The Arms Included Grenade Launchers
ARMS is NOT Spelled "GUN"
Reality is a Stubborn Thing
Critical Thinking 101 ..... Here's Your Wake Up Call ...... http://youtu.be/kDpuMsorFmA
The Entirety of ALL Militias of the American Revolution were UNREGULATED .... The Second Amendment was NOT Adopted until 1791 ... Their ARMS included Grenades and Mortars and Cannons and Bombs even Grenade Launchers ..... REPEAT They were UNREGULATEDhttp://www.bing.com/search?q=1791+Second+Amendment+&go=&qs=n&form=QBRE&ghc=0&pq=1791+second+amendment+&sc=1-22&sp=-1&sk=
"It is the function of the CIA to keep the world unstable, and to propagandize and teach the American people to hate, so we will let the Establishment spend any amount of money on arms."-- John Stockwell, former CIA official and author
ARMS it's just 4 letters
Thomas Jefferson, a proud Anti-Federalist, once stated, “I hold it
that a little rebellion now and then is a good thing, and as necessary
in the political world as storms in the physical.”
The Purpose of the Militia in great part is to be an EQUAL Military Force and Equally ARMED to stand up to any MILITARY FORCE that might be employed to enslave them .... ANY MILITARY FORCE
Foreign or Domestic
62 TENN. L. REV. 643. Retrieved December 18, 2012. "The concept postulates that the Second Amendment was intended to provide the means by which the people, as a last resort, could rise in armed revolt against tyrannical authorities."
Just because a gun is used on the battle ground, makes it an assault weapon.
Muskets were after all always Military Grade and used as "assault" weapons
The Proper Parsing and Interpretation, the Meaning of The Word "Arms"
The UNREGULATED Militias have existed for more than 300 Years Barry .... Wanna debate The History
With Me .... Come On Barry lets have a National
Debate on Militias .......http://www.youtube.com/watch?v=Tt2yGzHfy7s
They Can Never Steal Our FREEDOM
The Natural, Fundamental, Common Law record is very long and clear …The Rights to Self Protection, Self Preservation, Protection of Property Essential for Sustenance, Self Defense and the Right to Resist tyranny, terror and oppression are well recognized ANCIENT and Well Settled Laws based on Common, Fundamental and Organic Law. This Penumbra area of Rights began to be first formally recognized as far back as the Rule of King Henry II in 1181 A.D. see Assize of Arms 1181A.D. The Magna Carta of 1215 A.D. ; The Statute of Winchester of 1285 A.D. ; and The Declaration of Rights signed February 13th of 1689 by King William and Queen Mary ; The writings of the Great English jurist Sir William Blackstone of the 18th Century were heavily relied on when the American Congress enacted the Bill of Rights. . In 1765 Blackstone wrote in his famous Commentaries . Blackstone described and placed the Right to arms among the “absolute rights of individuals at common law” He described the right to bear arms as being for Self Preservation and concluded such was “the primary law of nature, so it is NOT, Neither can it be in fact, Taken away by the laws of society”
The Most Common Deer Rifle Ever The Lever Action
Designed and Built for the US Calvary ....
To Decimate Aboriginal Americans
Military Grade Assault Weapon
The Winchester Repeating Rifle like the Marlin 30-30 was Originally a US Calvary Weapon and a MILITARY Carbine ... Like The Semi- Automatic Carbines of the 1st and 2nd World War , Korea and Vietnam ... Semi-Auto Carbines have been LAWFULLY Sold For Decades .. They were always Military Grade Weapons ... Assault Rifles
Like The WINCHESTER Repeater ... all Bolt Action Rifles were ooriginally designed and employed by the United States Department of Defense. Military Grade Weapons or Assault Weapons have been Lawful and Constitutional in the United States since the Very Beginning ... Military Grade Assault Weapons are Constitutional
The Brief in the Case below was pre Heller Decision ... Fact is The Right to Keep and Bear ARMS Shall NOT be infringed
Do you understand the Common Law of Arms, SELF DEFENSE, Preemptive and Accelerated Self Defense, the issues, predicates and distinctions of the COMMON LAW. Judson Witham
The Word ARMS in the Constitution MUST BE Properly Parsed
The Reality IS ....
Had there been one or more ARMED individuals to STOP the NUTS in Aurora, Colorado or Sandy Hook, Ct or at Columbine High School ..... The Chances of a more POSITIVE OUTCOME would have been much much much higher.
DEFINE ARMS EXACTLY
The Proper Parsing and Interpretation, the Meaning of The Word "Arms"
: to furnish or equip with weapons
: to furnish with something that strengthens or protects<arming citizens with the right to vote>
: to equip or ready for action or operation <arm a bomb>
: to prepare oneself for struggle or resistance <arm for combat>
a : a means (as a weapon) of offense or defense; especially :firearm
b : a combat branch (as of an army)c : an organized branch of national defense (as the navy)
a : the hereditary heraldic devices of a familyb : heraldic devices adopted by a government
a : active hostilities : warfare <a call to arms>b : military service
— up in arms
: aroused and ready to undertake a fight or conflict<voters up in arms over the proposed law>
The Point Is Military Assault Weapons were the Intent of the Congress when the Bill of Rights was Adopted and Codified
The Flintlocks ALL Were Military Grade Assault Weapons
The Point Is Military Assault Weapons were the Intent of the Congress when the Bill of Rights was Adopted and Codified
What does ARMS Mean ??
The Right To Keep and Bear ARMS ... well lets see
The arms industry is a global business which manufactures weapons and military technology and equipment. It consists of commercial industry involved in research, development, production, and service of military material, equipment and facilities. Armsproducing companies, also referred to as defense contractors or military industry, producearms mainly for the armed forces of states. Departments of government also operate in the arms industry, buying and selling weapons, munitions and other military items. Products include guns, ammunition, missiles, military aircraft, military vehicles, ships, electronic systems, and more. The arms industry also conducts significant research and development. See http://en.wikipedia.org/wiki/Arms_industry
Define Arms .... See Above
Below is a Case I WON, by JURY DECISION ..... It is the LAW
In The Circuit Court of Christian County )
State of Missouri )
VS. ) Cause No. 03CR786762-F
Judson Witham ) Jury Trial Demanded
Defendant ) Christian County Circuit Court
Defendant’s Amended Motion to Dismiss Felony Criminal Charge
Defendant’s Motion that the Court dismiss
because the Unconstitutional, Vague and Overly Broad Law is VOID
Comes Now Defendant Giving Notice to Prosecutor Ron Cleek that this Motion to dismiss will come on for hearing October 14th 2005 in Judge Eiffert’s Law Day Court. Judson Witham and for substantial cause pursuant to Missouri Rule Of Criminal Procedure RULE 24.04 requests that the Honorable Court dismiss entirely the single charge pending against Mr. Witham in Case 03CR786762-F in it’s entirety. The single count against Mr. Witham violates his rights secured to him by Article 1 Section 23 Missouri Constitution and the 2nd Amendment of the US Constitution. Defendant cites the following as grounds for this dismissal of the False Charge:
The Allegations Alleged DO NOT
Rise To The Crime Unlawful Use Of A Weapon
1. The probable cause statement, affidavit and information even if true in support of the Sta te’s felony complaint , alleges that Mr. Witham used NON DEADLY FORCE commensurate with a Lawful and Harmless Shot “UP” in the Air of a Walmart, Bass Pro type Shotgun being Lawful in Missouri and throughout the United States. A Bullet Shot or (Bird Shot) fired “UP” In The Air “even if true” as claimed by the all State’s Witnesses, will NOT be deemed “deadly force” even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997)
2. According to the Missouri’s Public Info rmation and Education Division of the Missouri State Highway Patrol Signal & Warning Shots are NOT specifically proscribed by any Missouri Law. Additionally the Missouri Police Chiefs Association (MOPCA) , The International Association of Chiefs of Polce, The United States Navy, Army, Marines, Coast Guard, CLAMO Army Adjunct General’s Office, US Custom Service, US Secret Service, DEA, FBI and US Bureau of Prisons and many other State Prison Operators recognize Signal & Warning Shots even under International Law are NOT illegal nor do they constitute Deadly Force.
3. At all times the State’s witnesses swear that Witham never left his property a fenced farm in a remote area of Mark Twain National Forest. Witham and in fact Witham always upon his own Farm. Your defendant is protected by the Common Law, the 2nd Amendment of the US Constitution and Article 1 Section 23 of the Missouri Constitution as he Lawfully possessed the Long Gun on the Night in question upon his remote Rural Farm “he resides at” at issue in this case.
4. Shooting ONE SHOT “UP IN THE AIR” at Carwine Ridge behind Witham’s Farm is NOT unlawful per se NOR is such a Safe Shot at the 400 foot tall unoccupied Back Stop dangerous, Lethal or Deadly Force .
5. Witham and his Family have Organic, Fundamental, and Natural Common Law Rights to “Self Preservation” ; “Self Defense” and the “Right To Resist” they are entitled to resist acts of Terrorism, Trespassing, Stalking, Fire Bombing and Bombings and efforts to burn to bomb, plunder, destroy or loot their Farm property, kill their livestock Family Pets. Said Rights to PRECLUDE and PREVENT Trespassing, threatened attacks or impending trespassing on himself or the Family’s farm property and to prevent or preclude; planned attack preserving or protecting the family and their Sustenance Farm Property is an inalienable Fundamental Right under the 2nd Amendment US Constitution and Art 1 Section 23 Missouri’s Constitution.
UPDATE : The Bomb maker member of the Gang was Sent to Federal Prison for the Multiple Bombs Detonated at Our Farm .... Thanks to the Greene County Missouri Fire Marshal and the Asst US Attorney in Springfield .... Special Thanks To Greene County / Springfield's Fire Marshall Office
6. Missouri and United States Citizens such as Witham is Constitutionally empowered to protect his family members, their “sustenance” (crops, livestock, water supplies farm and timber producing land, pets and possessions) or their property while upon their own homestead. Witham at all times alleged remained upon the Family’s remote National Forest Farm and being in a place he had a right to be and being Constitutionally empowered to Defend His Sustenance and Farm Property and Possessions “Witham has NO duty to retreat.” See, State v. Plassard 195 SW 2d 495, (6); State Vs. Ruffin 535 S.W.2d 135      , State vs. Stubenrouch 591 SW2d 42 , 47 , State vs. Sloan 47 Mo. 604, 612 (1871) ; State vs. Matthews 148 Mo. 185 , 49 SW 1085 (1899) ; State vs. Bartlett 170 Mo. 658, 71 S.W. 148 (1902) ; State vs. Hicks 438 S.W. 2d , 215 (MO 1969); State vs. McGee 361 Mo. 309, 234 S.W.2d 587 (1950); In The Interest of J___ M___ 812 S.W. 2d 925 (Mo. App. 1991) [2,3, 4, 8,9 ]
7. Witham LAWFULLY and in accordance with US and Missouri Law and Constitutions can LAWFULLY walk about armed with Long Guns, hunt on, target shoot, shoot trap or skeet or birds, SHOOT “ UP “ IN THE AIR protect and defend his FARM, Family and Livestock, Dogs and Possessions from hostiles, terrorists, or Jeep Wielding Night Riders or “Bald Knobber Types” while being ARMED (Openly carrying a Shot Gun on Private Farm Property For Security Purposes in Missouri is LAWFUL) Witham has a Constitutional and LAWFUL RIGHT to resist tyranny and oppression from threats, trespassing, intimidation and STALKING from persons Such as Mike Weis see ; State v. Plassard 195 SW 2d 495, (6); State Vs. Ruffin 535 S.W.2d 135      , State vs. Stubenrouch 5 91 SW2d 42 , 47, State v Evans 28 SW 8; State v Matthews 49 SW 1085; Davis v Modern Woodmen 73 SW 923; State v Lipp 110 SW 4, 5 , State Vs. Daugherty 196 S.W. 2d 627 , … one who has possessory interest in farm property, sustenance crops, livestock and water supplies etc., etc., may go ARMED to FORBID, PREVENT , PRECLUDE and or TERMINATE any ATTEMPTED entry upon their National Forest Farm property…..or prevent, preclude or terminate efforts to fire bomb or detonate explosive devices, commit vandalism or set hazards for his family. FORBIDDING , PREVENTING and or TERMINATING any ATTEMPTED entry upon Privately Owned Farm Land while “armed” Is LAWFUL in Missouri.
