Wednesday, June 29, 2011

Another Mistake

This time, the problem is more the fault of the General Assembly than the Indiana Supreme Court.  This has no mens rea requirement, and it is unclear exactly what kind of conduct it makes illegal.  (Being intoxicated is not an action, and any action that might be prohibited by this statute/section is prohibited only by implication.)  It is an outright revolt against the most basic rules of the common law tradition.

And that is to say nothing of the fact that it prevents the transportation of drunk people by others, from one private location to another, for no conceivable reason, and against the rightful liberty of every person.

Monday, June 27, 2011

A Well Regulated Militia

What is the importance of the Second Amendment's reference to a well regulated militia?  Josiah Quincy wrote in 1774:
No free government was ever founded or preserved it’s liberty, without uniting the characters of citizen and soldier in those destined for defence of the state. The sword should never be in the hands of any, but those who have an interest in the safety of the community, who fight for their religion and their offspring; and repel invaders that they may return to their private affairs and the enjoyment of freedom and good order. Such are a well regulated militia composed of the freeholders, citizens, and husbandman, who take up arms to preserve their prosperity as individuals, and their rights as freemen. Such is the policy of a truly wise nation, and such was the wisdom of the antient Britons. The primitive constitution of a state in a few centuries falls into decay: –errors and corruptions creep gradually into the administration of government--’til posterity forget or disregard the institutions of their remote ancestors. In antient time, the militia of England was raised, officered, and conducted by common consent. It’s militia was the ornament of the realm in peace, and for ages continued the only and sure defence in war. Was the King himself general of the army—it was by the consent of his people.”

Sunday, June 26, 2011

Cooley on General Principles of Constitutional Law, page 282

"Without a search-warrant the doors of a man's dwelling may be forced for the purpose of arresting a person known to be therein, for treason, felony, or breach of the peace, or in order to dispossess the occupant when another, by the judgment of a competent court, has been awarded the possession.  In extreme cases this may also be done for the enforcement of sanitary and other police regulations; but, in general, the owner may close the outer door against any unlicensed entry, and defend it even to the taking of life if that should become necessary."

"There are a few cases in which arrests may be made without warrant; but the law gives little countenance to such arrests, and whoever makes one must show that the exceptional case existed which would justify it.  (1) Any one may arrest another when he sees him committing or attempting to commit a felony or forcible breach of the peace.  (2) A peace officer may arrest, on reasonable grounds of suspicion of a felony; but the person arrested must be at once taken before some court or magistrate of competent jurisdiction to take cognizance of the offence.  (3) A peace officer may also make arrests without warrant when municipal by-laws are being violated in his presence; but he will be a trespasser if he handcuffs or confines without necessity a person so arrested."

More From Cooley, Concerning Warrants and Warrantless Invasions of the Home

"Near in importance to exemption from any arbitrary control of the person is that maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers, against even the process of the law, except in a few specified cases.  The maxim that 'every man's house is his castle,' is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizens."


"And there are also cases where search-warrants are allowed to be issued, under which an officer may be protected in the like action.  But as search-warrants are a species of process exceedingly arbitrary in character, and which ought not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness; and if the party acting under them expects legal protection, it is essential that these rules be carefully observed.  In the first place they are only to be granted in the cases expressly authorized by law, and not generally in such cases until after a showing made before a judicial officer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or instrument of the crime, is concealed in some specified house or place.  And the law is, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well-founded; for the suspicion itself is no ground for the warrant except as the facts justify it. ... Search-warrants are always obnoxious to very serious objections; and very great particularity is justly required in these cases, before the privacy of a man's premises is allowed to be invaded by the minister of the law."


"Lord Hale says, ' It is fit that such warrants to search do express that search be made in the day-time; and though I do not say they are unlawful without such restriction, yet they are very inconvenient without it; for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance.'  And the statutes upon this subject will generally be found to provide for searches in the day-time only, except in very special cases."


"The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offence actually committed.  Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction.  Those special cases are familiar and well understood in the law."

"A statute which should permit the breaking and entering a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases; but the power of the legislature to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons; and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others.  To incline against the enactment of such laws, is to incline to the side of safety.  In principle they are objectionable; in the mode of execution they are necessarily odious; and they tend to invite abuse and to cover the commission of crime."

