The Second Amendment: Why The Reliance On The Dred Scott Decision?
Today I post the fifth and final installment of the Brady Center Legal Action Project's thorough criticism of the appeals court decision in the DC gun case. Titled, "Wishful Thinking: How the Parker Court Twisted and Misrepresented the Holdings of Supreme Court and State Cases," it explains -- in one case after another - how the many decisions that the lower-court opinion cites (including the infamous Dred Scott decision) offer little or no support for its mistaken conclusions.
The Brady Center's Legal Action Project has produced a unique document here. As far as I'm aware, it is the only criticism of its kind to provide such a detailed and scholarly treatment of the lower-court decision in the D.C. gun case.
In the process, the Brady Center has shown that the lower-court opinion falls of its own weight.
As a complete explanation and defense of pre-2007 Second Amendment law, anyone who is interested in the Second Amendment generally, as well as the case now before the United States Supreme Court (D.C. v. Heller), will find it to be essential reference material.
I include an excerpt of the fifth installment here, with a link to the full text at the end:
This installment addresses the Parker majority's citation to state and Supreme Court case law containing passing references to the Second Amendment in footnotes and dicta, or even a brief mention of the Amendment in a dissent, as support for its activist re-interpretation of the Second Amendment. All told, of the eleven state and Supreme Court cases examined below and cited by Parker as holding that the Second Amendment grants a right to possess firearms for private purposes, only two state cases can possibly be read to support such a theory. Yet these two cases contain only brief references to the Second Amendment in dicta that even Parker admits is contradicted by binding Supreme Court precedent.
The Parker majority's reliance on such dicta violates Justice Marshall's stern warning on the hazards of citing pronouncements about the law that are not at issue in a case: "It is extremely dangerous to take general dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles." The Parker court's claim that these eleven cases support its view of the Second Amendment is nothing more than wishful thinking.
***
"The Parker court's desperation is perhaps most starkly revealed by its reliance on one of the most thoroughly discredited cases in Supreme Court history, Dred Scott v. Sandford. Dred Scott, of course, infamously held that slaves were property and not entitled to the same rights as citizens. Its later-reversed holding had nothing to do with the Second Amendment. In 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." From this lone sentence, the Parker majority concluded that "this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right" because it "is included among other individual rights...."
Of course, Dred Scott's dicta proves nothing. As we have already noted in our second and fourth installments in this series, labeling a Second Amendment right as "personal" or "individual" does not in any way advance our understanding of the Amendment's purpose. The Supreme Court of Tennessee, in the 1840 Aymette case, pointedly asked: "to keep and bear arms for what?" The fact that the Second Amendment's right is secured to "the people" does not mean that the Amendment's declaration and guarantee can be divorced from its militia purpose."
Read the full installment here [pdf].
(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)
Comments for this post are now closed
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
The word militia means both the unorganized and the organized militia.
The unorganized militia consists of all able bodied citizens capable of bearing arms. This was always mean to signify the armed populace which was assumed to be the bedrock of civil society.
The organized militia, is the portion of the militia called into actual service in the field or in drill.
The work regulated, as used in the time, meant well equipped. Regulars were soldiers who were fully equipped with weapons and uniforms.
So what the second amendment says when translated is:
A well armed populace being necessary to the security of a free state, the right of thepeople to keep and bear arms shall not be infringed.
Now doesn't that just sound like what they were trying to say anyways?
In the article above, which in part reade:
"...All told, of the eleven state and Supreme Court cases examined below and cited by Parker as holding that the Second Amendment grants a right to possess firearms for private purposes, only two state cases can possibly be read to support such a theory..."
You can see a fatal flaw in their argument. Neither the Second Amendment, nor any other Amendment grants any individual rights at all. The First Ten Amendments, commonly referred to as The Bill of Rights (BOR) limits the power of government to interfere with pre-existing rights. The BOR merely protects our rights and in the case of the Tenth Amendment, any powers not solely delegated to the federal government.
There is a preamble to the BOR, not generally published with the Bill of Rights which makes this purpose crystal clear.
And remember, only people have rights. Governments at any level have powers only. Also the 18th centure expression, "well regulated," did not mean government control; it referred to functioning. And the militia as the founders understood the term referred to tru civilians armed for their common defense against attacks from any source, but also---if one reads the "Federalist Papers," and other writings of the time---against governmental tyranny.
Nothing about human nature and the tendency of power corrupting and therefore the ever-present danger of tyranny has made the protections of our greatest natural right--the right to defend one's life and liberty---to have become anachronistic. There are 85 million gun owners----that represents 1,700,000 "militia" per state. We would be more than a match.
True, in a free society, there is risk to individuals from criminals and crazy people, but we assume that they will get weapons even when we cannot---but a well armed (and well-train
Be a self-reliant adult and and be responsible for your own safety.
Kelli, I take it that you fully support SCOTUS decisions that have legal precedent behind them and have not been overturned by later SCOTUS decisions?
Would this be an accurate statement?
Sorry for the typo. Make that 1960.
Here, courtesy of the FBI, are the DC crime statistics from 1060 to 2006.
http://www
Is it any wonder that these people want their constitutional rights restored?
Gee, for an organization that is not out to ban guns, the BC seems to be putting out a great deal of effort in support of the DC gun ban.
Kelli, who exactly is "pushing guns" on young people?