8. The Natural, Fundamental, Common Law record is very long and clear …The Rights to Self Protection, Self Preservation, Protection of Property Essential for Sustenance, Self Defense and the Right to Resist tyranny, terror and oppression are well recognized ANCIENT and Well Settled Laws based on Common, Fundamental and Organic Law. This Penumbra area of Rights began to be first formally recognized as far back as the Rule of King Henry II in 1181 A.D. see Assize of Arms 1181A.D. The Magna Carta of 1215 A.D. ; The Statute of Winchester of 1285 A.D. ; and The Declaration of Rights signed February 13th of 1689 by King William and Queen Mary ; The writings of the Great English jurist Sir William Blackstone of the 18th Century were heavily relied on when the American Congress enacted the Bill of Rights. . In 1765 Blackstone wrote in his famous Commentaries . Blackstone described and placed the Right to arms among the “absolute rights of individuals at common law” He described the right to bear arms as being for Self Preservation and concluded such was “the primary law of nature, so it is NOT, Neither can it be in fact, Taken away by the laws of society” Witham’s RIGHT to defend his Family’s Farm property, livestock, family pets, timber and crops, possessions from Terrorism and Destruction from Fire Bombs and Explosive Bombs, and from Stalking, Threats and Intimidation and trespassers, Night Riders in 3000 Lb Jeeps is well recognized under the Fundamental Common Law as well as the Well Settled Provisions of the Penumbra Doctrine of the 2nd Amendment of the US Constitution and Art 1 Sec 23 Missouri Constitution. Protecting Family Farm property from Raiding Hostiles, defending livestock, crops, poultry, fences, farm machinery, maintenance equipment, water supplies, farm buildings, family pets and the farmers castle while ARMED has been a RECOGNIZED RIGHT throughout America since Colonial Times and certainly since the days of the American Revolution. DESTRUCTION of such sustenance providing PROPERTY by Hostiles versus the Defense of such Sustenance Property meant the Difference between Self Preservation and Perishing upon the Frontier. The RIGHT to Protect the Family and Farm While ARMED is the root of the well settled Castle Doctrine. Certainly a PIONEER family could SAFELY and LAWFULLY employ a WARNING SHOT “ UP IN THE AIR ” to deter and fend off Hostile Natives or Marauding Highwaymen, Bald Knobbers , Klansmen, Night Riders or other terrorists, planning to or attempting to Burn, Destroy or Loot the Sustenance Property of the American Pioneer and Homesteaders.
See also The Second Amendment Primer by Les Adams, Palladium Press 1995, Shooting Straight “Telling The Truth About Guns in America by Wayne La Pierre Executive Director NRA and James Baker Executive Director NRA – ILA “ Institute For Legislative Action” , and Firing Back by Clayborn E. Cramer
9. Witham can LAWFULLY and Constitutionally shoot said WALMART or Bass Pro type Long Guns upon his Family Farm as well in the National Forest and HUNT, Shoot Birds, Trap, Skeet and “UP IN THE AIR” and even Target Shoot and Use his ARMS for “Self Preservation” Defense of Family Farm Property, Defense of Self and Others and to RESIST the efforts of terrorists, NIGHT RIDERS, Night Bombers, Night Fire Bombers or Those Violently Stalking and Threatening while VIOLENTLY and CRAZILY in an ANGRY and THREATENING MANNER using a DEADLY ARMS such as a 3000 Lb Jeep VEHICLE being a Readily Capable Lethal WEAPON.
10. A WARNING SHOT or A SIGNAL Shot “UP” In The Air or a WARNING SHOT In The Air at an UNOCCUPIED 400 foot tall Ridge on Witham’ s Farm, directed “away from” and NOT “AT” anyone or at any vehicle is NOT even remotely deadly force, even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997) ; See RSMO 563.011 and 3.12 of the Model Penal Code (1962)
11. The language of RSMO 571.030 is VAGUE and Overly Broad and as such violates the 2nd , 5th , 6th , 9th and 14th Amendments of the US Constitution. Said Law Sweeps Within It’s Proscriptive Ambient and Proscriptive Provisions, Conduct which IS NOT unlawful and allows many people complete exemption, cr eating Additional Due Process and Equal Protection Violations. “Mere Brandishing” or “Simple Exhibiting” SIMPLE CARRYING a Weapon Openly COULD BE USED TO PROSECUTE. Missouri’s State Highway Patrol Claims Warning & Signal Shots violate NO Law in Missouri. Missouri Police Chiefs Association, The International Association of Police Chiefs, The United States Navy, Army, Marines, Custom Service, US Secret Service and US Bureau of Prisons amongst others recognize Signal & Warning Shots even under International Law are NOT illegal nor Deadly Force. The vagueness and conflicting provisions of Art 1 Section 23 Mo. Const. 2nd Amendment US Constitution and Mo 573.030 are so confusing and conflicting , the uncertainty of the Statute Creates a Chilling Effect as the Law is so uncertain that Law Abiding Citizens are unable to understand their Rights to Bear Arms in Defense Of Self, Property and Others, The Law is so uncertain and conflicting that Witham and others have become subject to vexatious and selective prosecution for otherwise lawful conduct. Discriminatory and Malicious Prosecutions such as the one in this case are possible because of the Overly Broad and Unconstitutionally Vague language used in 571.030 (4). “Mere Brandishing” or “Simple Exhibiting” SIMPLE CARRYING a Weapon Openly COULD BE USED TO PROSECUTE. Angry and Threatening are NOT adequately defined and even if they were, An Individual Engaged in Openly Carrying a LONG GUN Signaling or even WARNING a Potential Trespasser or Imminent Attacker to STOP and LEAVE , or to deter a Threatening Potential Trespasser , would be remiss in their efforts UNLESS Stern and Certain Assertive gestures and assurance that FORCE even DEADLY FORCE was impending Unless The Perpetrator Abandons his PLANNED INVASION, Trespass or ATTACK. Simply Put, Open Carrying of a Shot Gun or Lawful Defense of Property, Self and Others is better served with STERN and even Intimidating communication and Gestures, especially when Successful Results are sought. Police and Federal Agents, Prisons and even Militia and Military personnel employ the Warning Shot as a tool in the Force Continuum. A Warning Shot is NOT unlawful per se under Federal Law, State Law or the Rules of Engagement under International Law. They are NOT Lethal Force.
12. Mr. Weis and Mr. Rouse have previously engaged in a series of actions aimed at Witham and his Family for over three months leading up to the night Mr. Weis was contemptuously violating an Ex Parte Adult protective order issued just days earlier. Weis had NO LEGITIMATE reason to be Lingering, Lurking, Surveiling, Breaching The Peace, Harassing the Family, Stalking and VIOLENTLY DRAG RACING for an hour directly in front of the Witham Farm, Burning in and out of the Witham’s driveway, and repeatedly Spinning His Tires and Skidding to Stops over and over and over again . Weis’s conduct immediately in front of and on Witham’s property Flagrantly breached the No Communication, No Contact, No Disturbing the Peace, NO Harassment, No Stalking and Surveillance, mandates of the Ex Parte Adult Protection order Mr. Weis was IGNORING.
13. Mr. Weis’s threatening actions and excessively LOUD and Boisterous and Raucous Conduct and trespassing along the front of the property, his peace disturbance was the only and initiating cause of the contact between Witham’s Family and Weis that night
14. The State’s information baldly alleges that Mr. Witham “harmlessly” fired a Single WARNING Shot “ UP Into the Air” while upon his own farm which is located in a very quiet & remote National Forest location. (The State’s Information complaint INTENTIONALLY fails to mention the Ex Parte Protection Order Mr. Weis was FLAGRANTLY and BLATANTLY willfully and wantonly Violating and Ignoring, and the State IGNORES Weis’s VIOLATIONS of that Adult Abuse Protection Order ).
15. Witham’s conduct is LAWFUL and protected by Article 1 Section 23 of the Missouri Constitution and the 2nd Amendment of the US Constitution. Said Conduct being Constitutional , Lawful and in accordance with the Common Law the State’s SINGLE COUNT should be dismissed.. Witham’s Conduct amount to Fundamental Rights Witham is ENTITLED to.
16. The Statute alleged by the State to have been violated is the Old version of RSMO 571.030 (4) which was silent regarding Citizens Fundamental, Natural, Organic Common Law Rights to Self Preservation and to Protect Sustenance on Farm Property and failed to exempt lawful conduct under Art 1 Section 23 and the 2nd Amendment . As such the OLD 573.030 was is in conflict with both Missouri’s and the United States Constitution and the Common Law. Said OLD version of 571.030 and even the NEW codification violates the “Overly Broad Doctrine” and as well is violative of the “Void for Vagueness Doctrine.” The New Statute also provides for NUMEROUS individuals , private individuals , State as well as Federal Government employees, elected officials Military and Judicial officers are EXEMPTED from it’s proscriptions. As such the Law is unconstitutional, susceptible of selective, malicious, vexatious and discriminatory enforcement and by reason of it’s VAGUENESS and Overly Broad provisions, it violates the 2nd, 5th , 6th, 9th and 14th Amendments by failing to give adequately clear and narrowly crafted CLEAR notice of what is unlawful vs. LAWFUL. The Laws conflicting and confusing provisions makes it impossible for a Law Abiding Citizen to know how to exercise their rights under Art 1 Section 23 Mo. Constitution and The US 2nd Amendment. Bearing arms for “Self Preservation” resisting acts of Terror and Stalking, Protecting Others and Property and for “Lawful Defense” are LAWFUL ACTS. 571.030 (4) is unconstitutional and confusing. Lawful Acts of Defense are NOT adequately defined. True Signal and WARNING SHOTS are NOT Deadly Force nor Proscribed Specifically under Missouri Law.
17. Your defendant Moves the Court to dismiss the State’s case because of the Unconstitutional Overly Broad, Vague and Chilling effects of the Law which Witham was charged with One Count of violating.
18. A Warning Shot purposely directed “UP” IN THE AIR (and 90 degrees away) , had ABSOLUTELY ZERO CHANCE of wounding anyone. Numerous Federal APPELLATE Courts and the US Supreme Court recognize such Warning Shots as Non Lethal and are NOT A DEADLY USE OF FORCE See: Robinette V. Barnes 854 F.2d 909 , 912 , 6th Cir. this Court Writes: “ The Model Penal Code drafted by the American Law Institute also acknowledges this FACT…”deadly force” means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm “ in the direction” of another person or “at a vehicle in which another person is believed to be” constitutes “Deadly Force”….. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise so long as the actors purpose is limited to creating an apprehension that he will use deadly force IF NECESSARY, does NOT constitute deadly force. Model Penal Code 3.11 (2) (Proposed Official Draft 1962)
19. Missouri defines deadly force in RSMO 563.011 the State’s Information against Witham does NOT include any evidence or information of the use of Deadly Force NONE. Witham moves that the State dismiss this case as it conflicts with Model Penal Code 3.11(2) , RSMO 563.011 and the 2nd , 5th, 6th , 9th and 14th Amendment of the US Constitution. Missouri State Police, Missouri Chiefs Of Police Association and the International Association of Chiefs Of Police along with US Law Enforcement and Military Branches claim Signal and Warning Shots are Lawful and DO NOT involve Deadly Force.
20. . Deadly Force in Missouri and throughout the United States means Force Likely To Kill or which creates a SUBSTANTIAL likelihood or SUBSTANTIAL Risk of causing death or serious bodily injury see; Tennessee V. Garner 471 US 1, 105 S.Ct. 1694, 85 L.Ed. 2d 1 (1985); also the US 9th Circuit Court of Appeals states that A Bullet Shot “UP” In The Air as a WARNING or Signal will NOT be deemed deadly even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997) ; Deadly Force has been defined as “Force that creates a substantial risk of causing death or serious bodily harm” Fikes vs Cleghorn 47 F.3d. at 1014; Chew V. Gates 27 F.3d. at 1453 ; Mattis v. Schnarr, 547 F.2d 1007 at 1009 ( 8th Cir 1976) “ Applying Model Penal Code Sec 3.11(2) ; Pruitt V. City of Montgomery 771 F.2d 1475 at 1479 n 10 (11th Cir 1985) also see Black’s Law Dictionary 5th Edition page 359; Black’s Law Dictionary 6th Edition and see also Matulia, Kenneth J. , A Balances of Forces, Model Deadly Force Policy and Procedure, (Second Edition), 1985 page 68, Defining Deadly Force. 363.011 RSMO Defines Deadly Force “Force that creates a substantial risk of causing death or serious bodily harm” A Remotely Possible or in Witham’s Case as stated by the State “even if true” had ZERO chance Zero potential of anyone being wounded does NOT cite Facts or Law that Witham even remotely employed DEADLY FORCE. Witham DID NOT nor is he accused of shooting at any Person - nor at any Vehicles nor ACROSS the Road Applying Model Penal Code Sec 3.11(2)
21. At all times Mike Weis was Breaching The Peace; he was violently Drag Racing in and out of Witham’s driveway, repeatedly racing directly in front of the Witham property and Screaming and Yelling OBSCENE Threats at Witham’s Family. Weis’s conduct continued until after dark. Weis was Flagrantly violating the “letter and spirit” of an Ex Parte Adult Order Of Protection ( See Ex Parte Order of Protection in Cause No. CV103-533 DR.) he was making unlawful contact, lurking, lingering and Stalking Witham’s Family, he was engaging in Prohibited illegal and Threatening Contact and UNWANTED Communications, and he was Disturbing The Peace. Weis’s Conduct was unstable, scaring Witham and his Family was a breach of the peace and was a continuing of the Felonious Stalking. Weis Was “Threatening in an Angry Manner” while ARMED with a READILY Lethal “four wheel drive” 3000 Lb Deadly Weapon.
