Talk:Second Amendment to the United States Constitution/Archive 28

my take so far

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[1]

While in recent years it has been the subject of Academic inquiry and judicial interest, only the Third Amendment (which prohibits the quartering of troops in homes without the owner's consent) has received less judicial attention. Prior to the landmark 2008 Heller case, the United States Supreme Court handed down only a few opinions dealing directly with the Amendment,^[2] the last in 1939 (with the Miller case),^[3]

In the Nineteenth Century, the Supreme court limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[4] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the Miller case.^[5][6]

In the Twenty-First Century the United States courts of appeals split on the question: does Second Amendment recognize an individual the right to keep and bear arms absent militia service? with both sides citing Miller. Hutzell 8th, Emerson 5th, and Parker D.C. and the dissent in Silveira endorsing the standard model. In 2008 the Supreme court officially adopted this view, holding expressly that the Amendment protects an individual right to possess and carry firearms, via the Heller case.^[7] In the 2010 McDonald v. Chicago case the court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that the Amendment limits state and local governments to the same extent that it limits the Federal government.^[8] These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[9]

Still needs work. are we getting anywhere? J8079s (talk) 01:37, 13 August 2013 (UTC)

I think its a good step forward. I like this version of the 2nd paragraph much more. If we are going to name the "standard model" circuits, we should name or at least count the other circuits, and if we are going to use the phrase "standard model" i think it should be quoted and defined as a term of art, as most readers will not know it. 'endorsing the "standard model" or individual rights view' or something like that. Gaijin42 (talk) 01:47, 13 August 2013 (UTC)

I have to agree, many readers would not know what the "standard model" is, especially as there is no article on the legal sense of the term. I'd also suggest that when one cites the Bill of Rights, one use a wikilink to it as well. There has been more than one bill of rights penned in the world and far too US citizens are both not aware of that fact or that our Bill of Rights is the first ten amendments to the US Constitution.Wzrd1 (talk) 11:05, 13 August 2013 (UTC)

Given the turn of recent events (i.e. Heller) using the term "standard" in this context has now become POV. We just can't use it in the Lead. "Collective right" or some other descriptive, yet neutral term or phrase is only acceptable solution for Wikipedia or any encyclopedic article. I agree on the Bill of Rights link, good catch. Can we go back to "only three" instead of "only a few" in P2? We've established a specific detail and have a source for it, I'd hate to have even a single phrase be vague in any way. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 17:12, 13 August 2013 (UTC)

I am not stuck on the name, especially not in the sentence its in. However I find it is a common name even in rebuttal. We must use the term somewhere J8079s (talk) 01:23, 14 August 2013 (UTC)

Is the "only the 3rd" statement factually true anymore after heller and mcdonald? Are we sourcing that to Miller era sources? I think we should avoid "standard model" all together, it was a POV term from gun-rights (first used by noted conservative Glenn Reynolds in 1995 ), and we would have to define it anyway. Just use straightforward individual right or some such. Gaijin42 (talk) 18:08, 13 August 2013 (UTC)

With the preface "prior to Heller", yes, the citation is from 1998. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 18:45, 13 August 2013 (UTC)

sources vary on this point some include Houston v.Moore 1821, Scott v. Sandford 1857, United States v. Cruikshank 1876, Presser v. Illinois 1886, Logan v. United States 1892, Miller v. Texas 1894, Brown v. Walker 1896, Robertson v. Baldwin 1897 others include more we will need to leave at "few". J8079s (talk) 21:06, 13 August 2013 (UTC)

As written, the"prior to heller" text modifies the "only a few" statement, but does not qualify the "only the 3rd has less" statement. With Heller and Mcdonald, if the 2nd has now overtaken whoever #3 previously was, our statement is wrong. I feel like stating "only the 3rd" is WP:OR particularly as our "judicial attention" statement is not limited to SCOTUS, but includes lower court rulings, and I don't see any WP:RS that has been doing counts there. I suggest gutting the comparison phrase "While in recent years it has been the subject of Academic inquiry and judicial interest, only the Third Amendment (which prohibits the quartering of troops in homes without the owner's consent) has received less judicial attention. P ,prior to the landmark 2008 Heller case, the United States Supreme Court handed down only a few opinions dealing directly with the Amendment,[2] the last in 1939 (with the Miller case),[3]"

Beyond that, the "prior to heller" modifier is confusing, and makes it read like after heller there may have been MANY rulings, when in fact there are only 2. The "only a few" line seems mostly accurate (although certainly we could find something even better) even if applied to all time ever. Perhaps something like "While in recent years it has been the subject of Academic inquiry and judicial interest, SCOTUS has only directly ruled on the 2A X times, with a YY year gap between Miller and Heller" or something to that effect. Gaijin42 (talk) 21:20, 13 August 2013 (UTC)

Here's the original text from 1998 I was paraphrasing...

The Second Amendment is unique. No other constitutional provision has lived so small a life in the law while looming so large in the realms of policy, politics, and popular culture. Among the Bill of Rights, only the Third Amendment, which prohibits the quartering of troops in homes, has received less judicial attention.[2] Annotations of all the cases that have dealt with the Second Amendment take up a mere ten pages in the United States Code Annotated, compared, for example, to 1452 pages for First Amendment cases.[3] In the history of the republic, the United States Supreme Court has handed down only three opinions dealing directly with the Second Amendment,[4] the last in 1939,[5] and no federal statute or administrative regulation has ever been invalidated on Second Amendment grounds.

Its from a cited and researched paper by a UC Davis law professor. I don't care what's written as long as its neutral and factually accurate, but its needs to be done with decent grammar usage and accurate sentence structure. Regardless of everyone's personal opinions, an article regarding any Constitutional Amendment deserves no less. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 03:14, 14 August 2013 (UTC)

I agree entirely on your goal. I am just concerned that commentary done 15 years ago is mainly relevant to the state of things 15 years ago. Lots of court cases have come and gone since then, and many of them dealt with the second amendment. Beyond that, is counting pages in a book a reliable technique to make this analysis? If one hypothetical judge decides to write a 40 page ruling, is that equal to 40 1 page rulings? He also doesn't mention the page counts for other amendments which we could use as a guideline for "how far behind" the 2nd was. I am more than happy to say that the second amendment was not heavily investigated judicially (especially at the SCOTUS level, where we can give a solid count) - but I think we should be doing so in a way that is we can be sure is still accurate. Gaijin42 (talk) 15:27, 14 August 2013 (UTC)

back to perspective

Folks, in practice the Lead is (no more than) a four paragraph summary of the article that informs, but does not 'tease' a reader. Again, we're not here to debate the subject and there is absolutely no way that we can expect to fit every single subtle nuance to last decades worth of debate let alone just the SCOTUS attention. Its completely unreasonable to expect this article's Lead to convey any of the "political angst" or "judicial complexity" that is associated with 2A, nor should it. "Understatement" is not a bad thing.

Lets also take into consideration the immense Table of Contents that will follow this lead. Regardless of what we include (or not) in the Lead, its fairly obvious that this article is lengthy and involved to say the least.

