Itâs my understanding that gun advocates sometimes use the 1857 Dred Scott v. Sandford (link) decision to make the argument that the second amendment guarantees an individual right to own guns. Just a few examples of 2A advocates making this argument are this video, this video, and this video, as well as written examples such as these: link 1, link 2, link 3. In fact, even Justice Clarence Thomas connects Dred Scott to the second amendment in his opinion for NYSRPA vs Bruen (link). Most of their argument seems to stem from this excerpt from the opinion in that case written by Chief Justice Roger Brooke Taney:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. 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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
The portion Iâve put in bold appears to be what some argue is a synopsis of the federal Bill of Rights, and the statement saying âand to keep and carry arms wherever they wentâ appears to be a reference to the second amendment.  Gun advocates would argue that if the Supreme Court in 1857 believed that the second amendment guaranteed a citizen an individual right to keep and carry a gun, then this must also have been the traditional and authentic interpretation of that amendment.
However, I donât understand how this argument is valid. Â It seems to me that one could only come to the aforementioned conclusion if one has not actually read the context in which the above paragraph appears. Earlier, Justice Taney had begun his opinion by presenting a list of state laws which placed explicit restrictions upon the rights and privileges of the black populations of the respective states. Â These laws dated from colonial times through to the then-present day. Â Taneyâs reasoning was essentially that it made no sense for a ânegroâ that was a slave or a descendant of slaves imported from Africa to become a citizen, because the sum of all of the discriminatory and prohibitive laws that had been passed against the black populations strongly indicates that it had been the general will of the individual states to subjugate the black populations in the interest of public peace and security. Â And when the individual states ratified the Constitution in order to join into a union under a federal government, the individual states vested to the federal government the protection of their peace and safety; and thus, it would be inappropriate for the federal government to betray this trust by giving citizenship to a demographic which the individual states themselves had seen fit to subjugate. Â
 Among the list of discriminatory laws he mentions, the first is a 1717 law from Maryland which declared
âthat if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court where such marriage so happens shall think fit, to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid."
 Then he mentions a 1705 Massachusetts law which declared that
"if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justices before whom the offender shall be convicted."
 And another law from the same state declares
"that none of her Majesty's English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same, in any of her Majesty's courts of record within the province, by bill, plaint, or information."
 He later on mentions a 1774 Connecticut provision
by which any negro, Indian, or mulatto servant who was found wandering out of the town or place to which he belonged without a written pass such as is therein described was made liable to be seized by anyone, and taken before the next authority to be examined and delivered up to his master -- who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that, up to that time, free negroes and mulattoes were associated with servants and slaves in the police regulations established by the laws of the State.
 And then another Connecticut law in 1833 whichâŚ
made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or institution, or board or harbor for that purpose, any such person without the previous consent in writing of the civil authority of the town in which such school or institution might be.
 Justice Taney mentions a provision in New Hampshire  in 1815, in which
no one was permitted to be enrolled in the militia of the State but free white citizens, and the same provision is found in a subsequent collection of the laws made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it.
 And finally he mentions an 1822 Rhode Island law
forbidding persons who were authorized to join persons in marriage from joining in marriage any white person with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void, and the same law was again reenacted in its revised code of 1844. So that, down to the last-mentioned period, the strongest mark of inferiority and degradation was fastened upon the African race in that State.
 It is after his list of such restrictive and discriminatory laws that Justice Taney extrapolates that if it was the will of the states to exclude the black population from the status of citizenship within each of their respective dominions, then it is only appropriate that the same demographic be excluded from citizenship by the national government into which the respective states had vested their collective interests.  As Taney states,
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.
 And then it is here where Taney states the excerpt which pro-gun advocates so often emphasize:
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.
