In 2022, the Supreme Court in Bruen ushered in a novel “history and tradition” test for all Second Amendment challenges. This test requires the government to offer historical analogues to support modern gun laws. Since then, lower courts have struggled with numerous questions about how Bruen privileges historical evidence. One issue that continues to receive widespread attention is the relevance (or possible irrelevance) of historical laws tainted by racial discrimination, which are all too common in American history. This question has now surfaced in multiple Supreme Court cases to be decided this Term. Here, I hope to offer a summary of these recent developments and some initial thoughts about how judges should approach this kind of historical evidence.
Wolford v. Lopez, which was argued in January, is a Second Amendment challenge to Hawaii’s requirement that gunowners seeking to carry firearms on private property open to the public first seek and receive express consent from the property owner. Hawaii and several other states changed the default rule from presumptive permission to enter armed (unless the property owner prohibits firearms) to a presumptive prohibition (again, absent property owner action to the contrary). While studies suggest that most Americans prefer no-carry defaults, Wolford will likely be decided on the basis of whether Hawaii’s approach is consistent with historical tradition (for more on the case, see Drew’s initial preview here and Jake’s oral argument summary here).
One of the primary laws that Hawaii relies upon under Bruen is an 1865 Louisiana statute. As described in the state’s merits brief:
In 1865, Louisiana enacted a statute barring “any person” from “carrying . . . fire-arms” on “premises or plantations . . . without the consent of the owner.” The court of appeals explained that [ . . .] this Louisiana statute is a “dead ringer[ ]” for Hawai‘i’s law. The Louisiana law . . . was just one of several Reconstruction-era enactments that required a person to get a property owner’s consent to bring guns onto private land.
Perhaps obviously given the year of enactment, one primary objection from the challengers in the case is that this law was passed to discriminate against Louisiana’s newly free Black population as part of the “Black Codes.”
At oral argument, multiple justices pushed the state on whether the law could be an appropriate analogue, given the historical context. Justice Gorsuch, for example, asked whether “the black codes, as they’re called, should inform this Court’s decision-making when trying to discern what is this nation’s traditions?” The government, arguing as amicus in favor of the challengers, asserted that “[i]t is 2026 and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like.”
Justice Jackson, in response to the challengers’ unequivocal assertion that the Black Codes may not be considered as part of the Bruen test, raised the following objection:
[T]o the extent that the test today is tying us to historical circumstances, it would seem to me that all of the history should be on the table. And if we start taking pieces off, whether it’s because we’ve moved away from it or we don’t agree with it anymore, I think there’s – there’s going to be a problem with respect to the accuracy of our test.
Defending the state’s reliance on the law, attorney Neal Katyal offered a nuanced argument that, because Louisiana was readmitted to the Union with the private-property consent requirement still on the statute books (and the law apparently persisted for some time after the state’s readmission), it could serve as a valid analogue:
[W]e quite agree with you that parts of the black codes were motivated by [racism]. Our point to you is this consent requirement did not operate that way. Indeed, if anything, it protected black churches and black-owned businesses and the like by insisting on this consent rule. And that is why the radical Reconstruction Congress admitted Louisiana back in. They said no to various laws, but they never did that with respect to this. And this law stayed on the books for a long time.
Interestingly, a similar issue arose in Trump v. Barbara, the case challenging President Trump’s executive order purporting to eliminate, or modify, birthright citizenship under the Fourteenth Amendment that was argued earlier this month. When questioning Solicitor General John Sauer, Justice Barrett asked whether the government’s effort to read a parental domicile requirement into the text of the Fourteenth Amendment’s citizenship clause was consistent with the amendment’s objective to make the children of former slaves U.S. citizens. As Justice Barrett observed, slaves were brought into the United States unlawfully and against their will and, often, felt no allegiance to the country to which they were thus transported. The implication is that slaves would not necessarily have qualified as U.S. domiciliaries under the government’s test, given the circumstances of their entry (for more background on the issue, see here and here).
Sauer argued in response that, “even though their entry may have been unlawful, 19th century antebellum law never treated their presence [in the U.S.] as unlawful.” And he went on to cite Mississippi’s Slave Codes as support on this point:
One of the amici, in fact, points to, like, a Mississippi statute, which probably is replicated throughout the South before the Civil War, that says slaves in Mississippi have an indefeasible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says, nope, you still live here. Right?
Sauer appears to be arguing that, because Southern states said that slaves were legally domiciled within the state in which they resided, they would have met the test for domicile and thus their children would be birthright citizens even under the government’s approach. The Mississippi law almost certainly had a nefarious purpose: antebellum case and statutory law also provided that fugitive slaves could be seized and returned to their state of domicile. So Mississippi had a strong interest in ensuring that slaves residing there were considered to be domiciled in the state.
