David Kopel writes for the Federalist about an important element of the U.S. Supreme Court’s latest gun case.
On Wednesday, the Supreme Court will hear oral argument in New York State Rifle and Pistol Association v. Bruen, to decide whether the Second Amendment right to “bear arms” is a legally enforceable right. The case raises some of the same questions that were at issue at the infamous 1857 Supreme Court case Dred Scott v. Sandford.
The Dred Scott majority held that free blacks could never be citizens of the United States, so plaintiff Scott could not bring a case in federal court. …
… Dred Scott has several implications for the Bruen case. First, it affirms that the Second Amendment right to bear arms is a normal individual right, like the other individual rights listed in the case, such as free exercise of religion, freedom of speech and of the press, jury trial, and so on. …
… Dred Scott shows that the Second Amendment’s original public meaning from 1791 remained the same through 1857. The Scott Court put Second Amendment rights into lists of other ordinary rights belonging to all citizens, not solely for a subset of citizens engaged in military service. …
… It is not surprising that the plaintiffs’ briefs in Bruen, and several of the amicus briefs in support of the plaintiffs, directly address the Dred Scott case. It is revealing that neither the Bruen defendants nor their many amici claiming expertise in American legal history even dare to mention Dred Scott. The case destroys their assertions that bearing arms was generally prohibited in the antebellum United States.
Yet it would have been proper for the supporters of the current New York system to defend and extol Dred Scott v. Sandford. The ultimate principle that the anti-rights briefs support is that Dred Scott’s holding against the rights of free people of color should be affirmed and extended to all people, regardless of color.