If we talk about "courts", how about limiting it just to SCOTUS. Not that lower courts aren't important, but in the Lead they are the most important aspect of the article. I think we have a good chronological historical summary of the 19th and 20th Centuries, obviously the 21st is the tricky one.

As for the Amendment itself, for the Lead, lets just leave out any qualitative statements about it being "unique", "special", "different, or what-have-you. Plus its probably better form to leave the mention of 3A out altogether. Gaijin has a good point.

So I think that leaves us with...

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[10]

In the Nineteenth Century, the Supreme Court of the United States limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[11] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[12][6] This is referred to by constitutional scholars and researchers as the "collective rights" era.{needs citation}

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case whereby a new direct interpretation of the Amendment was adopted.^[7] This view held expressly that the Amendment protects an individual right to possess and carry firearms. In the 2010 McDonald v. Chicago case the Court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[13]

I wish there was a Category of "firearm related political groups", a catchall that includes the NRA and the Brady Center. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 16:34, 14 August 2013 (UTC)

Good progress. I agree with your general principles and limiting the lede. Two quibbles. I actually find 0 hits in g, gbooks, and gscholar for "collective rights era" referring to gun laws - I think here we should just say the lower courts were split on collective vs individual rights interpretations, with 9/12 taking the collective view. (A circuit split being a main reason why SCOTUS ultimately takes cases). Im also not in love with "new direct interpretation" as the interpretation is not really new. Just say they adopted the individual rights view and not put a spin on it. A bit of the problem is that the paragraphs are divided by century, which makes things complicated, when really the major timeline splits are miller vs heller (and to be more accurate on the circuit splits thing, pre parker/emerson, since there technically wasn't a circuit split prior to those cases). Regarding the categories, I think it would be non-controversial to create a parent category for gun rights advocates and gun control advocates and put them together (although finding a good name might be tough) (As a nice collary, the Abortion issue has the pro-choice movement, and pro-life movement both under "Abortion Debate") Gaijin42 (talk) 16:52, 14 August 2013 (UTC)

Excellent suggestions and commentary! Yeah, I figured I was pushing it a bit with the "new direct" wording, but its what came to mind first. As for division, chronological just seems to make the most sense given the long history, you can only fit "so much" in four paragraphs. Granted Heller is the pivotal judicial moment in recent history, but its just one of many stops on 2A's journey through time. Who knows what will happen in the future; so to some extent this is why P3 is effectively about Heller and its followup. Bummer on the "collective rights" search. Speaking of the abortion issue, I'm sure the folks that the "Rowe v. Wade" article is near and dear to go through the same thing on how to update it and keep it relevant. And you're right about the Category name, that's exactly what stopped me from creating it once I thought it could come in handy. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 23:05, 14 August 2013 (UTC)

Ah hah! I just had an epiphany!!

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[14]

In the Nineteenth Century, the Supreme Court of the United States limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[15] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[16][6]

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case whereby a non-"collective rights" interpretation of the Amendment was adopted.^[7] This view held expressly that the Amendment also protects an individual right to possess and carry firearms. In the 2010 McDonald v. Chicago case the Court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[17]

--Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 23:19, 14 August 2013 (UTC)

I think we should add "codified a pre-existing right" into the cruikshank line, as that is the first place ruling that, and it also provides a nice segue from the Blackstone quote. So we have put a lot of work into the lede here, but it seems like we are almost right back where we started (See the current lede). We have like 2 extra sentences, but the only substantive change is to rearrange things by century, instead of just listing the cases. Gaijin42 (talk) 14:52, 15 August 2013 (UTC)

The additional phrase works for me, how would you work it in? As for a comparison of the current to what we have created, I think its substantially different. The listing of the cases is obviously chronological, but we have put significant thought into this synopsis so that's its clearly worded, neutral, and to the best of our ability representative of the history of the article subject. We have to acknowledge that there's no way to fully address every aspect of the overall article to the extent that many editors may want or prefer, but the WP:MOS is what it is and for a reason. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 17:07, 15 August 2013 (UTC)

In the Nineteenth Century, the Supreme Court of the United States ruled that "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence", but limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.Gaijin42 (talk) 17:19, 15 August 2013 (UTC)

I liked your first version better...

Recapping...

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[18]

In the Nineteenth Century, the Supreme Court of the United States ruled that the amendment "codified a pre-existing right" which "is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence", but limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[19] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[20][6]

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case whereby a non-"collective rights" interpretation of the Amendment was adopted.^[7] This view held expressly that the Amendment also protects an individual right to possess and carry firearms. In the 2010 McDonald v. Chicago case the Court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[21]

--Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 17:35, 15 August 2013 (UTC)

The "codified a pre-existing right" text is actually from heller, so if we use that during the 19th century we have to do it in wiki's voice, not as a quote. Thats why I made my change. Gaijin42 (talk) 18:20, 15 August 2013 (UTC)

arbitrary break for ease of editing

OK, so this...?

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[22]

In the Nineteenth Century, the Supreme Court of the United States ruled that "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[23] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[24][6]

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case whereby a non-"collective rights" interpretation of the Amendment was adopted.^[7] This view held expressly that the Amendment also protects an individual right to possess and carry firearms. In the 2010 McDonald v. Chicago case the Court overruled its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[25]

By the way, this version leaves room for expansion for the "next decision" or significant court case. I've been trying very hard to stick to the 4 paragraph guideline from the WP:MOS. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 04:32, 16 August 2013 (UTC)

Why are you using the phrase non-collective? It seems cumbersome? Is it just so you can wikilink collective? Individual right seems much clearer in this context. Perhaps add a sentence after Miller saying similar to what is in the current lede, saying this ruling is considered ambiguous and resulted in a debate between collective (wikilink) and individual rights interpretations etc. Then we can be very straightforward in describing Heller. In the cruikshank, a "but" seems better than "and" to me, since one phrase supports more gun rights protection, but the other weakens that protection, but that could be my own personal reading of the case intruding. What is the "also" in the Heller case? Other than the individual right, what other right is protected? Gaijin42 (talk) 14:37, 16 August 2013 (UTC)

• "non-collective" is my attempt at a smoother transition of pre- to post- Heller eras. OK, not as elegant as the rest, but yes it does allow for linking and further explanation for the reader.
• I agree with individual right, hence the next sentence.
• The extra sentence makes sense to me. What do you suggest for describing Heller?
• Cruikshank, they made a declaration and took an action, hence the "and".
• The also is critical. From the reading I've been doing, both the collective right and the individual right stances are supported. Heller did not invalidate the collective stance it just broadened 2A's interpretation to include the individual right as well.

--Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 01:30, 17 August 2013 (UTC)

non-collective seems to take a pov that it WAS collective before though. What source(s) are you relying on for the "also"? Gaijin42 (talk) 01:40, 17 August 2013 (UTC)

Ok, so what do we call the pre-Heller era if not "collective"? I'm not 'for' or 'against' any particular term, I'm just trying to be descriptive. I found 2 for the "also", but I have to dig them up again. One is that huge compendium, "Guns in American Society", but I'll have to located the page.

