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What Does "Free State" Mean in the Second Amendment?

I thought I'd pass an excerpt from a new article of mine, "Necessary to the Security of a Free State," which will be coming out in the Notre Dame Law Review this Fall. I might blog more excerpts from it next week, but for now here's the Introduction; to see citations, and the rest of the article, look here.

As usual, I'd love to hear whatever corrections, suggestions, or disagreements people might have -- but please look through the entire piece beforehand, just in case other sections already deal with the issue. Thanks!

* * *

"A well regulated Militia, being necessary to the security of a free State," the Second Amendment says, "the right of the people to keep and bear arms, shall not be infringed." But what did the Framing generation understand "free State" to mean?

If the answer is "state of the union, free from federal oppression," that would tend to support the collective or states' rights view of the Amendment. It would suggest that the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment does not apply outside states, for instance in the District of Columbia. I suspect the intuitive appeal to many of the states' rights theory stems from the Amendment's reference to the term "State."

But if "free State" was understood to mean "free country, free of despotism," that would tend to support the individual rights view of the Amendment. "The people" would then more easily be read as referring to a right of the people as individuals, even if a right justified by public interests, much as the term "people" is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were enrolled in a state-chosen defensive force, since the right would be unrelated to preserving the independence of the states. And it would apply to all Americans, whether in states or in D.C.

Likewise, consider James Madison's original proposal: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country."

Some assume the change from "free country" to "free state" was understood as purely stylistic, sometimes pointing to the absence of recorded controversy about the change of "free country" to "free state." This would cut in favor of the individual rights view. Others assume it was a substantive shift in the direction of a states' rights provision, and point in support to the Constitution's general use of "state" to mean state of the union (except where "foreign State" is used to mean "foreign country").

This Article makes a simple claim: There's no need to assume. There is ample evidence about the original meaning of the term "free state."

"Free state" was used often in Framing-era and pre-Framing writings, especially those writings that are known to have powerfully influenced the Framers: Blackstone's Commentaries (which I'll discuss in Parts II and III), Montesquieu's Spirit of the Laws (Part IV), Hume's essays (Part V), Trenchard and Gordon's Cato's Letters (Part VI), and works by many of the other European authors who are known to have been cited by Framing-era American writers (Part VII). [I choose these writers because I have systematically gone through Donald Lutz's list of the 36 writers most cited by Americans from 1760 to 1805; Montesquieu and Blackstone head the list, Hume and Trenchard and Gordon are in the top 10, and the other writers are all in the top 36.] [The phrase "free state"] was also used by many leading American writers as well (Part VIII), including John Adams in 1787, James Madison in 1785, and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase "free state" meant at the time. In 18th century political discourse, "free state" was a well-understood political term of art, meaning "free country," which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.

"State" simply meant country; and "free" almost always meant free from despotism, not from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.

Even given this finding, of course, many important arguments about the nature of the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase "a free State" was not understood as having to do with states' rights as such, but rather as having to do with preserving the liberty of the new country that the Constitution was establishing.

John (mail):
"State" of course can mean either "country" or "state" in the "50 states" sense. But does recourse to old English writers really do much here? England didn't have states like the U.S., so any use of the word "state" obviously meant "country."

However, the Constitutional question must be answered in the context of writers whose environment contained both states and countries, so which meaning of "state" is intended is far less clear, I would think. Are there other uses of "country" and "state" in the Constitution, or in contemporary U.S. writers from that era, that shed light on this?
6.15.2007 6:40pm
Eugene Volokh (www):
Oddly enough, the article touches on some of this, in Part VIII. But the broader point is that if "free state" was a political term of art that meant one thing, especially in militia-related contexts, before 1776, then it seems unlikely it would have meant something quite different in 1791. And this is especially, as the article points out, given that the 1791 version seems to be directly traceable to the 1788 proposals from state ratifying conventions, and from there to the 1776 militia clause of the Virginia Declaration of Rights.
6.15.2007 6:49pm
Antares79:
The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

Some of the extrinsic evidence comes from unrelated political systems and writers unfamiliar with the new governing scheme created by the Framers. Extrinsic evidence supporting the internally consistent definition, such as lawmakers' floor statements, are not considered; indeed, only extrinsic sources supporting the author's definition definition are discussed at length.
6.15.2007 7:18pm
Spartacus (www):
Antares, if the document [read: amendment] was "clear and consistent within its 4 corners," I doubt there would be so many different interpretations of it, even among the various collective rights proponents. If anything, it seems that the "standard model" (individual rights) is the most clear when the document is read on its face, and only a load of selective, and questionable extrinsic evidence has allowed the collective rights interpretation to gain ground in the first place.
6.15.2007 7:33pm
Eli Rabett (www):
As in the "Free State of Maryland".
6.15.2007 7:36pm
Mark Field (mail):
I agree with you on the meaning of "free State"; the Founders regularly used it to mean "democratically/republican governed polity".

