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
Trail: Unrestricted
-----------------------------------------------------------------------------
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.
Citing References:
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.

Got that?????

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!

A Simple Second Amendment question and answer part II

I demonstrated how the Second Amendment should be interpreted in A Simple Second Amendment question and answer.

Again, we shall use this as our text for the Second Amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

Now, I hear another question that why shouldn't we ignore the proeme/preamble "A well regulated militia being necessary to the security of a free State"? After all there are "scholarly" articles that suggest this position and it was the position taken by DC v. Heller?

OK, that leaves us with the right of the People to keep and bear arms shall not be infringed.

What exactly does that mean since we can't infer self-defence or resisting tyranny if the phrases aren't specifically mentioned.

Other than the method of statutory interpretation used by Blackstone that requires on use the proeme to help discern meaning, we have Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) which offers the guidance that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and

The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction.

The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds.

You can't have a clause in the Constitution that is without meaning. Justice Stevens takes Scalia to task at pp 8-9 of his dissent for ignoring the canon of Marbury v. Madison. Of course, you could argue that the words require the proeme to be mere surplusage.

The claim that one can disreagard the proeme is essentially anachronistic. While several nineteenth-century treatises on interpretation support this devaluation of prefaces or prologues, orthodox late eighteenth-century learning, reflected by Blackstone among others, was that prefaces and prologues were pivotal to ascertaining meaning, and indeed that purpose clauses were largely outcome determinative respecting textual interpretation. But, I said that in part I of this Question.

The problem is how does one intepret the Second Amendment if we can't infer self-defence or resisting tyranny if the phrases aren't specifically mentioned?

I find it interesting that the apologists for Heller don't find the insertion of items not mentioned are inferred. It amazes me that more people aren't disturbed by that practise. It is completely against legal method and due process to infer something in a law that is not specifically mentioned. It is even more incorrect to ignore the language of a law in its interpretation solely on the basis that it is "inconvenient".

I find it even more disturbing that precedent was overturned without a solid legal basis.

A Simple Second Amendment question and answer

In proper legal theory, one has to use the text of a law to determine its meaning. We shall use this as our text for the Second Amendment:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

I picked this version because I don't want tiny minds making stupid comments about punctuation even though the four comma version might be better for the point I'm trying to make here. But we will use this version. Given the intellect of some people answering this, it is probably better to use smaller numbers (yes, and what comes after two????). After all, you give them 2+2 and they come up with 5.

Anyway, We are not going to discuss whether this is an individual, collective or civic right. We are going to analyse the sentence that is the Second Amendment. We will also look at it in light of what the Constitution says.

Why is there a "the right of the People to keep and bear arms" that "shall not be infringed" using the words above? What is the scope of this right?

If your answer is self-defence, then you are wrong since the phrase self-defence is not plainly written in the text. It is a common legal principle that one cannot infer something when it is not plainly written in the text. It is a principle of statutory interpretation that The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

Again, Fighting government tyranny is not mentioned in the Second Amendment. Additionally, Fighting government tyranny makes no sense in light of Article III, Section iii. That means the insurrection theory is truly not supported by any serious constitutional scholarship. The concept of fighting government tyranny makes even less sense when you consider that Samuel Adams said, "Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

That means we must find our meaning in the text, not outside of it. We can also look for further guidance in the Constitution since the Second Amendment must be read within the framework of the constitution. However, a search of the Constitutional text will find that one constitutional purpose is to "provide for the common defence" and you don't have to read to far into the Constution to find that stated.

Blackstone stated that, although the words of an enacting clause were 'generally to be understood in their usual and most known signification,' yet if its words, after due analysis, were 'still dubious' or 'ambiguous, equivocal, or intricate,' one might look to the context, which included 'the proeme, or preamble, [which] is often called in to help the construction of an act of parliament.' (1 Blackstone at 59-60).

Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is Because a well regulated militia is necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

So, using the text above and the Constution, The right to "Keep and bear arms" has something to do with "a well regulated militia" since that is mentioned in the text of the Second Amendment and is a purpose tied to "providing for the common defence" which is a purpose stated in the Constitution. It has nothing to do with self-defence since nowhere in the text of the Second Amendment or the Constitution is the phrase "self-defence" present or even hinted at.

We will now turn to the universally accepted authority for legal interpretation at the time of the Constitution's adoption, William Blackstone:

The citation from Blackstone regarding the "proeme, or preamble" is part of a larger section that consists of "observations concerning the interpretation of laws." 1 Blackstone at *58. One of those "observations" was: "BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it." 1 Blackstone at *61.

Blackstone refers to this "when the reason ceases, the law ought to cease" principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting "But here the reasons of the general rule cease, and 'cessante ratione cessat et ipsa lex' [The reason of the law ceasing, the law itself also ceases]"), 3 Blackstone at *219 (discussing the law of nuisance, and noting "But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water."), 4 Blackstone at *3 (noting that some aspects of Britain's criminal law "seem to want revision and amendment" and explaining that "These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . "), 4 Blackstone at *81 (discussing the law of treason, and noting that the "plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . ."), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting "But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.").

Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.

Which means that if the "cause/reason" for the Second Amendment was the "well-regulated militia", then it could be argued that when that reason ceased, the law ought likewise to cease with it.

I know I will have lost the simpler minded readers with the citations from Blackstone, but it is rather simple:

The right to keep and bear arms is tied to the militia since no other purpose is mentioned in the text. Additonally, if we look in the Constitution, we find that one of its stated purposes is to "provide for the common defence". So, it would seem far more likely that the right is in some way tied to a "well regulated militia" than some other purpose.

Of course, with my federalism and stare decisis posts, we can see that the supporters of an individual right don't mind playing fast and loose with the law. The scary bit is that there has become a cottage industry of "scholars" who have been foisting this theory on an unquestioning public. No one has asked "how can self-defence be comvered when it is not specifically mentioned? Isn't it a tenet of statutory interpretation that the express mention of one thing excludes all others?"

Also, you don't need to go beyond the text of the Constitution to find mention of the militia and Congress' power to "provide for organizing, arming, and disciplining the Militia". Again, nothing mentioned in the US Constution regarding personal defence. However, the language, which is within the Constitution might provide a clue as to the reason for "the right of the People to keep and bear arms". That purpose is to provide that congress continues its obligation to arm the militia according to Article I, Section 8, Clause 16.

One other point that shoots down the individual right interpretation is that there is quite a bit of commentary surrounding the adoption of the Constitution which point to concerns based upon article I, Section 8, clauses 15 & 16, not private purposes. The fact that private purposes were mentioned in various proposals only adds weight to the fact that they were not included in the text of the Second Amendment.

The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

The Solictor General's new clothes

Well, I love to keep pointing out that "the masses are asses" as one of my tutors at uni loved to rub my nose in. On the other hand, the popular belief that the Second Amendment allows for an individual right is a load of dog poop. That is all the Solicitor General's opinion means.

First off, finding an individual right goes against the Supreme Court's own precedent. If Chief Justice Robert's doesn't have his stuff together to say that it's settled law that the Second Amendment applies only to "Well regulated militias" being those set up under Article I, Section 8, then maybe I SHOULD be chief justice. The only people it isn't settled law in are the ignorant or the dishonest, which most of the "Standard Model Scholars" such as Tribe, Volokh, Levinson, et al fall into in my opinion. Come on, folks, you have to say WHAT the law is, not what YOU WANT IT TO BE!

Second off, there have been about 60 cases holding that the Second Amendment relates to Article I, Section 8. This is just a guess so I don't really want the nitpicking wankers to start saying there were 48 or 127.230707609 cases. But, pretty much up until Emerson and Parker, the rulings were that the right belongs to the militia. In fact, U.S. v. Sandidge, 520 A.2d 1057 (D.C.), cert. denied, 108 S.Ct. 193 (1987) was the controlling case in DC up until Paker v. DC and it held that the Second Amendment only applied to the National Guard. That means that Sandidge was controlling precedent for 20 years!