22. Mr. Weis had previously Attacked Mr. Witham and threatened to attack Mr. Witham on several occasions (with a 4 X4 Chevy V 8 Powered K 5 Blazer prior to drag racing “LIKE A NUT” back and forth and in and out of Witham’s property), see Witham application for protective order (Cause No. CV103-533 DR.) and Mr. Weis’s ADMISSIONS and CONFESSION to the Vehicular Attack. Said Apprehension and Fear of FURTHER and CONTINUING attacks, assaults, vehicular assaults and Weis Carrying Out his numerous threats towards Mr. Witham and the Witham family caused the Withams to seek and Ex Parte Order of Protection BEFORE Weis’s Flagrant Disobedience of the Adult Protection Order on the August Night in this case .
23. Also Mr. Weis repeatedly attacked the entire Witham family WITH A Deadly Weapon “ his K5 Chevy Blazer, a Full Sized V 8 Powered 4 X 4 MOTOR VEHICLE” on State Hwy 125 <at> Jenkins Rd. (Memorial Day May 26th 2003), by repeatedly RAMMING and then attempting “WITHOUT LETTING UP” to push the Witham Family truck (into the DANGEROUS 4 way intersection) and trailer “down” and “off the State Highway”. Weis later openly admitted in Judge Justus’s Court (while being TAPED under OATH) , He Followed Witham because he was “PISSED OFF” and he tried to “push the Witham’s vehicle off the Road “ and “Down the road, from behind Without Letting Up” (reference the Weis Testimony TAPED before Judge Justus.) See Galas V. McKee 801 F.2d 200 at 203 6th Cir 1986) Such an attack with a Motor Vehicle is clearly using the Vehicle as a DEADLY WEAPON. See State vs Garner 226 SW2d 604, 607 (2) This Court states: Pg 607,  “ But it does not follow that an automobile cannot be used as a Deadly Weapon, or even a dangerous or deadly weapon , in an assault. The Contrary has several times been declared of a moving vehicle .”
NOTE … “AAA” American Automobile Association and US Department of Transportation, Missouri Department of Transportation, National Highway Traffic Safety Administration, Missouri Hwy Patrol and many other National and International Organizations agree that Weis’s 3000 Lb 4X4 Jeep Vehicles are Readily Capable of DEADLY Use. Mr. Weis was ARMED and THREATENING
24. Mr. Weis while UNDER OATH in deposition with Ron Cleek and Paul Duchsherer LIED about his efforts to Push Witham’s Family into the Highway Intersection. Weis also PERJURED himself to Judge Justus and to Ron Cleek and Paul Duchsherer and LIED to the Missouri State Highway Patrol. Weis’s Many Various FALSE versions of this event while under OATH in this case and others simply are ALL untrue. Weis’s ATTACK with his 4X4 V8 Powered K5 Chevy Blazer was WANTON, Willful, Premeditated, extremely VIOLENT and Incredibly Dangerous (The East Bound CURVE at State 125 and Jenkins Road is a very DANGEROUS blind curve segment of State Hwy 125 )
25. The Withams were at a busy and BLIND 4 way State Highway Intersection, being violently rammed, and rammed and rammed and pushed in such a manner that could have easily caused a very serious fatal highway accident. Weis’s ramming and attempt at pushing Witham’s LOADED TRUCK & Trailer, occupied by Witham’s TWO CHILDREN and their Mother, (said truck and trailer weighing over 10,000 pounds) was EXTREMELY DANGEROUS and FRIGHTENINGLY VIOLENT. The United States Federal Highway Traffic Safety Administration, Missouri’s DOT and the American Automobile Association acknowledges that Vehicles such as Weis’s 4 X 4 AMC Jeep and Full Sized V 8 Powered Chevrolet Blazer are Readily Capable of use as DEADLY WEAPONS. In BOTH instances on August 12th 2003 Mr. Mike Weis was ARMED with a Deadly Weapon see 11 Words and Phrases, Perm. Ed. Dangerous Weapon Page 81; Deadly Weapon, page 131; Vol 44 ibid Weapon page 778; State vs Brinkley, 354 Mo. 1051, 1066 (1), 193 SW2d 49, 53 (1).
26. Witham has certain rights under Article 1 Section 23 of the Missouri Constitution and the 2nd Amendment of the US Constitution. The Ancient Right To Bear Arms provision must be interpreted in accordance with the Cardinal Rule of Interpretation and Cardinal Rule of Construction as mandated by the Missouri Supreme Court on Feb. 26, 2004… See Alvin Brooks Et al VS State of Missouri and Attorney General Nixon Case No. SC85674 the New Conceal Carry decision provides : that ...the trial court erred in declaring the conceal carry law unconstitutional under Article 1 Sec.
27. On Feb. 26, 2004 The Missouri Supreme Court wrote that the provisions of Article 1 Sec 23 language MUST be properly PARSED and VERY CLEARLY stated that “ Art. 1 Sec 23 provides “ That the right of every citizen to keep and bear arms in defense of his home, person and property …. SHALL NOT BE QUESTIONED” Said Constitutional provisions are perfectly clear and unambiguous. At Page 5 of the Conceal Carry Opinion in part II Justice Limbaugh, mandate s the Parsing of Article 1 Section 23 he explains. Judge Limbaugh writes : Shall NOT are words of Prohibition. Reading Art. 1 Sec 23 in accordance with Judge Limbaugh, Wolff, Benton, Stith and Price for the Court Majority shall be interpreted as “ The the right of every citizen to keep and bear arms in defense of his home, person and property …. SHALL NOT BE QUESTIONED” RSMO 571.030 (4) conflicts with said rights under Art 1 Sec 23 and Amendment 2 US Constitution. Fair and Clear Notice of what’s lawful versus what’s illegal is NOT properly given under the language of the Statute. This law is UNCONSTITUTIONALLY Confusing, Overly Broad and Void for Vagueness. “Mere Brandishing” or “Simple Exhibiting” SIMPLE CARRYING a Weapon Openly COULD BE USED TO PROSECUTE.
28. On September 11, 2003 Former Missouri penal Code Section 571.030  (With which Witham is charged with a SINGLE Count) was amended and superseded by the NEW 571.030 and the NEW exemption provisions contained in Subdivision 5 of the NEW law, Section 5 of the New Statute recognizes the ANCIENT Inalienable- Fundamental Common Law and Constitutional Right To Bear Arms in Defense of Self, Property, Home and Others as Guaranteed by Section 23 of Article 1 and Section 563.031 Rsmo and US Const. Amendment 2 . Self Preservation, the Right to Resist and Self Protection are Fundamental, Organic, Natural Rights enjoyed by all Missouri’s Citizens and Witham.
29. In State Vs. Enyard 108 S.W. 2d 337 at 340  The Missouri Supreme Court held that one has the RIGHT to use in self defense such force as it appears to HIM to be REASONABLY necessary under the attending circumstances. see also State vs. Ball 262 S.W. 1043, 1045; Martin Vs. Yeoham 419 SW 2d 937 , 948, 949   ; State vs. McGee, 361 Mo. 309, 234 S.W. 2d 587 (1950) and State vs. Hicks, 438 S.W. 2d 215 (Mo. 1969) State Vs. Daugherty 196 S.W. 2d 627 , State v. Plassard 195 SW 2d 495, (6); State Vs. Ruffin 535 S.W.2d 135      , State vs. Stubenrouch 591 SW2d 42 , 47, ; State v Evans 28 SW 8; State v Matthews 49 SW 1085; Davis v Modern Woodmen 73 SW 923; State v Lipp 110 SW 4,5, The Violent and Reckless manner of Weis’s Rammings and Reckless High Speed Drag Racing and Eradict , Threatening and Angry display of the Vehicle Weapon and his DANGEROUS driving on the Night in question displayed he was capable of dangerous, unpredictable and possibly LETHAL use of the Weapon he was Racing about in. Mr. Weis was ARMED and acting Crazed and Violent, Angry and Threatening.
Mr. Weis Blatant Disregard of
Ex Parte Adult Abuse Order of Protection
1. At all times alleged in the information complaint against Witham, Mr. Weis is Subject To and was violating an Adult Abuse Ex Parte Order of Protection in Cause No. CV103-533 DR. See “Exhibit A Attached”. The Circuit Court of Christ ian County ordered Mr. Weis not to:
Contact or Communicate with Witham in any manner
Disturb the peace, threaten, abuse, molest or contact Witham
Stalk the petitioner (Witham) Racing Back and Forth, Back and Forth, slamming on brakes and repeatedly burning out for more than and hour immediately in front of the Witham property was illegal.
Enter the premises of Witham’s Farm and Trespassing (Dragging In And Out of Witham’s Driveway and along the front property line was PROHIBITED CONTACT and Violated the Ex Parte Weis was IGNORING) Weis’s Unstable, Violent, Loud and Violent display with his 4X4 CJ Jeep and repeatedly shining his Head Lights and screams engaged in front of the Witham farm initiated and caused the initial contact with Witham’s Family that night.
2. Weis’s Crime of stalking Any person who purposely and repeatedly harasses or follows with the intent of harassing another person commits the crime of stalking. (3) "Harasses", to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress. “Course of Conduct” means a pattern of conduct composed of a series of acts over a period of time , however short, evidencing a continuity of purpose. Weis had NO Legitimate purpose to be Violently Racing around that Night , Trespassing and Acting Unstable, along the front property line. He Wantonly Caused unwanted and threatening Contact violating the Ex Parte he was Violating INTENTIONALLY.
3. Crime of stalking--definitions.
565.225. 1. As used in this section, the following terms shall mean:
(1) "Course of conduct", a pattern of conduct composed of a series of acts, which may include electronic or other communications, over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct". Such constitutionally protected activity includes picketing or other organized protests
(3) "Harasses", to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress.
Any person who purposely and repeatedly harasses or follows with the intent of harassing another person comm its the crime of stalking. Weis’s conduct was Felonious. Plaintiff had every reasonable right to his sincerely held belief that He his Family and his Property were in IMMINENT DANGER of serious injury and attack from Weis and his Jeep.
Mike Weis’s Criminal Conduct
1. During these events described by Evelyn Witham, Debra Witham, Sarah Witham and Judson Witham, Mr. Weis had for approximately one hour + been repeatedly Drag Racing back and forth in front of the Witham farm in a 4X4 Jeep. Repeatedly pulling in the Witham driveway, burning out and violently stopping in the road and along the front property line, again and again and again violently racing the engine and violently stopping and then burning out in DRAGSTER FASHION. This conduct was being conducted on a very quiet, DARK, remote and isolated County Road (Chadwick Road just West of the Swan Creek) after Sunset in the Dark from approximately 9:00 pm until 10:00pm in an EXTREMELY QUIET NATIONAL FOREST SETTING. Weis was using a BORROWED JEEP (to conceal his identity) while disturbing the Witham Family’s peace, being threatening and was repeatedly trespassing and stalking them along the front property line.
2. Witham went out with a flashlight (only) to attempt to visually identify WHO was violently racing the Jeep, it had pulled up and STOPPED with its lights shining into the Witham front yard. Witham pointed the light at the Jeep to attempt to make a visual ID of the license plate and occupants.
3. Mike Weis immediately and Repeatedly THREATENED “You Better Turn that Fucking Light Out” “Turn the Fucking Light out” (Making Contact and Communicating Threats At the Withams committing a further Breach of the Peace flagrantly violating the Ex Parte Order of Protection by Harassing and Stalking the Family as well as his Yelling Obscenities after dark .
4. Mr. Weis had No Legitimate Purpose to be Violently Drag Racing back and forth in front of and in the driveway of the Witham farm, along the front property line, especially AFTER DARK and while subject to and violating an active Ex Parte protective order. (He was at very least Breaching the Peace, Lingering, Lurking, Stalking, Threatening Surveiling, and making Illegal Contact with the Withams) The Borrowed Jeep was used to CONCEAL WEIS’S Identity.
