During the Supreme Court’s oral arguments in Wolford v. Lopez, one of the questions the justices wrestled with was how much weight to give an 1865 law adopted in Louisiana that prohibited carrying a gun onto a plantation without the express permission of the plantation owner. Attorney Alan Beck and the DOJ attorney siding with the plaintiffs argued that the law was designed to target newly-freed slaves and as such should be disregarded; not only as a historical outlier but as a law that was repugnant to our Constitution.
While Hawaii’s attorney Neal Katyal argued that the law in question wasn’t really part of the Black Codes since it remained on the books after Louisiana regained statehood, Second Amendment attorney Pete Patterson not only disagrees but brings receipts in a new column at SCOTUSBlog.
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.”
It’s completely irrational to think that, as the Louisiana legislature was busy adopting a system of serfdom for freed slaves, it would also create a truly race-neutral statute that would be enforced in a color-blind fashion.
So now that we can be certain that the law in question was indeed considered part of the Black Codes at the time, what does that mean in terms of its usefulness as an historic analogue? Patterson says it’s of no use whatsoever.
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.
I would argue this applies to other laws in our past as well that restricted Catholics, Native Americans, and other “suspect” classes access to their Second Amendment rights. Like Louisiana’s Black Codes, those statutes aren’t really a part of our national tradition of gun ownership or gun regulation; they were adopted in only a handful of locations and were hardly longstanding, which is reason enough to disregard them under the Bruen test. But as Patterson argues, laws like the Black Codes were also antithetical to the very meaning of our right to keep and bear arms and other individual liberties guaranteed by the Bill of Rights.
I agree with Patterson, and I hope that a majority of the Court feels the same. It’s possible, though, that SCOTUS will dodge this particular issue and conclude that, even if the 1865 law is an appropriate analogue, Hawaii still hasn’t demonstrated that the “vampire rule” banning concealed carry by default on all private property open to the public is part of a national tradition of gun regulation since the state could only cite a couple of laws, none of which remotely resembles the gun law in question in terms of the “how” or “why” the law is administered.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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