"We have said that if the officer follows the command of his warrant he is protected; and this is so even when the complaint proves to have been unfounded.  But if he exceed the command by searching in places not described therein, or by seizing persons or articles not commanded, he is not protected by the warrant, and can only justify himself as in other cases where he assumes to act without process."

"In other cases than those to which we have referred, and subject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he may defend his possession against intruders, in person or by his servants or guests, even to the extent of taking the life of the intruder, if that seem essential to the defence."

Cooley's Treatise on the Constitutional Limitations Which Rest Rest Upon the Legislative Power of the States...

Page 307, Note 4. "That in defence of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193 ; Yates v. People, 32 N. Y. 509 ; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 111. 241 ; Bohannan v. Commonwealth, 8 Bush, 481 ; s. c. 8 Am. Rep. 474. But except where a forcible felony is attempted against person or property, he should avoid such consequences if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396.  But a man assaulted in his dwelling is under no obligation to retreat ; his house is his castle, which he may defend to any extremity.  And this means not simply the dwelling-house proper, but includes whatever is within the curtilage as understood at the common law.  Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a person must act upon the circumstances as they appear to him at the time ; and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed in defence was excessive.  See the cases above cited. Also Schiner v. People, 23 111. 17 ; Patten v. People, 18 Mich. 314 ; Henton v. State, 24 Texas, 454."

Page 350: "A statute prohibiting the open wearing of arms upon the person was held unconstitutional in Stockdale v. State, 32 Geo. 225. And one forbidding carrying either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was sustained, except as to the last mentioned weapon ; and as to that it was held that, if the weapon was suitable for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for 'lifting their hands in opposition' to a white person was unconstitutional."

From Cooley on Torts -- The Right to Self-Defense

"Self-defense, or defense of one standing to the party in the relation of husband or wife, parent or child, guardian or ward, master or servant, is also a legal right, but must be carefully restricted to the necessity.  Defense of property may also be made under the like restriction."


"Self-protection.—An attempt to commit a battery may always be resisted by the person assaulted, but under this restriction : that he must not employ a degree of force not called for in self-defense ; he must not inflict serious injury unnecessarily in repelling an attack which threatens him with slight injury, nor take life unless life or limb is in danger, nor even then if by retreating he can safely avoid it."

Cooley was not from the Founding era, either, but like Odgers and Kent, his commentary on the common law (or in Kent's case, American law) is important as evidence of the existence and importance of the right to self-defense.

From the Esteemed Pufendorf -- Self-defense

"To Self-Preservation, which not only the tenderest Passion, but the exactest Reason recommends to Mankind, belongs Self-Defence, or the warding off such Evils or Mischiefs as tend to our hurt, when offer'd by other Men. This Defence of our selves may be undertaken two ways, either without hurting him, who designs the Mischief against us; or else by hurting or destroying him.  As to the former Expedient, no sensible Man can question, but that it is altogether lawful, and blameless.  But concerning the latter, many have entertain'd a Scruple; in as much as putting it in Practice we hurt or destroy a Man like our selves, with whom we are oblig'd to live in a Social manner, and whose Death seems to be as great a Loss to Mankind, as our own.  And besides, because a forcible Repulse of an Aggressor, may cause more Disturbances and Outrages in human Society, than if we should either decline the Mischief by Flight, or patiently yield our Body to it, when an escape is impossible.  Yet that the Defence of our selves may not only be undertaken the first of these ways, but when that proves ineffectual, even with the Hurt of the Assailant, we are inform'd as well byt he Judgment of Reason, as by the concurring Testimony of the Learned and Unlearned World.  'Tis True Man was created for the maintaining of Peace with his Fellows, and all the Laws of Nature which bear a regard to other Men, do primarily tend towards the Constitution and the Preservation of this Universal Safety and Quiet.  Yet Nature is not backward in giving us an Indulgence to fly even to Force, when we cannot by other means secure our selves from Injuries and Assaults.  For the Obligation to the Exercise of the Laws of Nature and the Offices of Peace, is mutual, and binds all Men alike; neither hath Nature given any Person such a distinct Privilege, as that he may break these Laws at his Pleasure, towards others, and the others be still oblig'd to maintain the Peace towards him.  But the Duty being Mutual, the Peace ought to be mutually observ'd.  And therefore when another, contrary to the Laws of Peace attempts such things against me, as tend to my Destruction, it would be the highest Imprudence in him to require me at the same time to hold his Person as Sacred and Inviolate: That is, to forego my own Safety, for the sake of letting him practice his Malice with Impunity.  But since in his Behaviour towards me he shows himself unsociable, and so renders himself unfit to receive from me the Duties of Peace, all my Care and Concern ought to be how to effect my own Deliverance from his hands; which if I cannot accomplish without his Hurt, he may impute the Mischief to his own Wickedness, which put me under this Necessity.  For otherwise, all the Goods which we enjoy by the Gift of Nature, or by the Procurement of our own Industry, would have been granted us in vain, if it were unlawful for us to oppose those in a forcible manner, who unjustly invade them.  And honest Men would be expos'd a ready Prey to Villains, if they were never allow'd to make use of Violence in resisting their Attacks. So that upon the whole, to banish Self-defence though pursued by Force, would be so far from promoting the Peace, that it would rather contribute to the Ruine and Destruction of Mankind.  Nor is it to be imagin'd that the Law of Nature, which was instituted for a Man's Security in the World, should favour so absurd a Peace, as must necessarily cause his present Destruction, and would in fine, produce any Thing sooner than a sociable Life."