5. When Witham DID NOT shut his flashlight out, then Weis started the 3000 Pound Jeep and rapidly surged or RACED at and pulled closer to Witham and his Daughter and again parked, shut his lights off as well as revved the engine and Weis was repeatedly yelling and being threatening “You Shouldn’t be doing this to ME” repeatedly yelling “Turn The Fucking Light Out”, “You Better Turn That Fucking Light Out”
6. Mr. Weis had No Legitimate purpose SCREAMING the DIRECT and VEILED threats at the Witham family.
7. His repeated cussing and threatening, “You Better Turn that Fucking Light Out” was extremely threatening and violative of the Ex Parte Orders. Cause No. CV103-533 DR and indicated to Witham and his Daughter that things were going to become violent. Witham was extremely apprehensive that he was faced with and EXTREME and IMMINENT threat and an ATTACK was Ready To Take Place was impending. See State vs. McGee, 361 Mo. 309, 234 S.W. 2d 587 (1950) and State vs. Hicks, 438 S.W. 2d 215 (Mo. 1969)
8. The Missouri Supreme Court has consistently held that “ the law of self defense permits the RIGHT of attack when it appears reasonably necessary for protection against a Reasonably perceived or concern and apprehension of an IMPENDING Violent Assault. See also State vs. Sloan 47 Mo. 612 (1871) ; State vs. Goodwin 271 Mo. 73, 79, 80, 195 S.W. 725 State vs. Matthews 148 Mo. 185 , 49 SW 1085 (1899) ; State vs. Bartlett 170 Mo. 658, 71 S.W. 148 (1902) ; State vs. Barlett 71S.W. 148 ; In The Interest of J___ M___ 812 S.W.2d 925 (Mo. App. 1991) [2,3, 4, 8, 9] State v. Plassard 195 SW 2d 495, (6); State Vs. Ruffin 535 S.W.2d 135      , State vs. Hicks 438 S.W. 2d , 215 (MO 1969); State vs. McGee 361 Mo. 309, 234 S.W.2d 587 (1950);
9. Weis had previously on multiple occasions engaged in NUMEROUS other acts of, videoing and photographing, direct physical assault, Ramming the Witham Family’s Truck and Trailer with his K5 Blazer, Following the Withams, He Threatened to Cut Witham’s Throat (Kill Him) and has numerous times expressed Verbal and Physical Threats at Witham to STOMP WITHAM’s Ass , Mr. Weis has assaulted Witham and NUMEROUS TIMES threatened Witham and Witham’s Family. Mr. Weis ( and his EMPLOYER Mr. Mike Dencklau) have done these things while Mr. Witham has his Children Present and at their Mother. See Witham’s Application for Adult Abuse Ex Parte Order CV 103-533 DR and Evelyn, Sarah and Debra Witham’s Sworn Complaints and Testimony ( filed prior to the August NIGHT - emphasis added) to Weis’s “Night Riding” , “Ku Kluxing” “Bald Knobber like Tactics” and Violent and Unstable Drag Racing and Threats against Witham’s Family created a very real security risk and constituted TERRORISTIC Conduct on Weis’s part.
10. After a previous Failed Attempt to Assault and Attack Witham (stopped by Witham’s daughters and their Mother,) Weis Threated Witham “You Got Lucky this Time” ( indicating he would try again at a later time and place ). Weis also gestured ( Non Verbal Communication AT WITHAM using his Index Finger in a Slicing Motion against his Throat indicating he would CUT WITHAM’s Throat or Kill Witham) ( this Non Verbal Threatening conveys You’re Dead or A Death Threat ) in like manner to the very violent Vehicle Ramming Incident that occurred on Memorial Day 2003 Weis has used Non Verbal Displays of Conduct and a Pattern of Stalking to Threaten the Withams.
11. In this case PRIOR TO August 12th 2003 Witham and his entire Family previously sought a Protection Order against Weis, IN FACT Weis was violating that Protective Order on the August 2003 NIGHT. Witham had every REASONABLE concern and Great Apprehension ( well documented pre-existing reasons) to FEAR that Weis was a CONTINUING, Great and Gathering THREAT, Memorialized by Witham’s Previous Police Complaints and Ex Parte Protective Order. Weis’s reign of terror and continuing pattern of violent and threatening co nduct towards Witham’s Family caused GREAT APPREHENSION that Mr. Weis sought to cause Great Physical Harm even cause Death to Witham and His Family Members. Witham and the Family many times previously made their FEARS known to the Christian County Authorities , even to the level of obtaining a Protective Order just Days before Weis’s acts of Terror on that August Night and made several PRIOR complaints to Christian County’s Sheriff’s Department, the PA’s Office and even the State Police etc., et al.
The Information Affidavit Fails For
Lack Of Specific Allegations Of Chargeable Predicate Acts
1. During the events described in the information, Witham had a legitimate security concern for his Family and his personal safety and Lawful Right to (A ) Defense of Himself, (B) The Defense of Others, and (C) the Right to Protect and Defend his Property or “Self Preservation” and (D) the Right to Resist the Obvious Planned Attack and STALKING. Witham was PROVOKED by Weis’s , Crazy and Threatening Conduct on Witham’s property and along the front property line of the remote, dark National Forest Farm. See CJS 6a Assault and Battery Sec 88 and CJS 6a Section 128 ; MAI –CR 3rd 306.06 VARMS 563.031 and NEW VARMS 571.030 Part 5 “Lawful Acts Of Defense” are provided for as an ABSOLUTE JUSTIFICATION “GENERICALLY” under 563.031 RSMo. Which is based on the Model Penal Code Sections 3.04, 3.05 See Comment to 1973 Proposed Code following the Statute. DEADLY FORCE IS defined in 563.011 RSMO 1 and in the Model Penal Code and many, many US Supreme and Federal Appellate Cases. ; see the Drafting Comments Following the Statute 563.011 R SMO 1 regarding: The Model Penal Code 3.11 (2) 1962
2. Witham did IN FACT SINCERELY HOLD and was Reasonably and Legitimately Apprehensive that Weis was AGAIN making efforts to attack or assault, and do Great Bodily Harm to Judson and or his other Family Members and or Bomb or Burn their Farm Property. ( On the very night of this incident one of many UNEXPLODED PIPE BOMBS was found by Witham’s Children was Called into CCSD 911 and turned into the Christian County Sheriff’s Office then later to the ATF and FBI by Witham and his Daughter). Several previous Bombs , Molotov Fire Bombs, a dozen Fabricated Steel Tire Shredders, large amounts of broken glass bottles, Welded Custom Fabricated Tire Shredders, substantial amounts of previous BOMB DEBRISand other undetonated bombs and molotovs have been turned over to ATF, FBI and CCSD et al., by Witham’s Family), See Martin Vs. Yeoham 419 SW 2d 937 , 948, 949   ; State vs. McGee, 361 Mo. 309, 234 S.W. 2d 587 (1950) and State vs. Hicks, 438 S.W. 2d 215 (Mo. 1969) Also see Vol 6 A CJS Section 84 pg 468; Section 87 Pg 472; Section 88 Pg 474 and 475 “ Where the danger is imminent the assaulted person NEED NOT WAIT until struck, but may protect himself by striking the first blow (Citing Missouri State vs. Daugherty 198 SW2d 627 ) See also 6 A CJS Self Defense Section 89 pg 478 …where the use of such a weapon is necessary to PREVENT the threatened injury note 43 Citing State vs. Cook 428 SW2d 728, 731
Witham’s objective and subjective perceptions and great apprehensions of the Danger Weis posed at the scene, and Witham’s Apprehension caused by Weis’s numerous previous attacks and threats and of Weis’s other previous use of a Motor Vehicle as a Weapon, coupled with Weis’s Threats and Violent and unstable conduct that NIGHT, led to Witham’s Apprehension and Fear of Danger, Assault, Serious Bodily Harm, Death, possible Arson, Fire Bombings, and Pipe Bombings See State Vs. Mazur et al 77 SW 2d 839, 840  ; Hartley vs. Oidtman 410 SW 2d 537, 542, 543,   For Accelerated Self Defense.
3. There are many, many Missouri Court Opinions and it is a well settled Rule of Self Defense and the Defense of Others in Missouri that “ Where a person has reasonable grounds to believe, and does believe that another is planning to and or about to “assault” him, or do bodily harm to themselves or one to whom he has a duty to protect, he need not wait until the other person actually strikes or makes an assault before resorting to the application of reasonable force to repel the expected attack” . See State Vs. Bidstrup 140 SW 904, 908 , 909   ; See Martin Vs. Yeoham 419 SW 2d 937 , 948, 949   State vs. McGee, 361 Mo. 309, 234 S.W. 2d 587 (1950) and State vs. Hicks, 438 S.W. 2d 215 (Mo. 1969)
4. The right of Self Defense and Self Preservation gives a party to the right to act on appearances, a person with reasonable apprehension of attack or imminent danger of an assault or attack may strike in self defense or self preservation before the attack is actually made. State Vs. Bidstrup 140 SW 904, 908, 909  Imminent is not equated with IMMEDIATE, it means ready to take place; NEAR AT HAND; impending. See Webster’s Third New International Dictionary page 1130. Imminent MUST BE Properly PARSED. Imminent does NOT mean IMMEDIATE, Federal and State Law Enforcement agencies; The FBI; US Customs; US Secret Service; DEA and ATF understand IMMINENT to be longer than a second or two and even as long as 5, 10 or 15 Minutes. The Department of Defense and the President of the United States Mr. George W Bush No. 43 have recently recognized and sanctioned a PRE-Emptive Strike Doctrine against Gathering and IMMINENT Threats even Months off. Said Accelerated, Pre-emptive Strike and Defense Policies are Internationally Recognized as Lawful Use of Force and are IN FACT the Official Policy of the United States against acts of Terrorism. “The Bombs and Fire Bombs deployed against Witham’s family IN FACT the Molotov Cocktails are a RECOGNIZED form of WMD. The US Department Of Defense, US Forest Service and US Homeland Security Agency even INTERPOL have recognized Molotovs as having caused many HUNDREDS of Thousands of Acres of Wild Land Fires in the US, France, Israel, Palestine, and even Canada.” The recent Fires in LA County California reveal the destructive nature of wild fire caused by IEDs, Bombs, Fireworks and other flamatory devices and arson.
5. Even if no actual danger existed, but Witham honestly feared and apprehended such danger, even on mistaken appearances, he would be justified in acting on his fears and apprehensions in Defense of Self his Family, to prevent further trespassing, and repeated threatened trespass and property damage by ARSON OR BOMBING, and to PRECLUDE assault and further attacks, Vehicular attacks and the Aggravated Stalking by Weis et al or “His GANG”
6. It is not necessary that the danger which gave rise to the belief actually existed U>, it is sufficient that the person resorting to self defense at the time involved reasonably believed in the existence of such danger and such reasonable belief is sufficient even where it is Mistaken See, State Vs. Bidstrup 140 SW 904, 908, 909 
7. For many weeks prior, the Witham’s Rental Property at the Fork in The Road in Sparta and their Farm had been vandalized, fire bombed, pipe bombed, broken into and numerous items were stolen. Witham rightfully was apprehensive about further property damage, efforts t o trespass, to cause further damages and thefts, further BOMBINGS and FIRE BOMBINGS (Arson) and continuing terror and violence aimed at Witham and his Family by Weis and his Gang.
8. Witham’s possession of the WALMART Purchased Shot Gun while at HOME as alleged , even shooting it ONCE harmlessly “UP” IN THE AIR” at the Carwine Ridge behind his National Forest FARM , in LAWFUL defense, his defense of others and to preclude and prevent trespass, preclude and prevent vandalism, ARSON or robbery is a pr otected Constitutional Right under the 2nd Amendment of the US Constitution as well as the Missouri Constitution Article II Section 17 Constitution of 1875, currently VARMS Missouri Constitution Art. 1 Sec 23 (1945) A non-deadly – Non Lethal Signal or Warning Shot is permissible in cases of perceived plans to and fear of imminent attack and apprehension of attack even if mistaken see State Vs. Daugherty 196 S.W. 2d 627 , State v. Plassard 195 SW 2d 495, (6); State Vs. Ruffin 535 S.W.2d 135      , State vs. Stubenrouch 591 SW2d 42 , 47 ; State v Evans 28 SW 8; State v Matthews 49 SW 1085; Davis v Modern Woodmen 73 SW 923; State v Lipp 110 SW 4, 5 , A Bullet Shot “Up” In The Air as a WARNING will NOT be deemed deadly even if it hits a tree branch whi ch falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997) ;
9. The charges against Witham are violative of his Federal and State Civil Rights and the Statute alleged to have been violated by Witham ( The Crime Unlawful Use Of A Weapon ) is Unconstitutional in that it conflicts absolutely with Article 1 Sec. 23 Missouri Constitution, and the 2nd, 5th, 6th, 9th and 14th Amendments of the US Constitution and Witham’s Rights Under the Common Laws, being the Rights of Self Defense, Defense of Others and the Right to preclude and prevent assault, great bodily harm, arson, bombing and FURTHER Trespass and Vandalism of Witham’s Farm property. The OLD version of VARMS 571.030 (4) provisions conflict with and failed to recognize these Fundamental and inalienable rights.
10. Both the Old and New provisions of VARMS 571.030 and 563.031 RSMo. Are controlled by the Definition of DEADLY FORCE contained in 563.011 (1) “Deadly Force” means physical force which the actor USES wi th the PURPOSE of Causing HE KNOWS to create a SUBSTANTIAL RISK of Causing DEATH or SERIOUS PHYSICAL INJURY. A SINGLE WARNING/Signal SHOT “Up In The AIR” as SWORN TO BY FIVE WITNESSES - Weis, Rouse, Sheriff Deputy Cowan and Witham and his Family (even if true) directed 90 degrees AWAY “UP IN THE AIR” having ZERO CHANCE of causing any injury and absolutely NO CHANCE of Causing injury nor FATALITY. Defining Deadly Force. 563.011 (1) RSMo. is based on the Model Penal Code Sec. 3.11(2) see Comment to 1973 Proposed Code following the Statute. “It does NOT include the THREAT to cause death of serious physical injury” . A WARNING is Just that a WARNING not a threat.