I don't think we should describe the time period in any way, because there is no single agreed widespread description of that period used (something that would comply with WP:RS/AC for example.) Just give facts of what happened in that period. "Miller ignited a debate between the collective and individual rights interpretations of the Second Amendment. The 12 Lower district courts split in their rulings with 9 taking the collective viewpoint, and 3 using the individual rights model. (next paragraph, Heller)" Gaijin42 (talk) 01:55, 17 August 2013 (UTC)

I agree with Gaijin42. Just give the facts. Describing the era between Miller and Heller as favoring the collective right viewpoint would run into the ban on synthesis. It's better to simply refer to the disagreement in the legal, academic, and political communities during that period.

Also, McDonald did not overrule any Supreme Court decisions. Only Justice Thomas would have done so. The plurality opinion distinguished those earlier decisions (e.g., Cruikshank) on the ground that those decisions ruled that the Second Amendment was not incorporated via the Privileges or Immunities Clause of the Fourteenth Amendment, but did not discuss the Due Process Clause. The plurality ruled that those decisions were not precedent for whether the Second Amendment could be incorporated via the Due Process Clause. The plurality opinion is the de facto Opinion of the Court, because it is the opinion that supports the holding and is based on the narrowest grounds (see Marks v. United States). SMP0328. (talk) 02:18, 17 August 2013 (UTC)

The Macdonald wording isn't mine, not sure who edited that, does "clarify" work in this context? --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 02:25, 17 August 2013 (UTC)

Nicely worded, so....

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[26]

In the Nineteenth Century, the Supreme Court of the United States ruled that "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[27] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[28][6] The Miller ruling started a debate between the collective and individual rights interpretations of the Second Amendment.

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case that held expressly that the Amendment also protects an individual right to possess and carry firearms.^[7][29] In the 2010 McDonald v. Chicago case the Court clarified its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[30]

I didn't include the appellate court ruling split because its a 21stC thing. It would go in P3 if we mention it. I think the Supreme adopting it is probably credible enough with Heller. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 02:22, 17 August 2013 (UTC)

I am good with this version. the interesting thing about the split is that the 9/12 are all 20th century (I think), but the 3/12 are all 21st. Gaijin42 (talk) 02:41, 17 August 2013 (UTC)

Subject to MOS-based corrections, I'm satisfied with the latest proposed wording. SMP0328. (talk) 04:27, 17 August 2013 (UTC)

Whoo Hoo!!! I have to admit that I'm a little "proximity blind" at this point. Any suggestions for polish or smoothing or should we just push it live and see how the masses take to it? --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 18:34, 17 August 2013 (UTC)

Potential new version

The Second Amendment (Amendment II) to the United States Constitution is part of the United States Bill of Rights which protects the right of the people to keep and bear arms from infringement. It was adopted on December 15, 1791, along with the rest of the Bill of Rights. The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. This right was described by Sir William Blackstone as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.^[31]

In the Nineteenth Century, the Supreme Court of the United States ruled that "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited enforcement of the Second Amendment to the Federal government alone via the 1875 Cruikshank case.^[32] By the Twentieth Century, the Federal courts had construed that the Government could limit any weapons not having a “reasonable relationship to the preservation or efficiency of a well regulated militia” via the 1939 Miller case.^[33][6] The Miller ruling started a debate between the collective and individual rights interpretations of the Second Amendment.

In the Twenty-First Century the Amendment has been the subject of renewed academic inquiry and judicial interest.^[6] In 2008 the Supreme court handed down a landmark decision with the Heller case that held expressly that the Amendment also protects an individual right to possess and carry firearms.^[7][34] In the 2010 McDonald v. Chicago case the Court clarified its earlier decisions limiting the Amendment's impact to a restriction on the Federal government and expressly found that it limits state and local governments to the same extent that it limits the Federal government.^[8]

These decisions notwithstanding, the debate between the 'gun control' and 'gun rights' movements and related organizations continues.^[35]

Somehow I missed the differences between the last two versions. I think you should make this the new lede – any tweaks, if needed, can then be done in the article and discussed in a separate section on Talk. Cheers. Grahamboat (talk) 18:07, 18 August 2013 (UTC)

Nothing substantive since the immediately previous version. I tweaked the coding a bit, I was just posting a clean version for review. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 01:16, 19 August 2013 (UTC)

It misrepresents Miller by taking an old quote out of context and placing it into the framework of later questions that weren't asked or addressed during Miller. Miller was addressing the limits of the "militia" route, not whether or not an individual right was granted. North8000 (talk) 02:34, 19 August 2013 (UTC)

I disagree. The quote specifically is put in the context of militia weapons. The later debate is well documented. Gaijin42 (talk) 02:43, 19 August 2013 (UTC)

Is this something that can be fixed with a reference? --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 02:56, 19 August 2013 (UTC)

No one claims that the bill of rights created rights. You need to explain too whether it was a natural or a pre-existing right. TFD (talk) 02:45, 19 August 2013 (UTC)

Did you read the same first paragraph that I did. What distinction are you making that isn't present in the wording? --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 02:51, 19 August 2013 (UTC)

I am posting this source to help gain consensus, so far all we have agreement on is that "Heller" and its extensions has the most weight. If we could all take a look at Vile, John R. (2010). A Companion to the United States Constitution and Its Amendments. ABC-CLIO. pp. 137 138. ISBN 9780313380082. Retrieved 19 August 2013. then re-read what we have as if you did know anything about the 2nd amendment I think what we need to do will be easier. J8079s (talk) 03:19, 19 August 2013 (UTC)

Truth be told, the best solution would be to leave Miller out of the lead. It was basically on whether or not the "militia route" established/protected a right to own exotic firearms. North8000 (talk) 14:22, 19 August 2013 (UTC)

@TFD although the nature of the right, is a very interesting and pertinent question, I do not believe there is WP:RS/AC that we could use to firmly answer the question. Blackstone said it was an auxiliary right. Heller made natural rights arguments extensively. Certainly there are sources to the contrary as well. However, while heller made certain arguments, they did not rule on the nature of the right (and why would they?) so I don't think we are going to be able to give a firm answer - certainly not one that we could do correctly in the lede. Beyond that, I am not sure what you mean as to "natural or pre-existing". Are you attempting to argue natural vs common law? @North8000 Miller is a major case, and even though it didn't directly (or unambiguously) decide much, its influence on the next 60+ years was massive (and may continue to have an effect really).Gaijin42 (talk) 14:38, 19 August 2013 (UTC)

In Heller the Court decided that the right to bear arms already existed in law when the Bill of Rights was written. The way to understand it was to consider what the law allowed people before 1789. If it were a natural right then it would be irrelevant what the federal, state and municipal laws had been. For example, the Supreme Court decided that the right to privacy was a natural right that protected the right to abortion, even though the laws did not recognize such a right in 1789. Although Blackstone was used as a source that the law recognized a right to bear arms, Scalia does not himself say self-defense was a natural right. The judgment merely says, "The Second Amendent protects an individual right to possess a firearm...and to use that arm for traditionally lawful purposes, such as self-defense within the home." How and why that right arose is beyond what the Court decided. TFD (talk) 15:45, 19 August 2013 (UTC)

