By Dave Kopel of the Independence Institute
Editor's note: Part of this column is based on Kopel's article in the St. Louis University Public Law Review, "The Supreme Court's Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment." More by Kopel on Supreme Court gun cases.
12/14/00 11:35 a.m., National Review Online
Comparing the Supreme Court's ruling in Bush v. Gore to the Dred Scott case, Jesse Jackson may have unintentionally done a favor for Second Amendment rights. If some Americans, spurred by Jackson, actually read the Dred Scott case, they won't learn much about disputed elections, but they will find rather clear evidence of the Supreme Court's long-standing view that the Second Amendment guarantees an individual right.
Dred Scott was the slave of a federal army officer who had taken Scott to live with him in a federal army post in the state of Illinois, and later, to an army post in part of a Territory comprising the future state of Wisconsin. Slavery had been outlawed there by Congress when it passed the Northwest Ordinance; Congress extended the slavery ban to new territories with the 1802 Missouri Compromise. Ownership of Scott eventually passed to someone in Missouri (Sanford, but misspelled in the case name as "Sandford"). Scott sued in federal court to be declared free, since he had resided on free soil, having been brought there by his master. (Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).)
A divided Supreme Court ruled that Scott could not sue in a federal court, because he was not a U.S. citizen. The majority opinion was written by Chief Justice Roger Taney, a Maryland Democrat with strong Southern sympathies.
Among Taney's proofs that free blacks were not citizens was the fact that blacks were often excluded from militia service. The Taney opinion explained that the parties to the original American social compact were only those "who, at that time [of American independence], were recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms." (Id. at 407.) The new nation's federal militia law of 1792 had enrolled only free white males in the militia of the United States, and blacks had been excluded from the New Hampshire militia. (420.) These facts suggested to Chief Justice Taney that free blacks were not recognized as citizens, since they were not in the militia.
In dissent, Justice Curtis retorted by pointing to the language of the 1792 Militia Act, which enrolled "every free, able-bodied, white male citizen." Justice Curtis pointed out the implication of the language that "citizens" included people who were not able-bodied, were not male, or were not white; otherwise, there would have been no need to limit militia membership of able-bodied white males. (442.)
But Justice Curtis's argument had one problem: the use of the word "free" in the Militia Act. It was undisputed that slaves were not citizens, since they were deprived of all rights of citizenship. The Militia Act enrolled only "free, able-bodied, white male citizens." If we follow Justice Curtis's logic to conclude that the Militia Act proves that non-whites could be citizens, then the same logic would show that unfreeze persons could be citizens.
The stronger part of the Curtis dissent was his evidence showing that many of the thirteen original states did recognize blacks as citizens. The Taney majority never directly addressed this part of the Curtis argument, except by listing various disabilities (such as prohibitions on racial intermarriage, or bans on operating schools for blacks) which even anti-slavery states like Massachusetts and Connecticut imposed.
Thus, in a bizarre way, the Taney majority (despite its pro-slavery taint) pre-figures twentieth century Supreme Court jurisprudence that there can be no second-class adult citizens in the United States. The Curtis opinion argues that various civil disabilities (including exclusion from the militia) are consistent with citizenship. For the Taney majority, citizenship is all or nothing; exclusion from education, from intermarriage, or from the militia is incompatible with citizenship.
Thus, once a constitutional amendment conclusively declared that blacks are citizens, the logic of the Dred Scott majority ironically leads to the results in Brown v. Board, 349 U.S. 294 (1955) (racial discrimination in schooling is incompatible with citizenship rights); Loving v. Virginia, 388 U.S. 1 (1967) (laws against intermarriage are incompatible with citizenship rights); and Bell v. Maryland, 378 U.S. 226, 260 (1964) (segregation in restaurants and lunch counters "is a badge of second-class citizenship."); 288, Douglas, J., concurring, "The Thirteenth, Fourteenth, and Fifteenth Amendments do not permit Negroes to be considered as second-class citizens in any aspect of our public life." In contrast, the Curtis dissent, while laudably humane in its anti-slavery sentiments, allows for second-class citizenship on the basis of race.
