Talk:Second Amendment to the United States Constitution/Archive 1

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Militia Act of 1792

Somebody inserted "According to the Militia Act of 1792 the Presidend as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eithteenth century the public has a claim on privately owned weapons for public purposes. This has relevance to the modern question sometimes raised, whether the Second Amendment prohibits gun registration or confiscation of private guns by the Federal Government." This claim on privately owned weapons statement is misleading. The Militia Act of 1792 required all able-bodied male citizens from 18 through 44 to be enrolled in the Militia and equip himself with appropriate firearms. The Government could require these able-bodied males to provide military and law enforcement service with their privately owned weapons. It did not give the government a claim on their privately owned arms which were private property. The same is true of the pre revolution militia. All of the Colonies required Able Bodied males to provide themselves with arms for when they were required to provide military service. It did not provide government ownership of these privately owned arms.

Infringed

I would like to see an explanation on how the following is consistent with the pro-gun argument.

up until the National Firearms Act of 1934, there was no Federal law against ordinary Americans' owning any weapons available anywhere, including anything the US military used, such as tanks, artillery, bombs and even high-explosives. No licenses and no registration were required.
Most people on both sides agree that so-called "Weapons of Mass Destruction" (i.e., biological, chemical and nuclear weapons) cannot have any legitimate purpose in the hands of individuals and that even in non-hostile hands these weapons pose a serious threat due to the risk of even simple accidents during storage or transport. As such, most agree that even the broad protections of the Second Amendment for the right to keep and bear arms do not apply to "WMD's".

I would say it is because infringed means "destroyed" or "removed" and not "abridged" and not "encroached upon". Yet I hear repeatedly from those opposing gun control the Slippery slope argument that no restrictions should be allowed.

Note that the 1828 dictionary definition of "infringe" does not have any meaning synonymous with "encroach" -- only with "destroy"

--JimWae 01:13, 2004 Dec 8 (UTC)

For the record, the dictionary cited gives three definitions: two are synonyms for violate, and the third, To destroy or hinder, is marked "Little used." In other words, JimWae's reading is idiosyncratic. —Tamfang 01:17, 2 March 2006 (UTC)

A comment has been added to the Semantic issues section. It gives a citation for usage of the term infringed, but the term is not there. This is perhaps the best place to take a discussion of the topic.

  • Infringe is not used in that citation. Without it, what basis is there for the claim that it means the same as today? {Further, even today infringe has 2 meanings, one of which is not encroachment, but breaking.} Violation is used twice (in citation), once in regard to promises & then regarding the rebels violating the rules. Where's the connection to infringing a right?
  • The Constitution has no rhetoric about "natural rights" & its stance is more consistent with "social contract" theory than "natural rights" theory. Or at least, to say the Constitution is based on "natural rights" needs some demonstration not given in new comments.
  • if someone can find an old instance of infringe with the meaning of encroachment, such would provide some reason for keeping the comments recently added - otherwise they seem specious.

--JimWae 09:23, 2004 Dec 20 (UTC)


The constitution cannot be taken by itself. The constitution is the implementation of the declaration of independence. The first document to say that we where a separate country was the declaration of independence. It took us 2 tries to get the form of government right (articles of confederation, then constitution). And if you refer to the text of the declaration of independence, "we hold these truths to be self-evident, that all men a created equal, and that they are endowed with certain unalienable rights..." etc. So, no, our constitution is not a social contract, it is a document outlining which of our natural rights we have given up, in order to form a government. -- Dullfig 05:25, 8 February 2006 (UTC)
There was a supreme court case on this issue defining the "arms" mentioned as things of normal military use. Techincally that could include tanks, but definetely NOT WMDs and the like. No F-16's either. Sorry. I really wanted that old F-14 in my yard. for "defense". Motor.on
It has been argued that in 1789 to say "bear arms" was closer to saying "to fight", and not as close as saying "to carry weapons", as it means in the modern language. For instance to say you wanted to join as a sailer in the navy to fight a war, you would have said 'I want to bear arms in the navy'. Even though a sailer had little chance of actually using a firearm when fighting war in the navy. BruceHallman 16:01, 10 March 2006 (UTC)

If you aren't in one of the 3 branches of government, stop arguing about this. No one cares if you've seen one too many Hollywood movies and are subsequently scared of inanimate objects. Haizum 20:20, 18 November 2006 (UTC)

On 10/28/1999, Harvard Professor Laurence Tribe discussed the update to his text American Constitutional Law in the New York Times: http://www.law.yale.edu/documents/pdf/1999Militias.pdf He notes, "The people's 'right' to be armed cannot be trumped by the [Second] Amendment's preamble."

In "Scholar's shift in thinking angers liberals" by Tony Mauro, USA Today 8/27/99, Tribe discussed an article authored by Amar (quoted in 1992 in the extant Wikipedia entry) and him saying, "the federal government may not disarm individual citizens without some unusually strong justification."

In commenting on the reaction to his corrected position, he observed, "I've gotten an avalanche of angry mail from apparent liberals who said, 'How could you?' [...] But as someone who takes the Constitution seriously, I thought I had a responsibility to see what the Second Amendment says, and how it fits."

The present article ignores this new reality, preferring an out-dated viewpoint.

Bob Alfson 14:06, 4 December 2006 (UTC)


The English word "infringe" is derived from the Latin en- ("in" or "into") and frangere ("to break"). To "infringe" the right to bear arms is simply "to break into" the right. To abridge it, to diminish it whatsoever, is to infringe it. To break it down into little pieces, such as legitimate arms and illegitimate arms, would be to infringe the right. --BEAST —Preceding unsigned comment added by 72.177.241.149 (talk • contribs) on 25 January 2007.

Articles of Confederation

...of some relevance, certainly not decisive though

Article VI

... No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. ...

--JimWae 01:18, 2004 Dec 15 (UTC)

Punctuation

The comma is there in the constitution - removing it removes much of the ambiguity that resides in the amendment, and changes the meaning. Please make sure the punctuation matches what's really in the constitution.

