Academic Legal Writing - Eugene Volokh [32]
The Introduction starts by crisply articulating the issue (as in the example in subsection 1 above, p. 50). It then outlines the role the term “free State” has played in the Second Amendment debate (rather than just setting forth the Second Amendment debate more broadly). The hope is that by the time the sixth and seventh paragraphs arrive, and the reader sees the article's claim, the reader will want to hear how this dispute should be resolved. The fear is that the reader won't get to the sixth and seventh paragraphs, or will be skimming or bored by then.
Compare this to how the Introduction would look if the claim were brought to the first paragraph, and decide for yourself which would be more effective:
“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? This Article will argue that this phrase was consistently understood to mean “free country,” which is to say the opposite of a despotism—not “state of the union, free from federal oppression.”
Many have assumed that “state of the union, free from federal oppression” was the contemporaneously understood meaning. 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, this Article concludes, such a meaning is inconsistent with how the phrase was used in 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 writings used the phrase to mean “free country, free of despotism,” which tends to support the individual rights view of the Amendment. Such a reading makes it easier to read “the right of the people” 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. Such a right covers people regardless of whether they were selected for a state-chosen defensive force, since the right is not focused on preserving the states' independence from the federal government. And it applies to all Americans, in states or in D.C.
Likewise, the evidence that the article canvasses helps resolve the 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 assume the change was purely stylistic, sometimes