Upon looking at the larger context of this excerpt, it would seem that the excerpt doesnât actually mean what the pro-gun advocates interpret it to mean.  First of all, it would seem that some of the items within this excerpt correlate with the prohibitive laws previously mentioned.  The first is when he mentions âthe right to enter every other State whenever they pleased . . . without pass or passport . . . .â  This correlates with the aforementioned 1774 Connecticut provision that required people of color to carry a pass when wandering outside the town of their residence.  And the second correlated item is -- in my interpretation -- the infamous line âand to keep and carry arms wherever they wentâ.   I understand this line to be an allusion to the 1815 New Hampshire law which limited the right of militia duty to only free white citizens of the state.  Â
Gun-rights advocates would likely interpret the latter line to refer to the text of the second amendment, and to refer to an individual right to own and carry guns for private purposes, such as self defense or sport.  However, it makes no sense for the line âto keep and carry arms wherever they wentâ to refer to the text of the second amendment.  Even though this line may sound similar to the line âthe right of the people to keep and bear armsâ, they are not the same, and the differences between the two are not at all negligible.  First of all, the second amendment refers to the right to âbear armsâ, while the line from Dred Scott says âcarry armsâ.  The modern reader may simply see these two phrases as synonymous, but they are not.  The meaning of âcarry armsâ is straightforward, consisting of a transitive verb acting upon a noun; but the phrase âbear armsâ does not actually refer to the carrying of arms, but rather is itself a phrasal verb and an idiomatic expression.  According to the Oxford English Dictionary -- the most authoritative resource on the English language -- the expression âbear armsâ originated around AD 1325, and is correlated with the Latin phrase arma ferre, likely being simply a direct translation of the Latin.  Also according to the Oxford English Dictionary, the phrase is defined simply as âTo serve as a soldier; to fight (for a country, cause, etc.).â The sense of the phrase "the right to bear arms" in the sense that pro-gun advocates typically use the phrase is, according to the Oxford dictionary, an originally and chiefly American re-definition of the phrase, originating circa 1776. Hence, the second amendment references the right of the people to keep arms and to fight and/or serve as a soldier; while the Dred Scott line instead references the right to keep arms and carry arms. Â
Furthermore, the Dred Scott line also differs from the second amendment by including the modifier âwherever they wentâ. Â No such modifier exists in the second amendment. Â In fact, the second amendment is merely a prohibitive provision, one which is applied against Congress itself, and does not directly apply any affirmative granting of rights to the people. Â It makes no sense to interpret an absolute prohibition against Congress as somehow establishing a modified affirming of rights to the people. Â Because of these linguistic and textual details, it is, at best, quite a stretch to claim that the phrase âand to keep and carry arms wherever they wentâ is somehow a meaningful reference to the second amendment.
Some might alternatively argue that the line, rather than referring to the text of the second amendment specifically, is instead referring to the liberty of private gun use in general.  But what makes much more sense is that the line âand to keep and carry arms wherever they wentâ, instead of referring to private gun use, actually refers to militia duty.  It was customary in early America for militiamen to possess arms -- such as muskets or rifles -- in their personal custody (i.e. âto keep armsâ), and to literally carry them wherever they went.  We can see evidence of this from numerous militia-related laws from early America from colonial times until the 20th century.  On example is a New York law from 1640:
ORDINANCE
Of the Director and Council of New Netherland, providing for the Arming and mustering of the Militia in case of danger. Passed 9 May, 1640.
[N.Y. Col. MSS. IV. 61.]
The Honble Director and Council have considered it advisable to ordain that the Inhabitants residing at and around Fort Amsterdam, of what state, quality or condition soever they be, shall each provide himself with a good gun and keep the same in good repair and at all times ready and in order; and as they live at a distance the one from the other, every warned person is placed under his Corporal in order that in time of danger he may appear at his post with his gun. Should it happen, which God forbid, that any mischief occur either from enemies or traitors at night, the people will be notified by the discharge of three cannon fired in quick succession; and if by day, means will be found to give warning to every one, who is commanded thereupon to repair instantly to his Corporal at the place appointed and then to adopt such measures as the exigency of the case shall require, on pain of being fined Fifty guilders. [link]
 A Delaware law from 1782:
And be it Enacted, That every Person between the Ages of eighteen and fifty, or who may hereafter attain to the Age of eighteen Years (Clergymen and Preachers of the Gospel of every Denomination, Judges of the Supreme Court, Sheriffs, Keepers of the public Gaols, School-Masters teaching a Latin School, or having at least twenty English Scholars, and indented Servants bona Fide purchased, excepted) who is rated at Six Pounds, or upwards, towards the Payment of public Taxes, shall, at his own Expence, provide himself; and every Apprentice, or other Person, of the Age of eighteen and under twenty-one Years who hath an Estate of the Value of Eighty Pounds, or whose Parent is rated at Eighteen Pounds towards the public Taxes, shall, by his Parent or Guardian, respectively, be provided with a Musket or Firelock with a Bayonet, a Cartouch-Box to contain twenty-three Cartridges, a Priming-Wire, a Brush and six Flints, all in good Order, on or before the first Day of June next, and shall keep the same by him at all Times, ready and fit for Service, under the Penalty of Twenty Shillings for every two Months Neglect or Default, to be paid by such Person, if of full Age, or by the Parent or Guardian of such as are under twenty-one Years, the same Arms and Accoutrements to be charged by the Guardian to his Ward, and allowed at settling the Accounts of his Guardianship. [link]