It might be interesting to provide links from (or to) the second amendment and the Gun Control issue.

I restored the version with the commas exactly as they appear in the manuscript at the national archives. Yes, the US GPO actually reprints it with more modernized punctuation, but since there are so many pedantic asses out there who like to prattle on about what a comma here or there means, it's important that we be historically accurate even if our own government printing office isn't. --LDC

The External Link is, in my opinion, misleadingly described. The link is to a polemic which does include some quotes, in the main only tangentially relevant, from founding fathers.

I would simply delete the link but, recognizing this is a hot area, thought I would ask first.

I moved the bit about the punctuation to the bottom. To my knowledge, no reputable scholars consider this to be an important issue at all (but correct me with cites if I'm wrong) and I think we looked sort of silly for putting it right up front. I believe that arguing about the punctuation is in the realm of crackpot legal theory, not something that the courts or anyone else serious really cares about.

At the present time, the article is a touch misleading on the issue of 14th Amendment incorporation. The Supreme Court case with the language that suggests that the Amendment is only a bar to Federal action was decided before most modern incorporation jurisprudence. Since that time, the Court has decided that the 14th Amendment does mean that most of the rest of the Bill of Rights applies to states, and it's difficult to sustain the argument that it's still "good law". I am not sure how to fix it, though. Katahon 22:42, 25 Mar 2004 (UTC)

An issue with this is that there were more than one original copies of the Constitution. At least one copy was produced and sent to each of the 13 states for ratification. There is much doubt as to the validity of the copy in the Archives, given what the British did in 1812 in their attempts to eradicate record of the original 13th Amendment.208.255.197.162 02:42, 6 May 2005 (UTC)

http://www.gpoaccess.gov/constitution/html/amdt2.html <-- Has less Commas. Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:

Article the Fourth, --A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed. http://web.archive.org/web/20000815052740/http://www.nidlink.com/~bobhard/billofrt.jpg www.freerepublic.com/forum/a39388c210c1b.htm

Appears to be leaning towards arms control.

This article needs to do away with two views. The Second Amendment means the right of the people, the individual rights to bear arms. This article in its current forms does not cite the founding fathers intentions. There are no records of the founding fathers ever advocating a state's rights view, or any view controlling access to military arms.

The founding fathers were clear on this issue. "well regulated" in their day meant well-trained, well-armed, and well-equipped. The right of the people means the same in the second amendment as it does in the first. To say that "the people" has a different meaning here is to say that the first amendment only protects a state's right to free speech.


How to you explain the right to assemble-- that is a collective action? -- (Comment by User:24.145.225.26)

Herbm 04:28, 12 June 2006 (UTC): The right to assemble is a personal right of each of individuals -- no membership or class status is required to exercise this right, e.g., membership in a political party or other club is not required. The right derives from the individual not the club or political party just as no membership in any political party is required to vote (in a general election).

It is practically impossible to find any examples of a "collective right", certainly not any mentioned in the Constitution where every reference to rights of the people means individual rights; this is especially true of the Bill of Rights (containing the 2nd Amendment) which were added specifically to further guarantee and explicitly enumerate essential rights.

RIGHT PEOPLE KEEP BEAR ARMS SHALL NOT BE INFRINGE

These common words above are conveniently linked right to their definitions in Webster's 1828 dictionary.


Also see what militia means: MILITIA ACT

How do you know what the founding fathers meant? Have you asked them?

In the 18th C most Englishmen carried a gun or sword. Nowadays even our policemen are not armed - they don't need to be. We have a peaceful society with a low homicide rate and a virtually zero gun homicide rate.

Seriously, there IS a debate about what they meant and how relevant this amendment is to the 21st century America. Both points of view need to be stated. Exile

I suggest you look at Luther Martin to see a very clear statement of the other view. - User:24.145.225.108
If you believe well regulated simply means well trained I suggest you look at the Articles of Confederation and The Federalist. - User:24.145.225.108
Anyone who has kept up with this debate ought to be aware that the 5th and 9th Circuits have rejected the simple dichotomy of individual and collective right. We now have a spectrum that runs from expansive individual right to limited collective right. Scholarship has also accepted that we now have a range of views, including a number of theories that fit in between these two poles. Here is what Hamilton said in the Federalist: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security"- User:24.145.225.108


As I understand it, America had no state army when the Ammendment was made and this was originally one of the ideals of America that it would be a peaceful nation, with no permenant standing army, perhaps a reaction against the constant war among European nations (how times have changed!). However, it was obviously necessary that America would be able to defend itself if it came under attack - therefore it ensured that its citizens would be well armed, and if an attack was made then they could form a temporary army to fight off the invasion and then disband again when the threat had gone. Therefore the right to bear arms was only a precaution in case of war, it was not meant to refer to people carrying and using guns in peacetime. --Cap 18:18, 10 Sep 2004 (UTC)

  • That line of reasoning doesn't make much sense because it completely ignores the need for self-defense which is necessary in peacetime as well. Mdchachi|Talk 22:47, 8 Nov 2004 (UTC)
  • Mdchachi makes a good point above. Cap, are you certain all future military leaders of our standing army will be benevolent?

Actually, the individual right of self defense was something that existed under common law and there would have been little need to include it in constitutional law. Most common law rights were not included in the early declaration of rights found in state constitutions. There is no evidence of efforts by British or colonial authority to abolish the common law right of self defense. Indeed, John Adam invoked such a right in defending British troops in the Boston Massacre. What the colonists faced was an effort to disarm the militia. The first evidence for an individual right in constitutional law may be found in the Jacksonian era when a few states revised the phrase "bear arms in defense of themselves and the state" and changed adopted a new formulation--to "bear arms in defense of himself and the state." This change calls into question many of the claims made by collective and individual rights supporters.

