Tuesday, January 22, 2008

The guns of Dred Scott

In my last entry, I said that in 1997 Clarence Thomas became the first Supreme Court Justice to write in an opinion that the Second Amendment protected an individual right to keep and bear arms, rather than a collective right. I was challenged on this bit of information by blog reader Robert J. Oneto, who argues that Chief Justice Taney identified a personal right to arms in Dred Scott v. Sandford 60 U.S. 393 (1856). Rather than repeat what Mr. Oneto wrote--and thank you, sir, for bringing this to my attention--I'll simply direct you to his comment, the third reply following the article:


Reading back what I wrote, I realize that I did not make it clear that I was citing the Uviller and Merkel book (The Militia and the Right to Arms, or How the Second Amendment Fell Silent) as my source for the comment on Thomas's 1997 opinion. I apologize, lest anyone have thought that I myself perused every freaking case the Supreme Court decided from its inception through the end of the twentieth century to make the conclusion!

So having issued that mea culpa, I suppose I should comment briefly on Mr. Oneto's point. First, a citation. The quote he uses is from Dred Scott at 417. In the first place, all of us should probably be careful not to put too much stock into points made in a case that has been termed "a monument of judicial indiscretion," Bernard Schwartz, A History of the Supreme Court, New York: Oxford University Press, 1993, p. 106.

Now having written that, while Mr. Oneto has indeed located an assertion in Dred Scott that possibly points to the 1856 Court embracing the concept of the Second Amendment as an individual right, I'm obliged to note that there is also a vehement declaration in the case that implies the Second Amendment is not an individual right. Specifically, I'm talking about the concurrence by Justice Daniel, Dred Scott at 490:

"(T)he only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty." (Emphasis his).

If Daniel believed no other private property besides slavery is specifically recognized by the Constitution, this clearly would mean he did not consider firearms a form of private property specially protected by the Second Amendment.

This bit of dictum does seem quite at odds with the text of the case Mr. Oneto directed us to. So we're back to my point about not putting much stock in Dred Scott. I think David Currie put it best:

"From a lawyer's viewpoint Scott was a disreputable performance. The variety of feeble, poorly developed, and unnecessary constitutional arguments suggests, if nothing else, a determination to reach a predetermined conclusion at any price." The Constitution in the Supreme Court: The First Hundred Years 1789-1888, Chicago: The University of Chicago Press, 1985, p. 272.

In the end, I think Mr. Oneto and I both found a good example of those "unnecessary constitutional arguments" Professor Currie laments. Whatever Dred Scott tells us about the cruelty and stupidity of the human race in 1856, it doesn't have much of significance to guide us about guns in 2008.

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