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. In support of the supposed “absurdity” of free blacks having citizenship rights, Chief Justice Taney described a parade of horribles that would ensue.

Free black citizens would have the right to travel about the United States“‘without pass or passport,” to enter any state, to stay there as long as they pleased, and within that state they could go where they wanted at any hour of the day or night, unless they committed some act for which a white person could be punished. Further, black citizens would have “the right to . . . full liberty of speech in public and private upon all subjects which [a state’s] own citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (Scott v. Sandford, 60 U.S. (19 Howell) 393, 417 (1857)).

Most of the rights on the list were straightforward rephrasings of the Bill of Rights. Instead of “freedom of speech,” Taney wrote “liberty of speech”; instead of the right “peaceably to assemble,” he discussed the right “to hold meetings,” and instead of the right to “keep and bear arms,” he discussed the right to “keep and carry arms.” Although the right to travel is not textually stated in the Constitution, it has long been found there by implication.

So according to the Supreme Court, the “right to . . . keep and carry arms” is like “the right to . . . full liberty of speech,” the right to interstate travel, and the “the right to . . . hold public meetings on political affairs.” Each is an obvious individual right of American citizenship.

Congress Shall Not Infringe

Although resolving the citizenship issue was sufficient to end the Dred Scott case, the Taney majority decided to address what it considered to be an error in the opinion of the circuit court. The Supreme Court ruled that Congress had no power to outlaw slavery in a territory, as Congress had done in the 1820 Missouri Compromise for the future Territory of Nebraska. The Court noted the universal assumption that the Bill of Rights constrained congressional legislation in the territories:

No one, we presume, will contend 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, or the right of the people of the territory peaceably to assemble and to petition the government for redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding.

Because Congress could not infringe the Bill of Rights in the territories, Taney concluded that Congress could not infringe the property rights of slave-owners by abolishing slavery in the territories. Again, the Taney Court treated the Second Amendment as one of the constitutional rights belonging to individual Americans.

What This Has to Do with Bruen

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.

In Bruen, several amicus briefs have asserted that District of Columbia v. Heller was wrongly decided, because the Second Amendment was supposedly only for militiamen. The argument is based on a misapplication of a form of legal scholarship known as “corpus linguistics”—essentially, searching historic databases for certain words, and counting how often those words were used in various ways.

There is no dispute that in the Founding Era, “bear arms” was frequently used in a military context. That does not mean that militia service was the only meaning of bear arms. Indeed, when one looks for “bear arms” in the context of the word “right,” or when one looks for the phrase “keep and bear arms,” most of the uses unmistakably point to a general right of all citizens, not solely for militiamen.

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.

No, Gun Bans Were Not the Norm

Another argument of some anti-rights briefs in Bruen is that as of the mid-nineteenth century, Americans had no right at all to bear arms. The no-rights argument asserts that England’s 1328 Statute of Northampton was still the law in the United States, and that it banned arms-carrying.

However, the American case law is exactly the opposite. For example, the North Carolina Supreme Court in 1843 explained that the Statute of Northampton (while not applicable in North Carolina), was just a formalization of a common law rule (which did apply in North Carolina) against carrying arms “to terrify and alarm.”

As for peaceably bearing arms, “[T]he carrying of a gun per se constitutes no offence. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun” (State v. Huntley, 25 N.C. 418, 420 (1843)).

It’s too long to post it all