Article by David Kopel in The Federalist
Supreme Court To Decide If Dred Scott Should Apply To All Americans On Guns
On Wednesday, the Supreme Court will hear oral argument in New York State Rifle and Pistol Association v. Bruen, to decide whether the Second Amendment right to “bear arms” is a legally enforceable right. The case raises some of the same questions that were at issue at the infamous 1857 Supreme Court case Dred Scott v. Sandford.
The Dred Scott majority held that free blacks could never be citizens of the United States, so plaintiff Scott could not bring a case in federal court. In support of the supposed “absurdity” of free blacks having citizenship rights, Chief Justice Taney described a parade of horribles that would ensue.
Free black citizens would have the right to travel about the United States“‘without pass or passport,” to enter any state, to stay there as long as they pleased, and within that state they could go where they wanted at any hour of the day or night, unless they committed some act for which a white person could be punished. Further, black citizens would have “the right to . . . full liberty of speech in public and private upon all subjects which [a state’s] own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (Scott v. Sandford, 60 U.S. (19 Howell) 393, 417 (1857)).
Most of the rights on the list were straightforward rephrasings of the Bill of Rights. Instead of “freedom of speech,” Taney wrote “liberty of speech”; instead of the right “peaceably to assemble,” he discussed the right “to hold meetings,” and instead of the right to “keep and bear arms,” he discussed the right to “keep and carry arms.” Although the right to travel is not textually stated in the Constitution, it has long been found there by implication.
So according to the Supreme Court, the “right to . . . keep and carry arms” is like “the right to . . . full liberty of speech,” the right to interstate travel, and the “the right to . . . hold public meetings on political affairs.” Each is an obvious individual right of American citizenship.
Congress Shall Not Infringe
Although resolving the citizenship issue was sufficient to end the Dred Scott case, the Taney majority decided to address what it considered to be an error in the opinion of the circuit court. The Supreme Court ruled that Congress had no power to outlaw slavery in a territory, as Congress had done in the 1820 Missouri Compromise for the future Territory of Nebraska. The Court noted the universal assumption that the Bill of Rights constrained congressional legislation in the territories:
No one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the territory peaceably to assemble and to petition the government for redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding.
Because Congress could not infringe the Bill of Rights in the territories, Taney concluded that Congress could not infringe the property rights of slave-owners by abolishing slavery in the territories. Again, the Taney Court treated the Second Amendment as one of the constitutional rights belonging to individual Americans.
What This Has to Do with Bruen
Dred Scott has several implications for the Bruen case. First, it affirms that the Second Amendment right to bear arms is a normal individual right, like the other individual rights listed in the case, such as free exercise of religion, freedom of speech and of the press, jury trial, and so on.
In Bruen, several amicus briefs have asserted that District of Columbia v. Heller was wrongly decided, because the Second Amendment was supposedly only for militiamen. The argument is based on a misapplication of a form of legal scholarship known as “corpus linguistics”—essentially, searching historic databases for certain words, and counting how often those words were used in various ways.
There is no dispute that in the Founding Era, “bear arms” was frequently used in a military context. That does not mean that militia service was the only meaning of bear arms. Indeed, when one looks for “bear arms” in the context of the word “right,” or when one looks for the phrase “keep and bear arms,” most of the uses unmistakably point to a general right of all citizens, not solely for militiamen.
Dred Scott shows that the Second Amendment’s original public meaning from 1791 remained the same through 1857. The Scott Court put Second Amendment rights into lists of other ordinary rights belonging to all citizens, not solely for a subset of citizens engaged in military service.
No, Gun Bans Were Not the Norm
Another argument of some anti-rights briefs in Bruen is that as of the mid-nineteenth century, Americans had no right at all to bear arms. The no-rights argument asserts that England’s 1328 Statute of Northampton was still the law in the United States, and that it banned arms-carrying.
However, the American case law is exactly the opposite. For example, the North Carolina Supreme Court in 1843 explained that the Statute of Northampton (while not applicable in North Carolina), was just a formalization of a common law rule (which did apply in North Carolina) against carrying arms “to terrify and alarm.”
As for peaceably bearing arms, “[T]he carrying of a gun per se constitutes no offence. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun” (State v. Huntley, 25 N.C. 418, 420 (1843)).
As of 1857, eight states and the District of Columbia had statutes allowing lawsuits against persons whose bearing of arms threatened to cause a breach of the peace. If the defendant was proven to have been carrying in an unpeaceable manner, then he could continue to carry only if he posted a bond for good behavior. Aggressively misreading the Massachusetts statute and its parallels in some other states, several anti-rights amicus briefs assert that carrying guns was generally prohibited by these statutes.
However, a detailed survey of newspaper reports of the enforcement of these statutes has found that the very rare instances of someone being haled into court for peaceable carry all involved black defendants—two in Boston and two in the District of Columbia. Only one of the defendants had the resources to appeal, and when he did, the prosecutor withdrew the case.
Dred Scott refutes the notion that bans on bearing arms were the norm in the United States (or in any State). According to Dred Scott, American citizens have always had the right “to keep and carry arms wherever they went”—so recognizing blacks as citizens would mean recognizing their right to bear arms.
