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.