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.

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.”

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."

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."