The first evidence for an individual right in constitutional law may be found in the Jacksonian era when a few states revised the phrase "bear arms in defense of themselves and the state" and changed adopted a new formulation--to "bear arms in defense of himself and the state." Wrong. The above interpretation of "pre-Jacksonian" arms provisions in state constitutions is incorrect. One example is the provision from Pennsylvania's constitution of 1790. James Wilson's comments that follow unmistakably show that an individual right to SELF-DEFENSE was intended. (James Wilson was president of the PA convention, so maybe he had an inkling of what he was talking about):

"2. Homicide is enjoined, when it is necessary for the defence of one's person or house.

" With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons." (http://deila.dickinson.edu/cdm4/document.php?CISOROOT=/ownwords&CISOPTR=15463&REC=0&CISOBOX=homicide&CISOSHOW=15122)

Copyright Infringement?

The intro text was clearly copied from http://supreme.paxtv.findlaw.com/constitution/amendment02/ although modified somewhat. Perhaps it should be reworded so that it not such an obvious copy?

I have addressed the issue, and have also reformatted the article like all the articles on Articles (e.g. Article Three of the United States Constitution) and First Amendment to the United States Constitution.) -- Emsworth 22:31, Jun 4, 2004 (UTC)

The second amendment is in place as a check against the power of the government. It creates a scenario where every citizen could possibly own a weapon. If the government were to become gradually more and more tyrannical, as Zarconnen says above, a system would be in place that would allow for the oppressed to fight back. Now the idea that a couple of guys with pistols are going to take on the US Military is, when considered in that way, ridiculous.

But what if a majority of the population united to rebel against the tyrannical government. In this situation it can be reasoned that many members of the offical military will rebel right along with the rest of the people. Actually I think it's likely that a higher percentage of military personnel would fight the people's fight. When viewed this way, it's not quite so ridiculous. Not only will there be many trained soldiers to help fight the rebellion but the official military force would be significantly weakened by the dissention.

I believe it is entirely feasible to overthrow a government. At least one that is sufficiently corrupt to incite such a major rebellion. If you don't believe that, pick up a history book and turn to page 1776!

No offense to my Brit buddies.

Someone should mention how limited this admendment has become. If this was interperated as widely as the first admendment, computer virus would be protected, as well as pipe bombs.

... and nuclear weapons...

  • Last time I checked it not illegal to write a computer "virus." Only to spread it. Secondly, as the Supreme Court ruled, the second amendment only applies to "ordinary military equipment" (United States v. Miller, 1939), therefore nuclear weapons do not count. Only things which applies to the individual soldier. Of course in reality, that is not the laws we are living with under in the United States. Note that the Supreme Court has never accepted a case where "ordinary military equipment" was in question. The latter meaning small arms and automatic weapons. Also, the fact that the equivalent of pipe bombs WERE legal during the writing of the constitution (in fact, all bombs), would certainly lead one to believe it was not their intent to ban it. In fact, pipe bombs were legal for the first 158 years of this country's history, which is both the majority of it, and the time closest to the creation of the constitution. Wodan 14:10, Apr 15, 2005 (UTC)

The Bill of Rights addressed the concerns of those opposed to a strong central Government

For an excellent overview of the history and evolution of the Second Amendment, read "That Every Man Be Armed" by Stephen Halbrook, particularly Chapter 3 pages 76-87, in which James Madison's original proposed amendments are discussed, along with the different House and Senate versions. The exact wording, like everything Congress does, was a compromise. There is also a linguistic analysis of the wording, which predates the American Revolution and has it's roots in the seventeenth century English Bill of Rights.

What is remarkable about the passage of the American Bill of Rights is that no one argued against the concept of an individual right to keep and bear arms; most of the debate on the Second Amendment centered around whether the militia clause was necessary, or if it were necessary, just how it should be worded. Other debate centered around whether it was even necessary to have a Bill of Rights, either because it could never list all the rights freemen possesed, or that such rights were too fundamental to ever be taken away. The Ninth and Tenth Amendments summed up the argument: the Federal government was only allowed to do what the Constitution said it could do, all other rights were reserved to the people, or to the States.

The argument about the meaning of the words "the people" is not insignificant. In the Bill of rights, the phrase is used in the First, Second, Fourth, Ninth, and Tenth Amendments. It is not logical, and highly improbable, that the founding fathers meant to alter the meaning of "the people" from one amendment to the next. The belief that a militia was preferable to a standing army to defend the nation led to the argument that, as long as the free citizenry were armed, there would be no need for a standing army. However, it can not be logically argued that, if the militia is not necessary, then the people have no right to keep and bear arms.

Finally, as a side point, the Forteenth Amendment prohibits the States from denying "the people" any rights guaranteed to United States citizens by the Constitution. Thus, individual States are not supposed to pass laws that infringe the individual right of the people to keep and bear arms. As a matter of fact, it was in large part due to some southern states disarming the negro population after the Civil War that the Forteenth Amendment was proposed and passed. No Supreme Court case since has has found that "the people" do not have a protected, fundamental right to keep and bear arms, and only in some cases does the state and federal government have the right to place reasonable restrictions on that right.

  • Some amendments mention the State. 2nd amendment mentions both the State & the people.
  • Keeping in mind that not all rights are enumerated, there could still be a right to self-protection even if the 2nd amendment were found to apply only to militia.
  • I suppose there are some groups advocating disarmament; there are also some groups suggesting the 2nd amendment is there to ensure people (or a State militia) have the means to start an insurrection against the federal government. The battleground is in the middle ground -- over gun control. Is gun control true infringement, or is opposition to gun control mostly concern over some slippery slope? --JimWae 18:06, 2004 Dec 18 (UTC)
  • Everything after this statement was of dubious historical merit. The fact is the word people could be used in either a collective or individual sense. I suggest people look at the work of Richard Primus. -- (User:24.145.225.26 added this comment after removing the above text.)