11. Mr. Weis should not have been there period NOR yelling threats or COMMUNICATING IN ANY MANNER or THROUGH ANY MEDIUM at the Withams. The conduct and communications from and with the Jeep were violent, unstable, threatening, harassing, annoying, was disturbing the Witham Family’s peace, breaching the peace, was flagrant Stalking, and served NO legitimate purpose. Witham’s concerns that - Weis was there planning to carry out numerous previous threats and Weis’s actual continuing threats - were real, reasonable and sincerely held by Witham and ALL his Family members.
12. Weis’s repeated vulgar verbal threats “You BETTER turn that Fucking Light Out” his repeated Engine Revving, and VIOLENT Jeep Racing, on and along the front property line of the Farm was extremely threatening and intimidating and did cause significant emotional distress and concern for Witham that Mr. Weis was up to no good and meant harm to Witham and his Family. Based upon Weis’s numerous previous unstable and threatening acts and his violent and unstable illegal contact that NIGHT , Witham’s Daughter and the Witham family felt Weis was planning to attack and that the danger was imminent, in PART based on Weis’s multiple previous threats, assaults and vehicular attack. Witham was NOT bound to wait until Weis had the drop on him, or had a perfect opportunity to carry out his many previous threats.
13. Weis’s Surging his Jeep and RACING up CLOSER, and shutting off his lights, and REVVING HIS ENGINE REPEATEDLY under the totality of these circumstances was an indication to Witham that things were going to become EXTREMELY VIOLENT. Considering all Weis’s previous Violence and THREATS against the Witham Family, especially doing these things AFTER DARK in front Of The Witham Property, on and along the front property line was considerably Threatening. See Adult Abuse Ex Parte Order against Mike Weis No. CV 103-533 DR
14. The RIGHT to an Accelerated Self Defense is Well Settled Law in Missouri AND throughout the United States under Natural and Common Law in virtually every State in the Nation: See State Vs. Ruffin 535 S.W.2d 135      , State Vs. Daugherty 196 S.W. 2d 627 , State v. Plassard 195 SW 2d 495, (6); State v Evans 28 SW 8; State v Matthews 49 SW 1085; State Vs. Bidstrup 140 SW 904, 908, 909   ; Martin Vs. Yeoham 419 SW 2d 937 , 948, 949   ; State vs. McGee, 361 Mo. 309, 234 S.W. 2d 587 (1950) ; State vs. Hicks, 438 S.W. 2d 215 (Mo. 1969) ; State vs. Sloan 47 Mo. 604, 612 (1871) ; State vs. Matthews 148 Mo. 185 , 49 SW 1085 (1899) ; State vs. Bartlett 170 Mo. 658, 71 S.W. 148 (1902) ; State vs. Barlett 71S.W. 148 ; In The Interest of J___ M___ 812 S.W.2d 925 (Mo. App. 1991) [2,3, 4, 8,9] also 6 Am. Jur. 2d Assault and Battery Sec 70; CJS 6A Assault and Battery Sec 88 ; CJS 6A Section 128 ; MAI –CR 3rd 306.06
15. Witham did have and was Legitimately Apprehensive that Weis was AGAIN making efforts to get the drop on, planning to assault, and trying to do Great Bodily Harm to Judson and or his other Family Members and or Bomb or Commit arson upon Witham’s Property. See Martin Vs. Yeoham 419 SW 2d 937 , 948, 949   ; State Vs. Mazur et al 77 SW 2d 839, 840  ; Hartley vs. Oidtman 410 SW 2d 537, 542, 543,  [3; State Vs. Bidstrup 140 SW 904, 908, 909 
16. Witham’s perception of the Danger Weis posed at the scene, and Witham’s Apprehension of the previous attacks and threats and of Weis’s previous use of a Motor Vehicle, and his attack with this deadly Weapon, coupled with his numerous previous Threats, Assaults and Violent and unstable threatening conduct visited upon Witham, reasonably led to Witham’s Apprehension and Fear of Imminent Danger, See State Vs. Mazur et al 77 SW 2d 839, 840  Hartley vs. Oidtman 410 SW 2d 537, 542, 543,  [3; State Vs. Bidstrup 140 SW 904, 908, 909 
Witham did Not Unlawfully EXHIBIT a Weapon
“In The Presence” Of Joseph Rouse
1. Upon Close Reading and Scrutiny the harmless and SINGLE SHOT “UP” INTO THE AIR alleged by ALL Witnesses, under these particular circumstances of provocation would have been justified. A Signal or Warning Shot directed “UP” into the AIR is NOT Deadly Force but a NON LETHAL SIGNAL or WARNING. A Bullet Shot In The Air as a WARNING will NOT be deemed deadly even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997)
2. Mr. Weis’s claim that Witham threatened to “Blow His Head Off” IS NOT corroborated by Mr. Joseph Rouse, or anyone else. Compared closely to Joseph Rouse’s sworn police complaint, and Mike Weis’s Sworn Complaint and even Deputy Cowan’s Incident Report, Weis, Rouse nor deputy Cowan claimed Witham Threatened to Blow Weis’s head Off, NOR that Witham POINTED a GUN “AT” Them or Fired “Toward” Them or “at” Weis’s Deadly Weapon his JEEP. Weis’s and Rouse’s LATER fabricated and evolving changed and exaggerated claims are NOT Truthful or Reliable , nor do they specifically articulate that Felony Conduct was engaged in by Defendant. Mike Weis being under a protective order shouldn't have been Racing Around back and forth, back and forth, on and along the front property line , Stalking and making threats at Witham and his FAMILY. Weis’s and Rouse’s EVER CHANGING STORIES ar e direct evidence of continuing Malice and STALKING and PERJURED Testimony on Mr. Rouse’s part. NOTE > MR. Joe & Mrs. Nina Rouse are CURRENTLY UNDER A FULL ORDERS OF ADULT PROTECTION issued by Judge Orr.
3. At 10:00pm at Night, in nearly pitch dark, the Witnesses against Witham would NOT be able to see the Shotgun, NOR visually witness the Mannerisms and Demeanor in which Witham is alleged to have Discharged The Gun “UP” IN THE AIR. ALL witnesses Succinctly claimed “One Shot (Harmlessly) “UP IN THE AIR” including the Police Account (Emphasis Added).
4. Witham is charged with a SINGLE violation of Section 571.030 (4) which provides; EXHIBITS, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner . A signal or Warning shot is NOT against the laws of Missouri. Mr. Weis had been threatening repeatedly with his VEHICLES. Because Section 571.030 does NOT define the operative terms used in part 4, the words used to describe a violation of part 4 must be given their ORDINARY meanings (definitions). The Cardinal Rule of Statutory Interpretation applies. WARNING with a Signal or WARNING SHOT is NOT specifically set out i n or proscribed by the LAWS of Missouri.
Webster’s Encyclopedia of Dictionaries New American Edition
Edited By John Gage Allee, Ph.D. Professor Of English Phiology, The George Washington University 1978
(a) Exhibits is defined at page 135 as follows to hold forth or to expose to view, to present; to show ( in the d ark Weis and Rouse could not see much of anything)
(b) Presence is defined at page 290 as follows the state of being present; nearness or proximity (Section 571.030 ( 6) provides as follows: Discharging a firearm within one hundred yards of any occupied school house, courthouse, or church building, would be unlawful.)
( c ) Threat is defined at page 387 as follows declaration of determination to harm another,
( d ) Warn is defined at page 423 as follows to notify by authority; to caution; to admonish; to put on guard; advance notice of anything; admonition; caution; notice to leave premises, situation etc. a. cautioning
( under these particular circumstances a SINGLE WARNING Shot “UP” in the air is a non lethal and harmless Signal or WARNING see State Vs. Ruffin 535 S.W. 2d 135     State Vs. Daugherty 196 S.W. 2d 627 (Mo. 1946) State v. Plassard 195 SW 2d 495, (6); State v Evans 28 SW 8; State v Matthews 49 SW 1085; Davis v Modern Woodmen 73 SW 923; State v Lipp 110 SW 4,5 .) Federal Precedent Law allows A Bullet Shot In The Air as a WARNING will NOT be deemed deadly even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997) ;
5. The ONE SINGLE charge against Witham ( a vague violation of Section 571.030 (4) ) is violative of his Civil Rights and the Statute alleged to have been violated by Witham (The Crime Unlawful Use Of A Firearm ) The OLD Section (4) of 571.030 is Unconstitutional in that it conflicts absolutely with the Rights of Self Defense, Defense of Others and the Right to prevent Trespass and Vandalism of Witham’s property. The Right to Keep and to BEAR ARMS in defense of Self, Others and Property are an EXEMPTION to the overly BROAD AND VAGUE provisions of 571.030 (4) , The statute provisions conflict with Article 1 Section 23 of the Missouri Constitution and the 2nd Amendment of the US Constitution . The OLD LAW failed to recognize these inalienable rights. Federal Precedent Law clearly allows A Bullet Shot Straight UP In The Air as a WARNING.
6. Extrinsic circumstances surrounding this matter involve REPEATED requests that WEIS LEAVE, The Withams experienced numerous Arson Attempts, Numerous Pipe Bombs, (One Found CALLED INTO 911 and Presented to the CCSD SO Shorty before on the night of Weis’s TERRORISM). Weis’s Harassment, Perjury, Peace Disturbance, Trespassing on and along the front of the Farm, and Thefts, Breaking and Entering at the Witham Family Rental Property have been ongoing nearly continuously for four months.
7. Witham had a legitimate, Lawful and Constitutional right, was justified, provoked and faced with the possibility of further and continuing violence, trespassing, property damage and criminal activity by a man subject to an ex parte protective order, Witham had every justification to Warn Mike Weis to Leave the Vicinity of the Witham property using NON DEADLY Force.
8. Warn is defined at page 423 as follows to notify by authority; to caution; to admonish; to put on guard; advance notice of anything; admonition; caution; notice to leave premises…
9. The alleged SINGLE WARNING SHOT harmlessly shot into the air as originally claimed by Joseph R ouse’s and Mike Wies’s, SWORN TESTIMONY is a Non Lethal Warning to Leave. See: (State Vs. Ruffin 535 S.W. 2d 135    ; State Vs. Daugherty 196 S.W. 2d 627(Mo1946); State v. Plassard 195 SW 2d 495, (6)
Wherefore Defendant Prays that this Court will dismiss the cause of action as the claims made, in the Witness Complaint, the Information and the Probable Cause Affidavit, Deputy Cowan’s Statements DO NOT take into account the Adult Order Of Protection Against Mike Weis, the Trespassing Threats and Menacing by Mr. Weis nor do they Factually and Specifically WITH ANY DEGREE OF CERTAINTY Allege that Witham with SCIENTER , without Justification, without Provocation, without a Security and Self Defense or Self Preservation Purpose , Wantonly, Intentionally, Knowingly or Purposely committed the CRIME alleged NOR that Witham KNOWINGLY or INTENTIONALLY purposely, Employed Deadly Force. NO DEADLY FORCE WAS EMPLOYED OR ALLEGED.
10. Witham had a Legitimate Security, Self Defense interest and proper concern for his Family’s Safety and his own personal safety and had a right to preclude further trespassing and potential violence and property damage.
11. Witham’s possession of the WALMART Shot Gun is a protected Constitutional Right under the 2nd Amendment of the US Constitution as well as the Missouri Constitution Article II Section 17 Constitution of 1875 see current VAMS Constitution Article 1 Section 23 (1945) Upon Close Reading and Scrutiny, and closely examining the FACTS, under these particular circumstances Witham and his FAMILY was repeatedly THREATENED and PROVOKED. Witham was Justified.
12. The charges against Witham are violative of his Federal Civil Rights and the Statute alleged to have been violated by Witham (The Crime Unlawful Use Of A Firearm ) Old 571.030 (4) is Unconstitutional in that it conflicts absolutely with the Rights to Keep (own) and Bear Arms (Bring to Bear or USE) , nor The Right of Self Defense, Defense of Others and the Right to prevent Trespass and Vandalism of Witham’s property in violation of the 2nd, 4th, 5th , 6th , 9th and 14th Amendments to the US Constitution.
