The Blanding case was decided in 1825, a generation after adoption of the Bill of Rights. Early nineteenth century America was a vibrant and growing society where many had found freedom and wealth, but it was also a society with limited commitment to human rights. Slavery and overt racism were the law of the land, while Native Americans were driven by force from ancestral domains and large numbers killed in the process. Attitudes toward freedom of expression shifted dramatically between the adoption of the First Amendment and the Blanding decision. For example, in the 1790s abolition of slavery could be legally advocated even in slave states,^[282] but beginning in the 1820's, slave states criminalized circulation of abolitionist writings.^[283] Even in the North by the 1830’s abolitionist were being persecuted and criminal proceedings brought for teaching Black children to read.^[284] Religious freedom was also on the retreat, with states once again prosecuting religious dissenters for blasphemy and overt discrimination against Catholics, Jews and Mormons.^[285]  During the Washington administration the Attorney General refused to prosecute people who advocated obstruction of the tax laws because it would violate freedom of the press;^[286] by the 1820’s, it was criminal libel for a newspaper to complain about a tavern letting a customer drink himself to death.

Justice Scalia chose a case from this bleak era for American civil liberties as a precedent for the proposition that press freedom guarantee and the right to bear arms were both originally

[282] See Davis, David B., The Problem of Slavery in the Age of Revolution, 1770 – 1823 (1975) 196-212 (describing abolitionist activity in the South)

[283] Tyler, Alice F., Freedom’s Ferment (1944) at p. 484-85 (Georgia laws, including prohibition on abolitionist publications and bounty for capture of author). In 1829 Georgia passed a racist law prohibiting freed Blacks from communicating with slaves. See Nye, Russel B., Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860 (1972) at p. 155.

[284] See Whipple, at 84-124 (hereafter: Whipple) Nye, Russell B., Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860 (1972) 86-173.

[285] See Whipple, 38-41, 56-73; Myers, Gustavus, History of Bigotry in the United States (1943) at p. 118-174.

[286] See footnotes 202 - 204 above.