I fail to see how this adds force to an individual rights view. In fact, I can see good reasons to think it supports a collective rights view. In particular, a "free State" is one involving participation by all (white male) citizens; that's the essence of republican government.
6.15.2007 7:58pm
Mark Field (mail):
I should add that I seriously doubt that there's "a" meaning here. The Founding was a transition time between classical republican doctrine (e.g., Samuel Adams' desire to establish a "Christian Sparta") and a more modern, Lockean government (seen generally in Madison). The words very likely meant different things to different people. Just as words so often do today.
6.15.2007 8:00pm
Matt Tievsky (mail):
I also have a hard time seeing how "free state" = "free country" supports the individual rights view. Perhaps Professor Volokh can elaborate.
6.15.2007 8:14pm
wooga:
The author introduces extrinsic evidence when the document is internally consistent and clear within its 4 corners.

The first axiom of legal interpretation: If a lawyer says something is "clear," it is anything but.

Besides, Antares79 is making a wholly incorrect appeal to the parol evidence rule. Specifically, extrinsic evidence is allowed to identify the ambiguity in the contract, and extrinsic evidence is allowed to resolve an ambiguity in the document. See, for example, Judge Traynor's opinion in Pacific Gas v. GW Thomas (1968) 69 Cal2d 33, footnote 9. Here, Prof. Volokh cites contemporary works to illustrate that the meaning of the phrase "free State" is ambiguous, and then cites contemporary works to resolve the ambiguity. There is entirely appropriate legal reasoning.

You need to brush up before the bar exam in August!
6.15.2007 8:26pm
Eugene Volokh (www):
Well, consider what backers of the states' rights view have argued, based on their inference that "free State" means "State of the union, free of federal oppression":

Silveira v. Lockyer, 312 F.3d 1052, 1071 (9th Cir. 2002): "Our reading of the term 'militia' as referring to a state military force is also supported by the fact that in the amendment's first clause the militia is described as 'necessary to the security of a free State.' This choice of language was far from accidental: Madison's first draft of the amendment stated that a well-regulated militia was 'the best security of a free country.'").

Parker v. D.C., 478 F.3d 370, 406 (D.C. Cir. 2007) (Henderson, J., dissenting): "The Amendment was drafted in response to the perceived threat to the 'free[dom]' of the 'State[s]' posed by a national standing army controlled by the federal government."

Seegars v. Ashcroft, 297 F. Supp. 2d 201, 229 (D.D.C. 2004): "Anti-Federalist Elbridge Gerry explained that changing the language to 'necessary to the security of a free State' emphasized the primacy of the state militia over the federal standing army. 'A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.'" (relying on Silveira, which in turn relies on David Yassky, The Second Amendment: Structure, History and Constitutional Change, 99 MICH. L. REV. 588, 610 (2000)), aff'd in part and rev'd in part on procedural grounds, 396 F.3d 1248 (D.D.C. 2004).

Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107, 112 (1991): "Presumably, the term 'free State' is a reference to the states as entities of governmental authority. Moreover, the reference to the 'security' of a free State must have something to do with the need to defend the state as an entity of government."

H. Richard Uviller &William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 499, 509 (2000): "Most significantly, the Select Committee substituted 'State' for 'country' as the referent of the 'best security' clause, so that the proposed amendment now addressed more directly antifederal solicitude for state security." "When the militia was labeled the best security of a free 'country,' it seemed to have an exclusively national purpose, but when redefined as the best security of a free 'State,' its local purpose was clearly preserved."

Sandidge v. United States, 520 A.2d 1057, 1059 (D.C. 1987) (Nedeker, J., concurring): "This amendment is to ensure 'the security of a free State.' State militias were essential to that end -- hence, the amendment. Nothing suggests that the founders were concerned about 'free territories,' 'free protectorates' or a 'free Seat of Government of the United States.'"

If I am right that "state" meant "country" and "free" meant "having a nondespotic government" rather than "independent of the federal government," then the above arguments become considerably less plausible.
6.15.2007 8:27pm
Mark Field (mail):

See, for example, Judge Traynor's opinion in Pacific Gas v. GW Thomas (1968) 69 Cal2d 33, footnote 9.


In constrast to some Volokhs, you will never clerk for Judge Kozinski.


If I am right that "state" meant "country" and "free" meant "having a nondespotic government" rather than "independent of the federal government," then the above arguments become considerably less plausible.


Some of them, yes. But there was a related issue going on here as well, namely a "states rights" view. The quotes from Parker and Seegars fall into that category and don't really address your issue one way or the other. If the militia was important to protect the states from the federal government, it's still possible to argue either way about whether bearing arms was an individual right necessary to that goal or simply part of the collective function.