Fourteenth Amendment

Are there any references to the legal theory by which some Amendments are, via the Fourteenth Amendment, presumed to restrain States as well as the Federal government while others are presumed to restrain the Federal government alone? The Second Amendment appears to be unique in that States are allowed to "infringe" in ways that the Federal government is not. What's the legal theory (not ruling) that leads to this distinction for the Second Amendment? Jim Bowery 01:58, 29 Dec 2004 (UTC)

  • It's seems to me there's a strong case to be made that by including the mention of State militia in 2nd amendment, that only the state governments can infringe (fracture) any right to keep & bear arms (as long as due process is followed)
  • Still, however, that does not prevent federal laws from abridging such a right --JimWae 07:35, 2005 Feb 3 (UTC)
  • I believe what is helpful is to look at the context of what the framers of the constitution were saying at the time of the creation of the Bill of Rights (firearm case law). Their plain language editorials and recorded comments and debates at time the over and over again lumped the right to 1) free speech 2) keep and bear arms 3) and due process as inherent rights of the citizens. The rights were always grouped together. Based on historical context, it was not their intent to separate the right to keep and bear arms from any other Bill of Rights. The fourteenth amendment was further passed to insure that states did not take away the basic rights given by the Constitution to all. There is therefore no reason to believe it should be treated differently. Wodan 14:03, Apr 15, 2005 (UTC)
  • The Second Amendment is not unique in not having been incorporated into the due process clause. The exceptions include: right to an indictment by a grand jury (Fifth Amendment), right to a jury trial in civil lawsuits (Seventh Amendment), and the prohibition of excessive bail (Eighth Amendment).
  • I, too, believe it is helpful to look at the context of how the framers presented the amendments before the legislators. In particular, the framers of the fourteenth amendment argued for forbidding the states from infringing on individuals' ability to defend themselves, and gave examples of individuals flourishing pistols to avoid being lynched by a mob. This is how the amendment was pitched to the states, and presumably this is what the states believed they were ratifying. See also: Sayoko Blodgett-Ford's excellent treatise of this subject. TTK Ciar 04:33, Jan 13, 2006 (UTC)
  • The original sponsor of the 14th Amendment, Rep. John Bingham of OH, stated in open floor debate in the House of Representatives that the purpose of the amendment was to incorporate all of the "immunities and privileges" guaranteed within the body and the Bill of Rights of the US Constitution against state action. He did not except the A2A. And he also did not use the "substantive due process" or "fundamental liberties" arguments. Neither did his comrade, Sen. Jacob Howard of MI, who introduced the bill for the amendment on the Senate floor. Neither did any of their opponents. In fact, in his initial advocacy for the A14A, Sen. Howard explicitly stated that it was intended, in part, to enable the US Congress to enforce the A2A against state action. Years later, when the Congress began to consider its first civil rights legislation under the authority of the A14A, Rep. Bingham, as the original author of the amendment, was asked to reiterate the meaning of the amendment. He also clearly stated that the A14A incorporated the A2A against state action.

Nevertheless, the US Supreme Court has taken it upon itself to see some degree of ambiguity in the whole affair. --BEAST —Preceding unsigned comment added by 72.177.241.149 (talk • contribs) on 25 January 2007.

Infringe Definition

The distinction you allude to doesn't seem to be supported by the 1828 Webster's definition. The primary definition is "to break, as contracts". One breaks a contract by failing to perform some, not all of its conditions, and there is no evidence that this definition was different in 1828.

The other definitions also support the idea that abridgement is a form of infringement, particularly, "to transgress" and "to hinder"

  • I gather you are adressing my point. "Breaking a right" & "abridging a right" are clearly different. Your right to free speech is abridged but not broken when laws are enacted against libel, slander, inciting riot & yelling fire needlessly. I am liking "fracture" as a synonym more & more.
I'll agree
3. To destroy or hinder; as, to infringe efficacy. [Little used.]
is more of a problem, but find "hinder a right" a very rare expression -- and note it is listed under the same meaning as destroy. Notice example given is in connection with hindering an benefit.
The semantic issue remains, because there are 2 distinct meanings (removal or denial, & abridgement). The 1828 dictionary points to a preponderance of one meaning over the other at that time - denial.
Regarding your point of "breaking some not all parts of a contract", you seem to be begging the question what all parts of "right to keep & bear arms" would be. Are you proposing 2nd amendment is uniquely absolute & NO abridgements are allowed? Several SCOTUS's have clearly permitted abridgements.
--JimWae 21:26, 2004 Dec 31 (UTC)

An Addition

Presser v. Illinois (sometime in the 1870s) should be added, it said that wargames etc by private citizens were illegal because those involved weren't part of the militia.

That's actually not what it said. That is only partly true. Either way, it is a good case and I added it to the firearm case law page. Wodan 03:34, Apr 29, 2005 (UTC)

Needs discussion of Silveira v. Lockyer

Emerson is no longer the latest federal court ruling on the issue. The entry needs a discussion of the Ninth Circuit's decision in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).

Emerson is a recent case, but not the most recent. I'll edit this section when I get a chance. -- Temtem 03:00, Apr 29, 2005 (UTC)
Nor is Silveira the latest. See US v. Stewart in the 9th district, which let a person keep their home-made machine gun as its manufacture was outside the interstate commerce authority of congress. Mlorrey 02:47, 6 May 2005 (UTC)
I made a page for that: US v. Stewart. Although as you probably know, that is not a 2nd Amendment issue, but a commerce clause issue. I don't think the 9th Circuit Court is where one should be making his gun rights arguments to. Wodan 02:53, May 6, 2005 (UTC)
To paraphrase the Secretary of Defense, we don't always get to argue to the appeals court we want. —Tamfang 18:03, 14 February 2006 (UTC)

There is now an article, Silveira v. Lockyer. Yours, Famspear 23:09, 16 November 2006 (UTC)

"Examples," etc.

