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!

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"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.

When Is a Document "Clear"?

Apropos my evidence on what "free State" meant to the Framers, a commenter writes,

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.

This, I think, raises a broader question: How do we decide whether a 200-year-old document "is internally consistent and clear within its 4 corners," and what its clear, consistent meaning is?

Recall that we can never understand the document simply by looking within its own four corners: We have to look at the document's text coupled with our mental dictionary of what each term means. But it's possible that people of the era in which the document was written had a different mental dictionary; it's possible that terms such as "free State" or "militia" or "life or limb" or "common law" or "an establishment of religion" meant something different to them than they do now -- or meant something clearer or less ambiguous than they do now, or meant something vaguer or more ambiguous than they do now.

That's why I'm skeptical of "just the text, ma'am" interpretation, especially when it comes to old documents. It's always text plus dictionary, but when the dictionary is of a slightly foreign legal language, we need to do more research than just from reading the text.

My article on "free State" is meant to give a sense of what the phrase meant in the Framing generation's mental dictionary. That's why I don't hesitate to use instances of the phrase used in discussing ancient Rome, Renaissance Europe, or 1600s and 1700s England. I'm looking at what the phrase "free State" meant in the language of the time, and if it consistently meant something like "nondespotically governed country" in the works that formed the Framing generation's political and legal education, that's powerful evidence that the Framers continued to use it this way. (I'd also talk about legislative floor statements if they said something clear about the meaning of the phrase "free State," but they didn't.)

But more broadly, I wanted to write a separate post to stress the difficulty of focusing solely on the four corners of the constitutional text, stripped of "extrinsic evidence." I don't think you can understand the text without looking at extrinsic evidence of what the terms in the text meant at the time.

More on Supposedly "Clear" Texts:

In the post below, I made a simple claim: You can't tell whether a text is "clear" or "unambiguous" by simply consulting the text — you also need to see whether there is external evidence that the meaning of some term is something other than what you assume it to "clearly" or "unambiguously" be (whether we refer to the meaning intended by the author or the meaning likely understood by most of the author's intended readers). This shouldn't be politically or ideologically controversial. It's just a description of how language and communication works.

Some readers seemed to disagree, for instance asking "Do we need context, etc., to tell us what '2/3' or '3/4' means?" and objecting to "the view that semantic meaning is always necessarily up for grabs." Well, consider this text:

1 + x = 10

This may seem "clear" or "unambiguous," until you see that people sometimes say — and quite correctly,

1 + 1 = 10

So even with mathematical matters, we sometimes can't be sure of their "clear" meaning until we see their context. "10" usually means "ten," and in our culture "ten" is a fair initial interpretation of "10." But we have to be open to the possibility that the number is written in a different base, and adjust our interpretation if there is evidence that this is indeed so. It's not that math is somehow indeterminate; it's just that mathematical notation, like any language, can't be understood without figuring out what it means in a particular context.

Or say you have a contract that reads,

I will turn over to you my car if you pay me twenty thousand dollars.

Usually that's pretty clear; but if it turns out the contract is made by two Canadians in Canada, contemplating a transaction in Canada, we'd realize that "dollars" means something other than what it usually means in America. Even if the contract ends up in American court (say the parties move to California and litigate the matter in California), any American court will correctly look beyond the supposedly "clear" meaning of the text to recognize that the contract meant something quite different. Even the strongest version of the parol evidence rule would not, to my knowledge, require a court to assume that the term "dollar" is "clearly" U.S. dollar, even if that's the first reaction that the judge had to the contract before he learned of its entirely Canadian context.

Again, it's not that meaning is "up for grabs" in the sense that any interpretation is always as good as any other. It's just that language can't be understood without figuring out what it means in a particular context, and recognizing that seemingly "clear" words can become less clear — or clearly something else — when one recognizes the context. Usually the context is as you expected, and the meaning is thus what it clearly seemed at first. But we can't just categorically foreclose the possibility that a word in a 200-year-old document (or even in a relatively new document) means something different than what it clearly seems to be if we look only at the text.

Textualism and Context (Especially as to Terms of Art):

A reader faults my "free state" analysis on these grounds:

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.

He then goes on to elaborate,

I should have said, "the document is internally consistent and thus clear within its 4 corners." That is, one can get a clear definition of "state" on context alone without extrinsic evidence.

Assume you have no dictionary and have no idea what "state" means. You read the Constitution and Bill of Rights, and for 116 out of 116 times the documents use the word "state," context alone indicates that "state" means one of the 50 recognized jurisdictions and not the District. You would judge, based from this text/context, that the "state" in the 2d Amend referred to the same. Of course, EV is correct that one still needs a dictionary and/or understanding of English for the remaining words, but these sources aren't typically considered extrinsic evidence. (perhaps because dictinaries and language knowledge offer every definition of a word, whereas typical extrinsic evidence does not)

This the goal of textualism, yes? That all words in a document have clear meaning based on the text of the document alone, coupled with a knowledge of the language of the text? (of course even textualism allows departing from a dictionary definition where the text specifically redefines a word)

The political branches ought to have incentives to observe textualist rules. Even assuming that the change from "country" to "state" was stylistic, to rely on extrinsic evidence to correct the textualist mistake eliminates this incentive. It permits Congress to pass whatever ambiguous, permissive language will get a majority, improperly delegating to the courts the determination of what the law ought to be.