I agree. But we don't say that it was a natural right. So I am unsure what your objection is. Gaijin42 (talk) 15:52, 19 August 2013 (UTC)

@Gaijin42. If we have Miller in the lead, I think that the best thing to put in would be a summary of the Congressional Research Service summary rather than a quote which is completely misleading when removed from context and placed in a different context. Sincerely, North8000 (talk) 16:54, 19 August 2013 (UTC)

Could you elaborate on how it is misleading? WP:RS/AC is wide that Miller allows limiting of weapons not related to militia service. What text do you suggest using CRS as a cite? Gaijin42 (talk) 16:58, 19 August 2013 (UTC)

It would take some time to create a good "summary of the summary". So I thought I'd start with floating it as a general idea. North8000 (talk) 18:26, 19 August 2013 (UTC)

Conceptually, I am not opposed, but obviously we would need to have at least an inlking of the text to come to a decision. Can you give the $0.50 version? Gaijin42 (talk) 18:32, 19 August 2013 (UTC)

Going this fast I'm just going from memory and am afraid I'm screwing it up. But briefly I think that they said that the court's ruling only addressed whether the "militia route" right is unlimited with respect to firearm type. And they said "no". And that the ruling did not address whether or not an individual right (un-connceted to any military service) exists / is protected. And so it was and is considered (by all) to be confusing/ giving no guidance on the latter question. Sincerely, North8000 (talk) 18:52, 19 August 2013 (UTC)

right. So how does that disagree with what we put in? They can limit weapons unrelated to service in a militia. The ruling is set off a debate about collective vs individual rights. That seems perfectly consistent with what you just said. Gaijin42 (talk) 18:57, 19 August 2013 (UTC)

Previous consensus was to call miller ambiguous,^{[36][37][38][39][40][41]}. I left a note at Talk:United_States_v._Miller. If any one needs to say more about Miller that would be the place. While Miller is debated it did not ignite any thing. J8079s (talk) 04:26, 20 August 2013 (UTC)

Ignite certainly is poetic language, but you agree that there was a long standing debate between collective and individual interpretations, with miller's ambiguity at the fulcrum of that debate? Gaijin42 (talk) 14:27, 21 August 2013 (UTC)

I replaced "ignite" in the most recent version I posted. It seemed better to remove any hyperbole. --Scalhotrod - Just your average banjo playing, drag racing, cowboy... (talk) 00:33, 22 August 2013 (UTC)

No Debate is not really historical. Best summary from "Vile" above popular understandings and scholarly commentary have tended to diverge (until the standard model) Any debate is between the "gun grabers" and the "bunker guys"I agree with North8000 about Miller. J8079s (talk) 00:20, 22 August 2013 (UTC)

Primary sources

Note that under WP:MOSLAW, primary sources are in fact supposed to be cited for legal articles.

• "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation." D.C. v. Heller, 554 U.S. 570, 592 (2008).
• "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." Heller, 554 U.S. at 595.
• "In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense. . . ." McDonald v. City of Chicago, 130 S. Ct. 3020, 3059 (2010).
• "[A] provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U.S., at 149, and n. 14, 88 S.Ct. 1444. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." McDonald, 130 S. Ct. at 3050.
• "[W]e are bound by the Supreme Court's historical analysis because it was central to the Court's holding in Heller." Moore v. Madigan, 702 F.3d 933, 937 (7th Cir. 2012).
• "We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court's interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions." Moore, 702 F.3d at 942 (emphasis added).

GregJackP Boomer! 23:24, 28 October 2013 (UTC)

Secondary sources

• "[T]he United States Supreme Court ruled in District of Columbia v. Heller that U.S. citizens have an individual right to possess guns under the Constitution's Second Amendment." Jeff Golimowski, Note: Pulling The Trigger: Evaluating Criminal Gun Laws In A Post-Heller World, 49 Am. Crim. L. Rev. 1599 (2012).
• "Thereafter, the Supreme Court, in District of Columbia v. Heller, in an originalist opinion, made explicit the implicit original meaning of the Second Amendment by ruling that it protected an individual right." Lee J. Strang, An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent, 2010 B.Y.U.L. Rev. 1729, 1779 (2010).
• "[T]he U.S. Supreme Court held that the Second Amendment confers a fundamental, individual right to possess a firearm. . . ." Amos N. Guiora, Self-Defense - From the Wild West to 9/11: Who, What, When, 41 Cornell Int'l L.J. 631 (2008).

GregJackP Boomer! 23:24, 28 October 2013 (UTC)

Comments

It does not matter what other academics have opined on what the Second Amendment means. Those positions are neither the law, nor mainstream at this point. Legal academics are clear on what SCOTUS decided, and it is reflected in the article. Any contrary position should be covered in the body of the article, not the lede, and should not be given undue weight, any more than any other fringe theory is given. GregJackP Boomer! 23:24, 28 October 2013 (UTC)

Hello Mark – welcome to 2A Talk. I read your claim about POV in the opening sentence and saw your proposed “fix”. I found your arguments unpersuasive. Simply adding the actual text when it is shown directly below seems redundant. The text says what it says. The meaning of the text is and has been open to conjecture, however it is SCOTUS’s duty to determine meaning and limitations of the amendment. All of this is covered in the lede. I am not sure what you mean by “POV fork” – if you are referring to the wikilink, where is that POV? Just saying something is POV doesn’t make it so. Cheers. Grahamboat (talk) 17:43, 30 October 2013 (UTC)

Hi Grahamboat, your argument is simply innacurate as the lead will be redundant as that is its purpose...to summarize what is in the article.

As for the claims of fringe view that is nonsense and very POV. Also WP:MOSLAW, states:"In general Where both primary and secondary sources are available, one should cite both. While primary sources are more "accurate", secondary sources provide more context and are easier on the layperson. Where primary and secondary sources conflict factually, the primary source should be given priority".--Mark Miller (talk) 23:39, 2 November 2013 (UTC)

As The Four Deuces stated: "Indeed court decisions are primary sources and articles should be based on secondary ones. North8000's comment that the meaning of the wording has been clarified by the Court is inaccurate. The Court may decided how a law should be interpreted, but what the law actually means should be determined by reference to secondary sources.". This article is a rather POV version of what some think the amendment means. Also of note is the comment that once SCOTUS has spoken, that's it is a false. It is never the end. It certainly isn't the end with DOMA now is it?--Mark Miller (talk) 23:43, 2 November 2013 (UTC)

Scotus is not a source on the 2A, it is the definer of the reality. North8000 (talk) 23:54, 2 November 2013 (UTC)

Could you explain that in further detail please?--Mark Miller (talk) 23:56, 2 November 2013 (UTC)

