Debate Over the Right/Duty of the Polity to Bear Arms For Personal and Civil Defense

 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]