These examples, I believe, should be worked into the historical discussion. (Also, the fact that these examples constitute their own section—i.e., the emphasis given them—is a subtle, or perhaps none-too-subtle, form of bias.) I shall alter their position soon, if no one objects. Hydriotaphia 07:24, Feb 7, 2005 (UTC)

New firearm case law page added

I've created a firearm case law page which helps put Second Amendment opinions into context of judicial rulings. If you find other cases which should be added, feel free to take a look. More importantly, there are a lot of "red link" cases on there that I would like to see become "blue link" cases. Wodan 13:57, Apr 15, 2005 (UTC)

Where is the neutrality dispute?

Whoever thinks there is a POV issue here, please point out the details so the article can reach a correct balance. If nobody wants to point anything out, it does not deserve the neutrality tag at the top. Wodan 02:54, Apr 29, 2005 (UTC)

  • It's been a week and not a word from anybody about the neutrality dispute, so I'm going to take it off. If somebody has a neutrality issue, please post the exact text you have a problem with here in order to discuss it. Wodan 13:51, May 5, 2005 (UTC)
I've been busy. I see a whole ton of pro-gun things have been entirely stripped while the typical anti-gun excuse making remains. Mlorrey 02:49, 6 May 2005 (UTC)

My neutrality issues with this article are less with what the article says and more with what the article doesn't say. The sentences regarding the fact that the Founding Fathers could never have envisioned a world without the 10 rights and the sentence talking about how the Founders never envisioned TV, radio, etc. are clearly arguments. One could argue just as effectivly (1) that the Founders could indeed envision a world without the 10 enumerated rights (there were other rights that were proposed for the Bill of Rights and failed, the Bill of Rights was a result of debate and compromise, and we are permitted to amend the Bill of Rights thus indicating that the Founders' believed that future generations may not agree with them) and (2) that even though the Founders' could never have envisioned TV or radio or space travel or airplanes, etc., and these things are still covered by the Constition, they still can constitutionally be regulated by Congress. Airline travel for one was highly regulated until just the last few decades and TV is still regulated. Given this and the entire tone of the article, there needs to be a neutrality tag. --Sbstern 06:06, 10 Jun 2005 (UTC)

Founding Fathers

It would be a revisionist history coup to even suggest that the intent of the Founding Fathers with regards to the Second Amendment was not the protection of individual rights; if strictly interpreting their writings and speeches. While many may argue about court interpretation, which is anything but clear, the clear writings of those who actually played the crucial role in the development of the Constitution and later the adoption of the Bill of Rights such as James Madison, George Mason, Alexander Hamilton, Thomas Paine, Thomas Jefferson, Patrick Henry, Samual Adams, and many more, is hard to argue against. If somebody has a problem with using "the Founding Fathers" as a statement, please show evidence that there was ever any dissent during any constitutional talk by the Founding Fathers that the 2nd Amendment does not protect individual rights. At that point, you can change it. Otherwise, it is simply an injection of POV modern day politics. Wodan 20:17, May 3, 2005 (UTC)

I will also add that the Founding Fathers opinions on the Bill of Rights are not a "gun right advocates say" versus "gun control advocates say" issue. I have never heard a gun control argument using James Madison's speeches as part of their agenda. What the Founding Fathers said about the Bill of Rights is recorded in history. Again, if somebody wishes to present additional facts to oppose these statements, please do. Otherwise, historical context of the Bill of Rights is not the place to insert modern day politics. Wodan 21:10, May 3, 2005 (UTC


Founding Fathers quoted by both sides

In fact the individual rights view is a modern development. Virtually all of the quotes in this section talk about arms in the context of the militia. Individual rights scholarship only takes off after Levinson's 1989 Yale Law Journal Article.

Since the Militia is composed of individuals, this statement is silly. NO rights in the United States belong to groups. ALL rights are individual rights. The sovereignty of the United States is derived from the individual sovereignty of each United States citizen. The ONLY reason that the Second Amendment even exists is that power to organize the Militia was granted to the Federal government in Article I, Section 8 of the constitution.
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
Adding the Second Amendment was a way to make it clear that the Federal government's power does not extend to disarming individuals which would disarm the Militia.
The Second Amendment cannot be an affirmation that States have a right to a militia since States do not have power to organize a militia since that has already been granted to the Federal government in Article I, Section 8.
As noted, US vs. Cruikshank made it clear that the Bill of Rights only applied to Federal powers and not State powers. This changed, however, with the 14th Amendment. Section 1 states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" Jimberg98 15:56, 3 May 2007 (UTC)

Problems with Wodan's claims

To see the problems with Wodan's claims consider the shift in the language of state constitutions in the period between the Founding era and the Jacksonian era. State constitutions in the former use the phrase bear arms in defense of themselves and the state. The individual rights language--bear arms in defense of himself and the state only appears decades after the Second Amendment was adopted. Many scholars who support the collective rights view do quote Madison, Mason, Henry, and other founders. I fear things are not so simple and can't be settled by a battle of opposing quotes. The key issue is context. What do the quotes mean in context?

German Second Amendment article

I found the length of this article somehow shocking. One has to fight through all the opinions various people have stated about the Second Amendment... whew. It's a real struggle. I'm the main author of the German de:Second Amendment article, and I hope I omitted all the rather irrelevant facts so one can gain a good overview about the controversy without reading too much. Perhaps somebody could give me a comment about my work. --Keimzelle 10:14, 4 May 2005 (UTC)