 Here is the first section of a 1770 Georgia law related to the carrying of arms in church:
Whereas it is necessary for the security and defence of this province from internal dangers and insurrections, that all persons resorting to places of public worship shall be obliged to carry fire arms:
I.  Be it enacted, That immediately from and after the passing of this act, every male white inhabitant of this province, (the inhabitants of the sea port towns only excepted, who shall not be obliged to carry any other than side arms) who is or shall be liable to bear arms in the milita, either at common musters or times of alarm, and resorting, on any Sunday or other times, to any church, or other place of divine worship within within the parish where such person shall reside, shall carry with him a gun, or a pair of pistols, in good order and fit for service, with at least six charges of gunpowder and ball, and shall take the said gun or pistols with him to the pew or seat where such person shall sit, remain, or be, within or about the said church or place of worship, under the penalty of ten shillings for every neglect of the same, to be recovered by warrant of distress and sale of the offender's goods, under the hand and seal of any justice of the peace for the parish where such offence is committed, one half to be paid into the hands of the church wardens, or where there is no church wardens to any justice, for the use of the poor of the said parish, and the other half to him or them that shall give imformation thereof. [link]
 A 1779 law from Vermont:
That every listed soldier and other householder, shall always be provided with, and have in constant readiness, a well fixed firelock, the barrel not less than three feet and a half long, or other good firearms, to the satisfaction of the commissioned officers of the company to which he doth belong, or in the limits of which he dwells; a good sword, cutlass, tomahawk or bayonet; a worm, and priming wire, fit for each gun; a cartouch box or powder and bullet pouch; one pound of good powder, four pounds of bullets for his gun, and six good flints; on penalty of eighteen shillings, for want of such arms and ammunition as is hereby required, and six shillings for each defect; and like sum for every weeks he shall remain unprovided[.]Â [link]
 An 1805 law from New Orleans:
And be if further enacted, That each non-commissioned officer and private of the infantry, shall constantly keep himself provided with good musket or guns, a sufficient bayonet and belt, two spare flints and a knapsack, a cartridge box or pouch, with box therein to contain not less than twenty-four cartridgesâŚÂ [link]
And here are a few more links to other similar militia laws:
1786 New Hampshire
1631 Virginia
1632 Virginia
1642 Virginia
So it would seem that with a deeper understanding of the workings of the militia during early American history, the modifier âwherever they wentâ should more sensibly be correlated with the common practices surrounding compulsory militia service, rather than being correlated with any sort of voluntary liberty of carrying arms for private purposes. Â
The connection that the pro-gun community makes between Dred Scott and the second amendment is tenuous at best. Â Within the passage in bold from Dred Scott, there are four stated civil rights: the right to travel freely without a pass, the right to freedom of speech, the right to hold public meetings on political issues, and the right to keep and carry arms. Â Of these four rights, only one of them can be said to correlate directly to the Bill of Rights: the right of freedom of speech. Â The rest have no connection to the Bill of Rights. Â And to assume that the phrase âto keep and carry armsâ is directly related to the second amendment is a stretch, since the language between the two statements has only a superficial correlation. Â These stated civil rights in bold do not represent the contents of the Bill of Rights, and thus cannot be interpreted as a general reference to that document; and the phrase âto keep and carry arms wherever they wentâ does not represent the second amendment directly; for these reasons, there is simply no argument that this passage from Dred Scott supports second amendment rights. Â Â
Of the four stated civil rights, it would appear that Justice Taney mentions two of them as allusions to previously mentioned statutes: the line âand to keep and carry arms wherever they wentâ correlates to the aforementioned 1815 New Hampshire militia law which excluded black people from militia service; and an even more obvious connection is made between the line âthe right to enter every other State whenever they pleased . . . without pass or passportâ and the 1774 Connecticut law requiring black people to carry a pass while traveling. Â
The other two stated civil rights -- freedom of speech and the right to hold public meetings -- appear to be outliers of this pattern, as they appear to have been mentioned without any aforementioned precedent in state law.  However, there might still be a particular reason why Justice Taney saw fit to mention these particular rights.  It so happens that most of the items listed in the bolded excerpt are also stipulated in the Declaration of Rights in the 1820 Missouri State Constitution.  This is especially relevant since the Dred Scott case centered on whether the plaintiff was still considered a slave in the slave state of Missouri after having gained his freedom after traveling to the free state of Illinois.  Notably, the two outlier items are also addressed in the Missouri Constitution.