Since Marbury v. Madison (1803), the Supreme Court has been considered the official definer of what the Constitution means (see also City of Boerne v. Flores (1997)). That's why, for example, people who oppose the right to abortion accept that there currently is such a right. The Supreme Court has repeatedly ruled that such a right exists and so there is such a right. The Supreme Court may overrule these rulings and thereby rule that there is no such Constitutional right, but until then there is such a right. A classic example of the Supreme Court doing this is regarding the liberty of contract (see Lochner v. New York (1905) and West Coast Hotel Co. v. Parrish (1937)). The same is true of the individual right to keep and bear arms. The Supreme Court has repeatedly ruled (see Heller and McDonald) that there is an individual right to keep and bear arms and so there is such a Constitutional right. The Supreme Court might overrule those decisions in the future, but has not yet done so and so there is such a right. SMP0328. (talk) 00:39, 3 November 2013 (UTC)

The issue is not the right, or even the definition of the right, but that the SCOTUS is not the last word on that right. They are but one part of the US government. But everything you just stated is original research and would require a source to be included in the actual article. I simply reject the reasoning that has been put forward and clearly others have as well. I see this as a very good candidate for WP:DRN.--Mark Miller (talk) 00:57, 3 November 2013 (UTC)

I'm not asking for what I wrote above to be added to the article. You asked for further explanation and I gave it. What the Constitution legally means is determined by the Supreme Court. Others may disagree with specific interpretations the Supreme Court gives the Constitution or may even disagree with the Supreme Court having this authority, but the Supreme Court is the final word on what the Constitution legally means. SMP0328. (talk) 01:30, 3 November 2013 (UTC)

Hello...North8000...is this thing working? *Tap* *Tap* *Tap*.--Mark Miller (talk) 00:59, 3 November 2013 (UTC)

Actually, SMP0328. clearly explained what North8000 said. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 177 (1803). That's not an old, obsolete decision either. See United States v. Windsor, 133 S. Ct. 2675, 2688 (2013), where the Court cites it for the DOMA decision, which is, BTW a final decision on the points before the Court. SMP's example of Lochner v. New York, 198 U.S. 45 (1905) is a perfect example, as is Brown v. Board of Education, 347 U.S. 483 (1954). Other's may state what they believe the law should be, but that has no meaning. Congress can pass a new law, but as long as the law remains unaltered, what SCOTUS says is in fact the last word. That is also the clear consensus here. GregJackP Boomer! 01:46, 3 November 2013 (UTC)

Nope. Not a clear consensus. If I were the only one arguing against that you might be correct, but I am not. If North feels that he need not answer to my request to expand on their comment that is clearly WP:IDIDNTHEARTHAT. Consensus is not what everyone agrees with, it is what everyone can live with and clearly that is not the case here.--Mark Miller (talk) 01:57, 3 November 2013 (UTC)

How do you figure? I count the following as saying that the lede is correct, that SCOTUS has spoken and the other views should be addressed in the body:

• Gaijin42, Grahamboat, GregJackP, North8000, Scalhotrod, SMP0328

Against that view is:

• Mark Miller, TFD

Uh, that's a 3:1 ratio, or 75%-25%. That's a pretty clear consensus. GregJackP Boomer! 06:53, 3 November 2013 (UTC)

Consensus is not a count of !votes. That is not a clear consensus. That doesn't even count as a rough consensus.--Mark Miller (talk) 07:11, 3 November 2013 (UTC)

I never said it was a count of !votes. You do have 75% of the editors who are commenting all saying the same thing. Legal minds also say the same thing. Take for example the opinion in Moore v. Madigan cited above. Judge Posner is well known for disagreeing with the view that the 2A grants an individual right to firearms. However he also understands that once SCOTUS has spoken, the debate on what the law means is over.

You are also wrong about consensus - it is not what "everyone" can live with, it is what the clear majority believes to be. See WP:CONSENSUS. Finally, you appear to be the only one who has an issue with this. GregJackP Boomer! 20:02, 3 November 2013 (UTC)

But...I feel the best way forward may be an alternative to DR/N. I shall consider our options.--Mark Miller (talk) 02:01, 3 November 2013 (UTC)

Mark, in case you are not familiar, a few editors aren't on and editing Wikipedia 24/7. So your "tap tap" and "If North feels that he need not answer to my request to expand on their comment" inferences might be appropriate 1-3 days later but are pretty silly and inappropriate 1 and 2 hours later. And your building your "I didn't hear that" crap and stupidly linking to the disruption page based on that/your silly mis-action is badly out of line and bordering on a personal attack. STOP. North8000 (talk) 11:13, 3 November 2013 (UTC)

Answering your question, the 2A is a US legal mechanism, and Scotus (where it has ruled) is ultimate and final DEFINER of (not source on) what the amendments legally mean. And in the US, the official legal meaning is the REALITY with respect to a legal instrument. A statement of what the 2A does is a statement of its legal meaning and legal effects. North8000 (talk) 11:23, 3 November 2013 (UTC)

Regarding documents the decision itself in the document (not the summary) is the words of the justices and their decision and is a primary source on what the court has defined. The syllabus portion of the document was written by someone else. North8000 (talk) 11:40, 3 November 2013 (UTC)

North...I asked the question 2 minutes after you left the comment. Just because you immediately walked away, please do not make sound as if I was being impatient. You just made what we call a drive by comment. I was actually expecting that you would simply return the comment as you appeared to be editing at that time. If you really feel a personal attack was made...report it, but please do not pretend it to be "reality". I also feel you explanation is just far from what SCOTUS is for. It does NOT define a reality of any kind it merely interprets what they feel at the moment. They were not there 200+ years ago so it is impossible for them to know the reality of that time.--Mark Miller (talk) 18:46, 3 November 2013 (UTC)

"They were not there 200+ years ago so it is impossible for them to know the reality of that time." -- An accurate statement, but not relevant to this article or to the role of SCOTUS in saying what the law means. GregJackP Boomer! 20:05, 3 November 2013 (UTC)

@Mark, "impatient" was also the case but not what I wrote about. I wrote about insulting comments and beyond-ridiculouous false accusation which you built upon that unwarranted impatience. And my statement was to stop it, not that I wanted to report you for what you already did. North8000 (talk) 22:19, 3 November 2013 (UTC)

Oh please. I wrote: "Hello...North8000...is this thing working? *Tap* *Tap* *Tap*.--Mark Miller (talk) 00:59, 3 November 2013 (UTC)" That isn't impatience, its using humor with a ping. Clearly you did not like it and took it far beyond what it was intended as...a humorous ping.