This gets back to what I said above about multiple meanings.
6.15.2007 9:02pm
Bob Leibowitz (mail) (www):
Even if one grants the meaning of "state" to be that of a political subdivision of the national government, what on earth would "free" mean in context? I believe the only meaning one plausible would be that supportive of a right of secession, a point settled rather finally 150 years ago, proving that political subdivisions cannot be "free" under any understanding of the word, then or now.


Taken together as "free state," the only original meaning really possible is as Prof. Volokh explains.
6.15.2007 9:22pm
Mark Field (mail):

Even if one grants the meaning of "state" to be that of a political subdivision of the national government, what on earth would "free" mean in context? I believe the only meaning one plausible would be that supportive of a right of secession, a point settled rather finally 150 years ago, proving that political subdivisions cannot be "free" under any understanding of the word, then or now.


Taken together as "free state," the only original meaning really possible is as Prof. Volokh explains.


I'm not sure I follow this. If we agree that we want to understand the original meaning, and if we further agree that some Founders understood the phrase in a way that's now obsolete, why would that cause us to change our understanding of the original meaning? It was what it was, even if we now can't use it.
6.15.2007 9:44pm
Brett Bellmore:
Isn't all this somewhat beside the point? Regardless of whether a "free state" refers to an independent political subdivision or the state of being free, (I'd always assumed the latter, myself.) the preface declares a well regulated militia to be necessary to it's security, and then mandates that the right of the people shall not be infringed. They could mean either, or even be demonstrably wrong about that necessity, and the amendment would still, bindingly, require that the right not be infringed.
6.15.2007 10:24pm
Gene Hoffman (mail) (www):
Off the thread of the comments, but back on the original request...

My one criticism may be more a comment. This paper is likely to have an audience outside the standard ConLaw crowd. As such, you may want to touch upon the capitalization issue of state versus State. Editorially, maybe simply a mention and a reference to another paper that explains that era's relatively rule free capitalization standards?

-Gene
6.15.2007 11:03pm
John McCall (mail):
A couple of comments here aroused my curiosity: a country used to be a region more than a political entity, and I wasn't certain when this transition (or really, augmentation) of meaning occurred. The OED doesn't cover this in specific, but it seems to have taken place around the 17th and 18th centuries and to have been more-or-less standard by the Founding. I'm generalizing quite a bit from a few quotes, but still, I thought I'd pass on some preliminary results.
6.15.2007 11:18pm
Eli Rabett (www):
In things like this the OED is useful as it provides the first useages

1. Occasionally = REPUBLIC. Now rare.
1646 FULLER As all countries are not monarchies governed by kings, but some by free~states, where many together have equal power. 1727-41 CHAMBERS Cycl., Free State. 1850 MERIVALE Rom. Emp. (1865) I. ii. 54 Names conspicuous in the municipal annals of the free state.

2. U.S. Before the Civil War of 1861-5, a state of the Union in which slavery did not exist.
1861 LOWELL E Pluribus Unum Prose Wks. 1890 V. 47 He would..have received the unanimous support of the Free States. 1888 BRYCE Amer. Commw. II. III. liii. 334 New States had been admitted substantially in pairs, a slave State balancing a free State.

The Commonwealth in England (1649) declared itself to be a free state which is contemporaneous with meaning 1
6.15.2007 11:22pm
Antares79:

consider what backers of the states' rights view have argued . . . Parker v. D.C., 478 F.3d 370, 406 (D.C. Cir. 2007) (Henderson, J., dissenting): "The Amendment was drafted in response to the perceived threat to the 'free[dom]' of the 'State[s]' posed by a national standing army controlled by the federal government."


Sorry to be tangential, but I don't think Henderson is on the record as backing a states' rights view; rather, doesn't Judge Henderson's dissent go to great lengths to remain neutral on the individual/collective rights question?

I think there is even an argument that Judge Henderson supports an individual rights view, in the 50 states. Her dissent adopts the same grammatical reading of the 2d Amendment as those nine Circuits finding only a collective right in the Amendment. That is, the dissent and the other Circuits apply the prefatory (declatory) clause to the whole operative (guarantee) clause (and whereas the majority in Parker applies the prefatory clause to only a portion of the operative clause in order to support the individual rights view; see pages 3-6 of dissent and footnotes 1 &4). What is striking is that the dissent does not state that the "whole-clause" construction used by the nine collective rights Circuits supports the collective rights view, despite that this statement would support a dissent. Rather, the dissent speaks of the "whole-clause" construction only to require the term "state" to modify and limit the right to bear arms.