Third off, even if you think that Heller broke new ground, it didn't really say that guns couldn't be regulated, but the upshot of saying there is an individual right will mean there will be a flood of litigation about what that right means. It seems everybody has forgotten John Walker Lindh, the US Taliban bloke, who used Ashcroft's pronouncement to fight his charges.

He was only exercising his Second Amendment rights there.

Now, I have a client named Mohammad who was caught with a loaded AK-47 near an International Airport. I can use the Second Amendment to argue that he shouldn't be charged. After all, he didn't go hunting intercontinental jumbo jet airliners. At least, not that time. Isn't it his right to carry a loaded AK-47 near the airport? Ditto, the Chaps who wanted to have a sniper challenge at Fort Dix. I mean, they just took videos of themselves, they weren't shooting soldiers.

Isn't that bearing arms? Now, doesn't arms also mean things like rocket launchers and guided missiles? I mean "arms control" isn't about handguns. Maybe, Mr. Mohammad will want to exercise his right to use a stinger on a jet airliner. What would stop him then?

Of course, I am hearing that "sober second thoughts of practicing lawyers" is what took over and is causing the Administration to want to change it's position. Well, I am a criminal defence lawyer and I know what trouble a finding of an "individual right" will cause. It has been settled law, among the truly knowledgeable, that the Second Amendment protects a collective right for nearly 70 years, yet there have been a shitload of cases where people have tried to argue an individual right.

Now, think of how many cases will come about when it the Second Amendment is declared an individual right? The Fort Dix Six have just received the biggest gift they could imagine.

I'd like to think that the Judges on the Supreme Court will have enough sense to see the mess that would be created by declaring an individual right as well. The "Scholars" want to twist dicta to buttress their weak arguments against what is pretty much well settled case law, but they don't mention Adams v. Williams, 407 U.S 143, 150 -51 (1972) in their lists of Second Amendment cases. Is it because Justice Douglas said: "There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police" in his analysis of the Second Amendment?

Yep, That's William O. "Wild Bill" Douglas, my hero. Of course, I like him for saving the C&O Canal. He had a neat house as well.

But, the "Scholars" want to make an argument where one doesn't exist which is why they use dicta rather than holdings to buttress their argument. That's because the legal holdings are against them.

And, there is no good policy reason to change the law to find an individual right to own a firearm. Unless, you want to destroy this county by giving guns to criminals and terrorists. Although, that seems to be the objective of the RKBA crowd.

A point here, The Court would have to rethink US v. Bean, 537 U.S. 71 (2002) if they find an individual right. Since the holding was in opposition to an individual right. Bean was a felon who was precluded from owning a firearm. He petitioned the ATF to reinstate his "rights", but the ATF didn't have enough money (guess why!). SO, ATF didn't come to a decision. Bean wanted judicial relief, but the law didn't grant it without a decision. The problem here was that the Court was unanimous in its decision that Bean wasn't entitled to relief.

Now, if the Second Amendment guarantees an individual right, the court HAD to grant Bean relief.

But, I have been pointing out that US v. Rybar was a case that held the Second Amendment was a collective right. And, Justice Alito was one that panel.

Now, it's ridiculous to say that conservativism means one finds the Second Amendment to be an Individual right, because, Justice McReynolds who wrote US v.Miller has been described as the most reactionary of Justices. Judge Robert Bork has denounced what he calls the "NRA view" of the Second Amendment, something he describes as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia.

Nor, does gun ownership mean one supports an individual right.

The problem is that the Government wants to please everyone, which it really shouldn't be doing. The RKBA crowd is not representative of the American people, or even gun owners. I know I don't condone the ability of prohibited people to acquire firearms because of the lack of serious firearms regulation, and I AM a gun owner!

Government should lead, not follow. I mean they aren't called "our leaders" for nothing.