Paul,
Just in case you were confused (you seem to be) about who exactuly "the people" are:
U.S. v. Verdugo-Urquidez (1990)
This case dealt with whether nonresident aliens, located in a foreign country, were entitled to Fourth Amendment rights. The Court ruled they were not. In discussing the meaning of "the people" in the Fourth Amendment, the Court commented:
" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "
Morning all...
I will be brief. Don't believe anything I say. Don't believe anything Paul says. Don't believe anything anyone says. Read the Dred Scott decision handed down by the court for yourself.
http://www
Then read the Parker Decision..
http://pac
From the dissenting opinion is State v Niento, a case where a Mexican was convicted for having a firearm on his person while sleeping in his own bed.
"I desire to give some special attention to some of the authorities cited, supreme court decisions from Alabama, Georgia, Arkansas, Kentucky, and one or two inferior court decisions from New York, which are given in support of the doctrines upheld by this court. The southern states have very largely furnished the precedents. It is only necessary to observe that the race issue there has extremely intensified a decisive purpose to entirely disarm the negro, and this policy is evident upon reading the opinions."
These are the kinds of precedents for gun control that the BC wants to uphold.
Among the many flaws of the BC's "analysis" of the Parker appeals court decision is its false suggestion that the Tennessee Supreme Court questioned the Second Amendment:
"labeling a Second Amendment right as 'personal' or 'individual' does not in any way advance our understanding of the Amendment's purpose. The Supreme Court of Tennessee, in the 1840 Aymette case, pointedly asked: "to keep and bear arms for what?'"
The Tennessee Supreme Court was not referring to the Second Amendment. It was referring to Section 26 of Article I of the Tennessee Constitution at the time. The BC "analysis" attempts to disguise this by not citing the Aymette opinion with sufficient context, so here it is:
"The section under consideration, in our [Tennessee's] bill of rights, was adopted in reference to these historical facts [from England], and in this point of view its language is most appropriate and expressive. Its words are, "the free white men of this state have a right to keep and bear arms for their common defence. . . . But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms. But to keep and bear arms for what?"
------------
http://www
Thus, the Tennessee Supreme Court was not questioning something about the Second Amendment but the Brady Campaign attempts to mislead readers on that in its "analysis".
Precedent for the appellate decision:
The Georgia Supreme Court found in Nunn v. State that a statute prohibiting the sale of concealable handguns, sword-canes, and daggers violated the Second Amendment:
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation!(30)
Seems it's the 20th century courts who were being "activist" and "legislating from the bench".
With respect to youth & firearms ~ Family and friends were, indeed, found to be the primary sources of youth guns in this country. And, half (50%) of youth who have been surveyed here (by the National Institute of Justice) have reported that they could obtain guns 'relatively easily'...
And guess what? They were right. They can. And they do.
When it comes to gun control in this country ~ we need to take a good, long hard look at this particular population of easy-access gun 'recipients' (for lack of a better word) ... & be far more proactive in the future than we have been previously, in order to prevent such gun-killings in our public areas. I have a feeling there are good, sound ideas/proposals already on the table by gun control advocates & organizations.
KELLI
"... Of course, Dred Scott's dicta proves nothing. As we have already noted in our second and fourth installments in this series, labeling a Second Amendment right as "personal" or "individual" does not in any way advance our understanding of the Amendment's purpose," writes the Brady Center.
EXACTLY!!
This is probably the best-worded analysis I've come across on the incorrect reasoning put forth by the lower court in the DC Heller (gunlaw) case with respect to Dred Scott. Thank you for making this point, BC!
For those reading from elsewhere who be unaware ~ in a nutshell, Dred Scott & his wife (Harriet, I think?) were slaves with children born in a 'free territory' (eg., one that forbid such slave ownership). But, the children of slaves were still considered to be legal slave property of their 'masters,' even if their 'masters' traveled with them to a free state/territory.
To the High Court's discredit, it ruled that slaves were not citizens of this country; & so, could not sue for their freedom ~ even if brought to a free state. Of course, this decision came before Lincoln's win over Douglas & the southern states seceding from the Union; &, of course, the extremely bloody Civil War.
But if you read the Brady Center's logic, it makes sense as to why this particular case regarding certain 'rights' issues does not work with the current Heller case, IMO.
KELLI
Why would the Brady Campaign want to avoid mention of the Dredd Scott Case? Because its wording, while not directly about the 2nd amendment, mentions that to recognize blacks as citizens would mean they could speak, travel, and bear arms just like white citizens. Therefore it is a justification for racist gun control measures.
From the Georgia Carry Report:
Georgia's gun laws were designed to disarm slaves, freedmen, and black
Georgians. Whenever blacks used arms to fight against racism and discrimination,
the General Assembly responded with laws criminalizing their actions. Georgia's
gun laws were not a crime prevention measure; they were Georgia's way to
perpetuate racism, oppression and white supremacy. These racist laws still apply
in Georgia.
"Its [Dred Scott case] later-reversed holding had nothing to do with the Second Amendment.
EXACTLY!!
And Brady Center/Paul, I think a lot of people were wondering just why the court oddly cited this case involving pre-Civil War slavery rights (to put it in a nutshell), in its reasoning on the 2nd Amendment & gun rights/gun laws. It did not make sense then; nor does it now. I hope, as do so many others, that the Supreme Court looks very carefully at all of the lower court's reasoning when it reviews Heller.
Thanks,
Kelli
Loading comments…
Posted December 5, 2007 | 06:25 PM (EST)