I applaud you for your efforts. This is not a simple subject. Unfortunately shortening the subject will never make it more clear in the truest sense, but it will make it more readable to somebody not interested (or who doesn't have the time) in knowing all the pertinent information. I can tell you this without knowing any German. The English article itself is only a short introduction. For more information, here is a good article [1]. That is only one of hundreds, if not thousands of independent studies, all of them quite lengthy. Here is a summary of some of them: [2]. Click on any one of them for an idea of their level of detail. Another article I really like is a recent court analysis of the Second Amendment: [3]. You can also read the analysis by the US Department of Justice ([4]), and the United States Senate ([5]). As you can see, the Wikipedia English article is really actually quite short in historical context. The problem is that a simple article cannot be effectively written because there are many people who are not very well educated on the subject, which as you can see it's not easy to be, that want to insert modern day public opinion on the matter, or as even some lower courts have done, quote other court cases out of context. Because of this, actual historians and constitutional scholars have to add more writings as evidence of their position, and the cycle continues. Wodan 12:22, May 4, 2005 (UTC)
That's a real problem. I'm fascinated about the Second Amendment because it's a big battlefield for all the history and law scholars - if you interpret the Amendment only in a historical context (e.g. because all the male adults were members of the militia, the framers of the Amendment didn't see it necessary to differentiate between "people" and "militia" as it would make sense today), it doesn't answer all the questions you have. Can it be said that the NRA is completely blind for the historical context, or is it correct to say that historical change doesn't matter anyhow because "the words of the law are always the same"? And why is the Ashcroft brief defying U.S. v. Miller, 1939? Well, I'll post a English summary of my German article somewhere on my own wiki page. Regards, --Keimzelle 12:57, 4 May 2005 (UTC)
I'll be happy to answer some of your questions, although some questions cannot be answered because they are too theoretical:
  • What do you mean by "NRA is completely blind for the historical context." That is a pretty vague question. The NRA is not the only, and maybe not the major proponent of individual rights to keep and bear arms. The US Senate, the Department of Justice, and countless constitutional scholars say the same thing. It is in gross error to boil it down to a simple NRA subject.
  • In regards to your second question, it has happened many many times that the courts have re-interpreted the Constitution in a way to put words in there that don't exist. For example, the very long list of what comprises free speech, even though the 1st Amendment cannot be more clear when it says "Congress shall make no law...abridging the freedom of speech" Yet what we have today is a Virtual first amendment. In fact, the Alien and Sedition Acts proved that Congress was ready to ignore the constitution within just 7 years of its writing. Therefore your question of historical change is not possible to answer, because it is only theoretical. In reality, the US Government simply does what it wants, even if it goes squarely against the constitution, and that in turn becomes the ad hoc evolution of the constitution.
  • Ashcroft is not "defying" the US v. Miller case. Your understanding of the Miller case is simply incomplete (see your personal page for comments). The Department of Justice simply put out an opinion on their interpretation of the Second Amendment. It is very common for the DOJ to state their opinions on legal matter. They quoted US v. Miller in their analysis since it is the only Supreme Court case to take on the Second Amendment directly. Wodan 18:56, May 4, 2005 (UTC)

Suggestions for the German article about the 2nd Amendment

On User:Keimzelle/Second Amendment I've posted a English synopsis of the German article. I want to keep de:Second Amendment slim, but it may be that I missed some important things. Bye, --Keimzelle 13:37, 4 May 2005 (UTC)

I've posted some commentary correcting some of your page. I hope they are easily understood, and feel free to ask any further questions you might have. You may also be interested in another page I created, firearm case law. By the way, why don't you start a Gun control in Germany page to educate us across the Atlantic about your situation? Wodan 18:56, May 4, 2005 (UTC)
Thank you very much for your comments. Because I've written the synopsis rather quickly, I didn't correct my mistakes. I'm 23 and I'm a keen reader of English texts but writing accurate English texts is still a difficult task. By the way, I'm from Switzerland, not Germany ;-) --Keimzelle 19:35, 4 May 2005 (UTC)
No problem. Just note that some of the mistakes were not of language error, but were in fundamental opposition of the legal situation in the US. I am sure though that you will be able to adjust accordingly. I understand translating is extremely difficult. You are off to a good start. I'm looking forward to seeing how your Switzerland gun page turns out. Remember to quote as many facts as you can, and back them up when you can. Statements on crime like "a minority" or "a greater extent" are not too useful or credible without numbers, statistics, quotes, reports, etc. Best of luck to you in building up the details. Wodan 20:07, May 4, 2005 (UTC)

Some deleted text

I removed the following

Note that if the Second Amendment was accepted in its original form, a military draft would have been unconstitutional. It is also noted that most constitutional scholars agree that since the original House proposed amendment more clearly ensured individual rights to keep and bear arms ("A well regulated militia, composed of the body of the people..."), it is unlikely that the simpler Senate version that was soon thereafter approved by the House, had any fundamental or drastic difference in meaning, but rather, a streamlining of the wording. A more thorough study of Federalist and Anti-Federalist politics of the Constitutional debates are required to further analyze this topic.[6]

The part about the draft may be conjecture, the normal interpretation I've read about that wording was to deal with concientous objectors. Regarding the second "body of the people" that too seems like conjecture, but perhaps could be restored (with citation). After removing those, the federalist/anti-federalist part just didn't fit. As and aside, I'd like to point out that this article does not contain every revision the amendment went though, only the major ones where it went from one body to another. Reading every version, as well as the rejected changes, would be useful exercise to help examine intent, but is beyond the scope of this article (and may be construed as original research). -O^O


Most Constitutional Scholars do not agree

Jack Rakove, perhaps the leading constitutional historian writing about originalism, argues that the changes made the militia focus more clear and were not simply stylistic changes. Taking out the phrase "composed of the body of the people" gave Congress the ability to create a select militia if it deemed this necessary. Congress came very close to rejecting the universal militia model when it came to a vote after the adoption of the Second Amendment Removing the phrase "common defense" assuaged the concerns of those who feared the loss of state control. The evidence that individual rights was central to this debate is very flimsy. Why would they have worried about this given the common law right of self defense was not an issue in the Founding era?

