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"Free State," Straight Outta Blackstone:

A commenter in a thread below questioned the plausibility of the view that "security of a free State" in the Second Amendment could mean "security of a free country," as opposed to security of one of the States of the Union against federal oppression.

Well, it turns out that talk of what institutions -- especially military ones -- are good for a free state is all over Blackstone's influential Commentaries on the Law of England. There, of course, Blackstone had to have been talking of state in the sense of country or nation (American states as subordinates in a federal system were a decade in the future). Consider, for instance, book 1, p. 408 (emphasis added):

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitutions, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.

Or book 1, p. 415 (emphasis added):

To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing, then, according to these principles, ought to be more guarded against in a free state than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people.

Or book 1 p. 417 (emphasis added):

Nor is this state of servitude [created by excessively rigorous military discipline during peacetime] quite consistent with the maxims of sound policy observed by other free nations. . For, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. These men, as baron Montesquieu observes, seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. Two precautions are therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction of slavery at all: or, 2. If it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.

Likewise, Blackstone refers to what is good for free states in discussing the liberty of the press ("The liberty of the press is, indeed, essential to the nature of a free state," book 4, p. 151), in discussing the value of popular government ("In a free state every man, who is supposed a free agent, ought to be in some measure his own governor," book 4, p. 158) -- and in praising what he saw as the calming force of the established Church of England (book 4, p. 104):

[R]eligious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that antient universal observation: that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful authority, and hath been (as her prelates on a trying occasion once expressed itc) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowlege no guide but the scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their law-giver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other, (for I here only speak of extremes) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned.

And life in a free state may also be reason to suffer some inconvenience, book 3, p. 423 (paraphrasing Montesquieu):

But in free states [unlike despotisms such as Turkey] the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty ....

Montesquieu generally used "a free state" in similar ways: "In a free state, every man, who is supposed a free agent, ought to be concerned in his own government: Therefore the legislative should reside in the whole body of the people, or their representatives"; see also the references to "a free state" in this, albeit later, translation of Montesquieu's The Spirit of Laws.

"State" as "country" (or perhaps more precisely a self-governing nation) is of course pretty longstanding usage; article I, section 9, for instance, bars federal officeholders from accepting presents or titles from "any ... foreign state." Article III, section 2 and the Eleventh Amendment likewise use "foreign state" to mean foreign country. But beyond this, "a free state" as indicating what Englishmen and Americans should cherish and aspire to, is right from Blackstone and other contemporaneous writers.

Brett Bellmore:
Seems to me that the distinction between a "free state" in the sense of a nation, and a "free state" in the sense of an American [i]state[/i] is an artifact of our subsequent history. The American states [i]were[/i] sovereign states at the time, after all, and the United States was a [i]federation[/i] of sovereign states, not a nation. We only be came a nation, and the "states" mere administrative districts, as a result of the Civil war, long after the 2nd amendment was drafted.
3.9.2007 8:22pm
Joe Mama:
Someone questioned the previous posting? Never question Bruce Dickinson!
3.9.2007 8:35pm
Cornellian (mail):
To prevent the executive power from being able to oppress, says Baron Montesquieu, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit with the people; as was the case at Rome till Marius new-modeled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued.

Interesting that Montesquieu appears to distinguish between "the rabble" and "the people." I don't think many Second Amendment fans would want to make such a distinction.
3.9.2007 8:42pm
Seerak (mail):
Much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation.

It would be interesting to see how this notion relates to the military draft.

On the one hand, seeing as we (thankfully) do not draft for any other occupation, a drafted military is the very definition of a "soldiery" who are "an exception to the people in general, and the only state of servitude in the nation."

On the other hand, this could be regarded as a sanction of the principle that everyone is subject to the draft because every citizen is already, by definition, "in the militia". At least that's my understanding of it.

Thoughts?
3.9.2007 9:02pm
KevinQ (mail) (www):
I don't really have a horse in this race, because I don't really care about gun control one way or the other, but arguing that because a writer a decade or so before our Constitution used the word "State" one way, doesn't actually shed light on how our founding fathers meant it. Because, like Brett Bellmore said above, we were 13 united states, not "The United States." I'm quite sure that when a farmer pledged his allegiance in 1800, he was much more likely to be pledging it to Virginia, than to the United States' federal government.

