The whole constitutional set-up is intended to be neither democracy nor oligarchy but midway between the two--- what is sometimes called 'polity', *the members of which are those who bear arms*. [emphasis in original] ---Aristotle, "Politics"

• Aristotle refutes Plato's contention that the State ought control all use of arms in order to control the populace;
• Not new: debate spans thousands of years;
• We take from English tradition;
  • Roman law, 12-tables
  • Dane-Law est. militia, traditional rights, and representative gov't (Fyrd->Wycan->Moots: we'll get to it);
  • Norman invasion created absolute authority of monarch; took time to recover;
  • Magna Carta (1215)

And yet in some cases a man may not only use force and arms, but assemble company also. As may assemble his friends and neighbors, to keep his house against those that come to rob, or kill him, or to offer him violence in it, and is by construction excepted out of this Act; and the Sheriff, etc. ought not to deal with him upon this Act; for a man's house is his Castle, and domus sua cuique est tutissimum refugium (a person's own house is his ultimate refuge). And in this sense it is truly said, Armaque in Amatos sumere jura sinunt (and the laws permit the taking up of arms against armed persons). ---Sir Edward Coke's "Institute of the Laws of England" (1628)

• Note "Castle Doctrine";

No wearing of arms is within the meaning of the statute unless it be accompanied with such circumstances as are apt to terrify the people; from when it seems clearly to follow, that persons of quality are in no danger of offending against this statute by wearing common weapons... --- "Treatise of the Pleas of the Crown", William Hawkins;

• 1686 court case which affirmed defendant's right to go armed with a pistol despite the Statute of Northhampton (1328) when not armed "in affray of peace". "In terrorem populi",  "armed to the fear of the people" often quoted in US statute and case law.
• After passage of English game laws in 1706, Rex v. Gardner held law did "not extend to prohibit a man from keeping a gun for necessary defense, but only for *making forbidden use of it*" [emphasis mine]

• British Bill of Rights (1689)
  • Attempt to disarm protestants --- presented to William and Mary
  • Claimed to 'restore' ancient rights; did not create anything;
  • Inspired US Bill of Rights; included:
    • No royal interference with the rule of law
    • "grants and promises of fines or forfeitures" before conviction are void
    • no excessive bail or "cruel and unusual" punishments may be imposed
    • Citizens have a right to bear arms because citizens have a duty to bear arms and serve the common defense (Locke)

Blackstone's "Commentaries on The Laws of England" (1765) re the British Bill of Rights of 1689 :

But in vain would these rights [e.g. free speech] be declared, ascertained, and protected by the dead letter of the law, if the constitution had provided no other method to secure their actual enjoyment. It has, therefore, established other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers, to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.

• These principle rights should sound awfully familiar. A bit later:

And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances, and, lastly, to the right of having and using arms for self-preservation and defense.

• Practically a blueprint for Declaration of Independence;
  • Checks off Colonists attempts to address their grievances;
  • Turns to raising arms against the king as the final resort;
  • Exhausted all peaceful mechanisms;
  • Our system built to same plan:
•  Armed resistance against tyranny is directly a purpose of RTKBA;
  • IF AND ONLY IF pursued at absolute and utter end of means.
  • Neither free license to insurrection nor was it paranoia;
  • Built directly on experiences of Colonists under England;
  • Enjoyed extensive legal protection of 'Constitutional rights' as British subjects which Crown trampled and ignored by "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny."
• Note: Blackstone a royalist: believed in monarchy and authority of kings
  • Locke, Payne, others rejected hereditary power
  • Took others to restore debate to republican context (e.g. Bastiat, "The Law", circa 1850)

• Intolerable Acts:
  • Also problems with paper money and lack of specie ("hard money") in Colonies
  • Rights not from government:

    ...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 and the pursuit of Happiness...
    Declaration of Independence

  • "unalienable": Can't be taken away; can't be given away
  • "Natural Rights" but also Natural Duties:

    ...it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...
    Declaration of Independence

• Civil conflicts and the common citizen: the frying pan and the fire
  • Many citizens lost their homes, their farms, or their lives regardless of which side they declared to
  • Challenge is to survive and maintain local order in the face of upheaval
  • American Revolution 'succeeded' because Britain was a 'foreign power' which could be sent home
  • Colonial government transferred intact; many people patriated and forgiven (not all)
  • Revolutions where it is people vs. government seldom yield a stable system
  • Balance of powers and multi-level sovereignty (citizen/state/national) designed to prevent that occurence
  • Office of Sheriff directly serves the citizen; operates as speedbump; ensure process is followed
  • Sheriff/Auxiliary == Locals-In-the-Loop Law Enforcement
  • Romans 13
• The Articles of Confederation and its failure
  • Articles set up a weak fraternity of states; little central power; direct war effort
  • First president: John Hanson
  • AoC failed to provide for common defense, government had no money (what it was empowered to collect was seldom remitted)
  • Insurrection in several states, inc. Mass.
  • Letters between Wash and Jefferson discussing its replacement ("Federalists" --- Of Equals)
  • Convention to amend AoC became Const Convention 1787
  • "Ratification--- the People Debate the Constitution, 1787-1788" by Pauline Maier

• The origin of the Bill of Rights
  • Delegate powers to a limited government
  • States still did not trust central government; required Bill of Rights like British of 1689
  • Rights not enumerated; powers are enumerated (9th and 10th)
  • 2nd Amendment echoed right and duty of British Bill of Rights
  • RTKBA individual right, serves civic duty
  • Strong property rights reinforced, including Takings Clause
• The Missouri Constitution and its protections
  • US Constitution guaranteed a "republican form of government"
  • Article II, Section 8 echoes RTKBA but without civic focus
  • Many other property rights issues follow US Const. BoR
  • Missouri Consitution available from Secretary of State website or bound copy from SoS
    • Very different from US Constitution, much more complex;