Saturday, June 25, 2011

From Kent's Commentaries -- Self-Defense

"The right of self-defence is part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property.  This is the fundamental principle of the social contract."


"The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self-defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence.  Homicide is justifiable in every case in which it is rendered necessary in self-defence, against the person who comes to commit a known felony with force against one's person, or habitation, or property, or against the person or property of those who stand in near domestic relations.  The right of self-defence in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society.  In those instances, says Sir Michael Foster, the law, with great property, and in strict justice, considers the individual to be under the protection of the law of nature."

Odgers on the Common Law -- self-defense

Odgers was active around the turn of the century (19th to 20th), not around the time of the Founding, but since he wrote on the Common Law tradition in England, I think his writing effectively corroborates what others wrote on the topic of the right to self-defense:

"Under this term [public rights] we group those absolute rights which every one in the realm possesses..."

"Ancillary to the right of personal security is the right of self-defence.  Every man may repel unlawful force by force; and this whether such unlawful force be directed against himself or against his wife, child, or servant, and probably if it be directed against any weak or helpless stranger.

"Again, every one who is inside a house is entitled to use force to prevent the forcible entry into that house of any one who has no right to enter it.  'Every man's house is his castle.'  This right is not confined to the occupier of the house or even to his family or servants.  Any stranger, who is lawfully present in the house, may exercise this right."


"We have already spoken of the right of self-defence.  Whenever it is necessary for a person in defence of himself, wife, child, or any one under his protection to kill the assailant, no crime is committed.  But the means adopted to repel an attack must in every case be reasonable and commensurate with the force employed by the assailant."


"Self-defence.  It is also a defence if the assault complained of was committed by the accused in defenc eof himself, his wife, child or any one under his protection.  This right has already been discussed.  But the acts adopted to repel an attack must in every case be reasonable and commensurate with the force employed by the assailant and must not be continued after he has abandoned his attack.  Some assaults may also be justified on the ground that they were committed in defence of  a man's property; but this right is much more limited than the right of self-defence."

What John Adams Wrote In The Margin -- Quoting Cicero

I mentioned below that John Adams wrote a note in the margin of his copy of Blackstone's Commentaries.  Since it was in Latin, I also indicated that I would try to get a translation of it -- and I did.  It turns out that he was quoting Cicero:

"For this is not a written but an innate law -- which we have not learned, received, or read of, but have obtained, imbibed, and derived from nature herself; which we have not been taught, but formed with; not trained in, but imbued with -- that if our life should fall into any danger, if into violence and the weapons either of robbers or of our enemies, everyone is justified in every expedient for salvation."

This was from Cicero's Oration for Milo.