I mean, I accept that the purpose of the Constitution was to unify the former colonies more than the Articles of Confederation had, but I'm not sure what effect that would have had on those writing the constitution.

K
3.9.2007 9:05pm
Eugene Volokh (www):
KevinQ: Blackstone isn't exactly "a writer"; he was the most influential commentator on English law of that era, and someone that as best I can tell Americans of the Framing generation took very seriously.
3.9.2007 9:22pm
Dave Hardy (mail) (www):
Interesting that Montesquieu appears to distinguish between "the rabble" and "the people." I don't think many Second Amendment fans would want to make such a distinction.

Marius' changes to the Roman army amounted, as I recall, removing the requirement that an enlisting soldier be a person of some property (and, I think, able to buy his own weapons and armor) and allowing anyone in. Army service could be *quite* profitable -- if you captured an enemy town, everything in it was auctioned off (including the inhabitants) and split up among the army. As a result the legions had no recruiting problems ("hey, guys, we're about to auction off everything in Iraq, including its oil output and all its inhabitants, and split the take!"). For Blackstone, "rabble" equalled "impoverished urban types."
3.9.2007 9:35pm
Dave Hardy (mail) (www):
On the other hand, this could be regarded as a sanction of the principle that everyone is subject to the draft because every citizen is already, by definition, "in the militia". At least that's my understanding of it.

I read, decades ago, a piece in which the author pointed out that the belief that involuntary military service began with the draft in 1863 (and more broadly in WWI) was incorrect. For hundreds of years *all* males of military age had been subject to that. The only difference was that with the draft (1) people were not called up as units, but as individuals to be assembled into units; (2) the officers were not designated by state governments and (3) the individuals could be used for foreign wars (the militia can only be called out to repel invasion, suppress insurrection, and execute the laws of the Union, all quite domestic duties).

With the brief, and largely unsuccessful, stint in the Civil War, the American experience until WWI had been (a) for internal matters, call out the militia; (2) for foreign conflicts (Mexican War, Spanish American War, or smaller fights) recruit a volunteer force. Some of the opponents of the WWI draft argued it was rather revolutionary -- there was no reason to believe there was a shortage of volunteers, and in any fight where there would be such, maybe the US should stay out of it.
3.9.2007 10:00pm
bluecollarguy:
"We, therefore, the Representatives of the UNITED STATES OF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES, that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our fortunes, and our sacred Honor."





Term of art that would seem to be silly to argue over but what do I know.
3.9.2007 10:07pm
Nom (mail):
Indeed, the fact that we have an executive officer called the Secretary of "State," who acts as a representative of the nation as a whole in its relations with other nations, bolsters the view that Prof. Volokh's use of the term "State" is longstanding and still in use today.
3.10.2007 2:33am
PersonFromPorlock:
A poster on an earlier thread made a useful point that seems to have fallen through the cracks; that 'state' in this context can also be interpreted as 'condition', so that the Second Amendment might read "A well regulated Militia, being necessary to the security of a free condition...."
3.10.2007 2:11pm
Antares79:
Hey fellow Bill of Rights Drafters, it's been a long process writing the Constitution and now this Bill of Rights; let's have some fun! We're been using "foreign state" or "Union" to mean "country" this whole time, and we've been using "state" to mean a "sub-juristiction, not a country" this whole time too. 116 times to be exact. How about, just for giggles, we use "state" in this little Second Amendment, and only in this Amendment, to mean "country"? I know we're writing this amendment out of concern for federalist balance, but golly, that Blackstone fellow did it!
3.10.2007 3:37pm
Eugene Volokh (www):
Hey, fellow Congressmen: Our colleague James Madison, who drafted much of the Constitution, is now offering a Bill of Rights in which he uses the phrase "a well armed and well regulated militia being the best security of a free country."

Blackstone, the commentator on our legal tradition that we best know and most respect, used to use the term "a free state" often to mean "a free country," and of course never to mean "a free member-state in the federal union," since he wrote a decade before our states were being contemplated. Montesquieu, the constitutional thinker that we've found so influential in drafting our constitution, used to do precisely the same. Instead of "a free country," let's write "a free state" -- but by this we don't mean "a free country," which is what Madison has in mind and what Blackstone, Montesquieu, and others have had in mind when they say "a free state"; rather, we mean "a free state of the U.S."

