Full Auto Show – April 16th, 2018
In this episode of Full Auto, Professor Rambo and Paul Gordon look at the original meaning of the 2nd Amendment, using the context of the times. It leads us to then ask this question, are you a citizen or are you a slave?
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
Etymology of Citizen – from etymonline.com
c. 1300, citisein (fem. citeseine) “inhabitant of a city or town,” from Anglo-French citesein, citezein“city-dweller, town-dweller, citizen” (Old French citeien, 12c., Modern French citoyen), from cite (see city) + -ain (see -ian). According to Middle English Dictionary, the -s-/-z- in Anglo-French presumably replaced an earlier *-th-. Old English words were burhsittend and ceasterware.
Sense of “freeman or inhabitant of a country, member of the state or nation, not an alien” is late 14c. Meaning “private person” (as opposed to a civil officer or soldier) is from c. 1600. As a title, 1795, from French: During the French Revolution, citoyen was used as a republican alternative to Monsieur.
Citizen’s arrest, one carried out by a private person, without a warrant, allowable in certain cases, is recorded from 1941; citizen’s band (radio) from 1947. Citizen of the world (late 15c.) translates Latin civem totius mundi, Greek kosmopolites.
He is not a citizen who is not disposed to respect the laws and to obey the civil magistrate; and he is certainly not a good citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens. [Adam Smith, “Theory of Moral Sentiments”]
History of citizenship describes the changing relation between an individual and the state, commonly known as citizenship. Citizenship is generally identified not as an aspect of Eastern civilization but of Western civilization.There is a general view that citizenship in ancient times was a simpler relation than modern forms of citizenship, although this view has been challenged.
While there is disagreement about when the relation of citizenship began, many thinkers point to the early city-states of ancient Greece, possibly as a reaction to the fear of slavery, although others see it as primarily a modern phenomenon dating back only a few hundred years. In Roman times, citizenship began to take on more of the character of a relationship based on law, with less political participation than in ancient Greece but a widening sphere of who was considered to be a citizen. In the Middle Ages in Europe, citizenship was primarily identified with commercial and secular life in the growing cities, and it came to be seen as membership in emerging nation-states. In modern democracies, citizenship has contrasting senses, including a liberal-individualist view emphasizing needs and entitlements and legal protections for essentially passive political beings, and a civic-republican view emphasizing political participation and seeing citizenship as an active relation with specific privileges and obligations.
While citizenship has varied considerably throughout history, there are some common elements of citizenship over time. Citizenship bonds extend beyond basic kinship ties to unite people of different genetic backgrounds, that is, citizenship is more than a clan or extended kinship network. It generally describes the relation between a person and an overall political entity such as a city-state or nation and signifies membership in that body. It is often based on, or a function of, some form of military service or expectation of future military service. It is generally characterized by some form of political participation, although the extent of such participation can vary considerably from minimal duties such as voting to active service in government. And citizenship, throughout history, has often been seen as an ideal state, closely allied with freedom, an important status with legal aspects including rights, and it has sometimes been seen as a bundle of rights or a right to have rights. Last, citizenship almost always has had an element of exclusion, in the sense that citizenship derives meaning, in part, by excluding non-citizens from basic rights and privileges.
To the ancients, citizenship was a bond between a person and the city-state. Before Greek times, a person was generally connected to a tribe or kin-group such as an extended family, but citizenship added a layer to these ties—a non-kinship bond between the person and the state.:p.152 Historian Geoffrey Hosking in his 2005 Modern Scholar lecture course suggested that citizenship in ancient Greece arose from an appreciation for the importance of freedom. Hosking explained:
It can be argued that this growth of slavery was what made Greeks particularly conscious of the value of freedom. After all, any Greek farmer might fall into debt and therefore might become a slave, at almost any time … When the Greeks fought together, they fought in order to avoid being enslaved by warfare, to avoid being defeated by those who might take them into slavery. And they also arranged their political institutions so as to remain free men.— Geoffrey Hosking, 2005
The polis was grounded in nomos, the rule of law, which meant that no man—no matter who he might be—was master, and all men were subject to the same rules. Any leader who set himself above the law was reckoned to be a tyrannos—a tyrant. It was also grounded in the notion of citizenship—the idea that every man born from the blood of the community has a share in power and responsibility. This notion that … the proper way for us to live is as citizens in communities under the rule of law … is an idea originated by the Greeks and bequeathed by them as their greatest contribution to the rest of mankind and history. It meant that Greeks were willing to live, fight, and die for their poleis…— Robert L. Dise, Jr., 2009……Spartan citizenship was based on the principle of equality among a ruling military elite called Spartiates. They were “full Spartan citizens”—men who graduated from a rigorous regimen of military training and at age 30 received a land allotment called a kleros, although they had to keep paying dues to pay for food and drink as was required to maintain citizenship. In the Spartan approach to phalanx warfare, virtues such as courage and loyalty were particularly emphasized relative to other Greek city-states.:p.10 Each Spartan citizen owned at least a minimum portion of the public land which was sufficient to provide food for a family, although the size of these plots varied. The Spartan citizens relied on the labor of captured slaves called helots to do the everyday drudgework of farming and maintenance, while the Spartan men underwent a rigorous military regimen, and in a sense it was the labor of the helots which permitted Spartans to engage in extensive military training and citizenship.
