From The Wall Street Journal - one perspective:
Dred-full Decision
It’s not often these days that courts approvingly cite Dred Scott v. Sandford, the Supreme Court’s 1857 decision holding that blacks could not be U.S. citizens. But Dred Scott made a surprising cameo today in another divisive constitutional issue, providing ammunition for a federal circuit court conclusion that the Second Amendment overrides the District of Columbia’s ban on handguns.
Dred Scott
The amendment states that “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.” Gun enthusiasts have stressed the last part to argue that the amendment provides an individual right to own firearms. Gun-control proponents focus on the introductory phrase, arguing that the amendment protects gun ownership only within the context of militia service.
The Supreme Court last spoke on the Second Amendment in 1939, when it upheld a federal law requiring registration of sawed-off shotguns. The justices found no constitutional “right to keep and bear such an instrument,” because a sawed-off shotgun had no “reasonable relationship to the preservation or efficiency of a well-regulated militia.” Most federal courts subsequently have dismissed challenges to gun-control laws on Second Amendment grounds.
Gun advocates have urged instead that courts apply the Second Amendment much like the First, providing an individual right rather than a collective one. The Bush administration embraced that view, and in 2005 the Justice Department issued a 109-page memorandum collecting legal and historical arguments for the position.
Silberman
The U.S. Court of Appeals for the District of Columbia Circuit cited that memo in reversing a lower court that upheld the gun ban enacted by Washington‘s city council. But writing for a 2-1 majority, Judge Laurence Silberman, among the nation’s most influential judicial conservatives, acknowledged that “there is no unequivocal precedent that dictates the outcome of this case.” So he looked for guidance — and found it in Dred Scott.
In that case, the court found that the federal government lacked the authority to abolish a slaveowner’s property right in his slaves merely by outlawing slavery in new territories. No one contends “that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press… [n]or can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury,” Chief Justice Roger Taney, writing for a 7-2 court, explained in the section Silberman cited.
“Although Dred Scott is as infamous as it was erroneous in holding that African-Americans are not citizens, this passage expresses the view, albeit in passing, that the Second Amendment contains a personal right,” Silberman observes, before moving on to other precedents.
The Supreme Court never reversed Dred Scott, but following the Civil War, the 13th and 14th amendments abolished slavery and guaranteed that anyone born in the U.S. automatically was a citizen.
Today’s ruling conflicts with a 2002 opinion by the Ninth Circuit, based in San Francisco, rejecting the individual right theory of the Second Amendment. That suggests the issue may be headed to the Supreme Court for resolution — offering the justices the chance to weigh in on the modern day relevance of Dred Scott to the gun-control debate. – Jess Bravin