My answer to your question is in the section "15 Founding Fathers quoted by both sides". Why is this titled "Most Constitutional Scholars do not agree" and you only mention one? Jimberg98 17:17, 3 May 2007 (UTC)

More deleted text

Somebody actually used a Michael Moore interview for a quote on the text of the Second Amendment. I think we can do a little better than that. A lot of people have opinions. Let's keep this page to the facts. Wodan 22:48, Jun 21, 2005 (UTC)

I don't think it's irrelevant. Little had been made of the semantic issues in the Second Amendment before Bowling for Columbine. It was either simply "right" according to the gun-ownership lobby, or "wrong" according to the gun-control lobby. Most people weren't bothered about the literal ambiguity of the sentence itself until the point was raised in the film, and then suddenly everyone started using this argument. I think that makes this point very relevant, Jamyskis Whisper, Contribs 06:19, 22 Jun 2005 (UTC)
I'm afraid this is a misunderstanding of history. Michael Moore was hardly the originator of the concept. In fact, it is an old argument. Regardless, there are thousands if not millions of people with worthy opinions on the second amendment. I don't think Michael Moore has earned the right in terms of historical context to be elevated above all else. Mentioning his movie is certainly not worthwhile in a document about the living history of the second amendment. Wodan 01:02, Jun 23, 2005 (UTC)

Context of the quotes

While only some of the quotes are 1789 or later, many of the quotes are from the debates and/or introduction of the Second Amendment. They are therefore obviously directly related to it. Even the quotes not in direct relation to the intent of the Second Amendment (such as those not by the authors of the amendment) reflect the historical context of the era. Wodan June 28, 2005 22:46 (UTC)

  • Certainly some of the quotes give context of some of the authors intent. Yet, the amendment had not yet taken its present form, so statements such as
There is also a distinct lack of any quote by any of the Founding Fathers or their contemporaries that would indicate that the Second Amendment was only meant to apply to state run militias.
do not belong - unless reworded to "no discussion has been found that limits the right to that of the militia" (if indeed true - though some earlier statements of this right in other constitutions are quite restricted by exclusively mentioning militia) and before its adoption several of its authors spoke specifically about an individual right--JimWae 2005 June 28 23:34 (UTC)
  • One cannot take the meaning of a law to be identical with what was said in debate before it had its final form --JimWae 2005 June 28 23:36 (UTC)
  • Another problem is that so far one quote from Madison was "not an accurate quote". I do wonder how many other are also such --JimWae 2005 June 28 23:34 (UTC)
  • 3rd problem - some of the quotes do NOT clearly speak of an individual right and do not clearly support the argument presented --JimWae 2005 June 28 23:34 (UTC)
  • 4th problem - the article is pretty one-sided in terms of amount of text on one side or other - I say this even though I agree there is an individual right to self-protection. My issue with this amendment is the meaning of infringe - and the attempt to make this right absolute, without restriction --JimWae 2005 June 28 23:34 (UTC)

2005-Jun-29 Rewrite

I have just put the article through a considerable rewrite, and I want to comment here on the intent of this rewrite. My primary goal was to tighten up the article and focus it on the amendment itself. I've tried to make the article more readable overall, and to make the article flow more naturally when read from beginning to end. I also tried to present both "sides" of the debate in a succinct and balanced manner, and direct the reader to other articles for additional reading where appropriate.

The "quotations" subsection presented a problem for me. I agree that the subsection is appropriate, but there were an overwhelming number of quotes there, and it seemed redundant. I've tried to edit it down to the quotes that seemed to most directly apply to the topic. Please note, I made no attempt to verify that these quotations are accurately sourced, and some of them I have doubts on.

Please let me know what you think of the "new" version. I'll be happy to explain any deletions or additions that seem questionable. -O^O

Protection of Lawful Commerce in Arms Act

Just wanted to put this sucker forward, since it may effect the terms of this entry. The version that came through the Seneate says that :

SEC. 2. FINDINGS; PURPOSES.
(a) Findings- Congress finds the following:
(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

I know Congress doesn't have the power to state how the judiciary should see things, but this might be important as a side-note at least.65.31.59.176 20:33, 12 August 2005 (UTC) Blueeyes

28 July version

I removed the version said to be from 28 July because the source cited is inaccurate. Source given was AoC pp. 778, which can be found here and identifies itself as for 17 August. Removed:

"A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."

The correct AoC page for 28 July is here and has no record of this text version. Does anyone have a source for the 28 July version of the text? Jamesday 05:19, 21 August 2005 (UTC)

semantics section

I have moved the following addition to talk:

Arms had different extensive meaning in 1789, "arms" included flintlock rifles, muskets, and shotguns, one-shot pistols, swords, bayonets, and cannons, so some argue that such is all that the Second Amendment was meant to protect, not breechloader or repeater shotguns, automatic rifles, grenade launchers, anti-aircraft weapons, nor any weapons of mass destruction. Others contend that if one were to follow that line of reasoning, freedom of speech and of the press would not include radio, nor TV, nor the Internet. Infringe possibly had a different intensive meaning in 1789.
There is some disagreement over what the word infringe means. Relevant to this are definitions given in the 1828 Webster's Dictionary (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe), all of which give a sense of the complete removal of a right, not to encroachment nor to abridgement that is now one meaning of the word. It remains an open question whether or not the 1828 dictionary definition was a complete account of usage of the word at that time. According to the Encarta dictionary, (http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861621241) infringe entered the English language about 1550 from the French word frangere meaning "to break", and is the source of the word fracture. An early appearance is in Shakespeare's Measure for Measure. The Supreme Court of the United States has repeatedly permitted to stand many gun-control laws, all of which would seem to constitute abridgements on Second Amendment protections without completely removing them.

I do not know of any serious gun control organization that bases their opposition to a permissive reading of the Second Amendment on the theory that the words are simply defined wrong. The above arguments strike me as well intended, but not well researched.

1: Whether "arms" should be held to only include weapons that existed at the time of the writing of the BoR. Again, I know of no serious organization or scholar that proposes this. I know of no precedent where any other part of the constitution is held this way either.

