Talk:Militia Clause

Second Amendment

• It is also sometimes said to include the Second Amendment, which forbids infringing the right to keep and bear arms.
  • ref- U.S. Department of Justice, Statement on the Second Amendment to the United States Constitution, August 24, 2004. "the Militia Clauses, along with the structure of the Bill of Rights and the preface of the Second Amendment, all support the personal, individual right to keep and bear arms that the Amendment's operative text sets out."</ref

The text of the reference seems to me to say that the Militia Claus and the preface to the Second Amendment are two different things. "Along with" implies separation. If it had said "including" that would be different. Is there a clearer assertion that the 2nd Amendment is part of the Militia Clause? By itself this isn't adequate. ·:· Will Beback ·:· 23:36, 8 November 2007 (UTC)

Without any discussion the material has been added back, now with a new citation:

• Some also include the provision in U.S. Const. Art. II, S 2, cl. 1, that authorizes the President to command the militia, and the first clause of the Second Amendment.
  • Robert A. Levy, Ph.D., J.D, Testimony before the Committee on Government Reform, U.S. House of Representatives, June 28, 2005, Oversight Hearing on the District of Columbia's Gun Control Laws. Online copy

In this new citation the speak refers to the militia clause of the Second Amendment, but does not appear to refer to the Militia Clause of the Constitution. Can anyone provide the actual text where the speaker says that the 2nd Amendment is included in the Militia Clause? Furthermore, one of the sources, [1], says very clearly that there are two militia clauses: Article 1, §8, clauses 15 and 16. I don't see any sources that claim there are more. ·:· Will Beback ·:· 01:55, 9 November 2007 (UTC)

Will Beback seems to be stuck on the singular form of the name of the article. Nothing wrong with using a singular to refer to any of several things, but it shouldn't take long to confirm that the most common usage is "militia clauses" (plural). We could rename the article, but in the meantime I created a redirect page. Jon Roland 02:15, 9 November 2007 (UTC)

I'm not concerned with the name, I'm concerned with verifiable facts. Please address these issues before re-adding the material. ·:· Will Beback ·:· 02:34, 9 November 2007 (UTC)

Specifically, the sources list two clauses, not four. There's a particular problem with calling the 2nd Amendment as one of the militia clauses. Please cite the text that calls it one of the militia clauses. ·:· Will Beback ·:· 03:19, 9 November 2007 (UTC)

Natural languages, including English, and the ways people use them, are not rigorous systems of logical propositions. Even mathematics is often used casually in ways that could not be understood unless you had been engaged in an extended conversation. (And I speak as a mathematician and computer programmer who has written programs to prove theorems and verify proofs.) You have already read the cite that refers to "the militia clause" as the first clause of the Second Amendment. That is because the author had established the context, and abbreviated thereafter. That doesn't mean there is only one militia clause in the (amended) Constitution, or the Universe. He is focusing on one, and just refers to that one. Other authors focus on the clauses in Art. I and refer to the (two) militia clauses, or they may focus on one and just say "the militia clause". I have read internal legal documents in the Department of Justice which were discussing presidential powers and used "the militia clause" to refer to the clause in Art. II. (Still looking for a cite on that one.) About the only time you will read of all four being discussed at the same time, it is usually in a phrase like "the word 'militia' occurs four times in the (amended) Constitution". But of course the writer expects his readers to understand that those words appear in clauses. (He might gloss over the question of whether any clause might contain the word more than once.) We need a little common sense here. Jon Roland 04:56, 9 November 2007 (UTC)

The 2A certainly has a militia clause, and it's discussed in the article on that measure. But this article is about the "Militia Clause" of the Constitution. Those are two different matters, and lumping them together does not help. If there is no source that says there are four militia causes then we must not take it on ourselves to make that assertion. Each of us is free to write essays making that assertion and to publish those elsewhere. For Wikipedia we must limit ourselves to verifiably summarizing reliable sources using the neutral point of view. Adding up each item reported somewhere and coming up with an original total is original research. If one reliable source says there are two clauses and another says there are three then we say that. We mustn't go out looking for other clauses to add to that list. Following the old adage, we can't say that we're going to call a tail a leg and therefore there are five legs. ·:· Will Beback ·:· 07:46, 9 November 2007 (UTC)

This is an issue of OR. I see the 1940 Harvard Law Review article which defines the term 'Militia Clause'. Is there WP:V sourcing that the term means something else? SaltyBoatr 17:41, 9 November 2007 (UTC)

Excessive literalism. See WP:NEL. Read Art. V of the Constitution, in relevant part:

“ ... Amendments, ... shall be valid to all Intents and Purposes, as Part of this Constitution ”

