Prior Supreme Court View Took Right of Citizens to Carry Arms across State Lines for Granted

  October 25, 2017

If the Supreme Court had acknowledged Dred Scott to be a citizen, they would have had to acknowledge his right “to keep and carry arms wherever [he] went.” (Dred Scott. Oil on canvas by Louis Schultze, 1888. Acc. # 1897.9.1. Missouri Historical Society Museum Collections. Photograph by David Schultz, 1999. NS 23864. Photograph and scan (c) 1999-2006, Missouri Historical Society.)

AmmoLand posted an article of mine on Tuesday offering a rebuttal to Neil H. Buchanan, a “professor of law” at The George Washington University who claims:

“[T]he Second Amendment is simply not relevant to the US gun debate. None of the proposals to limit gun purchases, to limit (or even ban) carrying weapons in public, to require background checks, to forbid gun ownership by domestic abusers, to limit magazine capacities, or any other proposal on the horizon even comes close to bumping up against the Second Amendment.”

In exposing all the kinds of misinformation Prof. Buchanan was spewing to a readership that won’t know they’re being had, I missed one important point.  Fortunately, there was a knowledgeable reader providing feedback who reminded me of something I should have remembered: The opinion in the Dred Scott case as it relates to the right to bear arms.

The infamous decision that held that “a negro, whose ancestors were imported into [the U.S.], and sold as slaves,” even if freed, could not be an American citizen and thus could not sue in federal court? What, so now “racist gun nuts” are reduced to supporting slavery?

Of course not, and anyone leveling that accusation will be attempting to use it in a lying smear to keep a truth they don’t want people to know about from being shared.

I should have remembered, though, because I referenced the case in a letter I wrote to then-Mayor of Cleveland Michael R. White back in 1999, when challenging his embracing of “gun control” while refusing to acknowledge its racist roots.

Here’s the relevant passage from Supreme Court majority rationale:

“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.”

A subsequent observation from Cruikshank and cited in Heller clears up that bit about rights being “given”:

“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence…”

The bottom line though, particularly for those who would rewrite keeping and bearing arms out of American history, is that doing so by free men was considered non-controversial back in the day, to where even the Supreme Court considered it as something taken for granted. Noting the circumstances of Dred Scott and his family moving between states and the Court’s considered use of the  qualifier “wherever they went,” it’s apparent no one back then thought it a big deal or otherwise illegal for a free man to cross state lines armed.

And while some states enacted edicts against concealed carry, those were not put to a Second Amendment challenge, meaning the Dred Scott acknowledgement is something proponents of nationwide concealed carry reciprocity might want to use. They also might want to keep in mind that obtaining permission was once an alien concept to most Americans.