Plausible? Or given that "a free state" seems to have been a term of art used in (at least) the work of two extremely influential commentators to mean "a free country," changing "a free country" to "a free state" was likely just a stylistic change, rather than an attempt to invoke a completely different meaning?
3.10.2007 4:30pm
Antares79:
Wait wait fellow Congressmen! Why not just keep Madison's "free country" wording since it unambiguously says what we mean?

Oh, we actually are refering to states and not the whole country? Then yes, we should change Madison's wording to say "state" like it is everywhere else in the Consitution and Bill of Rights.
3.10.2007 5:11pm
Eugene Volokh (www):
Well, compare Madison's proposal and the Bill of Rights as enacted. Lots of changes, some substantive, some seemingly not. When you have drafting by committee, purely stylistic changes get included alongside the substantive ones, just based on what phrase some influential member finds more euphonious. And when one phrase is replaced by something that influential writers had often used as a synonym -- as I think the quotes I've given demonstrate -- it's a pretty fair bet that the change is indeed purely stylistic, rather than an attempt to dramatically change the meaning by replacing one phrase with one commonly understood to be synonymous.
3.10.2007 10:31pm
Porkchop (mail):
First of all, it would have never occurred to me that anyone could seriously read "state" in the second amendment to refer to anything but a "nation-state" in the most generic sense. I find the dissent's reading strained and tortuous.

Seriously, am I missing something? It seems clear that the drafters were very familiar with the generic use of "state" to mean "country. Prior to the ratification of the Constitution, the former colonies had declared "That these united Colonies are, and of Right ought to be Free and Independent States," using "States" in the sense of a "nation-state." Each was an entirely separate and independent entity participating in a loose alliance ("united" in the sense of the "United Nations" rather than as a single sovereignty). Upon ratification of the Constitution, the "States" united to become one "state." (Granted that some "States" maintained for some years after that they could withdraw from the "state," but I don't think that really informs the discussion.)

I fail to see how this is even close to debatable.
3.11.2007 11:06am
Clayton E. Cramer (mail) (www):
Professor Volokh writes:


Lots of changes, some substantive, some seemingly not. When you have drafting by committee, purely stylistic changes get included alongside the substantive ones, just based on what phrase some influential member finds more euphonious.
And remember that many members of Congress regarded the whole Bill of Rights matter as a bother--something that had to be done to appease antifederalist sentiment, because the new government didn't have any explicit grants of power to disarm the citizens, anyway.
3.11.2007 5:40pm
Adam White (mail):
Eugene,

I'm pleased to see that my earlier comment sparked this new post. But I don't think your analysis quite gets to my point. (Surely any confusion owes to my inability to tee up that comment clearly, in a hurry.)

I didn't question whether the Framers believed that a militia didn't promote the security of a free country. (Although I didn't necessarily see it as referring to a State's security against the Federal Government.) Indeed, one need look no further than the Preamble, which places "common defence" together with "secur[ing] the blessings of liberty." What I questioned was whether, as set forth in the Second Amendment, the Framers weren't merely referring to the States, not the Federal Republic.

I stand by my previous analysis of Gerry's quote: Gerry might simply have been stating that if the thirteen original States' best protection were their militias, respectively, that their second best protection was the Federal Republic's standing army. Silberman rejects that reading, taking Gerry to refer to both federal militas and a federal army. I think my reading is more plausible, and more consistent with constitutional text as a whole.

When the Constitution of 1791 refers to an individual State, it uses "State". When it refers to the nation, it says "Union" or "United States". I see no reason why the Second Amendment should be treated as an exception.

In any event, to read the militia clause as protecting the national security strikes me as a bit silly: If militias were so very necessary to the national defense, why would the early Republic have needed to turn it into a constitutional issue? Surely the ratifiers didn't think they needed to stop the federal government from leaving itself unprotected, no? I'd think that their first worry would be that the federal government would harm the States' respective ability to protect themselves.
3.12.2007 3:10pm