13. The statute provisions Old 571.030 (4) is VAGUE and Overly Broad it directly conflicts with and fails to recognize the inalienable rights of Lawful Defense. Old 571.030 (4) was overly BROAD and ABSOLUTELY Vague. A Simple WARNING SHOT “DIRECTED Up In The Air” is NOT a Deadly use of Force Many Federal APPELLATE Courts recognize such is NOT A DEADLY USE OF FORCE See: Robinette V. Barnes 854 F.2d 909 , 912 , 6th Cir. this Court Writes: “ The Model Penal Code drafted by the American Law Institute also acknowledges this FACT…”deadly force” means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or se rious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes “Deadly Force”. (Witham is accused of neither) A threat to cause death or serious bodily harm, by the production of a weapon or otherwise so long as the actors purpose is limited to creating an apprehension that he will use deadly force IF NECESSARY, does NOT constitute deadly force. Model Penal Code 3.11 (2) (Proposed Official Draft 1962) see also “Deadly Force means Force Likely To Kill” Tennessee V. Garner 471 US 1, 105 S.Ct. 1694, 85 L.Ed. 2d 1 (1985); A Bullet Shot In The Air as a WARNING will NOT be deemed deadly even if it hits a tree branch which falls and kills the suspect below Vera Cruz v. City of Escondido 139 F.3d 659 (9th Cir 1997) ; Deadly Force has been described as “Force that creates a substantial r isk of causing death or serious bodily harm” Fikes vs Cleghorn 47 F.3d. at 1014; Chew V. Gates 27 F.3d. at 1453 ; Mattis v. Schnarr, 547 F.2d 1007 at 1009 ( 8th Cir 1976) “ Applying Model Penal Code Sec 3.11(2) ; Pruitt V. City of Montgomery 771 F.2d 1475 at 1479 n 10 (11th Cir 1985)
also see Black’s Law Dictionary 5th Edition page 359; Blacks Law Dictionary 6th and Matulia, Kenneth J. , A Balances of Forces, Model Deadly Force Policy and Procedure, (Second Edition), 1985 page 68, Defining Deadly Force. 563.011 (1) RSMo. is based on the Model Penal Code Sec. 3.11(2) see Comment to 1973 Proposed Code following the Statute. “It does NOT include the THREAT to cause death of serious physical injury” .
14. Mr. Weis should NOT have even been lurking around Witham’s Farm, Trespassing and Threatening with his Readily Lethal Jeep and Stalking the Withams in light of the FRESH Ex Parte Adult Order of Protection Against Him
15. Weis while under an Ex Parte and Rouse CURRENTLY UNDER A FULL ORDER OF PROTECTION, should NOT be fabricating untrue STORIES and Providing Perjured Testimony UNDER OATH CONTINUING Their EFFORTS to cost Witham ECONOMIC DAMAGES, Stalk Witham and his Family, Threaten, Attack and Harass Witham and to using perjury, Falsely Send him To Prison. Said Stalking, Menacing, Perjury and their Harassment Vendetta have Caused Severe Emotional Trauma, Mental Anguish, Fear and ENORMOUS STRESS and Financial damages and injuries to the Witham FAMILY. Weis and Rouse’s false and ever Changing Perjured STORY is subsequent similar conduct, evidencing of a continuing effort by Weis and Rouse in their STALKING of WITHAM and HIS FAMILY Feloniously Using LIES to have Witham FALSELY ARRESTED, FALSELY CONVICTED and FALSELY Sent To Prison while under Court orders to NOT Abuse or Harass Witham is a Violation of Rouse’s Full Order Of Protection and is Felonious Perjury. Weis ‘s and Rouse’s conduct is evidence of a CONTINUING vendetta of LIES and FALSE police complaints and series of CRIMES aimed at Witham furthering their Stalking and Criminal Victimization of Witham and the FAMILY.
Therefore Premises Considered, Defendant Witham Files This Motion To Dismiss in accordance with the US Constitution and the Missouri Constitution and upon following provisions of Missouri Criminal Procedures Rules.
RULE 24.04 MISDEMEANORS OR FELONIES PLEADINGS AND MOTIONS BEFORE TRIAL DEFENSES AND OBJECTIONS
(a) Pleadings. Pleadings shall be the indictment or the information and the plea thereto.
(b) Motion Raising Defenses and Objections.
1. Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion.
2. Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.
3. Time of Making Motion. The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter.
4. Hearing on Motion. The motion shall be heard and determined before trial on application of the state or the defendant, unless the court orders that the hearing and determination thereof be deferred until the trial.
5. Effect of Determination. If a motion is determined adversely to the defendant he shall be permitted to plead if he has not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the pros ecution or in the indictment or information, it may also order that the defendant be held in custody or that the conditions of his release be continued for a specified time pending the filing of a new indictment or information.
Paragraph (a) is substantially the same as the first sentence in prior Rule 25.05(a).
Compare: Fed.R.Crim.P. 12(a).
Subparagraph (b)(1) is the same a s prior Rule 25.06(a).
Compare: Fed.R.Crim.P. 12(b).
Subparagraph (b)(2) is the same as prior Rule 25.06(b) except for the addition of: 'The motion shall include all such defenses and objections then available to the defendant.'
Compare: Fed.R.Crim.P. 12(b).
Subparagraph (b)(3) is substantially the same as prior Rule 25.06(c).
Compare: Fed.R.Crim.P. 12(c).
Subparagraph (b)(4) is substantially the same as prior Rule 25.06(d).
Compare: Fed.R.Crim.P. 12(e) and 55.27(c).
Subparagraph (b)(5) is new.
Compare: Fed.R.Crim.P. 12(h).
RULE 23.01 MISDEMEANORS OR FELONIES INDICTMENT OR INFORMATION FORM OF N>
(a) The indictment or information shall be in writing signed by the prosecuting attorney, and filed in the court having jurisdiction of the offense. The indictment shall also be signed by the foreman of the grand jury.
(b) The indictment or information shall:
1. State the name of the defendant if known, or if his name is not known, the defendant may be designated by any name or description by which he can be identified with reasonable certainty;
2. State plainly, concisely, and definitely the essential facts constituting the offense charged;
3. State the time and place of the offense charged as definitely as can be done;
4. Cite the section of the statutes alleged to have been violated and the section of the statutes which fixes the penalty or punishment therefore; and
5. State the name and degree, if any, of the offense charged.
(c) The name of the defendant, if known, shall appear in the caption of an indictment or information and thereafter the word 'defendant' wherever used in the indictment or information shall refer to the defendant named in the caption.
(d) Allegations made in one count of an indictment or information may be incorporated by reference in another count.
(e) All indictments or informations which are substantially consistent with the forms of indictments or informations which have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).
(f) The names and addresses of all material witnesses for the prosecution except rebuttal witnesses and witnesses who will appear upon the trial for the production or identification of public records shall be listed. Additional witnesses may be listed at any time after notice to the defendant upon order of the court.
(g) A copy of a document may be attached to, and incorporated in, an indictment or information, by reference.
The source of paragraph (a) is prior Rule 24.16. There is a change in that the rule allows the prosecuting attorney to simply sign an information rather than requiring verification.
Compare: Fed.R.Crim.P. 7(c)(1).
Paragraph (b) is substantially the same as prior Rule 24.01(a).
Compare: Fed.R.Crim.P. 7(c)(1).
Paragraph (c) is new.
Paragraph (d) is the same as the last sentence of prior Rule 24.01(a).
Compare: Fed.R.Crim.P. 7(c)(1).
Paragraph (e) is the same as prior Rule 24.01(b).
Paragraph (f) is substantially the same as prior Rule 24.17.
Paragraph (g) is new.
PO Box 309
Chadwick, MO 65629
Affidavit Of Fact
I Judson Witham have read the forgoing pleadings and under penalty of perjury attest that they are accurate and truthful to the best of my understanding and knowledge.
Granted in accordance with the Court’s Following Instructions……
Motion Denied for the following reasons ……..
Dated This the Day of 2005
Certificate of Service
This is to certify that a correct copy of this Motion To Dismiss Charges has by filing with the Court, and by fax trans mission and US mail sent to the office of of the Christian County Public Prosecutor Mr. Ron Cleek on this the 5th day of October 2005
PO Box 309
Chadwick, MO 65629
Alexander Hamilton: “The best we can hope for concerning the people at large is that they be properly armed,” adding later, “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.” By the way, Hamilton is referring to what institution when he says “the representatives of the people”?
Some Current Commentary .......
The Fact Is ..... What are ARMS ..... It's just One Word Lets See Who gets the answer right ....
Per James Dysart quoting Herman Faulkingham
Did you know.....
• A 1997 high school shooting in Pearl, Miss., was halted by the school's vice principal after he retrieved the Colt .45 he kept in his truck.
• A 1998 middle school shooting ended when a man living next door heard gunfire and apprehended the shooter with his shotgun.
• A 2002 terrorist attack at an Israeli school was quickly stopped by an armed teacher and a school guard.
• A 2002 law school shooting in Grundy, Va., came to an abrupt conclusion when students carrying firearms confronted the shooter.
• A 2007 mall shooting in Ogden, Utah, ended when an armed off-duty police officer intervened.
• A 2009 workplace shooting in Houston, Texas, was halted by two coworkers who carried concealed handguns.
• A 2012 church shooting in Aurora, Colo., was stopped by a member of the congregation carrying a gun.
• At the recent mall shooting in Portland, Ore., the gunman took his own life minutes after being confronted by a shopper carrying a concealed weapon. 2500 times last year alone legal gun owners stopped violent crime when confronted with it long before any police assistance.
ANOTHER MORE OFFICIAL PERSPECTIVE
From 2007 to 2011 (five years) there were 1,700 people killed with rifles in the USA. A little over 300
of those rifles were considered to be "assault rifles". During that same five year period there were just
over 4,000 people beaten to death by hands/fists (no weapon at all). Almost 9,000 people were killed
with knives and almost 3,000 were killed with "other" blunt objects. Nearly 30,000 people were killed
with handguns. Of those 30,000, 86% of the killers caught were prohibited by law from possessing a
firearm in the first place. The source of this information is NOT the NRA ... it is the FBI.
The Word ARMS in the Constitution MUST BE Properly Parsed
What does ARMS Mean ... It's just a Four Letter WORD
To understand the Second Amendment, we need to go back to something like the beginning.Gary North
FEUDALISM AND POLITICAL SOVEREIGNTY
In English common law in medieval times, meaning as late as the 13th century, the feudal legal system limited ownership of military weapons to members of the knightly class, and those classes over the knights. In other words, the ownership of weapons had to do with legal status.
The common man, meaning a peasant, could not be called into military service. Military service was a matter of inheritance of land and status, and this inheritance mandated military training, which created a military mindset. Thus, the weapons associated with this class, which was also a matter of social status, were not to be shared with the peasantry. This placed the peasantry at an obvious disadvantage in terms of military power. It also extended to political power. They had little political power. They were represented mainly by priests.
One of the marks of the knightly class was the right to wear armor. Armor was heavy. So, a peasant who had a simple walking staff was in a position to knock a knight off his horse. A knight in shining armor who was lying on the ground could not get up by himself. He was defenseless. So, the fact that a peasant was not allowed to carry a sword, or a bow and arrow, did not necessarily place him at a complete disadvantage, one-on-one, when dealing with a knight on horseback. It all depended on the tactics of surprise. The knight who was not expecting to be knocked off his horse might be at a disadvantage.
Peasants early on learned how to use walking sticks as weapons. Peasants could not be deprived of their walking sticks. So, they retained a degree of power which was not legally associated with their class. The movie scene of Robin Hood, an outlaw from the knightly class, battling Little John on a log over a stream was unlikely. Little John would easily have killed him. Knights were not trained in the use of staffs.
Anyone who possessed expensive weapons began with a competitive advantage in the use of power. The knightly class was careful to guard its legal rights. Magna Carta was a document created by the barons to defend their rights against the king. These rights were jealously guarded both against intrusions of power from below, as well as any intrusions from above. It was part of a hierarchical social and legal social order.
There is no question that, under most circumstances, the knightly class could deal with the peasants in the field of military battle. There were peasant rebellions from time to time. But, over the centuries, the knightly class did prevail against attempts by the peasants to overturn the legal status of the knightly class.
One of the advantages of this system was that civilians, meaning peasants and the people who lived in towns, were to be left alone by the warriors. They were not to be slaughtered in a military confrontation. Warriors were to do battle with other warriors. Warriors were not to use the specialized implements of warfare against civilians. This was a good arrangement for civilians.
Gunpowder signaled the end of feudalism. It did not cause this decline, but it accompanied it. Armies became professional. Mercenaries appeared. Legal access to weapons was no longer based on birth and legal status. With the demise of the feudal order after the 14th century, and the rise of professional armies, which were funded by taxation rather than by a grant of land by the king to specific families, access to military training became available to common men. The more that the armies depended upon conscription, or payment by the central government, the greater the demands for the right to vote by the lower classes.
This demand became open during the Puritan revolution of the 1640s in England. Oliver Cromwell's New Model Army was made up of commoners as well as members of the higher social orders. Puritans believed in the exercise of the franchise in their local congregations. English Puritans were Congregationalists. They did not believe in a hierarchy of bishops, nor did they even believe in the hierarchy of presbyteries. Presbyterianism was a Scottish concept, not an English Puritan concept. So, with the triumph of Cromwell and the New Model Army, the issue of the franchise became an important political issue. Debates were held in 1647 within the New Model Army over what constituted the right to vote. The Levelers, who were not Communists, believed that the franchise should be extended to members of the New Model Army, irrespective of their wealth. This was opposed by the upper classes, including Cromwell, but there was an open debate over the issue. Cromwell's son-in-law, Ireton, argued for wealth, meaning personally owned land or money, as the basis of the right to vote. Rainsboro, a representative of the Levelers, argued that mere residence in the land should qualify a man to vote.