You neglected to mention your second post with a link to wp:disruption. North8000 (talk) 00:53, 4 November 2013 (UTC)

You mean this: "If North feels that he need not answer to my request to expand on their comment that is clearly WP:IDIDNTHEARTHAT". Sure, I can see calling that impatient. But I can also see it as stating that if you didn't reply yourself it would be. There is a lot of editors answering for and explaining for others. I assume AGF but also but wanted to make sure you knew I was waiting for your answer. Apologies for that specifically if that was what really ticked you off.--Mark Miller (talk) 01:34, 4 November 2013 (UTC)

But back to this: "Scotus (where it has ruled) is ultimate and final DEFINER of (not source on) what the amendments legally mean" No, they are not. Actually, the people are. And that is more than a political statement. It is fact, as the US constitution may be amended by the people and has many times to add and subtract "rights". Period. But there is more "argument" against you suggestion that SCOTUS "defines reality" and that is SCOTUS itself (Bolding/linking added for emphasis): "As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution." They are not the ultimate and final definer of reality or "what the constitution is". They are the final arbiters and merely interpret what the constitution seems to be to them with what they know at that time. So, for example, as with the DOMA decision, we still have the Secretary of Defense coming public to announce that something like 9 national guard units are refusing to comply with that decision. I do not know what reality we have here, but clearly SCOTUS was not the decider of it to those posts. As we have discussed with abortion, SCOTUS never decided a reality in Texas that many would argue (and at least on court) are unconstitutional laws, disregarding the SCOTUS decision of Roe vs Wade. Politics is a factor and cannot be excluded from the claim you made. Simply put...no, the United States Supreme Court does not define the constitution or its amendments. They interpret them and they are by no means the final word. There are always options. They are not dictators or emperors. They are Justices on the highest tribunal in the US. But that does not give them god like power or in anyway state or imply omnipotence.--Mark Miller (talk) 00:28, 4 November 2013 (UTC)

You have a lot mixed up there, but I'll just stick to the core point rather than getting into all of those. I never said all of those straw man variants that you are saying Scotus isn't. (dictators, emperors, "define the constitution", "god like", "omnipotence" etc.) Back to what I actually said, in areas that they have ruled, they DEFINE the operative, legal reality of the amendment. So, for the purposes of a statement of what the 2A does, where they have ruled they define that reality of what it does. North8000 (talk) 01:01, 4 November 2013 (UTC)

No they don't, and I have at least provided a reference to verify my claims from the SCOTUS website that they are merely the highest tribunal in the US with the right to arbitrate controversial subjects, and do not define a "legal reality" but simply interpret the constitution. I have no idea where you get the term "Legal reality" from. What does that mean exactly?--Mark Miller (talk) 01:22, 4 November 2013 (UTC)

I have been trying to use words that help explain it. Maybe this "shorthand" statement will help. If Scotus says that the XYZ amendment prevents the government from outlawing purple cats, then, the legal, operative reality is that the XYZ amendment prevents the government from outlawing purple cats. North8000 (talk) 01:39, 4 November 2013 (UTC)

No that didn't help and still makes a false argument of a "legal, operative reality" that somehow prevents the people from enacting their First amendment right to petition the Government for a redress of grievances.--Mark Miller (talk) 02:05, 4 November 2013 (UTC)

Wow Mark, No. Respectfully, you need a crash course in our form of government. We do not live in some kind of Ochlocracy...rights cannot be just added or subtracted by some mob depending on their whim or their state of ignorance. Here, study this, "we hold these truths to be self- evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are, life liberty...." Our rights are Self-evident and they are inalienable regardless of the degree of idiocracy that the mob descends to. They can't be added or subtracted!!! We enshrined a few common ones so we wouldn't have to argue over blatantly well established truths. But make no mistake, shredding the constitution would not remove these rights even if 99% of the people voted to do so! All our rights like the right to free speech and to bear arms arise from a much more fundamental place as Jefferson explained. My gosh, I take a break and come back to this? Thank you North8000, you stay true to the compass.-Justanonymous (talk) 02:36, 4 November 2013 (UTC)

Mark, what you are saying isn't even about this article anymore. You're not talking about what the Second Amendment means. Under your viewpoint, the Second Amendment means whatever the American People nationally, or the People in each State, want it to mean from time to time. That's not how things work in this country. If it did, the Bill of Rights would be meaningless. SMP0328. (talk) 02:47, 4 November 2013 (UTC)

Hey, I was discussing the single ideal that the last ruling by SCOTUS is the final word on a legal reality. Don't blame me for the abstract manner or course the discussion took. The point is, the US Supreme Court is not the actual final end to the legality of any interpretation they make.

But my actual point in the lead is the way it is written to exclude the other rights and matters that the amendment grants and that the lead fails to summarize the article in a proper manner. I strongly feel that the lead is giving undue weight to the fork article, Right to keep and bear arms in the United States which makes the summary very ambiguous where it should merely summarize what the "established" rights are and how they were established. That article is a fork right now only because you have to go there to find out the information you should be reading in this lead. You can link the article...but you still have to say more here. I think this article should be C class article at the moment.--Mark Miller (talk) 03:11, 4 November 2013 (UTC)

No Mark, it appears you are POV pushing. I read the other amendment entries and they have protect, prohibit etched in their summaries. I don't see you there lobbying to adjust those entries. Why this one? Here read this,

"The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that comprise the Bill of Rights."

I don't hear you arguing that this interpretation of the first is a POV fork.....why? Because you agree with the cited interpretation? There is a plain and self evident interpretation. You're POV pushing. Sorry......and yes, you're responsible for lapses in logic when you are refuted. By my count there are 7 editors who are making very strong refutations here and it's you that are guilty of WP:ididnthearthat. The WP:consensus is not just clear, you are refuted thoroughly.-Justanonymous (talk) 03:31, 4 November 2013 (UTC)

Mark if you were operating in good faith, you'd be lobbying for only the text to be included in all the bill of right ledes. You're transparent in your actions here. Please respect the consensus here. And no yet another drn will not be helpful nor help your cause.-Justanonymous (talk) 03:35, 4 November 2013 (UTC)

If you had stuck with just your argument and not unfounded accusations against me, I would have respected that, but...what is at issue is this; The First Amendment article is linking to actual clauses such as the Establishment Clause which is a part of THIS series of articles. However, on the Second Amendment article the link is, one - changed to add the wording "of the people" to the article it links to...which is about a concept not a clause and two - not a part of this series of articles which leads me to believe it is a POV fork.--Mark Miller (talk) 03:49, 4 November 2013 (UTC)

I'm going to ask once for you to stop the disruption. You've made your argument, but no one has accepted it, while numerous editors have explained the SCOTUS role and process to you. You need to drop the stick and please stop. GregJackP Boomer! 06:13, 4 November 2013 (UTC)

If we treat court decisions as holy writ, it means that the Constitution never meant African Americans to be citizens or have any rights, because that was the decision in Dred Scott v. Sanford, and has never been overturned. Does that mean we should say the 2A was meant to protect the rights of white people? TFD (talk) 06:42, 4 November 2013 (UTC)

Actually, Dred Scott v. Sandford, 60 U.S. 393 (1856) was only good law for 12 years. It was superseded by Constitutional Amendment on Jan. 1, 1868. A simple check of Westlaw or Lexis showed that information. Anyone with any amount of legal training would have been able to tell you that. No one said that only SCOTUS could overturn previous SCOTUS decisions. Here Congress did it by the amendment process of Art. V, U.S. Constitution. It's part of the system of checks and balances. GregJackP Boomer! 13:17, 4 November 2013 (UTC)

Agreed GregJackP, the checks and balances are there in an attempt to safeguard liberty itself for the people. No one branch of government supersedes the other. Thank you for being a voice of reason. -Justanonymous (talk) 13:24, 4 November 2013 (UTC)

Since the Dred Scott decision was never overturned because as you say, the constitution was amended in 1868, it would mean that the constitution denied citizenship and rights to African Americans. So we should say that the Second Amendment as written did not apply to African Americans, because obviously the Court could never be wrong despite the fact that legal scholars today overwhelmingly believe they were. TFD (talk) 13:45, 4 November 2013 (UTC)

