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Atty. Ralph D. Sherman

130 West Main Street • New Britain, Connecticut 06052
tel. (860) 229-0213 • fax (860) 229-0235 • e-mail atty@ralphdsherman.com

Legal Opinion

April 1999

Blacks and the right to bear arms

It's time to resume my discussion of the history and meaning of the Second Amendment (as requested by several readers).

One of the myths that you hear from the gun-ban crowd is that the U.S. Supreme Court has "never" said the Second Amendment guarantees every individual the right to keep and bear arms. Our deceitful President would like you to believe that your right to firearms has something to do with duck hunting.

There are several reasons that Handgun Control and company don't want you to know the truth. One reason is that when you research what the Supreme Court has actually said, you quickly find that "gun control" laws are rooted in racism.

Wait. I haven't turned into some kind of conspiracy nut. If somebody had told me 15 years ago that "gun control" and racial discrimination are inseparably linked in the history of the United States, I would have been skeptical, too. After I started to read some of the old cases and statutes, however, I saw that it is impossible to reach any other conclusion. (In fact I recently gave a talk at UConn on the connections between "gun control" and racial, economic, and sexual discrimination.)

Anyone who studies the history of the United States in the 19th Century comes across the Supreme Court case known as the Dred Scott decision. The correct title of the case is Scott v. Sandford (1856), and you can find it in any law library. Usually the case is studied because of its bearing on the status of blacks.

Today the Dred Scott case is infamous, a good example of how the Supreme Court can be dead wrong. Dred Scott himself was a free black. The Supreme Court was asked to decide whether a free black was a citizen, entitled to the full protection of the Constitution, the Bill of Rights, and other laws of the United States. The court held that blacks were not citizens, because the founding fathers didn't have blacks in mind when the Constitution was written.

This is no longer the law of our country, thank goodness, because even the Supreme Court corrects its errors, if given enough time. But the Dred Scott case is still important because it is one of the first cases in which the Supreme Court gave its view of the Second Amendment.

In this column I don't have space to discuss most of the decision. But here's the critical section. The court found it unthinkable that blacks could be considered citizens, because:

"[If black people were] 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 [Southern states] considered to be necessary for their own safety. It would give the persons of the negro race, who were recognized as citizens in any one State of the Union...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, inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

The "special laws" mentioned by the court are the Black Codes, drafted to keep blacks down even if they became free. Essential to the Black Code of every Southern state was a law prohibiting blacks from owning firearms - a total gun ban for blacks only.

The "full liberty of speech" is the court's reference to the right of free speech, guaranteed by the First Amendment. The freedom "to hold public meetings upon political affairs" likewise refers to the First Amendment.

And the right "to keep and carry arms wherever they went" - I don't have to tell you where the Supreme Court found that one. But you can see the meaning as plain as day, in the words of the U.S. Supreme Court.

Because of dissatisfaction with the court's ruling that blacks weren't citizens, Congress eventually passed the 14th Amendment. This also is quite relevant to the right to keep and bear arms, and anyone who reads this column needs to know why. I'll explain in a future column.

Copyright 1999 by Ralph D. Sherman

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