some effort on your part - at least, effort more strenuous than typing {{POV}} at the top of the article - then consensus will likely hold that you are being disruptive and obstructionist, and our common goal of a better article will never be realized. Anastrophe (talk) 03:58, 27 May 2009 (UTC)

Can we start with the specific complaint that WP:UNDUE requires the neutrality balance to match that seen in the proportion found in reliable sourcing? I specifically see the problem that instead the neutrality tone matches the energy level balance of the personal opinion of the involved editors. Anastrophe has in the past explained that he has not actually read much on the topic of the Second Amendment, and the little that he has read comes from opinion editorial pieces sympathetic of the NRA. So, I fail to understand how he can know what is the correct "proportion of prominence" required by WP:UNDUE. If I am mistaken in this understanding, then Anastrophe now should be able to describe specifically, which reliable sourcing he is using to express his opinion that this article strikes a correct neutrality balance proportion. If possible, please answer this point first. If not, please ask and I can go into more specific details of other problems as you have requested. SaltyBoatr (talk) 15:11, 27 May 2009 (UTC)

constitution.org

The website www.constition.org[9] since 1995 is blog run by Jon Roland, who is identified[10] as associated with anti-government extremists, and his blog has no apparent reliable publication process. The credibility of this article, (and the WP:NPOV status) is harmed through the use of fringe extremist sources lacking a reliable publications process. SaltyBoatr (talk) 17:10, 26 May 2009 (UTC)

The Constitution Society posts various documents at their web site, and all we did was link to an article posted there from the Michigan Law Review. That is perfectly acceptable, and is also done countless times in other Wikipedia articles.[11] We were not citing any views of Jon Roland, and even if we were I am not convinced that the book you mention is a reliable source.Ferrylodge (talk) 17:39, 26 May 2009 (UTC)

This most certainly reflects the editorial judgement of Jon Roland, and reflects his views. Use of fringe extremist sources like this radical weblog is not perfectly acceptable as it skews the POV balance of the article, and harms the credibility of the encyclopedia by association. Find a better and more mainstream source please, and avoid giving credibility to extremist publications. SaltyBoatr (talk) 17:43, 26 May 2009 (UTC)

Are you seriously suggesting that the Constitution Society may have falsified this law review article?Ferrylodge (talk) 17:48, 26 May 2009 (UTC)

You have the burden to show your source to be reliable, not me. By objective standards, www.constitution.org does not meet WP:RS standards in that they do not have an apparent "reliable publication process". They also (actually he, Jon Roland, masquerading as a 'they') is identified in reliable sourcing[12] as associated extremist fringe elements. I am not questioning the Michigan Law Review. I am questioning the hyperlink to this extremist weblog as being inappropriate. Hyperlinks to extremist sources by Wikipedia degrade the credibility of the entire encyclopedia by giving and raising the credibility of fringe extremists. Especially when better sourcing is available, try linking to the Michigan Law Review instead.

As an aside. This incident provides strong evidence of the systemic bias problem with the article. When editors like you depend on Google searches to research the content of the article, the neutrality balance pool is skewed by the increased weight given to non-WP:RS advocacy editors like Jon Roland, www.guncite.org, www.SAF.org and many other non-WP:RS web advocacy groups. The weight of these advocacy organizations tip the neutrality balance of this article. If we were to follow policy and stick just to the neutrality balance found in true reliable sources we would end up with a different neutrality balance than we get when we get influenced by Jon Roland. (Indeed, the emphasis of this obscure Michigan Law Review article has been raised in your eyes by Jon Rolands advocacy of it. A clear case study of our systemic bias problem here.) SaltyBoatr (talk) 18:15, 26 May 2009 (UTC)

We did not link to any material by Jon Roland or anyone else at the Constitution Society. We merely linked to a Michigan Law Review article. Please try to distinguish between these two things. Thanks.

Also, your source is thirteen years old, and does not mention anything about the Constitution Society. Regarding Google searches to research the content of this article, I have used Google searches to find links to materials that have already been cited in this Wikipedia article, such as materials cited by yourself, and I don't think that skews anything. Likewise, using Google Books doesn't seem to skew anything, because that's a very well-balanced collection of books.Ferrylodge (talk) 18:17, 26 May 2009 (UTC)

"I have used Google searches to find links to materials that have already been cited in this Wikipedia article". Yes, and as this article appears based on Google search research, it at the least reflects the neutrality balance found in the 'hit mix' of the Google search results. If this 'hit mix' does not match the neutrality in published reliable sourcing, we are in violation of policy. Worse, POV pushing could lead to a selection bias, where editors seek out to find sourcing to match their personal bias. That is the wisdom of the WP:UNDUE policy, that we should observe published reliable sourcing, and then write an article that matches the balance found, and not write an article that matches the bias of the involved editors (myself included). Let us not skip the step of first observing. Can we try to agree to a short list of published reliable sourcing that gives a neutral point of view to the topic? Do you believe the www.constitution.org is a neutral reliable source? You (Ferrylodge) inserted it[13] in the article, you have the burden to explain yourself. SaltyBoatr (talk) 19:42, 26 May 2009 (UTC)

