I quickly cobbled this together in response to the "free state just
means state of the union, free from the federal government" argument --
can anyone point me to a more thorough analysis of this particular
terminological point? Thanks,
Eugene
http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#117348858
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[Eugene Volokh, March 9, 2007 at 8:03pm
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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 <http://www.constitution.org/cm/sol.txt> .
"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.
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