Let me know when you want to make a legitimate point and have a real discussion. I'm not going to engage in a debate over an issue that was not raised in the previous discussion, was not advocated by anyone on this talkpage, is an overly simplistic view of the issue, and is idiotic. Regards, GregJackP Boomer! 13:59, 4 November 2013 (UTC)

You wrote above, "It does not matter what other academics have opined on what the Second Amendment means. Those positions are neither the law, nor mainstream at this point. Legal academics are clear on what SCOTUS decided, and it is reflected in the article. Any contrary position should be covered in the body of the article, not the lede, and should not be given undue weight, any more than any other fringe theory is given." Dred Scott proves that you are wrong. TFD (talk) 19:49, 4 November 2013 (UTC)

Yes, SCOTUS can overturn itself. Yes, there can be constitutional amendments. None of that has any relevance on what the law means now. Above you are absolutely correct, the application of the constitution DID deny citizenship and rights to African Americans, until later amendments and SCOTUS rulings. GJP's statement is also entirely correct. The academics are irrelevant, right up until SCOTUS/amendments take action. Gaijin42 (talk) 20:00, 4 November 2013 (UTC)

What matters is what the Supreme Court currently says the Second Amendment means. What it said the Second Amendment meant in 1857 does not belong in the Introduction. Dred Scott was overruled in 1868 by the Citizenship Clause of the Fourteenth Amendment. That decision is no longer good law and no longer defines any part of the Constitution. SMP0328. (talk) 20:05, 4 November 2013 (UTC)

Alternate suggestion for lead sentence

How about this?

After all, the amendment does not protect the right from infringement by Starbucks or any other private actor, nor does it prevent the government from regulating nuclear arms, nor from keeping all weapons out of the hands of temporary residents from other countries.Anythingyouwant (talk) 18:38, 4 November 2013 (UTC)

Certainly much better than the previous proposal. I would change the "right does not prevent" to "amendment/protection does not prevent" or some such though. Also technically "Americans" may be wrong, as there have been rulings saying that it applies to non-citizens as well. (Although there have been rulings specifically saying it does not apply to illegal immigrants. (Complicated somewhat by the fact that some of the immigrant cases have also relied on state constitutions, some of which specify "people" and not "citizens" in their 2A equivalents. In any case, I think the law is ambiguous enough in that regard that we should not specify who it applies to past "individuals"Gaijin42 (talk) 18:47, 4 November 2013 (UTC)

I've changed "right" to "amendment" as you suggested. But "Americans" seems apt; click on that link and you'll see it includes permanent residents who are not citizens.Anythingyouwant (talk) 18:52, 4 November 2013 (UTC)

Hrm, well I still think how it applies to non citizens is ambiguous, but I wont strongly object, lets see what others say. I'd also change the "right also applies against" to protection in the state sentence, for the same reason. Gaijin42 (talk) 19:05, 4 November 2013 (UTC)

Okay, I crossed out "right" but it doesn't seem to need to be replaced with anything. Also cleaned up and tweaked.Anythingyouwant (talk) 19:23, 4 November 2013 (UTC)

(edit conflict)I'm not keen on the language, but it is head and shoulder's better than the original proposal. What about (with markup):

Clean version:

GregJackP Boomer! 19:28, 4 November 2013 (UTC)

the last sentence is problematic. We don't know if there are any exceptions or whether it allows regulations. We don't say this in the other amendments, why on this one?? Seems like weasel wording. Who defines reasonable? District of Columbia? Chicago PD?-Justanonymous (talk) 19:33, 4 November 2013 (UTC)

also problematic is the word americans. The amendment talks of the people. I'm ok with "the people".-Justanonymous (talk) 19:36, 4 November 2013 (UTC)

(outdent) Okay, try this:

Anythingyouwant (talk) 19:44, 4 November 2013 (UTC)

Better. how to summarize the following quote is a bit tough, and certainly an area in which both side's POV are certainly coloring their statements. Ultimately SCOTUS will be deciding what is reasonable or not based on what cases they take, and what they overturn (or dont overturn) - not much we can say in wiki's voice at this point, so I think what is proposed is as far as the lede can go. We can put a few of the POV statements later in the body. Gaijin42 (talk) 19:55, 4 November 2013 (UTC)

@Justanonymous - I prefer the term "reasonable regulation" but that is because of the wording of McDonald, speaking of the amici briefs of 38 states, supporting McDonald as petitioner and the ability of the "State and local experimentation with reasonable firearms regulations will continue under the Second Amendment." McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3046 (2010) (emphasis added). Reasonable is also a legal term of art, referring to the fictional "reasonable person", which the fact-finder is supposed to be when determining issues in court. Typically that will be the jury. The term is widely used in the legal world. GregJackP Boomer! 20:32, 4 November 2013 (UTC)

Saying it doesn't entirely prevent regulation is slightly better, I think, because it allows for judges to add other adjectives like "reasonable and/or necessary" or "reasonable and/or traditional". The amendment itself just says "well-regulated".Anythingyouwant (talk) 20:39, 4 November 2013 (UTC)

I like that this gets us away from the current "protects ... from infringement" wording, but I think it is too much for one sentence and brings in points already presented in the remainder of the lead. Can I suggest:

The first sentence summarizes the current state of affairs and leaves the details of incorporation to the third or fourth paragraph. The second sentence clarifies that reasonable regulation does not infringe upon that right. (We lost that clarification at some point.) Celestra (talk) 21:05, 4 November 2013 (UTC)

I can live with this. GregJackP Boomer! 21:11, 4 November 2013 (UTC)

If others are OK with it, (e.g. I didn't miss anything) I am OK with it. North8000 (talk) 22:45, 4 November 2013 (UTC)

no objection, but reserve the right for future tweaks of course. Gaijin42 (talk) 22:50, 4 November 2013 (UTC)

Sorry, but I can't endorse the lead sentence suggesting that any part of the Bill of Rights is applicable against the states, without at least mentioning that the Fourteenth Amendment makes it so. The Second Amendment very clearly did not apply against the states prior to the Civil War, and it has not been amended since then.Anythingyouwant (talk) 23:12, 4 November 2013 (UTC)

What if we say this:

This makes clear what the amendment does and refers to the fact that it applies to the States and localities via incorporation. It also includes a wikilink to the incorporation article via the word "applies". SMP0328. (talk) 23:24, 4 November 2013 (UTC)

If we are going to split it that way, I don't think we should mention Federal govt in the first sentence, as the statement is not correct as a standalone item. This is similar to how the other amendments are covered. First_Amendment_to_the_United_States_Constitution Fourth_Amendment_to_the_United_States_Constitution

The Second Amendment (Amendment II) to the United States Constitution prevents infringement upon the right of the American people to keep and bear arms. Originally the restriction only applied to the federal government, but was incorporated against state and local governments via the 14th amendment. }}

Gaijin42 (talk) 23:30, 4 November 2013 (UTC)

Change "federal government" to "federal government", "incorporated" to incorporated", "states" to "states", and "14th amendment" to "Fourteenth Amendment". If these changes are made, I'll agree to Gaijin42's wording. SMP0328. (talk) 23:41, 4 November 2013 (UTC)

We discuss incorporation in the second half of the third paragraph, so could we just drop the second sentence now that the first doesn't say "federal government"? And, for balance, include the bit about not prohibiting all gun regulation?