With the coming of the rifle in the 18th century, it became possible for independent farmers -- "peasants" -- to purchase the implements of war. These could be used for hunting. Civilians were still not part of the warrior class, but as the price of weaponry fell, beginning in the early 18th century, a shift of political power also began to take place.
In the second half of the 18th century, the common citizen in the British colonies of North America possessed a rifle. In most cases he was a man of the countryside. He had the ability to use it. For the first time, weapons that were available to common people had equal firepower to weapons available to the central government.
THE AMERICAN REVOLUTION
So, the central government faced a crisis. The colonists in North America were in a position to resist the King's will. After 1763, resistance against the King's representatives increased, and the ability of the King to impose his will on these upstarts became more a matter of finances than technology.
The American Revolution was a revolution of common people who were armed with weapons. The long rifle, fired from a distance, was a formidable weapon. A man who could shoot straight at a distance of several hundred yards could kill an officer on horseback. Officers wore special uniforms. This enabled their troops to identify who was in charge. They rode on horseback, above the troops. There was a universal agreement among the warriors of Western Europe that they would not target the officers. This, of course, was an agreement among officers.
The Americans honored no such agreement. Americans would target the officers from hundreds of yards away. The chain of command of British troops was disrupted by the American rifle. This was considered unsportsmanlike. But the Americans did not honor the same rules and sportsmanship.
This is why the militias were the formidable opponents of the British Army. George Washington only had two major victories, Trenton in 1776 (won by surprise) and Yorktown in 1781 (won by the French Navy). His army was usually unable to make direct confrontations in the field with the British Army. In contrast, militia units, firing from a distance against massed armies, and then running into the woods, could not be dealt with by British Army tacticians. The British armies were always tied to the cities. They could not venture far into the countryside to get food, because too many of them would be gunned down by militia members. They were dependent upon the British Navy to deliver supplies to them.
It was therefore impossible for the British to win that war. For as long as the Americans would stay in decentralized units, firing from a distance into the organized troops of the British, the British could not extend military control, and therefore political control, over the Americans. The Americans kept fighting until British taxpayers grew weary of funding the war, and until the French, during one 30-day period, provided the naval support to block the British Navy from resupplying Cornwallis's Army. George Washington got the credit, as did the centralized army under his command, but it was the militia that had kept the British at bay for the previous five years.
Americans fully understood this when the leaders wrote the Bill of Rights in 1790. This is why the Second Amendment was inserted into the Constitution. The voters understood that it was their ability to fight any organized army, through the organization of the militia, which was basic to their concept of citizenship. It was the citizen warrior, armed with a rifle that was every bit as good as that possessed by members of the Army, who was perceived as possessing final political sovereignty. The whole concept of "we the people," which introduced the Constitution, rested on the well-known ability of the American citizen warrior to grab his rifle and fight.
DEMOCRACY AND WEAPONS
Professor Carroll Quigley of Georgetown University was an expert in the history of armaments in Western Europe. He is famous among conservatives for about 20 pages late in his book, Tragedy and Hope, in which he discussed the influence of the Morgan banking interests. Very few conservatives have ever read all of this book.
In chapter 2, "Western Civilization to 1914," on page 34, Quigley wrote a very important assessment of the relationship between weaponry and political power.
In a period of specialist weapons the minority who have such weapons can usually force the majority who lack them to obey; thus a period of specialist weapons tends to give rise to a period of minority rule and authoritarian government. But a period of amateur weapons is a period in which all men are roughly equal in military power, the majority can compel a minority to yield, and majority rule or even democratic government tends to rise. . . . But after 1800, guns became cheaper to obtain and easier to use. By 1840, a revolver sold for $27 and a Springfield musket for not much more, and these were about as good weapons as anyone could get at that time. Thus, mass armies of citizens, equipped with these cheap and easily used weapons, began to replace armies of professional soldiers, beginning about 1800 in Europe and even earlier in America. At the same time, democratic government began to replace authoritarian governments (but chiefly in those areas where the cheap new weapons were available and local standards of living were high enough to allow people to obtain).
The American Civil War transformed military tactics. The rise of the railroads and telegraphy made possible the coordination of the movement of mass armies. The only way that the American South could have won that war, other than simply by outlasting the Northerners on the battlefield, thereby weakening the will to continue the war among Northern voters, was to resort to guerrilla warfare. But the generals were mostly the products of West Point, or were promoted on the battlefield by graduates of West Point, and their concept was the same as George Washington's, namely, that centralized armies financed by the national government were the basis of military success. They were not in favor of guerrilla warfare. (This was not true of Nathan Bedford Forest, a businessman turned self-funded cavalry officer. He was a guerrilla, and he was highly effective.)
From the end of the Civil War until today, nations have been committed to what is sometimes called second-generation warfare. These are armies, navies, and air forces that can assemble massed firepower, using highly precise and very expensive weapons. These military units no longer can consistently defeat guerrilla movements on the ground. Fourth-generation warfare, meaning guerrilla warfare, is now reestablishing the sovereignty of the common man. Vietnam is the obvious case, but Afghanistan certainly qualifies. In the case of Afghanistan, the common man has always had the advantage. Nobody has been able to conquer Afghanistan for more than a few years. This goes back to Alexander the Great. The topography of the nation, and the commitment of its men to fight to the bitter end, meaning the bitter end of the invaders, has been such that these people have not been defeated.
The one Western European nation that fully understands this is Switzerland. Every Swiss male up the age of 60 is expected to serve in the military. Every Swiss male who serves in the military is expected to master the use of the rifle. It is a matter of honor to be a good rifleman in Switzerland. Bankers in their 50s compete against clerks in their 20s as marksmen. This has been true for five centuries. This is a nation of citizen warriors. It is a nation with a very weak central government, the weakest in the modern industrial world. The presidency is a symbolic office, and it is held on a rotation basis, with only one year as its term. Yet the nation's army can be mobilized in a matter of days. Switzerland has the longest history of political freedom of any continental European nation.
It is true that the Swiss surrender their ammo back to the local armory at the end of each summer's training. It is also true that the political tradition of democracy is so deeply ingrained that it would be impossible for any Swiss government to refuse to return those weapons the following summer. The Swiss are not a disarmed population. They simply let the government store the ammo during the year. The attitude is not that the government lets the citizens have access to weapons. The attitude is that the citizens allow the government to store the ammo. The mentality is completely different from the gun control advocates in the United States.
In every nation except Switzerland, gun control advocates want to centralize the ownership of any weapon that could be used systematically against agents of the government. This is not a random outlook. All the arguments about reduced crime are refuted by the statistics of increased crime whenever the government confiscates the guns of the population. Guns are as easily available to the criminal class as illegal drugs are available to the citizens and all other residents.
Gun control advocates insist that the centralization of gun ownership into the hands of the monopolistic government is a moral obligation. Why is it a moral obligation? It is a moral obligation because these people really do believe that the central government possesses legitimate original political sovereignty, an exclusive sovereignty, over the weapons that could be used against the central government.
It is one of those peculiarities that conservatives who say they believe in the right of gun ownership, and who sometimes even say that this is a means of defense against tyranny, are also in favor of invading foreign nations, when those foreign nations have adopted the concept of universal gun ownership that is comparable to the philosophy of American conservatism. The well-armed "little people" in Middle Eastern countries are able to defeat American invading troops, just as others like them did in Vietnam, precisely because the decentralization that is made possible by a diffusion of gun ownership and explosives is effective in combating the expansion of centralized political and military control. In other words, American troops cannot defeat these tiny countries, precisely because of widespread ownership of effective weapons that can be used against the occupying troops.
MILITIAS: REAL AND PHONY
I want to make it clear that I do not believe that it is possible, under anything like present conditions, for Americans to take up arms against the central government. In a period of financial crisis, in which the central government can no longer deliver the goods economically, and which therefore begins to lose its power to control local communities, there may be confrontations between armed camps. The obvious armed camps that I am thinking of are the gangs. The gangs are well armed, and in comparison with most small-town police departments, far better armed than the law enforcement agencies. The police know this. The gangs are ruthless, and they have something like a military chain of command. In a time of national economic breakdown, there will be some communities in which the gangs possess primary authority. This is true today in much of Latin America.
The best form of defense under such conditions would be for the local sheriff to deputize adult males and females who have proficiency in the use of weapons, and who are armed. This is the concept of the local posse. It is not an independent militia, because there is no such thing as an independent militia. In the early 20th century, under the direction of the New York lawyer Elihu Root, who is sometimes called the first chairman of the American Establishment, the federal government nationalized state militias. That was part of the Progressive movement's attempt to centralize political power in Washington. It was very effective. So, today, the militias are armed agencies of the federal government, even though they are technically under the command of governors. In any case, they are not local.
The citizens of the United States are so far removed from the citizens of the American colonies in 1776 that it would be inconceivable to organize a military resistance to the central government. I do not suggest that this be done. I do suggest that there is a relationship between the ownership of firearms and the assertion of political sovereignty. I do insist that the right to keep and bear arms is a symbolic affirmation of the ultimate political sovereignty of individual citizens over the central government. This was understood in 1790, and it should be understood today. I do not think it is.
I think the advocates of gun control understand very little about this symbolic relationship. They are usually advocates of the right to vote. They officially come down on the side of citizens' rights. But they do not understand the symbolic nature of the right to keep and bear arms as an affirmation of the authority of the citizen, armed with a gun and armed with the right to vote, to veto the decisions of political rulers through politics.
The defenders of Second Amendment liberties understand far better than the gun control movement that there is a connection between the right to keep and bear arms and the fundamental assertion of political sovereignty by the citizenry. They understand that the federal government's violation of Second Amendment liberties is part of a comprehensive program to centralize political power and to overcome the ability of citizens to use the ballot box to resist the extension of this centralized political power.
I do not think that many advocates of the Second Amendment believe that there is going to be a time when American citizens get their guns, leave their homes, and somehow adopt urban guerrilla warfare tactics. But they do understand that the gangs may do this. They do not believe the local authorities will always be in a position to defend them against criminal violence. They understand that the decentralization of weapons ownership is basic to the preservation of peace in society, because guerrilla groups, which the gangs are, are mobile, well-armed, well-organized, and ruthless.
I am arguing that the citizen who owns defensive weapons, and was trained in their use, constitutes the great barrier against centralized power from above and decentralized criminal violence from below. It is the man in the middle, the armed voter, who is the backbone of Western liberty.
Whenever a political movement seeks to disarm the citizen, it is necessarily simultaneously seeking to expand the power of the federal government, and also the power of armed criminals, including gangs. By disarming citizens, the state asserts an ultimate sovereignty over them, and yet it is incapable of carrying out this assertion of sovereignty in local affairs.
The central government can do almost nothing about the gangs. It can do very little against criminal behavior. The decline in crime that we have seen over the last 30 years has been mainly a social phenomenon. The biggest single factor is that men tend to commit fewer crimes as they get older. Also, married men commit fewer crimes and acts of violence. The high point of crime in the West was around 1980. This was also the low point of age. After 1980, the average age of residents of the West began to increase. Crime rates dropped. This was not because the federal government became more adept at fighting crime.
Members of fringe groups call themselves patriots, and sometimes call themselves members of a militia. They adopt a kind of suicidal romanticism regarding their ability to resist the armed forces of the United States. These weekend warriors may go out and stumble around in the woods, armed with semiautomatic rifles, pretending that they would be able to stay in the field for six or seven years, on their own authority, with their own productivity, supported by rural people who see them as liberators. That might have worked in Southern states in 1863, but it does not work today. There are too few people in the rural areas to support roving bands of militia members. These militias would become the equivalent of gangs in short order. Fortunately, they are too incompetent to achieve the status of gangs.
For most gun owners, the ownership of firearms is more symbolic than practical. Most people do not spend a week or two in the summer practicing their skills at shooting. This is what all males in Switzerland do every year. The Swiss are serious about their ability to defend their country against invasion. Americans believe that the government, meaning the federal government, is supposed to do this.
When the federal government proves incapable of doing this, especially along the southern border of the United States, some conservatives seek to empower state governments to do it. The federal government resists this, because the federal government recognizes that this is an assertion of state's rights and state sovereignty. The federal government is happy to let immigrants flow into the United States across our southern border, because there is really not much that the government can do about it, other than to authorize state governments to do something about it, or county governments to do something about it, and the federal government is not about to do that.
I am arguing, therefore, that for most gun owners, most of the time, the ownership of firearms is more symbolic than practical. This is also true of gun control advocates. I do not think most gun control advocates believe that there is a vast right-wing conspiracy that is chomping at the bit to take up arms, get organized, leave their middle-class lifestyle behind, and overturn the United States government. If any gun control advocate believes this, he has approximately the same connection with reality as the weekend militia member does, stomping around in the countryside with his buddies.
