Academic Legal Writing - Eugene Volokh [31]
5. Start with an explanation of a controversy
If your article engages an existing controversy, you might want to start by outlining the controversy, in enough detail that your contribution will be clear. The disadvantage of this approach is that your contribution might not appear for several paragraphs. The potential advantage is that the significance of your contribution may then be especially clear, and your outlining of the controversy might set an evenhanded tone that will lead readers to respond better to your claim when it does come.
Here's an example:
“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?
Some say it meant “state of the union, free from federal oppression.” As one D.C. Circuit judge put it, “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.”
This reading would tend to support the states' rights view of the Second Amendment, and is probably among the strongest intuitive foundations for the view—after all, “State” appears right there in the text, seemingly referring to each State's needs and interests. The reading would suggest 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 doesn't apply outside states, for instance in the District of Columbia: “the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment's reach does not extend to it.”
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. “[T]he right of the people” would then more easily be read as referring to a right of the people as free individuals, even if a right justified by public interests, much as “the right of the people” is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were selected for a state-chosen defensive force, since the right would not be focused on preserving the states' independence from the federal government. And it would apply to all Americans, in states or in D.C.
We see a similar controversy about the change from James Madison's original proposal, which spoke of “security of a free country,” to the final “security of a free state.” Some assume the change was a deliberate substantive shift towards 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”). Others disagree, arguing that the change was purely stylistic, and sometimes pointing to the absence of recorded controversy about the change.
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). It 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