Also, "infringement upon"? Isn't there a way to say this that is more immediately meaningful to the average reader. Celestra (talk) 00:48, 5 November 2013 (UTC)

again the last sentence is problematic. We don't say that the first amendment prohibits people from yelling fire in auditorium or FCC regulation of the spectrum......why here??-2600:1011:B028:DFC:31B2:9C81:2DF1:A6CA (talk) 01:04, 5 November 2013 (UTC)

Edit conflict, and not responding to 2600's comment which I don't understand)Regarding incorporation, that is sort of an arcane general constitutional item that I would tend to not put into the first sentence. So I recommend not, but am not strongly against it. Celestra, if you have a better idea that would be good, but that going to be a tough one. When in doubt, the "infringe" is from the 2A itself. North8000 (talk) 01:10, 5 November 2013 (UTC)

We could say "applies" with it wikilinked to Incorporation of the Bill of Rights. SMP0328. (talk) 01:22, 5 November 2013 (UTC)

I like a lot of the wording here and think I see a possible way to incorporate a good deal of the thoughts from above, if not the exact wording. First, what I think is important with these amendment articles is what they specifically do. With the First Amendment it was to prohibit a number of things: "The First Amendment (Amendment I) to the United States Constitution prohibits...". I believe editors have established that what the second amendments does, by explanation from SCOTUS and secondary, RS confirm, is "protect". So I tend to support first and foremost describing the amendment as a protection and not as a prevention. Reasoning being that.. the court separates the amendment into two clauses that, in the 1st point of their decision is that the Second Amendment "protects" what it does, because it was already established in a number of ways that they demonstrate verbally in their writings. The discussion of the prefatory and the operative give some guidance at least, what not to dismiss.

I don't think we need to say "American" but be specific as to how that is defined and what we are talking about are citizen rights. An individual right to keep and bear arms. I also feel we should mention the militia as simply as possible and perhaps as the discussion have indicated, the operative clause is the right to bear arms and the prefatory right is the militia. Mentioning this simply clarifies why we mention TRTBA before the militia if the militia is the prefatory.. I think this could be followed with either an explanatory note (which I prefer) or additional wording that states something like:

--Mark Miller (talk) 01:31, 5 November 2013 (UTC)

No, giving that one purpose is not correct. North8000 (talk) 01:54, 5 November 2013 (UTC)

By "that one", do you mean the limitations mention? Should we drop that portion?--Mark Miller (talk) 02:01, 5 November 2013 (UTC)

(added later) No, the statement of the militia as the purpose. North8000 (talk) 02:34, 5 November 2013 (UTC)

(edit conflict)I agree with you North8000. The proposal by Mark is not accurate. Even SCOTUS noted that the militia was not the most important reason. Plus, the creation of the militia and Congressional/State authority over the Militia is governed not by the Second Amendment, but Article I. That version is not acceptable and is not mainstream. The limitation comment is also not appropriate. GregJackP Boomer! 02:25, 5 November 2013 (UTC)

Alright. I see what you are stating North. So you disagree that the right to bear arms clause in the Second Amendment is clarified through the militia clause as a historic make up of individual citizens? Or you just feel that we do not need to mention the militia at all. I ask this as yet no one has addressed how we simply dismiss a clause in the amendment that is the clarifying factor to the individual right. I feel the discussion has clearly shown there are indeed two clauses that the article should touch on. I don't know if we can actually say that SCOTUS has said the militia was not the most important reason. Reason for what? The individual right? In the last SCOTUS case they basically did say that the militia was the main issue of the amendment for individual rights even before the amendment was written. They stated this was to keep antifederalist from trying to take away an ancient right that was the basis to how a citizen militia is formed. I strongly disagree With North800 and GregJackP that this needs to be excluded and I actually feel the two clauses need to be the first things addressed in the lede as encyclopedic, impartial, accurate and NPOV. I propose another version:

Incorporating some of Celestra's wording.--Mark Miller (talk) 03:25, 5 November 2013 (UTC)

• The law is settled and very clear on the matter

• Yes, it is, but how that should be summarized and what is settled seems to be in contention.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

• It is only in contention by you. The rest of us agreed that the "militia" did not need to be mentioned in the lede. GregJackP Boomer! 04:54, 5 November 2013 (UTC)

• • The holding of heller is that it protects an individual right.

• Heller is not the only consideration.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

• Correct, McDonald is also important, which also reiterated that this was an individual right. GregJackP Boomer! 04:54, 5 November 2013 (UTC)

• • the dicta talk quite a bit about the militia, but they made no ruling about the militia

• This is an important distinction but also shows no ruling against the militia and in fact explains how the militia

• • • except that the right to keep and bear arms is protected even if unconnected and unrelated to service in a militia

• Now I see some headway on some common ground here And something to consider.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

• the milita itself is largely irrelevant in modern context due to the army, and national guard (short of a hypothetical unorganized militia rebellion)

• I tend to think it to be something like a point of view to assume certain things into why we shouldn't mention something.

You have many points in this argument that seem to be about the militia as a clause and feel the argument somewhat self defeating.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

• • though note that the militia statutes still have the unorganized militia as all able-bodied males.

• I really don't see the relevance.

• • therefore the practical effect of the amendment is just the individual right to keep and bear arms

• I really do think that is simply original research. Synthesis. Putting together facts to make another fact.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

• It is original research. Yours. GregJackP Boomer! 04:54, 5 November 2013 (UTC)

• The vast majority of secondary sources discussing the impact of the 2A post-heller talk about its effect on individual rights, and what the extent of the granted protection is, and do not give any significant ink to militia issues (with the exception of those trying to argue heller is wrongly decided)

• But, almost all of them mention it in some manner.

• We can certainly cover the historical militia context in the body, and a brief mention in the lede may be appropriate, but it is undue in the opening sentences.

Gaijin42 (talk) 03:50, 5 November 2013 (UTC)

This was the best way for me to address this, but if you want I can edit it.--Mark Miller (talk) 04:13, 5 November 2013 (UTC)

We also need to clarify something here. Mark keeps mentioning the "militia" clause as if it is in the Second Amendment--it is not. The Militia Clause has always been Article I, Section 8, Clause 16. That did not change with Heller or McDonald. The prefatory clause, as explained by the Court, has no bearing on the individual right to self-defense. This is getting ridiculous. Mark's position is not mainstream, is not accurate, and appears to be WP:OR. GregJackP Boomer! 04:54, 5 November 2013 (UTC)

GregJackP, congressional powers are a separate issue. That is arguing with original research. That simply does not negate the fact the militia clause here is different in how it is being treated as protection of an ancient right. Per Heller, sources, both primary and secondary.--Mark Miller (talk) 10:04, 5 November 2013 (UTC)