During Supreme Court oral arguments in Wolford v. Lopez this week, Justice Ketanji Brown Jackson sparked controversy by suggesting that “Black Codes” may offer historical precedent relevant to evaluating Hawaii’s gun control law under the Bruen standard. The exchange highlighted deep philosophical divisions on how the Constitution should be interpreted in light of historical practices.
At issue is a Hawaii gun law that bars even licensed concealed carriers from carrying firearms on private property that is open to the public unless the carrier first obtains permission from the landowner. Plaintiffs argue the rule effectively nullifies the right to bear arms in many public places, reducing the Second Amendment to a privilege subject to government-dictated permission.
Under the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, courts must assess gun regulations by reference to the “historical tradition of firearm regulation” in the United States. Government lawyers and some justices have interpreted this to allow a wide range of modern restrictions; opponents say Bruen requires courts to focus on whether a challenged law is consistent with the nation’s founding-era understanding of the right to keep and bear arms.
During questioning, Justice Jackson acknowledged that historical materials might include “Black Codes,” a series of post–Civil War southern laws that curtailed the rights of newly freed Black Americans, including restrictions on owning or carrying weapons. Jackson stated, “I thought the Black Codes were being offered here under the Bruen test to determine the constitutionality of this regulation. And it’s because we have a test that asks us to look at the history and tradition…”
Her remarks drew immediate criticism from conservative legal observers, who argue that Bruen was designed to anchor analysis in the Framers’ intent, not in discriminatory and constitutionally antithetical statutes. Jackson went on to say the later judicial invalidation of the Black Codes does not cloud their relevance for historical comparison, a view critics say risks sanctioning oppressive laws as “historical analogues.”
In another point of debate, Jackson suggested Hawaii’s restriction could be justified as a way to “bolster property rights,” reasoning that landowners have a say over who carries on their premises. Critics counter that such reasoning permits governments to outsource gun control to private entities, effectively evading constitutional protections.
Justice Samuel Alito, in a pointed exchange with Hawaii’s attorney, underscored the stakes. “You are just relegating the Second Amendment to second-class status,” Alito said, capturing the concern of many conservatives that expansive modern gun restrictions are incompatible with the text and history of the right to keep and bear arms.
The case is likely to become a major Second Amendment decision, with implications for how historical evidence is used in constitutional interpretation and how far modern gun regulations can extend beyond core rights. Public interest in the outcome remains high among gun owners and constitutional scholars alike.