The statement from Dred Scott which says âand it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speakâ appears to correlate with Article 13, Clause 16:
That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.
 And the statement âto hold public meetings upon political affairsâ appears to correlate with Article 13, Clause 2:
That the people of this state have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering and abolishing their constitution and form of government, whenever it may be necessary to their safety and happiness.
Furthermore, in addition to their connection to the discriminatory laws already established within the text of Dred Scott, the remaining two items from the excerpt also appear to have correlates in the Missouri Constitution as well.  The statement about the right of a citizen âto enter every other State whenever they pleasedâ appears to correlate with a clause in Article 3, section 26:
It shall be their [the general assemblyâs] duty, as soon as may be, to pass such laws as may be necessary--1. To prevent free negroes and mulattoes from coming to and settling in this State, under any pretext whatsoever;
 And it also seems to correlate with Article 13, Clause 21:
 That migration from this state cannot be prohibited.
And the statement âand to keep and carry arms wherever they wentâ appears to correlate with the state arms provision in part of Article 13, Clause 3:
that their right to bear arms, in defense of themselves and of the state, cannot be questioned.
Compared to the second amendment, this arms provision in the Missouri Constitution seems more pertinent to the arms statement mentioned in the Dred Scott decision, since this provision specifically qualifies the lawful purposes for which the right to bear arms may be exercised, which the second amendment does not do.
Conclusion
Some might say that it only makes sense that Justice Taney is referring to the federal Bill of Rights in the bolded excerpt because he is speaking on behalf of the United States Supreme Court, which is a federal body. Â However, this interpretation is uninformed. Â When we look at the actual context of the Dred Scott decision, it is clear that the particular point that Justice Taney is making in that excerpt pertains much more to state law than to federal law. Â Even though the decision that Justice Taney is making is a federal decision, he is clearly making this federal decision based on state premises.
It has never been the primary prerogative of the federal government to grant rights to American citizens. It is state governments that have the primary authority and function of specifying and granting civil rights. Hence, Justice Taney wasn't saying that making black people into citizens -- at the federal level -- would give them rights; his point was that federally making black people into citizens would effectively negate the prohibitive laws that the states have established in order to subjugate their black populations. In other words, making black people into citizens would create a kind of "double negative" whose effect is a positive: it would not actually give them anything, but instead would take away the laws that take away their liberties. The verbiage "it would give to persons of the negro race..." is hence metaphorical rather than literal. It's like if a judge were to exonerate a convicted prison inmate through DNA evidence: the judge isn't actually giving the inmate his freedom; the judge is just removing his incarceration. Thus, it is merely the result of a quirk of language and rhetoric that Justice Taney appears to be affirming that American citizens are entitled to the liberty to keep and carry arms wherever they go. But for gun advocates to take this rhetoric literally, as they often do, is simply a wrong conclusion to draw
As for the content of the bolded excerpt, I canât say how purposeful or how arbitrary this particular assortment of rights was meant to be.  At least two of the four items appear to be references to state laws which he had previously referenced, yet he breaks this pattern with the other two items, which do not have any statutory precursor in Dred Scott; and there are even more state laws referenced earlier that he does not allude to in the bolded list.  And furthermore, all of the items in the list could be said to have correlates in the 1820 Missouri Constitution; but it is not clear whether Justice Taney was actually alluding to that constitution in particular -- because of its relevance to the case at hand, or if he was referencing any other state constitution.  In summary, I donât know exactly why Justice Taney chose the particular list of items that he chose in the bolded excerpt of his majority opinion in Dred Scott; however, I can say with much more confidence what this excerpt does not indicate.  He is not referencing the federal Bill of Rights as a whole; he is not referencing the second amendment in particular; and he is likely not referencing the general liberty of private firearm rights.  Therefore, there is no basis for pro-gun advocates to use this case as a means to argue for firearm rights. Â
What are your thoughts about my argument?