Thus, isn't it entirely possible that Judge Henderson believes that the "whole-clause" application is correct but that this construction does not necessitate a collective rights view? In fact, isn't it probable, under expressio unius, that she supports an individual rights view given her application of the "whole-clause" approach but silence as to a collective right that would be compelled by such application under the other nine Circuits' logic? Her barb that the majority is merely superfluous and not incorrect with respect to an individual rights view seems to say, yes, it is probable.
6.15.2007 11:23pm
Gaius Obvious (mail):
It would suggest that the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment does not apply outside states, for instance in the District of Columbia.

Just a point of fact, but you do realize that the District of Columbia has a National Guard? It has both a ground based Army National Guard and an air fleet Air National Guard.
6.16.2007 3:50am
David Maquera (mail) (www):
I agree that to the Founding Fathers, the term "state" was the equivalent of today's "country." Everyone knows that in the late 18th century, and even through the Civil War, a person (for example) from Virginia called himself a Virginian and not an American because he viewed Virginia as a "country" that happened to be part of a larger Federal Union.

That said, I wonder if the Second Amendment was more of a sop to the Anti-Federalists, who in this instance were more concerned about preserving state sovereignty against a possibly overreaching federal government that was going to have a standing army, navy, commander-in-chief, etc., versus preserving an individual's right to bear arms. To the foregoing Anti-Federalists, the message conveyed via the enacted Second Amendment is "don't worry, each State still gets to maintain a militia to protect the State against an evil federal government."
6.16.2007 7:06am
JB:
Brett Bellmore has a point. The 2nd Amendment is unique in that it offers a justification for its content, and one that is not linked directly to the meaning of the content.

"The right of the people to keep and bear arms, shall not be infringed."

Regardless of whether the reasoning behind this was states' rights or individual rights, it seems to me that this clause is prima facie clear--if the Founders had meant the 2nd amendment to protect state militias, they would have written "The right of states to maintain militias, shall not be infringed."

The problem here is people reading "the people" to mean "state governments." That is a more unnatural reading than any twisting of the meaning of "state" in the first clause.
6.16.2007 9:23am
John Pate (www):
One issue is that, IMHO, it's unlikely the Second Amendment was intended to have any thing to do with the keeping and bearing of arms for the defence of house and person. For instance, when Catholics were being disarmed in the 1680s in the UK, the law explicitly allowed for self defence weapons whilst disarming them of military class items, see
An Act for the better securing the Government by disarming Papists and reputed Papists.

I think it's most likely what the Second Amendment is about what it says it is, securing the Militia by ensuring every able bodied male keeps military weapons.
6.17.2007 7:47am
Smokey:
JB said:

..."The right of the people to keep and bear arms, shall not be infringed."

Regardless of whether the reasoning behind this was states' rights or individual rights, it seems to me that this clause is prima facie clear—if the Founders had meant the 2nd amendment to protect state militias, they would have written "The right of states to maintain militias, shall not be infringed."

The problem here is people reading "the people" to mean "state governments." That is a more unnatural reading than any twisting of the meaning of "state" in the first clause.


That seems right to me.

This whole issue is on the table because of the Appeals Court's recent ruling; libs are now desperately trying to parse every word in the 2nd Amendment.

Common sense tells us that 'free state' means free of dominance by another. Thus, France is a free state, but Vichy France was not. China is a free state but Tibet is not. And so on.

And so far no one has mentioned USC10usc_sec_10_00000311 [definition of 'militia.']
6.17.2007 9:57pm
Eugene Volokh (www):
Smokey: Common sense may tell you that today "free state" generally means free of dominance by another. The point of my article is that common sense is misleading when used as a guide to what the phrase meant to the Framing generation in the late 1700s. To them, "free state" almost always meant "nondespotic government" -- a republic, democracy, or a constitutional monarchy -- so that China and North Korea wouldn't be covered, even though they are free of dominance by anotehr state.
6.18.2007 1:45pm
Smokey:
Good point that I had not considered. That probably means I don't know everything.
6.18.2007 9:21pm
neurodoc:
Were there changes in stylistic conventions, in particular with capitalization of words, between the time the Constitution was drafted and the time the Bill of Rights was drafted? I ask because every noun, or just about every one, in the Constitution was capitalized, whereas after the first word of each amendment, only a key word or two (including "State" every time) is capitalized. Capitalization can suggest to apotheosization, and thus may impart "spin" of a sort to a word like "State" that it would otherwise lack. But since capitalization seems to have been the rule for nouns throughout the Constitution, and it "state" is consistently capitalized in both it and the amendments to it, I don't think any inference can be drawn.

Does anyone know why this change in convention as to capitalization between the two, which were drafted less than two decades apart? Was it the general custom to capitalize most nouns, then no longer the custom generally?
6.19.2007 12:47am