Friday, June 24, 2011

Blackstone on the Right of Self-Defense (or "Self-Defence," If You Prefer the Old Spelling)

William Blackstone, Commentaries on the Laws of England, Book III; 1768.

In John Adams' copy of this book (from which I copy the following), this can be found on page 4.

"The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant.  In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray.  For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain.  It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another.  Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.  In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor."

Adams himself evidently wrote a note next to this, in the margin, but it is in Latin.  I'll try to get it translated.

Four of the Six Statutes (and the first appearance of "due process of law," in those words)

1331: 5 Edward III 9: “Item, it is enacted, that no man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seised into the King’s hands, against the form of the Great Charter, and the law of the land.”

1351: 25 Edward III 4: “Item, whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is accorded, assented, and stablished, that from henceforth none shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; and if any thing be done against the same, it shall be redressed and holden for none.”

1354: 28 Edward III 3: “Item, that no man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.”

1368: 42 Edward III 3: “Item, at the request of the commons by their petitions put forth in this Parliament, to eschew the mischiefs and damages done to divers of his commons by false accusers, which oftentimes have made their accusations more for revenge and singular benefit, than for the profit of the King, or of his people, which accused persons, some have been taken, and sometime caused to come before the King’s council by writ, and otherwise upon grievous pain against the law: It is assented and accorded, for the good governance of the commons, that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”


By Benjamin Franklin, 1754

"That the people always bear the burden best, when they have, or think they have, some share in the direction.

"That when public measures are generally distasteful to the people, the wheels of government must move more heavily.

"That excluding the people of America from all share in the choice of a grand council for their own defence, and taxing them in Parliament, where they have no representative, would probably give extreme dissatisfaction.

"That there was no reason to doubt the willingness of the Colonists to contribute for their own defence.  That the people themselves, whose all was at stake, could better judge of the force necessary for their defence, and of the means for raising money for the purpose, than a British Parliament at so great distance.

"That natives of America, would be as likely to consult wisely and faithfully for the safety of their native country, as the Governors sent from Britain, whose object is generally to make fortunes, and then return home, and who might therefore be expected to carry on the war agninst France, rather in a way, by which themselves were likely to be gainers, than for the greatest advantage of the cause.

"That compelling the Colonies to pay money for their own defence, without their consent, would shew a suspicion of their loyalty, or of their regard for their country, or of their common sense, and would be treating them as conquered enemies, and not as free Britains, who hold it for their undoubted right not to be taxed by their own consent, given through their representatives.

"That parliamentary taxes, once laid on, are often continued, after the necessity for laying them on, ceases; but that if the Colonists were trusted to tax themselves, they would remove the burden from the people, as soon as it should become unnecessary for them to bear it any longer.

"That if Parliament is to tax the Colonies, their assemblies of representatives may be dismissed as useless.

"That taxing the Colonies in Parliament for their own defence against the French, is not more just, than it would be to oblige the cinque ports, and other parts of Britain, to maintain a force against France, and to tax them for this purpose, without allowing them representatives in Parliament.

"That the Colonists have always been indirectly taxed by the mother country (besides paying the taxes necessarily laid on by their own assemblies) inasmuch as they are obliged to purchase the manufactures of Britain, charged with innumerable heavy taxes; some of which manufactures they could make, and others could purchase cheaper at other markets.

"That the Colonists are besides taxed by the mother country, by being obliged to carry great part of their produce to Britain, and accept a lower price, than they might have at other markets.  The difference is a tax paid to Britain.

"That the whole wealth of the Colonists centres at last in the mother country, which enables her to pay her taxes.

"That the Colonies have, at the hazard of their lives and fortunes, extended the dominions, and increased the commerce and riches of the mother country.  That therefore, the Colonists do not deserve to be deprived of the native right of Britons, the right of being taxed only by representatives chosen by themselves.

"That an adequate representation in parliament would probably be acceptable to the Colonists, and would best raise the views and interests of the whole empire."

Wednesday, June 22, 2011

A Description of Liberty

From Algernon Sidney's Discourses:

“All mankind must inherit the right [to rule], to which every one hath an equal title; and that which is dominion, if in one, when ‘tis equally divided among all men, is that universal liberty which I assert.”