Supreme Court Justice Lists 2A as Constitutional Right
Dred Scott’s treatment of the Second Amendment was consistent with legal tradition. In the 18th and 19th centuries, Supreme Court justices individually “rode circuit,” by serving as judges in lower federal courts when the Supreme Court was not in session. In 1833, Supreme Court Justice Henry Baldwin, while circuit-riding, gave a jury charge that listed some of the constitutional rights possessed by the plaintiff.
Justice Baldwin pointed out that Article IV of the U.S. Constitution guarantees that “the citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.” As part of the list of “the privileges and immunities” of U.S. citizens, Baldwin stated: “The second amendment provides, ‘that the right of the people to keep and bear arms shall not be infringed’” (Johnson v. Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7416)).
Since Johnson’s lawsuit was against an employee of a subdivision of the Pennsylvania state government, Justice Baldwin’s listing of the Second Amendment implied that he considered the Second Amendment to be a restriction on state actions against individuals.
Sen. Stephen Douglas summed up the litany of individual rights that Dred Scott said could not be violated in the territories:
Nothing can be more certain than that the Court were here speaking only of forbidden powers, which were denied alike to Congress, to the State Legislatures, and to the Territorial Legislatures, and that the prohibition extends ‘everywhere within the dominion of the United States,’ applicable equally to States and Territories, as well as to the United States.
While agreeing that no government within the United States could violate the right to bear arms, Douglas argued that there were particular historic and legal reasons the Court’s protection of property in slaves could not be applied to States that chose to forbid slavery. Stephen Douglas, The Dividing Line Between Federal and Local Authority: Popular Sovereignty in the Territories, Harper’s (Sept. 1859).
Dred Scott’s holding that blacks are not citizens was repudiated in 1868 by the ratification of the Fourteenth Amendment, which declares that all persons born in the United States are citizens of the United States and of the state in which they reside.
Other language of the Fourteenth Amendment was intended to prevent state and local governments from infringing the enumerated rights of American citizens listed in the Bill of Rights. For example, in congressional debate on the proposed Fourteenth Amendment, Representative Henry Raymond (R., N.Y.) stated: “Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States under the laws and Constitution of the United States,” among which is “a right to bear arms” (Cong. Globe, 39th Cong., 1st Sess. 1266 (1866)).
Yes, States Must Obey the Bill of Rights
Unfortunately, the Supreme Court was initially hostile to requiring states to adhere to the Bill of Rights. Slowly, the court has corrected its earlier errors. McDonald v. Chicago in 2010 held that states must obey the Second Amendment, and Timbs v. Indiana in 2019 held that states may not levy “excessive fines” in violation of the Eighth Amendment.
Yet today, New York State still refuses to comply with the Second Amendment. State statutes entirely prohibit open carry of handguns. Concealed carry is allowed only with a license, and officials in many counties refuse to issue licenses to adults who have passed a fingerprint-based background check and safety training, and simply want to exercise their Second Amendment right to peaceably bear arms.
The law-abiding citizens of New York are thus placed in the same position as free people of color in the slave states. Although early North Carolina had included free blacks in the state and colonial militia without discrimination and had not restricted the rights of free persons of any color to carry firearms peaceably, in 1841 the legislature enacted a statute that all free persons of color must have an annual license from the Court of Pleas and Quarter Sessions in order to own or carry firearms, swords, daggers, or bowie knives (“An Act to prevent Free Persons of Colour from carrying Fire-arms,” ch. 30, 1840-41 N.C. Laws 61-62 (1841)).
When the law was challenged, the trial court held it unconstitutional, but the North Carolina Supreme Court reversed. The North Carolina Supreme Court wrote that that “free people of color have been among us, as a separate and distinct class, requiring, from necessity, in many cases, separate and distinct legislation.” It was up to “the control of the County Court, giving them the power to say, in the exercise of a sound discretion, who, of this class of persons, shall have a right to the licence, or whether any shall” (State v. Newsom, 27 N.C. (5 Iredell) 250 (1844)).
Likewise, the Georgia Supreme Court stated in 1848 that “Free persons of color” were not citizens, and thus “not entitled to bear arms” (Cooper v. City of Savannah, 4 Ga. 68, 72 (1848) (upholding municipality’s special tax on free persons of color who moved into the city)). These were the kinds of laws that Dred Scott’s anti-citizenship holding protected.
It is not surprising that the plaintiffs’ briefs in Bruen, and several of the amicus briefs in support of the plaintiffs, directly address the Dred Scott case. It is revealing that neither the Bruen defendants nor their many amici claiming expertise in American legal history even dare to mention Dred Scott. The case destroys their assertions that bearing arms was generally prohibited in the antebellum United States.
Yet it would have been proper for the supporters of the current New York system to defend and extol Dred Scott v. Sandford. The ultimate principle that the anti-rights briefs support is that Dred Scott’s holding against the rights of free people of color should be affirmed and extended to all people, regardless of color. Should the Bruen defendants prevail, then all Americans will be reduced to the degraded legal status of free people of color in North Carolina as of 1844, with the exercise of their right to bear arms contingent on an official’s discretion about “whether any shall.”
