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A few weeks ago, in Parker v. District of Columbia, a federal court of appeals struck down as unconstitutional a gun control law prohibiting possession of “functional firearms” in the owner’s home. In its opinion, the majority cited the U.S. Supreme Court’s disastrous Dred Scott case of 1857. Whatever the merits of its opinion on gun control, the majority’s undoubtedly well-intentioned citation resurrects a shameful ruling. The issue before the Parker court was the constitutionality under the Second Amendment of a District of Columbia law that banned possession of handguns in the home. The Second 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.” Whether the Second Amendment applies to individual gun ownership, as opposed to state militias, has been the subject of numerous opinions by appellate courts in our era. Even so, the Parker majority reached back 150 years to the Supreme Court’s most catastrophic decision. A virulently racist opinion The Dred Scott court held that even free blacks were not citizens of the United States and that Congress had no power to ban the spread of slavery in the territories of the United States. The opinion was virulently racist, describing blacks as “beings of an inferior order” and “unfit to associate with the white race,” and proclaiming that, according to the Constitution, slaves were property just like a horse or a valise. In a country that was a tinderbox, the Supreme Court had struck a match. Dred Scott hurled the nation down the path to the Civil War. The Dred Scott case was reversed only by the deaths of 600,000 American soldiers. The chief justice, Roger B. Taney, wrote the majority opinion . In one section, Taney reasoned that, since slaves were property, the Constitution guaranteed a slave owner’s right to own human beings just as it guaranteed other individual rights. Congress, he pointed out by way of analogy, cannot “make any law in a Territory” that denies “the right to keep and bear arms.” So, too, with enslaved men, women and children. The majority quoted at length from this passage to support its argument that the Second Amendment applies to individual gun ownership. “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.” Even with the disclaimer, the majority should not have resurrected Dred Scott. Fleeting dicta in a 150-year-old case can make no serious contribution to a contemporary constitutional issue. Worse, citing Dred Scott for any legal proposition implies that some part of Taney’s reasoning deserves respect, even though his ultimate holding was horrific, as though judicial reasoning and resulting conclusions can be neatly divorced. No aspect deserves respect In fact, there is no aspect of Taney’s opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court. By 1857, according to Don E. Fehrenbacher, in The Dred Scott Case: Its Significance in American Law and Politics, Taney, a former slaveholder from Maryland, was a “bitter sectionalist, seething with anger at Northern insult and Northern aggression.” Although the case should have been resolved on narrow, technical grounds, Taney went out of his way to write a sweeping opinion that resolved every issue affecting slavery in favor of the South. In doing so, he mischaracterized outright provisions of the Constitution that addressed slavery. A cascade of Northern anger descended on Taney after the first newspaper accounts of the ruling as read out loud by Taney in the Supreme Court. Taney instructed the clerk of the Supreme Court not to release the written opinion to anyone, even the dissenting justices. He then rewrote the opinion to respond to his infuriated critics, expanding its length by nearly a third. We will never know if the passage cited by the Parker majority was written when a bitter, resentful chief justice found himself besieged in a political firestorm. One Northern newspaper editorialized that Taney’s opinion deserves no more respect than “what might be obtained in a Washington City barroom.” That observation is still true. If there was any Supreme Court case that deserved a permanent burial, it was Dred Scott. Historians of this dark time in our past, and not our courts, should be the only ones to dig it up. Gregory J. Wallance, a lawyer at Kaye Scholer in New York, is the author of the historical novel Two Men Before the Storm: Arba Crane’s Recollection of ‘Dred Scott’ and the Supreme Court Case That Started the Civil War (Greenleaf Book Group Press 2005).

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