2: Whether "infringe" could only be held to mean "complete removal". The very dictionary link referenced above includes "transgress" as a definition. Further, this argument would hinge upon the idea that the only 18th century meaning of "infringe" was to destroy. Even a single example of 18th century usage of this word that was contrary to this definition would serve to disarm this argument. There are ample historical instances that can be found where "infringe" is used as to overstep. Here is one I think is particularly clear:

yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

Note that this passage says that the meaning of "infringe" included the narrowing of a right. -O^O

Such is not so clearly stated after all. Since you have not provided the source, let me provide another interpretation: Any repeal or narrowing of natural rights is a breaking of natural rights. --JimWae 05:55, 17 September 2005 (UTC)

Hello JimWae, I not sure whether or not I see your point. We both (I think) read the above as "repeal or narrow = infringe", but then we must differ somehow. In case you didn't recognize the source text, it is from the Virgina Statue for Religious Freedom (Jefferson). - O^O

Text of the Second Amendment

There is only one version of this amendment, and it's the one written in the Constitution. --Revolución (talk) 05:36, 17 September 2005 (UTC)

I'm sorry, but there are two versions of this text. There is the version that was passed by the House, ratified by the states, and that is considered the "official text" by the US government. There is also a second version, which contains additional commas inserted by a scribe, that hangs in the National Archives. -O^O


"Civic Model"

I removed the "civic model" section that had been added. To the best of my knowledge, the "civic model" is a model proposed by Saul Cornell in some recent writings. It is not a model that has had widespread impact or attention in the legal or academic communities. If there is more body of knowledge around this "civic model", I'd be interested in reading it. -O^O 20:00, 26 October 2005 (UTC)

I would suggest you look at recent volumes of Law and History Review, Fordham Law Review, and reviews of a recent book by Uviller and Merkel. How much more evidence would you like? -24.145.225.108
Before I start, let me say again welcome to Wikipedia. Regarding your above references, I have read, or at least skimmed, most of them. Since you asked me to, it was the least I could do.
Wikipedia is not the place to debate contemporary research, it is an encylopedia. Despite this, we have too many articles that devolve to editors trying to shoehorn the latest academic theories, or latest academic mudslinging, into the article. I do not doubt that you can find plenty of symposium transcripts and publications to support your views, but that isn't the point.
As you know, the place of firearms in America is a sharply debated topic. There has been at least a small effort made to keep this article focused on the Second Amendment itself, and lave the larger argument to the Gun politics in the U.S. article. I hope that whatever changes are made to this article, we can keep the spirit of staying on topic.
There are generally seen to be two sides to the gun control debate. Even when Saul Cornell says that the dichotomy no longer seems tenable, he is explictly recognizing that the debate is traditionally broken into those two points of view. And as much as Dr. Cornell wants to declare that he has come up with the "third model" to break that dichotomy, it doesn't mean that he actually has, only that he has convinced himself and a handful of others that he has.
Cornell's model isn't the only "third model" that exists. As you pointed out, there is an entire spectrum of views out there, but there remain two dominant interpretations. We will know that the "civic rights" model has truely claimed it's place as the "third model", if and when it has taken an equal place in the public discussion of the second amendment. What Senators embrace this position in their public writing on the 2nd? What courts have explicitly embraced it? What gun control groups endorse it, or gun advocacy groups reject it?
What I see here is a new theory that is being batted around by a group of scholars, and because a handful of them have accepted it, you are attempting to promote it to equal status was the two interpretations that truely are widely accepted.
I think that this third model perhaps deserves an article of its own. It certainly deserves to be discussed in the Gun Politics pages, but it doesn't rank being considered a primary interpretation on the Second Amendment page. -O^O

In both the 9th Circuit cases and Emerson the courts noted that one could describe the spectrum in terms of at least three models. Emerson used sophisticated collective rights, but I think expansive collective rights model is more apt. In Silvera and Nordyke the spectrum was cast in terms of three views as well. Rather than describe the 3rd view as some form of collective rights model the court described it as a limited individual rights model. In his recent Harvard Law Review essay, Stuart Banner notes the growing appeal of this middle stance. While it is true that the label civic model has not yet gained traction, the debate is clearly no longer being cast in terms of two models. You also have the symposium on Uviller and Merkel's book in WMBRLJ in which Levinson the leading spokesmen for the individual rights view praised the Uviller and Merkel model as the best one currently available. If one adds the Williams book published by Yale that means that both of the most recent books on the subject have adopted some form of the middle view. I think it is certainly fair to say that so far this model has not yet been adopted by the courts, but until Emerson the individual rights model was just an academic theory as well. Perhaps the best solution is to note that the courts and scholarship have recently noted a range of theories in the middle range and that there is growing frustration with the two theories that have dominated the debate. I suspect that you will see courts and more scholars turn to one of these middle range theories. It makes no sense to move discussion of this material to gun politics. These new theories emerged from scholarship and have been noted by the courts. Thanks for the welcome. -24.145.225.108

Thank you for working in the spirit of Wikipedia, I believe the article has been improved by your contributions. -O^O

"Executive Branch" and 1954-2001 comments

A few questions before I edit that subsection. Someone changed the "first written" opinion from 2001 to 1954, cite please? The words of the Reagan SG were taken verbatim from Miller I suspect he was just requoting. I have some tweaks to the Clinton SG, but I can wait a bit for a response to the 1954 question. -O^O


I suggest you look at an article by Mat Nosanchuk in the Northern Kentucky Law Review symposium on the Second Amendment it provides the evidence for this claim

added info re miller

i've added some info regarding miller and the disposition of the court pursuant to his failure to appear, as it has a substantive effect on the interpretation of the ruling. hope that's okay ('be bold'). Anastrophe 05:05, 27 December 2005 (UTC)

Is it known when and how Miller died? Some sources say only that he had "disappeared" during the government's appeal. --Tamfang 22:29, 25 January 2006 (UTC)
from the citation i included with my edits noted above: " In fact, he died before the decision was rendered. His body was discovered in April of 1939, with multiple .38 caliber bullet wounds. His own .45 pistol lay by his side with four rounds expended. Perhaps he had a legitimate need for that shotgun after all. " Anastrophe 23:25, 25 January 2006 (UTC)
Wow, thanks. —Tamfang 09:04, 26 January 2006 (UTC)
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