……Aristotle’s conception of citizenship was that it was a legally guaranteed role in creating and running government.:p.151 It reflected the division of labor which he believed was a good thing; citizenship, in his view, was a commanding role in society with citizens ruling over non-citizens. At the same time, there could not be a permanent barrier between the rulers and the ruled, according to Aristotle’s conception, and if there was such a barrier, citizenship could not exist.:p.151 Aristotle’s sense of citizenship depended on a “rigorous separation of public from private, of polis from oikos, of persons and actions from things” which allowed people to interact politically with equals. To be truly human, one had to be an active citizen to the community:
To take no part in the running of the community’s affairs is to be either a beast or a god!….Roman citizenship was similar to the Greek model but differed in substantive ways. Geoffrey Hosking argued that Greek ideas of citizenship in the city-state, such as the principles of equality under the law, civic participation in government, and notions that “no one citizen should have too much power for too long”, were carried forth into the Roman world. But unlike the Greek city-states which enslaved captured peoples following a war, Rome offered relatively generous terms to its captives, including chances for captives to have a “second category of Roman citizenship”. Conquered peoples could not vote in the Roman assembly but had full protections of the law, and could make economic contracts and could marry Roman citizens. They blended together with Romans in a culture sometimes described as Romanitas—ceremonies, public baths, games, and a common culture helped unite diverse groups within the empire.…..The struggle between rebelling colonists and British troops was a time when citizenship “worked”, according to one view. American and subsequent French declarations of rights were instrumental in linking the notion of fundamental rights to popular sovereignty in the sense that governments drew their legitimacy and authority from the consent of the governed. The Framers designed the United States Constitution to accommodate a rapidly growing republic by opting for representative democracy as opposed to direct democracy, but this arrangement challenged the idea of citizenship in the sense that citizens were, in effect, choosing other persons to represent them and take their place in government. The revolutionary spirit created a sense of “broadening inclusion”. The Constitution specified a three-part structure of government with a federal government and state governments, but it did not specify the relation of citizenship. The Bill of Rights protected the rights of individuals from intrusion by the federal government, although it had little impact on judgements by the courts for the first 130 years after ratification. The term citizenwas not defined by the Constitution until the Fourteenth Amendment was added in 1868, which defined American citizenship as “All persons born or naturalized in the United States” not possessing foreign allegiance. The American Revolution demonstrated that it was plausible for Enlightenment ideas about how a government should be organized to actually be put into practice.
Text of th 14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The reference to a “well regulated” militia, probably conjures up a connotation at odds with the meaning intended by the Framers. In today’s English, the term “well regulated” probably implies heavy and intense government regulation. However, that conclusion is erroneous.
The words “well regulated” had a far different meaning at the time the Second Amendment was drafted. In the context of the Constitution’s provisions for Congressional power over certain aspects of the militia, and in the context of the Framers’ definition of “militia,” government regulation was not the intended meaning. Rather, the term meant only what it says, that the necessary militia be well regulated, but not by the national government.
To determine the meaning of the Constitution, one must start with the words of the Constitution itself. If the meaning is plain, that meaning controls. To ascertain the meaning of the term “well regulated” as it was used in the Second Amendment, it is necessary to begin with the purpose of the Second Amendment itself. The overriding purpose of the Framers in guaranteeing the right of the people to keep and bear arms was as a check on the standing army, which the Constitution gave the Congress the power to “raise and support.”
As Noah Webster put it in a pamphlet urging ratification of the Constitution, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.” George Mason remarked to his Virginia delegates regarding the colonies’ recent experience with Britain, in which the Monarch’s goal had been “to disarm the people; that [that] . . . was the best and most effectual way to enslave them.” A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment’s overriding goal as a check upon the national government’s standing army: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.
Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say “A Militia well regulated by the Congress, being necessary to the security of a free State” — because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the “security of a free State.”
It is also helpful to contemplate the overriding purpose and object of the Bill of Rights in general. To secure ratification of the Constitution, the Federalists, urging passage of the Constitution by the States had committed themselves to the addition of the Bill of Rights, to serve as “further guards for private rights.” In that regard, the first ten amendments to the Constitution were designed to be a series of “shall nots,” telling the new national government again, in no uncertain terms, where it could not tread.
The National Firearms Act of 1934 and the two major amendments, in 1968 and in 1986:
The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machineguns, and firearm mufflers and silencers.
While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.
As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.
Title II of the Gun Control Act (GCA) of 1968
Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.
Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”
Firearm Owners’ Protection Act
In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer. The Act also amended the GCA to prohibit the transfer or possession of machineguns. Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.
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