It is not OR to recognize that the "Constitution" includes the amendments to it, as a matter of logic and common usage. The most common usage is to indicate only the unamended Constitution is to use a phrase like "original Constitution" (before amendments), or "unamended Constitution". There are many examples of reference to the preamble to the Second Amendment being a "militia clause", and I provided one. Eventually I will also track down a cite for use of the term to refer to the Art. II clause as a militia clause, or perhaps the militia clause in the context of the discussion in which it appears. I also do not approve of lumping clauses 15 and 16 into one paragraph, as they are separate paragraphs in the Constitution. If you insist it is OR to add 2 + 1 + 1 = 4 then don't, and I didn't in my edit. I just presented the first two, and cited that, then the third, without a cite, and finally the fourth, the one in the Second Amendment, which I cited. Never totaled them. Jon Roland 03:21, 11 November 2007 (UTC)

That's very interesting. But until we have a reliable source that calls the 2nd Amendment one of the militia clauses we need to leave it out. ·:· Will Beback ·:· 03:38, 11 November 2007 (UTC)

It is not the entire 2nd Amendment that is being called a "militia clause", but the first, dependent clause of it, sometimes called the "preamble": "A well regulated Militia, being necessary to the security of a free State". Read the source I provided more carefully. It is reasonable to quote the entire amendment, although if you think it is not obvious which part of it is the "militia clause" then italicize that part and append "(emphasis added)" after it. Jon Roland 04:39, 11 November 2007 (UTC)

I can read the 2nd Amendment. But this article is about things called the "militia clause" of the Constitution, not the militia clause of the 2nd Amendment. We've got a great article on the 2nd amendment that covers its clauses. We can provide a link to it, and that won't be disputed. ·:· Will Beback ·:· 04:56, 11 November 2007 (UTC)

Globalizing article

Actually, the article title is not necessarily restricted to the original U.S. Constitution, or the amended Constitution, nor would be off-topic to include material on militia clauses of state constitutions, or federal or state statutes, or even the constitutions and statutes of other countries. Jon Roland 20:02, 11 November 2007 (UTC)

I disagree that this article is the venue to write about a greater issue of your constitutional militia theory. This article is about the limited scope of the 'Militia clause'. Analogous to the Copyright Clause or the Commerce clause. The basis for my reasoning comes from the 1940 Harvard Law review article[2] which also has that limited scope. SaltyBoatr 20:19, 11 November 2007 (UTC)

You are entitled to your opinion, but the name of the article is not limited to the original, unamended U.S. Constitution. Perhaps you need to start an article "Militia Clause of (unamended) U.S. Constitution". Also, it is OR to assert that the term "refers to ...". What is your source that the term is never used in any other way? All we have so far is a link to a site for "Popular Names for Constitutional Provisions", and that only supports saying something like the term "is popularly used to refer to ..." Jon Roland 20:50, 11 November 2007 (UTC)

The Harvard Law Review seems like an authoritative, non-popular journal. In its article on the "militia clause" it doesn't include the 2nd A. If there's a better source that includes it then let's see it. ·:· Will Beback ·:· 20:55, 11 November 2007 (UTC)

Key to my reasoning is that in this context, 'militia clause' is analogous to the Copyright Clause or the Commerce clause. I have no doubt that you can do Google searches to find the word 'militia' next to the word 'clause'. And, that would not justify that the scope of this article topic should be broadened to include a constitutional militia hypothesis. SaltyBoatr 21:04, 11 November 2007 (UTC)

"Analogous" is OR. That source supports one usage of the term. It nowhere supports the position that the term is never used to refer to anything else. Unless you can come up with a reliable source that supports that position, then you are committing an OR violation. All we have at this point is support for using it to refer to one thing, in a journal article that confined its scope to the unamended U.S. Constitution, and a link to a site for "Popular Names for Constitutional Provisions". I will revert toward making the article as general as the name allows. As I said, you can always start a new article that narrows the focus, and perhaps a disambiguation page. Jon Roland 21:11, 11 November 2007 (UTC)

Please don't disrupt the article by doing what you want without reference to other editors or to sources. ·:· Will Beback ·:· 21:23, 11 November 2007 (UTC)

How is is disruptive to add sources material that covers the subject of the article name? I see nothing that limits it to the unamended U.S. Constitution, and "in this context" is pushing a POV. I am not removing any large blocks of material. And it would seem the official websites of the various states are reliable sources for the militia clauses in their constitutions. I am just trying to achieve WP:NPOV and remove WP:NOR violations. Jon Roland 21:48, 11 November 2007 (UTC)