Posted on 02/11/2003 4:09:57 PM PST by tarawa
Dred Scott and your right to carry
By Darrel Mulloy Published 02. 9. 03 at 23:43 Sierra Time
I remember reading a little about the Dred Scott decision in high school. Being a public school, and although it was in the 1950's, we did not get the full scope of the decision. It was offered to us as an explanation for the need for the fourteenth amendment to the Constitution. We were all made to believe that the Supreme Court of the time, lead by Chief Justice Roger Taney was severely unjust.
For those not familiar with the Dred Scott decision, let me enlighten you. Dred Scott was a slave, owned by a Missouri resident and citizen, army doctor John Emerson, who was transferred in 1834 to the free state of Illinois, where he moved, taking Dred Scott with him. In 1836 Scott was given permission by his owner to marry another slave owned by Emerson named Harriet, and the couple subsequently had two children, Eliza and Lizzie. Emerson and the Scotts eventually returned to Missouri, and Emerson died, leaving all of his property, including his slaves, in his widow's name. She in turn, sold the Scotts to her brother John Sanford (spelled Sandford in the court proceedings).
Scott sued Sanford for his freedom, declaring that he was free in Illinois, and should have retained his freedom after return to Missouri. The Dred Scott decision was all about whether Dred Scott had the right to sue.
Chief Justice Taney delivered the decision, obviously after some agonizing, that Scott did not have the right to sue Sanford, as under the Constitution, he was not a citizen. His reasoning was rooted in the law; the Constitution, the Declaration of Independence, and the Articles of Confederation. It seems pretty clear to me that while Taney sympathized with Scott's dilemma, he was bound by law to find that Scott had no right to sue, as under the laws of the land he was in fact, not a citizen and did not have the rights afforded to a citizen.
Today's courts faced with the same law would find otherwise, creating law rather than following existing law. Taney made it clear that it was up to the legislature to correct the wrong, not the court.
The legislature of that time did correct the problem by the proper path. They amended the Constitution to include as citizens, all naturally born or naturalized persons regardless of race. The fourteenth amendment was ratified and became law. Had that amendment been in effect prior to Scott's appeal to the Supreme Court, he would have had no need to sue. The same man who financed his court proceedings, Taylor Blow, eventually bought him from Sanford and gave him his freedom on May 26, 1857. Scott died a free man in St. Louis, Missouri on September 17, 1858.
All of the preceding is prelude to what I wanted to talk about. While reading the text of the Dred Scott decision I ran across a passage by Chief Justice Taney that I found worth repeating. While pointing out that the Constitution, Declaration of Independence, and Articles of Confederation made no claim that Negroes were citizens, and in fact showed strong arguments that they were in fact not citizens, he made mention of some of the citizens rights that were not to be offered to those of the Negro race. The following is a quote from that section:
"For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."
The Dred Scott situation has been corrected, and rightfully so. The thing I wanted to illustrate here was that in 1857, the Supreme Court, headed by Chief Justice Taney, while following the law in making their decision regarding Scott's right to sue, also all concurred that it was then (and still is) the right of all citizens to "keep and carry arms wherever they went".
I have never seen this quote from the Dred Scott decision cited in defense of gun ownership. I think it illustrates that a Supreme Court that knew how to correctly read the law and applied it in spite of their personal feelings, also knew that it is also the right of every citizen of the United States to keep and carry arms. This is proof that the intent of the second amendment was not to arm only those members of the militia that were in active service, and it does not mean that only the military and National Guard should be allowed to carry weapons. It was obvious then, and it should be obvious now, that the right to keep and carry arms is a right inherent to all citizens of the United States of America.
Time to pull this thread before the liberal lurkers pick up on it
I got as far as this when I realized that the author has been smoking crack.
"Several other Supreme Court opinions speak of the Second Amendment in a manner plainly indicating that the right which it secures to "the people" is an individual or personal, not a collective or quasi-collective, right in the same sense that the rights secured to "the people" in the First and Fourth Amendments, and the rights secured by the other provisions of the first eight amendments, are individual or personal, and not collective or quasi-collective, rights. See, e.g., Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805 (1992); Moore v. City of East Cleveland, 97 S.Ct. 1932, 1937 (1977);(26) Robertson v. Baldwin, supra (see quotation in note 17 supra); Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 450-51, 15 L.Ed. 691, 705, 719 (1856). See also Justice Black's concurring opinion in Duncan v. Louisiana, 88 S.Ct. 1444, 1456 (1968).(27)"
"Scott v. Sandford" is the Dred Scott Decision.
Thanks. I didn't know that. I always heard it referred to as the Dred Scott Decision.
I've seen it cited that way many times, and I've done so myself quite often over the years.
I think it illustrates that a Supreme Court that knew how to correctly read the law and applied it in spite of their personal feelings, also knew that it is also the right of every citizen of the United States to keep and carry arms.
Not only that, its main utility is in demonstrating that the anti-gunners are lying when they try to claim, as they often do, that the "individual rights" interpretation of the Second Amendment is only a "modern" view promulgated by those nuts at the NRA, and that (so the claim goes) no one in historic times ever understood the Second Amendment that way...
No, actually, in my experience the point holds up quite well when used. Any "guilt by association" problems can be headed off in advance by admitting that while the core of the ruling itself was abhorrent, the statement about firearms *still* shows the nineteenth century understanding of the Second Amendment in a clear, unarguable way.
To use it in an argument is simply to inflame opposition.
Not in my experience.
If Tanney was for it in Dread Scott, then it is automatically wrong.
Actually, if you cite it as "Scott v Sanford", I've found that most anti-gunners don't even recognize the case nor complain about its "other" findings.
I got as far as this when I realized that the author has been smoking crack.
No, he's pretty much on the money. You have to remember that Supreme Court decisions don't happen in a vaccuum. They're a product of the judicial philosophies and traditions of their times. And at the time of Scott v Sanford, not every resident of the US was considered a citizen, even leaving aside the slavery issue. Keep in mind that the Constitution itself made a distinction between "free persons" and otherwise.
In his decision Taney himself spends a great deal of time showing that blacks were seldom considered citizens in law before, during, and after the Revolution. His entire ruling pretty much rests on an argument of, "they haven't been considered citizens so far, why start now?"
Reprehensible as that is, the author is correct in describing Taney's thought process.
Sure it's obvious; but that doesn't mean they won't haul you off to the pokey if they catch you excercising your rights...
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