I've already responded regarding the Michigan Law Review article that is available from the web site of the Constitution Society. It is obviously authentic, and if you believe otherwise then you ought to be specific about what you think has been forged.Ferrylodge (talk) 19:59, 26 May 2009 (UTC)

I assert that your hyperlink from this article to a website of extremist fringe pro-gun group contributes to the NPOV problem with this article. SaltyBoatr (talk) 20:03, 26 May 2009 (UTC)

Do you have any reliable source that characterizes the Michigan Law Review or the Constitution Society as an "extremist fringe pro-gun group"? Your cite from 13 years ago doesn't count, because it is old, outdated, and it mentions neither organization.Ferrylodge (talk) 20:05, 26 May 2009 (UTC)

You have the WP:BURDEN to show that www.constitution.org is reliable, not me. I don't question the Michigan Law Review. I point to the Mulloy book _American Extremism_ ISBN 9780415326742 and Knight _Conspiracy Theories in American History_ ISBN 9781576078129. www.consitution.org is the webblog mouthpiece of Jon Roland and his "Texas Constitutional Militia[14] which was 15 years ago, and remains today an ultra-fringe extremist organization. It is entirely inappropriate to Wikipedia to give this fringe group credibility and validation by hyperlinking to its website, and it contributes to a NPOV problem with this article.

I would support referencing to the www.constitution.org website in a passage about the Second Amendment and the modern militia movement, but that passage when inserted previously got scrubbed out of the article. The history of the modern militia movement is a necessary topic to be covered in the article in order to balance the undue emphasis on the "founders" hypotheis which is featured prominently now. SaltyBoatr (talk) 20:21, 26 May 2009 (UTC)

Wikipedia frequently presents government documents that are available via secondhand sources, even blogs. See here. We are talking here about an article in the Michigan Law Review, which is indisputably a WP:RS. Incidentally, it seems that the website of the Constitution Society has info about militias in a lot of states, such as Tennessee.[15] Does that suggest that the Constitution Society is involved in tennessee militias? Anyway, the pdf of the Michigan Law Review is plainly a WP:RS.Ferrylodge (talk) 20:44, 26 May 2009 (UTC)

Referencing the reliable source, Michigan Law Review, makes more sense. Referencing a hyperlink to the website of an extremist organization does not. SaltyBoatr (talk) 02:02, 27 May 2009 (UTC)

Placement of "Early state court decisions"

The Early state court decisions subsection comes at the end of the Judicial interpretations section. That subsection seems out of place, because it seems more historical than judicial. Rather than being bold, I'd like to read other opinions on the placement of that material. SMP0328. (talk) 01:39, 27 May 2009 (UTC)

A lot of the Supreme Court opinions are historical too. I support keeping the state cases in the section on judicial decisions, which is where people would expect to find that stuff.

Incidentally, if we were to move the commentary section immediately after the section on judicial decisions, then there would be a nice transition from the early state cases to the early commentary.Ferrylodge (talk) 01:53, 27 May 2009 (UTC)

What about splitting the Judicial interpretations section into State and federal sections (in either order)? SMP0328. (talk) 22:32, 27 May 2009 (UTC)

(undent) Here's how the section is now:

5 Judicial interpretations

5.1 U.S. Supreme Court

5.1.1 Dred Scott v. Sandford

5.1.2 United States v. Cruikshank

5.1.3 Presser v. Illinois

5.1.4 Miller v. Texas

5.1.5 Robertson v. Baldwin

5.1.6 United States v. Miller

5.1.7 District of Columbia v. Heller

5.2 Federal circuit court cases after Heller

5.3 Early state court decisions

This seems like a good organization to me. There are subsubsections now, so I would hope we stay away from subsubsubsections (that would make things kind of byzantine IMO).Ferrylodge (talk) 23:44, 27 May 2009 (UTC)

I'm suggesting making 5.3 its own section, not a "subsubsubsection". SMP0328. (talk) 01:45, 28 May 2009 (UTC)

If we have a section titled "Judicial interpretations" then it seems like the stuff about "early state court decisions" should go into that section. Also, note that the "early commentary" and "later commentary" are part of a single section, which suggests that the SCOTUS cases and the "early state court decisions" ought to be in a single section too.Ferrylodge (talk) 01:58, 28 May 2009 (UTC)