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Dred Scott Would Have Been Better Off If He’d Had a Gun

Opponents of gun rights have often misrepresented the manner in which the Second Amendment has been understood through American history. In fact, the amendment has generally been understood to protect the right of individuals (not just state-organized militias) to own and to carry firearms. Much has been written about this since the Newtown murders; one such commentary that I ran across noted that in the Dred Scott decision, Chief Justice Taney wrote that if Negroes had the rights of citizens, it would entail the ability to bear arms–a frightful prospect to Taney, a loyal Democrat. This piqued my interest, as I hadn’t read the Dred Scott decision in decades, and had no memory of the passage cited. So I looked it up.

You can read the decision, which is lengthy, Scott v. Sandford, here. Taney wrote for the majority. In the first section of his opinion, he held that the case must be dismissed for lack of jurisdiction. Scott, being a Negro, could be a citizen of a state–that was a matter of state law–but he could not be a citizen of the United States, within the meaning of the Constitution, so as to be able to bring a case in federal court. In the course of explaining why members of the black race could not be citizens, Taney argued that representatives of the slaveholding states would never have consented to a Constitution that had the potential to confer citizenship on Negroes. Imagine, he wrote, the consequences:

[I]t cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. 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 recognised 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.

It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.

It is noteworthy that Taney placed the right to “keep and carry arms wherever they went,” along with the rights of free speech and public assembly, as unquestionable privileges of citizenship.

The Dred Scott decision is remarkable in a number of ways. Among other things, it more or less gratuitously decreed the Missouri Compromise unconstitutional on the ground that Congress had no power to regulate or prohibit slavery in the territories. The decision is conventionally denounced as the worst in American history, and I do not quarrel with that characterization. However, what strikes me most forcibly in re-reading Taney’s opinion after many years is what an untenable position he, the Court, and the nation generally were in. A contemporary reading Taney’s opinion at the time would have been convinced, I think, that Lincoln was right: the United States simply could not survive half-slave and half-free.

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