Besides ignoring the evidence of state citizenship, Taney's opinion bore another huge flaw: his theory that citizenship was all or nothing was plainly contradicted by the example of white females. States imposed a wide variety of restrictions on females, some of them more restrictive than restrictions on blacks. For example, some states had at times allowed free black males, but not free white females, to vote or to serve in the militia. White females were indisputable citizens with a right to sue in federal court, notwithstanding their second-class status. So if restrictions on citizenship rights did not negate citizenship for females, the argument that restrictions on citizenship rights entirely negated citizenship for free blacks was unsupportable.
The Dred Scott majority was policy-driven, as shown by its list of the allegedly unacceptable consequences of black citizenship: Black citizens would have the right 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 at 417.)
Thus, Chief Justice Taney claimed that the "right to…keep and carry arms" (like "the right to…full liberty of speech," and like the right to interstate travel without molestation, and like the "the right to…hold public meetings on political affairs") was a right of American citizenship. The only logical source of these rights is the United States Constitution. While the right to travel is not textually stated in the Constitution, it has been found there by implication. (See, e.g., Edwards v. California, 314 U.S. 160, 168 (1994) (Douglas, J., concurring); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).)
As for the rest of the rights mentioned by the Taney majority, they are to be rephrasings of explicit rights contained in the Bill of Rights. Instead of "freedom of speech," Justice Taney discussed "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 resolution of 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 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.
Many Northerners hated this part of the opinion, because it implied that they could not stop the spread of slavery into new territories before statehood. If slavery could establish itself, then slave-owners could, by means fair or foul, create a slave state when the state was admitted to the Union — as the Border Ruffians in Kansas had attempted to do, with their fraudulent "Lecompton Convention" establishing a Kansas Constitution, a blatant act of force having little support among the majority of Kansans.
Chief Justice Taney's treatment of the territories question began with 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 itself in a criminal proceeding. (Scott, 60 U.S. at 450.)
From the universal assumption that 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.
Interestingly, Justice Curtis had no strong legal argument against this part of the opinion. Rather, he argued that the Court should acquiesce in long-standing practice, such as the 36-year-old Missouri Compromise, even if it violated the Constitution.
The Taney Court obviously considered the Second Amendment as one of the constitutional rights belonging to individual Americans. Today, Handgun Control, Inc., claims that the Second Amendment protects state governments, not "the people" — even though the amendment refers to "the right of the people" and does not mention states. This state's rights Second Amendment could have no application in a territory, since a territorial government is by definition not a state government. And since Chief Justice Taney was discussing individual rights that Congress could not infringe, the only reasonable way to read the Chief Justice's reference to the Second Amendment is as a reference to an individual right.
Nor can the opinion of Chief Justice Taney (which was shared by six members of the seven-member Court on the citizenship issue, and by five on the Territories issue) be dismissed as casual dicta. The Court knew that Dred Scott would be one the most momentous cases ever decided, as the Court deliberately thrust itself in the raging national controversy over slavery. The case was argued in two different terms, and the Chief Justice's opinion began by noting that "the questions in controversy are of the highest importance." (399.)
And unlike most Supreme Court cases, Dred Scott became widely known among the general population. The majority's statement listing the right to arms as one of several individual constitutional rights that Congress could not infringe was widely quoted during antebellum debates regarding Congressional power over slavery. (See, e.g., Stephen Douglas, The Dividing Line Between Federal and Local Authority: Popular Sovereignty in the Territories, Harper's (Sept. 1859) 519, 530.)
Dred Scott's holding about black citizenship was overruled by the first sentence of the Fourteenth Amendment, which declares that all persons born in the Untied States are citizens of the United States and of the state in which they reside.
Although the citizenship holding in Dred Scott was so controversial that it was repudiated by a constitutional amendment, the case's treatment of the Second Amendment as an individual right was not. In each of the six times that the Court addressed the Second Amendment in the rest of the nineteenth century, the Court always treated the Second Amendment as an individual right.
Today, legal scholars still argue about whether Dred Scott's legal conclusions were correct, based on the law of the time. What is undisputed is that the effect of Dred Scott was to abolish citizenship for every free black in the United States. Is there any legitimate comparison of this momentous, and intentionally racist, case to Bush v. Gore— a dispute about the handling of ballots by voters of all races who did not follow simple voting instructions? Stuart Taylor, one of the best legal reporters in today's United States, aptly calls the comparison "an obscenity."