14 October 2009
Using Dred Scott as precedent in Second Amendment cases!
I have to admit to a bit of curiousity about this since it is one of the Supreme Court's most infamous cases! Usually the only reason this case has been cited since the Emancipation Proclamation is to use it as an example of bad law and poor judicial reasoning. Only Judge Silberman, who is decidely senile, used it to overturn Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987) in Parker.
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants were not protected by the Constitution and could never be citizens of the United States. It did not matter whether or not the descendants were slaves: they still had no status as citizens. It also held that the United States Congress had no authority to prohibit slavery in federal territories. The Court also ruled that because slaves were not citizens, they could not sue in court, or have other rights. Lastly, the Court ruled that slaves—as chattel or private property—could not be taken away from their owners without due process.
The Supreme Court in Dred Scott asserted that Scott was not a "he" but an "it": mere property. Property does not have rights of any kind.
I should add that the Dred Scott case found the exact opposite of what had been held in English Common Law (and Scots Law), that the institution of Slavery was repugnant to civilised Society (see R v Knowles, ex parte Somersett (1772) 20 State Tr 1, AKA Sommersett's Case).
In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scott as a legitimate constitutional authority. This is one of the most thoroughly discredited cases in Supreme Court history, there is a run up between this case, Korematsu v. United States, 323 U.S. 214 (1944) and Buck v. Bell, 274 U.S. 200 (1927) for most disreputable Supreme Court Case. Dred Scott is considered to be the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy. That puts it in there with District of Columbia v. Heller, 554 U.S. ___ (2008) and Bush v. Gore, 531 U.S. 98 (2000) decisions for using similar poor practise.
OMG, the last two were written by Justice Scalia. The man holds a record for bad decisions!
Although, given that the Dred Scott decision actually went against established precedent, it may not be that weird that it is used as justification for doing something which is morally repugnant.
The Supreme Court has cautioned against citing Dred Scott recognizing the fatally flawed reasoning as the case failed to heed “[t]he wisdom of refraining from avoidable constitutional pronouncements” that are “not ‘absolutely necessary to a decision’”. See Scalia's dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) for Criticism of Dred Scott along with many other sources.
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) had nothing to do with the Second Amendment. Justice Taney did make brief references to the right to travel armed and the right to keep and bear arms, but he never actually discusses the meaning of the Second Amendment. How remarks made by a judge in the most universally reviled decision in American history could provide a solid foundation to over-turn seventy years of precedent on the meaning of the Second Amendment is truly baffling. Of course, Taney was the father of judicial activism, so it might actually make a certain amount of sense to use Dred Scott to revisit the meaning of the Second Amendment if the court were interested in making new law, not interpreting existing law.
This decision is not only archaic, but it takes us back to some seriously bad times in US History. A time when white men, were white men and the darkies knew their place, or they were whipped back into it. Its use as a precedent in this arena only serves to show how tenuous the argument is against the right being solely for ensuring the efficacy of the Militia. It also points out the American public's ignorance of history that this could be used as anything other than an example of a bad judicial decision. Its later-reversed holding had nothing to do with the Second Amendment.
One of Taney's comments about carrying arms can be read as "watch out if the niggers had guns" and is found in what is called the "parade of horribles" portion of the decision. (sorry about using the "n word", but I have to use what I think would be Taney's words). That, of course, is my opinion based upon the fact that Taney was attacked for having come from a slave owning family and once owned slaves. And the fact that bit is found in the "parade of horribles" as to the feared results of granting Mr. Scott's petition. I would also add in that there was a fear of slave insurrections, which was made real by John Brown raid on the Harpers Ferry arsenal, which if I remember correctly Brown's party was armed with pikes rather than firearms (I wonder why?).
In an another portion of the dicta, the Court analyzed whether slaves were entitled to the protections of the Constitution by listing a few examples: "Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding." Unfortunately, Dred Scott, as property, did not possess any of these rights.
Got that: Property does not have rights.
Legally, the validity of a case is checked using Shepherd's and this is what I found using that service:
Copyright 2009 SHEPARD'S(R) -
Signal: Warning: Negative treatment is indicated
Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691, 1856 U.S. LEXIS 472 (1857)
Unrestricted Shepard's Summary
No subsequent appellate history.
Warning Analyses: Superseded (3)
Questioned Analyses: Questioned (11)
Cautionary Analyses: Criticized (4), Distinguished (2), Not Followed (1)
Positive Analyses: Followed (1)
Neutral Analyses: Concurring Opinion (9), Dissenting Op. (51), Explained (5), Quest. Precedent (1)
Other Sources: Law Reviews (3374), Secondary Sources (32), Statutes (2), Treatises (24), Annotations (1), Other Citations (9), Court Documents (192)
Even more saliently, does Taney come out and say "the right to keep and bear arms is an individual right"? Naw, he just mentions keeping and bearing arms as a right: not as a civic, individual, collective, god given, pre-exisiting, or any other type of right. It's just a fucking right that property can't exercise.
In short, if you have to rely on dicta from a case which is cited as an example of poor scholarship and weak legal reasoning, you are showing yourself out to be a complete and total fuckwit.
I think that just about says it all. To be quite Honest, you would be laughed out of every court in the nation for using this.
Although if you mentioned this case in the Supreme Court, Clarence Thomas would drop his porno mags, malt liquor, and Chicken wings, get up on the bar of the court and start jigging and cooning, say "YOWZA! YOWZA! YOWZA! I wants me some waddy mellon!" and do the best Stepin Fetchit imitation ever done by a Supreme Court Justice! He even outdoes William "Willie" Best (AKA Sleep 'n' Eat) and Mantan Moreland.
That is until Scalia pulls out the bullwhip sending Unca Tom back to his seat saying "don't whips me, massa! don't whips me, massa!"
The Supreme Court of the US as a 21st Century Minstral show!
Ya Know, It's a bloody shame that Thurgood Marshall was replaced by that House Negro. I am sorry to use Thurgood Marshall's name in relation to the House Negro. or even to blaspheme him by mentioning him in relation to this post as he would be sputtering and fuming if someone had the balls to mention this case save in jest...and perhaps even then.
Dred Scott legally valid??? Give me a break! This shit is getting seriously weird! The lawn Jockeys are attacking! They're in armed revolt! Help, save me!