Symbols are important. A citizen who has the right to keep and bear arms, even though he is not planning to join the state militia, which is in fact an arm of the federal government, understands that he possesses a degree of sovereignty that is not possessed by citizens in nations that prohibit widespread firearm ownership. He understands that he is in a unique situation. He still has the fundamental marks of political sovereignty, namely, firearms. His firearms testify to the fact that the central government does not yet feel sufficiently confident to confiscate his firearms in the name of the central government's exclusive monopoly of violence. His firearms testify to the fact that he is still a citizen, and that he still possesses rights that politicians and bureaucrats cannot legally overturn.
The reason why gun control advocates want this right overturned is because they are in favor of centralized political control. They believe that their class, namely, the intellectual class, is in control of the agencies of civil government. For the most part, this assumption is correct. They assume that their class, and only their class, has the wisdom to allocate weapons. They believe that their class alone possesses the right to determine which citizen has access to weapons, under which circumstances, and for how long.
In effect, the gun-control advocate is rather like a medieval knight in the 15th century. He resents the fact that weapons are becoming cheaper, and that the common man who joins the Army becomes a threat to his social class, and therefore to his social standing. He resents the fact that his weapons no longer give him a monopoly of violence. Weapons have come onto the market, and these weapons can be used effectively by commoners who do not spend decades of training in their use.
The citizen soldiers of the late 18th century faced the problem of the local militias. Professional soldiers found themselves facing common men who could assemble together in the fields, shoot their officers at a distance, shoot the scouts who went out into the field to find them, and then disappear into the woods. Tactics changed, and then strategies changed.
I believe we are coming close to the end of the nation-state as we have known it for the past 500 years. I believe that the military historian, Martin van Creveld, is correct. The central governments are running out of solvency, and their ability to provide protection against crime and also provide retirement benefits for the mass of humanity, is in decline.
Over the next half-century, and perhaps even less, politicians are going to realize that they can no longer protect citizens against armed criminals locally, and they cannot afford to support their aging populations. At that point, there will be a transfer of legitimacy back in the direction of local civil government. Local civil governments will rest heavily upon armed citizens who are in a position to be deputized.
So, I expect a greater decentralization. This decentralization will take place most rapidly in societies where citizens have never surrendered their right to keep and bear arms. This is why I think the United States is the most likely nation to be the working model for this process of decentralization. Americans are more heavily armed than any other people in the democratic world. They may not be as heavily armed as rural residents of Afghanistan, but they are surely better armed than any other Western nation except Switzerland.
I doubt that my view of the Second Amendment is widely shared in those circles that are committed to the defense of the Second Amendment. My defense of the second amendment is based on a particular concept of political sovereignty. I believe that individual citizens are sovereign, not because of a grant of authority by the state, but because of a grant of authority by God. The state therefore does not have the right to confiscate the firearms of the people, precisely because the state did not make the original grant of sovereignty to the people.
Firearms are marks of political sovereignty. They should be defended on this basis, not on the basis of some hypothetical revolution, which is not going to take place. I am saying that such a revolution is not necessary, precisely because the people do possess the right to keep and bear arms. They need not take up arms against the government, precisely because they already possess the arms.
The various methods and tests used by the courts for determining the meaning of a law.
As the Supreme Court has explained: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.' " Id."Congress is presumed to act intentionally and purposely when it includes language in one section but omits it in another." Estate of Bell v. Commissioner, 928 F.2d 901, 904 (9th Cir. 1991).
"The clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.' " Sumitomo Shoji Amer., Inc. v. Avagliano, 457 U.S. 176, 180, (1982).
It has been argued both that the meaning of section 9 is not clear and unambiguous and that to give section 9 its plain meaning would produce a patently absurd result in that it would frustrate the application of the principal operative provisions of the Rates Act. Our response is based, in part, upon Nugget Hydroelectric, where we were faced with a remarkably similar problem of statutory construction. We were forced to decide whether the Public Utility Regulatory Policies Act of 1978 (Policies Act) preempted the state action doctrine with respect to gas and electric utilities. Id. One provision of the Policies Act provided that "[n]othing in this Act or in any amendment made by this Act affects . . . the applicability of the antitrust laws to any electric utility or gas utility." Id., quoting 16 U.S.C. S 2603(1). Nugget argued that the term "antitrust laws" referred only to statutory law and not to the common law state action doctrine. It also argued that the statute was ambiguous and that the legislative history revealed that Congress clearly intended the Policies Act to preempt the state action doctrine. Id. We held that the language of the statute was clear, that it precluded us from holding that Policies Act preempted the state action doctrine, and that it did not produce an absurd result. See id. Therefore, we refused to look any further than the face of the statute.
Application of "broad purposes" of legislation at the expense of specific provisions ignores the complexity of the legislative problems Congress is called upon to address and the dynamics of legislative action. Congress may be unanimous in its intent to stamp out some vague social or economic evil; however, because its Members may differ sharply on the means for effectuating that intent, the final language of the legislation may reflect hard-fought compromises. Invocation of the "plain purpose" of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent. Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986).
The Supreme Court has set forth the general rule that "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, 114 S. Ct. 807, 813 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).The canon of construction, invoked frequently in cases in which the issue is whether to imply a private right of action, that courts must "presum[e] that a remedy was deliberately omitted from a statute . . . when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement." E.g., Northwest Airlines, 451 U.S. at 97; see also Karahalios v. National Fed'n of Federal Employees, 489 U.S. 527, 533 (1989) ("It is an `elemental canon' of statutory interpretation that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies. Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 19 (1979). In such cases, `[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.'" (quoting Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 15 (1981))). In the cases in which the canon traditionally has been applied, the question has been whether the statute at issue permits an implied private right of action. The canon serves to ensure that courts do not upset a "comprehensive legislative scheme" by creating additional "procedures for enforcement" that Congress did not intend. Northwest Airlines, 451 U.S. at 97.
"When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded." Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S. 856 (1988).
Every question of statutory interpretation starts with the language of the statute. "The primary indication of [Congress'] intent is the language of the statute." United States v. Aguilar, 21 F.3d 1475, 1480 (9th Cir. 1994), aff'd in part, rev'd in part on other grounds, 115 S.Ct. 2357 (1995).
Two well-established canons of statutory interpretation:. First, courts must ascertain the intent of the Legislature to effectuate the purpose of the law (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387); Second, they must adopt an interpretation that avoids an absurd result the Legislature did not intend. (Bruce v. Gregory (1967) 65 Cal.2d 666, 673.)
When Congress enumerates an exception or exceptions to a rule, we can infer that no other exceptions apply. Koniag v. Koncor Forest Resource, 39 F.3d 991, 998 (9th Cir. 1994); Horner v. Adnrzjewski, 811 F.2d 571, 574-75 (Fed. Cir.), cert. denied, 484 U.S. 912 (1987); 2A Norman J. Singer, Sutherland Statutes and Statutory Construction S 47.23 (5th Ed. 1992).
When Congress includes limiting language in an earlier version of a bill, but deletes it prior to enactment, we presume that the limitation was not intended. Russello v. United States, 464 U.S. 16, 23-24 (1983).
When Congress does not direct whether a rule should be uniform, the courts determine if a uniform federal rule is appropriate based on the three-part test set out in United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). "Under that test, a court must determine . . . (1) whether the issue requires `a nationally uniform body of law,'; (2) `whether application of state law would frustrate specific objectives of the federal program'; and (3) whether `application of a federal rule would disrupt commercial relationships predicated on state law.'" Mardan, 804 F.2d at 1458 (quoting Kimbell Foods, 440 U.S. at 728-29).
Prohibition against construing statutes so as to render any of their provisions superfluous. See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).
Courts begin "with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) To discover that intent we first look first to the words of the statute, giving them their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." (Burden v. Snowden, supra, 2 Cal.4th 556, 562.)
Legislative intent is what a legislature as a whole had in mind when it passed a particular statute. Normally, any given statute is interpreted by looking just at the statute's language. But when the language is ambiguous or unclear, courts try to glean the legislative intent behind words by looking at legislative interpretations (for instance, reports issued by legislative committees) which were relied upon by legislators when voting on the statute.
Statutes are often ambiguous enough to support more than one interpretation, and the material reflecting legislative intent is frequently sparse. This leaves courts free to interpret statutes according to their own predilections. Once a court interprets the legislative intent, however, other courts will usually not go through the exercise again, but rather will enforce the statute as interpreted by the other court.practice. It is defined to be "the drawing in inference by the act of reason, as to the intent of an instrument, from given circumstances, upon principles deduced from men's general motives, conduct and action." This definition may, perbaps, not be sufficiently complete, inasmuch as the term instrument generally implies something reduced into writing, whereas construction, is equally necessary to ascertain the meaning of engagements merely verbal. In other respects it appears to be perfectly accurate. The Treatise of Equity, defines interpretation to be the collection of the meaning out of signs the most probable.
There are two kinds of constructions; the first, is literal or strict; this is uniformly the construction given to penal statutes. The other is liberal, and applied, usually, to remedial laws, in order to enforce them according to their spirit.
In the Supreme Court of the United States, the rule which has been uniformly observed in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of these states. By adopting them, they become our own, as entirely as if they had been enacted by the legislature of the state.
The received construction, in England, at the time they are admitted to operate in this couutry indeed, to the time of our separation from the British empire - may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But, however we may respect the subsequent decisions (and certainly they are entitled to great respect,) we do not admit their absolute authority. If the English courts vary their construction of a statute, which is common to the two countries, we do not hold ourselves bound to fluctuate with them.
The great object which the law has in all cases, in contemplation, as furnishing the leading principle of the rules to be observed in the construction of contracts, is, that justice is to be done between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it.
When the contract is in writing, the difficulty lies only in the construction of the words; when it is to be made out by parol testimony, that difficulty is augmented by the possible mistakes of the witnesses as to the words used by the parties; but still, when the evidence is received, it must be assumed as correct, when a construction is to be put upon it.
The following are the principal rules to be observed in the construction of contracts. When. the words used are of precise and unambiguous meaning, leading to no absurdity, that meaning is to be taken as conveying the intention of the parties. But should there be manifest absurdity in the application of such meaning, to the particular occasion, this will let in construction to discover the true intention of the parties: for example;
- 1. When words are manifestly inconsistent with the declared purpose and object of the contract, they will be rejected; as if, in a contract of sale, the price of the thing sold should be acknowledged as received, while the obligation of the seller was not to deliver the commodity. When words are omitted so as to defeat the effect of the contract, they will be supplied by the obvious sense and inference from the context; as, if the contract stated that the seller, for the consideration of one hundred dollars, sold a horse, and the buyer promised to pay him for the said horse one hundred, the word dollars would be supplied. When the words, taken in one sense, go to defeat the contract, while they are susceptible of another construction which will give effect to the design of the parties, and not destroy it, the latter will be preferred. - 2. The plain, ordinary, and popular sense of the words, is to be preferred to the more unusual, etymological, and recondite meaning or even to the literal, and strictly grammatical construction of the words, where these last would lead to any inefficacy or inconsistency.- 3. When a peculiar meaning has been stamped upon the words by the usage of a particular trade or place in which the contract occurs, such technical or peculiar meaning will prevail. It is as if the parties in framing their contract had made use of a foreign language, which the court is not bound to understand, but which on evidence of its import, must be applied. But the expression so made technical and appropriate, and the usage by which it has become so, must be so clear that the court cannot entertain a doubt upon the subject. Technical words are to be taken according to their approved and known use in the trade in which the contract is entered into, or to wbich it relates, unless they have manifestly been understood in another sense by the parties.
- 4. The place where a contract has been made, is a most material consideration in its construction. Generally its validity is to be decided by the law of the place where it is made; if valid there, it is considered valid every where. Its construction is to be according to the laws of the place where it is made for example, where a note was given in China, payable eighteen months after date, without any stipulation as to the amount of interest, the court allowed the Chinese interest of one per centum per month from the expiration of the eighteen mouths.
- 5. Previous conversations, and all that passes in the course of correspondence or negotiation leading to the contract, are entirely superseded by the written agreement. The parties having agreed to reduce the terms of their contract to writing, the document is constituted as the only true and final exposition of their admissions and intentions; and nothing which does not appear in the written agreement will be considered as a part of the contract. But this rule admits of some exceptions; as, where a declaration is made before a deed is executed, showing the design with which it was to be executed, in cases of frauds and trusts, though no trust was declared in the writing.
- 6. All contracts made in general terms, in the ordinary course of trade, are presumed to incorporate the usage and custom of the trade to which they relate. The parties are presumed to know such usages, and not to intend to exclude them. But when there is a special stipulation in opposition to, or inconsistent with the custom, that will of course prevail.
- 7 . When there is an ambiguity which impedes the execution of the contract, it is first, if possible, to be resolved, on a view of the whole contract or instrument, aided by the admitted views of the parties, and, if indispensable, parol evidence may be admitted to clear it, consistently with the words.
- 8. When the words cannot be reconciled with any practicable or consistent interpretation, they are to be considered as not made use of "perinde sunt ac si scripts non essent."
It is the duty of the court to give a construction to all written instruments.