The Black Codes must not define America’s fundamental freedoms

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In the 2022 case of New York State Rifle Pistol Association v. Bruen, the Supreme Court held that the Second Amendment protects a right to carry firearms in public. It further held that to justify a restriction on firearm-related conduct the government must show that the restriction is consistent with the “Nation’s historical tradition of firearm regulation.”

What does that test mean for the more unsavory aspects of our nation’s history? For example, following the Civil War but before their full reintegration into the Union, states across the south enacted laws aimed at subjugating newly freed persons and maintaining to the extent possible the social and economic relations that prevailed under slavery; this included restricting Black people from possessing firearms. These infamous “Black Codes” would appear to be an unusual source to rely on for understanding the scope of our nation’s fundamental freedoms. But as Justice Ketanji Brown Jackson recently asked at argument in Wolford v. Lopez, a Second Amendment case, if the Black Codes are excluded from consideration, does that “signal a problem with the Bruen test, … to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account”?

Jackson’s question is a serious one. The Black Codes, however, should be used neither to restrict the scope of Second Amendment rights nor to undermine Bruen’s historical method (or that of originalism in general). Indeed, rejecting reliance on the Black Codes is not only consistent with analyzing the history behind a law – it is demanded by it.

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Wolford presents the question of whether Hawaii’s law presumptively banning licensed individuals from carrying firearms in establishments open to the public without the proprietor’s affirmative consent violates the Second Amendment. The idea for flipping the background presumption in this way appears to have originated with Yale Professor Ian Ayres, who with a co-author posited that doing so “would radically expand the private spaces where guns could not be carried.” Several states (New York, Maryland, California, New Jersey, and Hawaii) adopted the policy after Bruen held that their gun-licensing schemes were unconstitutional.

Under Bruen’s history-based test, Hawaii’s defense of its presumptive ban before the Supreme Court has centered on historical laws that required affirmative consent from owners before individuals could carry guns on certain types of land. Many of the laws they cite generally were aimed at combating illegal hunting, however, and they restricted firearms only on “improved” or “enclosed” lands where people presumptively would have no right to be in the first place, armed or not. In that way, the statutes essentially are aggravated trespassing laws, and they are a poor fit for Hawaii’s more sweeping presumptive ban.

But the state points to another law, passed in 1865 in Louisiana, which appeared to go further – specifically, it stated that “it shall not be lawful for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor.” According to Hawaii, this law demonstrates that states demanded affirmative consent, as a matter of historical practice, before gun carriers could enter others’ premises. As the state also recognizes, this statute has a notorious history, having been passed as part of the so-called Black Codes.

Which raises the key question: heinous as it was, if Louisiana’s law were nevertheless a “dead ringer” for Hawaii’s presumptive ban, would that be enough to establish Hawaii’s modern law as consistent with the Second Amendment?

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Before answering that question, some background of the law is necessary. As the court noted in Timbs v. Indiana, “Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy.” The Black Code laws were wide-ranging, touching on matters such as freedom of movement, ownership of firearms, the ability to contract, and more. While “[m]ost of these laws embodied express racial classifications,” some “were facially neutral.” Regardless, “Congress plainly perceived all of them as consciously conceived methods of resurrecting the incidents of slavery.”

Louisiana’s 1865 law was part of that state’s Black Codes. It was adopted in 1865, before Louisiana was formally readmitted to the Union, by a legislature that the New York Tribune described as “composed almost exclusively of persons lately in insurrection against the Government.” Although the law presumptively banning the carry of firearms on premises or plantations was facially race-neutral, the paper specifically identified it as part of Louisiana’s “code of laws establishing a system of serfdom” for the state’s Black population. The apparent aim was to restrict the ability of newly freed persons to hunt and engage in other subsistence activities and thus force them back into agricultural labor. As a Congressional report discussing the situation in Louisiana described it, this ban was part of “a series of laws which must have been designed to restore the negro to a state of practical servitude,” and did so by depriving “the great mass of the colored laborers of the State of the right to keep and bear arms.”

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Under Bruen, Louisiana’s Black Codes should be relegated to where they belong – the dustbin of history. It is true, of course, that Bruen instructs courts and litigants to look to history to understand the contours of the right protected by the Second Amendment. But that does not mean that all history is of equal worth, or that historical laws must be treated indiscriminately. Rather, Bruen instructs that the analysis should be built on “well-established and representative historical analogue[s].” This instruction makes sense. As Justice Brett Kavanaugh explained at the Wolford argument, “when you’re looking for a historical tradition that justifies an exception to the textually expressed right, it’s got to be a deeply rooted tradition broadly consistent over time and broad among a lot of states.” Or as Justice Neil Gorsuch put it, “[w]e’re looking for the mainstream.”

The gold standard in looking for that mainstream is the common law as it existed in early America, as that was the law generally understood to govern arms-bearing conduct when the Second Amendment was ratified. Legislation can have a place too, but it should be checked against those common law principles. What should not have a place, however, is an outlier law, such as the Black Codes, that substantially departs from the common law and mainstream legislation.

This is the case even if the purposes of the law are wholly pure. But when the very purpose of the law is to deprive a disfavored class of citizens of the benefits afforded by the right to keep and bear arms, it becomes the very thing that the Second Amendment was meant to prohibit, not the type of law that can be used to justify a modern restriction. Indeed, if a provision of the Black Codes truly were consistent with the nation’s history of firearms regulation, then a state like Hawaii would have no reason to rely on it. Instead, it could point to that broader historical practice to support its law. In other words, the state’s very reliance on the odious Black Codes is a sure sign that its law does not accord with the nation’s broader history of firearms regulation.

As Bruen itself recounts, Chief Justice Taney, in the infamous Dred Scott decision, “offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States,” including that they would have “the right ‘to keep and carry arms wherever they went.’” By adopting the 14th Amendment, the people of this nation enshrined in our fundamental charter what Taney feared – that all Americans, regardless of race, are citizens entitled to the full panoply of constitutional rights, including the right to keep and bear arms. Using a provision of the Black Codes to truncate the rights of Americans thus has it entirely backwards.  

Disclosure: Pete Patterson represents the Firearms Policy Coalition in an amicus brief that the organization filed in support of Petitioners in Wolford v. Lopez.