Proposed Amendments From the Original States: Religion

Of the seven states which proposed constitutional amendments at the time of their ratification of the Constitution, five of them proposed amendments to protect religious freedom:

Virginia, North Carolina, Rhode Island:

IV. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force and violence ; and therefore all men have a natural, equal, and unalienable right to the [free] exercise of religion according to the dictates of conscience ; and that no particular religious sect or society ought to be favored or established, by law, in preference to others. [Note: Rhode Island omitted “free,” and North Carolina and Virginia placed the word “equal” before “natural.”]

New York:

That the People have an equal, natural, and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others.

New Hampshire:

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience.

First Principles

Algernon Sidney:

“An implicit faith, says he, is given to the meanest artificer. I wonder by whom! Who will wear a shoe that hurts him, because the shoe-maker tells him ‘tis well made? Or who will live in a house that yields no defence against the extremities of weather, because the mason or carpenter assures him ‘tis a very good house? Such as have reason, understanding, or common sense, will and ought to make use of it in those things that concern themselves and their posterity, and suspect the words of such as are interested in deceiving or persuading them not to see with their own eyes, that they may be more easily deceived. This rule obliges us so far to search into matters of state, as to examine the original principles of government in general, and of our own in particular. We cannot distinguish truth from falsehood, right from wrong, or know what obedience we owe to the magistrate, or what we may justly expect from him, unless we know what he is, why he is, and by whom he is made to be what he is. These perhaps may be called ‘mysteries of state,’ and some would persuade us that they are to be esteemed Arcana, but whosoever confesses himself to be ignorant of them, must acknowledge that he is incapable of giving any judgment upon things relating to the superstructure, and in so doing evidently shews to others, that they ought not at all to hearken to what he says.”

Tuesday, June 21, 2011

New Hampshire's Ratification

Evidently, this is the anniversary of New Hampshire's ratification of the Constitution.  The following are the amendments that it requested:

First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.-

Secondly, That there shall be one Representative to every Thirty thousand Persons according to the Census mentioned in the Constitution, untill the whole number of Representatives amount to Two hundred.-

Thirdly, That Congress do not Exercise the Powers vested in them, by the fourth Section of the first Article, but in Cases when a State shall neglect or refuse to make the Regulations therein mentioned, or shall make regulations Subversive of the rights of the People to a free and equal Representation in Congress. Nor shall Congress in any Case make regulations contrary to a free and equal Representation.-

Fourthly, That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Publick Exigencies; nor then, untill Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition-

Fifthly, That Congress shall erect no Company of Merchants with exclusive advantages of Commerce.-

Sixthly, That no Person shall be Tryed for any Crime by which he may incur an Infamous Punishment, or loss of Life, untill he first be indicted by a Grand Jury except in such Cases as may arise in the Government and regulation of the Land & Naval Forces.-

Seventhly, All Common Law Cases between Citizens of different States shall be commenced in the Common Law-Courts of the respective States & no appeal shall be allowed to the Federal Court in such Cases unless the sum or value of the thing in Controversy amount to three Thousand Dollars.-

Eighthly, In Civil Actions between Citizens of different States every Issue of Fact arising in Actions at Common Law shall be Tryed by Jury, if the Parties, or either of them request it-

Ninthly, Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.-

Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent-of the Owners.-

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience-

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.-

Many of these requests were answered by the Bill of Rights.  Others were not.

Monday, June 20, 2011

Concerning the State of Nature


[W]e must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending on the will of any other man.”

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal amongst another without subordination or subjection, unless the lord and master of them all, should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.”

This equality of men by nature, the judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the foundation of that obligation to mutual love amongst men, on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity....”

The state of nature has a law of nature to govern it, which belongs to everyone; and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions...there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.”

