Howard Bashman links to a National Law Journal essay by Gregory J. Wallace criticizing the DC Circuit for citing Dred Scott in the big gun rights case a few weeks ago. I can see not wanting to cite Dred Scott as a matter of course, but it’s an important case, and noting its existence doesn’t revive it as good law. It would be one thing to cite it for the scope of Fifth Amendment property rights, but I don’t see a big problem quoting its dicta about the scope of the Second Amendment right. First, the court was careful to disavow any broader reliance on the case. And second, there just aren’t a lot of Supreme Court cases discussing the Second Amendment; beggars can’t be choosers.
And imagine the counterexample. What if Dred Scott was good for the collective rights argument? What if it listed a bunch of individual rights protected in the constitution but omitted the right to bear arms? If that had been the case, and the court declined to cite Dred Scott out of sensitivity, wouldn’t that look dishonest? Wouldn’t gun control advocates accuse the court of manipulating the precedents? I think it should work the same the other way. There’s a mention of the Second Amendment in this otherwise bad case, but it’s clearly dicta and wasn’t the reason for the outcome, and in the interest of completeness it’s fine to cite it.
When I was in law school, I was reading something about the master-servant relationship in agency law, and noticed a citation to an 1850s case from one of the Confederate states. Out of curiosity, I looked it up. Sure enough, it arose from a master-slave relationship. As I recall, it had to do with who’s liable when the master lends his slaves to another and the slave commits a tort. It read like a defective product case. It was bizarre. I checked, and the state court didn’t cite it often, but there were cites as late as the 1950s for the agency principles involved, without mentioning the precise facts. But that isn’t what the DC Circuit did at all. It wasn’t glossing over or defending Dred Scott. The case exists, and it is an important window into pre-14th Amendment constitutional theory, and the DC Circuit cited it for what it was worth. We shouldn’t airbrush Dred Scott out of the U.S. Reports.