"Textualism" is a useful label, and textualists do care about the text. But I know of no textualist who thinks that we should ignore context, and in particular the possibility that a particular textual provision was a legal term of art at the time the law was enacted. I think such an entirely acontextual textualism (perhaps we might think of it as "literalism," though even that assumes the conclusion about what the text literally means) is senseless for reasons I've mentioned in other posts in this chain. But in any event it is no textualism I've ever heard legal scholars advocate.

Let's begin with a simple example: How would and should a textualist deal with the Double Jeopardy Clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"? Should he say that it applies only to subsequent prosecutions where either the death penalty or dismemberment is at stake? (Does it perhaps apply chiefly to those soldiers who are "quartered in any house" with the owner's consent?) Or should he consider the possibility that "life or limb" is a legal term of art that doesn't mean what "life or limb" normally would?

Likewise, it turns out that the Constitution and the Bill of Rights do not always use "State" to mean "state of the union," even setting aside the Second Amendment: Two clauses of the constitution refer to "foreign State." Would we say that, because nearly all occurrences of "State" mean "one of the United States" or a "member state of a union," the "foreign State" provisions must refer to foreign members of the United States, or perhaps foreign semi-sovereigns that are part of some broader confederacy -- so that, for instance, federal officials couldn't accept offices or titles from the Swiss cantons (as states in a union), but could accept them from Japan (which is not a state in a union)? Or would we recognize that the term "State" in the phrase "foreign State" means something different from "State" in other contexts?

"Free State" is much like this. My article offers what I think is strong evidence that "free State" meant "nondespotically governed country." Blackstone used it this way. Montesquieu used it this way. Cato's Letters used it this way. Hume's Essays used it this way. Many other writers that the Framers read used it, almost exclusively this way. There's thus very good reason to think that when Americans who were raised on those works wrote or read that phrase, they understood it as precisely the same term of art, just as they understood "life or limb" as a term of art or "Suits at common law" as a term of art. No textualist I know of would ignore such evidence, just to give future Congresses an incentive to avoid all legal terms of art (something that would be a pretty hopeless cause in any event).

Consulting Dictionaries Only After "Intrinsic Evidence" Shows Ambiguity:

In a comment on the More on Supposedly "Clear" Texts thread, commenter von writes (in response to my text, which he italicized):

More on Supposedly "Clear" Texts: In the post below, I made a simple claim: You can't tell whether a text is "clear" or "unambiguous" by simply consulting the text — you also need to see whether there is external evidence that the meaning of some term is something other than what you assume it to "clearly" or "unambiguously" be (whether we refer to the meaning intended by the author or the meaning likely understood by most of the author's intended readers). This shouldn't be politically or ideologically controversial. It's just a description of how language and communication works.

A bit off point, but it's worth noting that the process used to construe a patent's claims (the part of the patent that tells you the scope of the patentee's zone of exclusion) *generally* proceeds in the opposite direction: A court looks first to instrinsic evidence -- roughly, the four corners of the patent document + the back and forth with the patent office during the application process -- to construe a claim or claim term. Only if the claim or claim term remains ambiguous does the Court typically consider so-called "extrinsic evidence," e.g., expert testimony, dictionary definitions, and the like.

I say "generally" because different panels of the Federal Circuit have, at times, expressed different views on when and how extrinsic evidence should be considered. The most recent in banc decision on the subject suggests a slightly preferred view of some extrinsic evidence (expert testimony), but doesn't quite elevate it to the level of intrinsic evidence in the claim construction process.

I'm no patent maven, but I wonder whether this can really be so. The commenter lists "dictionary definitions" as "extrinsic evidence" that can only be checked when the "intrinsic evidence" yields ambiguity. But surely the judges construing the patent claims are using their own mental dictionary to determine what the intrinsic evidence means in the first instance. Yet all of our mental dictionaries are incomplete, especially as to technical areas in which we aren't specialists. How could it make sense for a judge to rely entirely on his likely flawed mental dictionary, coupled with what's in the claim and in the back-and-forth with the patent office, and to simply refuse to consult a written dictionary if the possibly flawed mental dictionary gives a supposedly "unambiguous" answer?

Say a judge, using his own mental dictionary, thinks some term is unambiguous, because he's aware of only one definition -- perhaps partly because he's not a specialist in the relevant technical field, and thus doesn't know the field's technical definitions. A litigant comes and says "No, wait, look at this dictionary [either a general dictionary or a scientific dictionary], which lists this other definition, which is the definition that I and the patent examiners used, though we didn't mention it in the patent because we took it for granted."

Would a judge really say, "nope, I may not be a specialist in computers, but I think the term 'dump' unambiguously means 'throw out' [which is to say, it unambigously means 'throw out' in my own mental dictionary], so I'm going to refuse to consider a computer science dictionary, even though you claim it gives an alternate definition"? If so, how is this remotely sensible?