The 2022 ruling in New York State Rifle Pistol Association v. Bruen by the Supreme Court has propelled Second Amendment rights into contemporary legal debates by underscoring the need for government restrictions to align with the historical tradition of firearm regulation. This decision, however, casts a spotlight on the problematic aspects of using America’s history, notably the Black Codes, in contemporary legal interpretations.
The Wolford v. Lopez case currently before the Court encapsulates the dilemma posed by these historical precedents. Justice Ketanji Brown Jackson has confronted the Court with this question: if the Black Codes, which sought to subjugate African Americans post-Civil War, are dismissed from the Second Amendment’s historical analysis, does this indicate a flaw in the Bruen test, particularly if all historical regulations are not considered adequately?
Hawaii’s defense of its law, which limits licensed firearm carry in public spaces without explicit consent from private property owners, has relied in part on historical laws, including a notorious 1865 Louisiana statute. This statute mandated owners’ consent for firearms on private premises and is part of the infamous Black Codes. Though this statute might superficially seem akin to Hawaii’s current presumptive ban, its historical context—designed to undermine the freedoms of newly freed slaves—renders it an inappropriate benchmark for defining the scope of fundamental rights
The Bruen decision requires that legislative precedents such as the Black Codes be considered with caution. The call for grounding Second Amendment rights in “well-established and representative historical analogues” suggests that outlier laws with discriminatory intents ought to be abandoned in legal assessments. For instance, Justice Brett Kavanaugh has remarked during oral arguments that any historical tradition justifying rights restrictions must be “deeply rooted” and broadly applicable, a standard that the Black Codes fail to meet.
Instead, the constitutional framework established post-Civil War, including the 14th Amendment, embeds an inclusive interpretation of rights that transcend racial barriers, including the right to bear arms. The ongoing debate in Wolford v. Lopez brings into relief the need to distinguish between oppressive historical measures and those legitimately reflecting broad national traditions, underscoring why the Black Codes should remain relics of history. Further details on these proceedings can be accessed via the comprehensive analysis offered by SCOTUSblog.