Saturday, June 18, 2011

Also concerning self-defense

From Algernon Sidney, Discourses Concerning Government:

“If a prophet should say that a thief lay in the way to kill me, it might reasonably persuade me not to go, or to go in such a manner as to be able to defend myself; but can no way oblige me to submit to the violence that shall be offer’d, or my friends and children not to avenge my death if I fall; much less can other men be deprived of the natural right of defending themselves by my imprudence or obstinacy in not taking the warning given, whereby I might have preserved my life. For every man has a right of resisting some way or other that which ought not to be done to him; and tho’ human laws do not in all cases make men judges and avengers of the injuries offer’d to them, I think there is none that does not justify the man who kills another that offers violence to him, if it appear that the way prescribed by the law for the preservation of the innocent cannot be taken. This is not only true in the case of outragious attempts to assassinate or rob upon the highway, but in divers others of less moment..”


“Nay, all laws must fall, human societies that subsist by them be dissolved, and all innocent persons be exposed to the violence of the most wicked, if men might not justly defend themselves against injustice by their own natural right, when the ways prescribed by public authority cannot be taken.”

“Is it possible that he who is instituted for the obtaining of justice, should claim the liberty of doing injustice as a privilege?”


"History affords many instances of the ruin of states, by the prosecution of measures ill suited to the temper and genius of their people.  The ordaining of laws in favor of one part of the nation, to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy.  An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to, and ought to enjoy; it being a matter of no moment to the state, whether a subject grows rich and flourishing on the Thames or the Ohio, in Edinburgh or Dublin.  These measures never fail to create great and violent jealousies and animosities between the people favored and the people oppressed: whence a total separation of affections, interests, political obligations, and all manner of connections, necessarily ensue, by which the whole state is weakened, and perhaps ruined forever!"

-Benjamin Franklin, in the early 1770s

Friday, June 17, 2011

But who will judge?

A major concern raised by the Indiana Supreme Court in its Barnes decision concerned the anticipated difficulty that the victims of illegal home invasions by police would have in determining whether the invasion is legal or illegal, and whether or not their right to self-defense is applicable against the police, under the circumstances.  Could homeowners discern when and/or whether they are being subjected to a lawful search or to an unlawful invasion, the Court questioned -- could they judge?

Again, from Locke's Second Treatise on Government:

“Here, it is likely, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust?  This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative.  To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust?  If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?”

About the Indiana Supreme Court's decision in the Barnes Case

Of course, I do not mean to suggest that John Locke himself had the bewildering Barnes decision in mind when he wrote the following in his Second Treatise on Government, in 1789.  I simply mean that he is discussing precisely the same issues.

“But if they, who say it lays a foundation for rebellion, mean that it may occasion civil wars, or intestine broils, to tell the people they are absolved from obedience when illegal attempts are made upon their liberties or properties, and may oppose the unlawful violence of those who were their magistrates, when they invade their properties contrary to the trust put in them; and that therefore this doctrine is not to be allowed, being so destructive to the peace of the world: they may as well say, upon the same ground, that honest men may not oppose robbers or pirates, because this may occasion disorder or bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his own right, but on him that invades his neighbours. If the innocent honest man must quietly quit all he has, for peace sake, to him who will lay violent hands upon it, I desire it may be considered, what a kind of peace there will be in the world, which consists only in violence and rapine; and which is to be maintained only for the benefit of robbers and oppressors. Who would not think it an admirable peace betwix the mighty and the mean, when the lamb, without resistance, yielded his throat to be torn by the imperious wolf?”


“The end of government is the good of mankind; and which is best for mankind, that the people should be always exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed, when they grow exorbitant in the use of their power, and employ it for the destruction, and not the preservation of the properties of their people?”


“That subjects or foreigners, attempting by force on the properties of any people, may be resisted with force, is agreed on all hands. But that magistrates, doing the same thing, may be resisted, hath of late been denied: as if those who had the greatest privileges and advantages by the law, had thereby a power to break those laws, by which alone they were set in a better place than their brethren: whereas their offence is thereby the greater, both as being ungrateful for the greater share they have by the law, and breaking also that trust, which is put into their hands by their brethren.”


“Whosoever uses force without right, as every one does in society, who does it without law, puts himself into a state of war with those against whom he so uses it; and in that state all former ties are cancelled, all other rights cease, and every one has a right to defend himself, and to resist the aggressor.”

Thursday, June 16, 2011

About that "Police Power"

John Locke, Second Treatise on Government, 1689:

“Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth, yet:

“First, it is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator, it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature has given him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this.

"Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects.

"The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as to their own and other men’s actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.”

Sunday, June 12, 2011

To Keep and Bear Arms

Let's start with something easy: an amendment that is very popular among our fellow conservatives: the Second Amendment.  As passed by the House of Representatives (and as it was printed for its first hundred years, or so, before people began to use the Senate version, which includes two additional and unnecessary commas), it reads, "A well regulated Militia being necessary to the security of a free State, the right of the People to keep and bear Arms shall not be infringed."

Many state constitutions protected (and still do protect) the right to keep and bear arms, as did the English Bill of Rights.  Unsurprisingly, five of the seven states which requested constitutional amendments when they ratified the Constitution requested that this right be protected.  (Massachusetts and South Carolina did not; South Carolina's list of requested amendments was very short, though.)

Rhode Island:

XVII. That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state ; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that, at all times, the military should be under strict subordination to the civil power; that, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs.

Virginia, North Carolina:

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people[,] trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. [Note: portion in brackets included by North Carolina but not Virginia.]

New York:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural, and safe defence of a free State;

New Hampshire:

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

In the case of the Second Amendment, which is unambiguous on its face, it may not be necessary to take into consideration what the states had requested that prompted the Second Amendment to be composed and returned to them for ratification.  After all, these requests were not officially a part of the amendment process, so it cannot be said that the meaning of these requests is the meaning of the Second Amendment.  However, they certainly help to corroborate what is already the most eligible interpretation of the Second Amendment: that the right of individuals to keep and bear arms may not be violated by the government.

Although I am not a gun enthusiast, I do not find it difficult to understand the meaning of the Second Amendment and the importance of the right to keep and bear arms.

Additionally, four of these requested amendments help to explain the "well regulated militia" language that gun control advocates sometimes claim is a condition or limitation of the right to keep and bear arms.  Of course, that claim does not even make sense grammatically, as no part of the Amendment suggests that the right to keep and bear arms is preserved only if or when a well regulated militia is necessary to the security of a free state, or that the right of the people to keep and bear arms belongs only to a well regulated militia.  These requested amendments, however, make it even clearer that though the right to keep and bear arms is related to the role of the well regulated militia, that militia is the general population, and the purpose is to disperse and decentralize armed power in the country, to ensure that the only laws that are made are such that most people would obey out of either a sense of duty or of actual support for the laws in question, not out of fear.

This is not to say that an individual would be able to successfully hold the government at bay, just because he owns a gun.  That is not the way it would restrain the government.  It would restrain the government by eliminating the possibility that the entire population could be governed by fear of force -- first, because an armed population may well win, if it came to that, and second, because it would be difficult to obtain support for any attempt to enforce a bad law against an armed population, considering the likely consequences of such a confrontation.  The more flagrant and frequent the injustice of government policies might become, the more credible the threat of resistance would be.  By increasing the consequences of making and enforcing such unjust laws, the existence of an armed population reduces their appeal, and makes it unlikely that the actual confrontation would ever need to take place.  Americans have always aspired to be a nation with government by the consent of the governed, and a responsible population, "trained to arms," and armed, would be one of the most certain ways to ensure that we have it.

Friday, June 10, 2011

A Recurrence to Fundamental Principles

The constitutions of many early American states included passages like the following one, from New Hampshire in 1783, which I think is an excellent expression of the role of this site -- to recover and recall foundational principles, to consider how they are to be applied (what reason would require), and to examine other considerations and points of accumulated wisdom that may be forgotten.

"A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought, therefore, to have a particular regard to all those principles in the choice of their officers and representatives; and they have a right to require of their lawgivers and magistrates an exact and constant observance of them in the formation and execution of the laws necessary for the good administration of government."

The achievements of past generations gave us America, and (where their achievements were true victories) subsequent generations added to those gains.  However, their victories are not permanent.  Unless the Constitution they made is defended and maintained (not just venerated and invoked) by people who are willing to read it, study it, and find a way to preserve it in its role as the Supreme Law of the Land, atrophy and entropy will reverse the good it has done, as other objectives and interest claim priority.

We have a choice between those two outcomes.  Our decision -- the right decision -- is clear.