Sauer’s reliance on the Mississippi slave codes is striking considering the government’s apparent outrage at Hawaii’s decision to invoke Louisiana’s Black Codes in Wolford. The Barrett-Sauer exchange, much like the exchanges quoted above in Wolford, also underscores how the racist taint question is likely to surface across numerous areas as the Court increasingly privileges historical evidence as a means of constitutional adjudication.
Scholars to address the issue in the Second Amendment context, including Adam Winkler and Jake Charles, have generally distinguished between two possible approaches: (1) rejecting all purportedly racist historical analogues, and (2) abstracting broader regulatory principles from such laws, no matter their modern unconstitutionality. As Justice Barrett herself noted while a circuit judge in 2019, abstraction would mean concluding from statutes we today may find repugnant that “legislatures have the power to prohibit dangerous people from possessing guns.”
The Wolford and Barbara episodes, however, illustrate lurking complexity. The lawyer for Wolford’s challengers told the Court that the 1865 Louisiana law “was expressly passed to discriminate against African Americans that were newly freed slaves.” Perhaps true, but that is a difficult proposition to prove for a law enacted by a multi-member assembly. And at oral argument in Barbara, the federal government represented that the black codes “are unconstitutional.” Today, yes. But when a court tries to determine that question historically, it becomes far more complicated.
As a threshold matter, it’s hard to imagine courts operationalizing a test that requires a retrospective judicial assessment of whether a historical law was constitutional at, or shortly after, the time of enactment. What time period would be relevant for the constitutionality analysis? How would a court assess discriminatory-impact claims for facially neutral laws? How to treat a law that was constitutional for some time and then later became unconstitutional due to subsequent amendment or to the advent of discriminatory enforcement?
The Mississippi slave code referenced in Barbara was, almost certainly, constitutional at the time it was enacted. The Constitution, pre-Reconstruction, contemplated domestic slavery, and the Fugitive Slave Act sanctioned the capture and return of escaped slaves to their state of domicile. Louisiana’s 1865 law similarly was not unconstitutional when enacted. The law was facially neutral even if intended to subjugate the free Black population through discriminatory enforcement. There was no constitutional issue until at least 1868, when the Fourteenth Amendment required states to apply their laws equally on the basis of race.
Even then, it’s not clear Louisiana’s law ever met the high bar the Court has erected for equal protection violations based on discriminatory impact. For example, let’s compare the level of discrimination in Yick Wo v. Hopkins (an 1886 case striking down a San Francisco ordinance condemning laundries built out of wood that was enforced only against 150 or more Chinese laundry owners, while all 80 non-Chinese laundry owners were allowed to continue operating), with the workplace discrimination in Washington v. Davis (where the Court upheld a DC police entry exam on which 57 percent of Blacks, as opposed to 13 percent of whites, scored below 40 percent). If Louisiana enforced the no-carry default rule against some poor whites, as well as the Black population, it’s not clear that any disproportionate impact would rise to the level of a constitutional violation especially after Davis. And this is setting aside how challenging it would be to even collect reliable data about how the law was enforced nearly 150 years ago. Indeed, my own research on the enforcement of North Carolina’s concealed carry ban during this general period suggests at least some enforcement against the white population and explains how difficult that data collection process can be.
Moreover, as Justice Jackson suggested in Wolford, it is problematic to retrofit our modern judgment of a law’s impropriety onto the historical record when a major aim of the Bruen test was seemingly to stop courts from deferring to “modern sensibilities” about guns. As Justice Jackson asked at oral argument: “if the test says ‘what’s happening at the time tells us what’s constitutional for this purpose,’ why aren’t they in?” The government’s response, that the laws might be Bruen “outliers,” just begs the question. If an outlier is anything we say it is, in our own modern judgment, then the test quickly strays far afield from the actual history.
Thus, I think we are largely back to the two options described above: ignore or abstract. In closing, I’ll offer one suggestion for resolving these disputes in future cases. Courts might apply a default presumption against considering any facially discriminatory historical law as an analogue. Facial discrimination shows wrongful intent, and it’s comparatively easy for judges to simply excise laws that discriminated based on race, religion, or other protected characteristics from the historical record in the case. For facially neutral laws where there is a suggestion of discriminatory enforcement or underlying animus, I don’t see any practical way for courts to make those assessments at scale or with accuracy. Rather, the best approach may be a version of what Justice Jackson suggests: take the laws at face value, while ensuring the methodology as a whole requires some kind of broad historical consensus that can weed out true aberrations. In other words, require the challenger to prove that a law was in fact an “outlier” from mainstream tradition rather than simply deeming it so.
