The Volokh Conspiracy

On Tuesday, January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, which concerns whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.  The Ninth Circuit upheld the ban under Bruen based on the existence of merely two purported historical analogues, a 1771 New Jersey law on poaching and an 1865 Louisiana Black Code law.

As I explained in a previous post, I filed an amicus curiae brief on behalf of the National African American Gun Association, extensively detailing the nature of the Louisiana law as part of the Black Codes intended to limit the freedom of movement and the right to bear arms of the newly-freed slaves.  As explained in the New York Tribune, March 7, 1866, the statute making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent was part of "a code of laws [for blacks] establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."

But in Respondent's Brief, Hawaii doubles down on its reliance on the Louisiana law.  After all, it's one of only two supposed historical "analogues" offered.  It cites a handful of other laws, but they concerned private property not open to the public.  As to the Louisiana law, Hawaii wants to have it both ways: "The Black Codes are undoubtedly a relic of a shameful portion of American history.  But that does not mean that the laws contained within them are irrelevant to the Second Amendment's historical analysis."  No explanation is offered as to why.

Hawaii tries to soften the blow by asserting that "contemporary opponents of the Black Codes agreed that the Second Amendment did not authorize armed entry without the consent of a property owner."  But it cited just one such opponent, who said quite the opposite.  General D.E. Sickles, Commander of the Department of South Carolina, issued a decree in 1866 providing that, while the "constitutional rights of all loyal and well-disposed inhabitants to keep and bear arms will not be infringed, nevertheless this shall not … authorize any person to enter with arms on the premises of another against his consent."  Entering "against" one's consent is quite the contrary of entering "without" one's consent.

Eight of the usual suspects filed amici curiae briefs in support of Hawaii, but not a single one mentioned the embarrassing 1865 Black Code law of Louisiana.  Everytown for Gun Safety danced around the issue but kept the law in the closet.  Its brief scolds the United States and petitioners for "contend[ing] that a firearms regulation is per se unconstitutional if it has a purportedly improper purpose to frustrate Second Amendment rights…."  Pray tell, exactly which regulations are being referred to?  You've got to read the amicus brief of the United States or the brief of petitioners to find that Everytown is referring to the 1865 Louisiana law.

Everytown next berates the United States and petitioners as being "wrong to argue that modern firearms regulations are consistent with the Second Amendment only if the government can marshal some minimum number of historical regulations that mirror the contemporary law."  Given that the Ninth Circuit found only two measly laws as purported analogues, that shows the absence of a National tradition of regulation.

As Everytown points out, Bruen relied in part on treatises and historical newspapers to illuminate the meaning of the Second Amendment. But none of the sources it cites support Hawaii's law, least of which did The Loyal Georgian, Feb. 3, 1866, an African American newspaper that celebrated the Second Amendment and concluded: "All men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves."  (I located that article in researching my 1998 Freedmen book (reissued as Securing Civil Rights), which Heller repeated.)

The brief of the Brady Center cites just a handful of irrelevant historical laws, but conspicuously missing is the 1865 Louisiana law.  The brief of Professors of Property Law mustered up a total of five mostly colonial laws to cite in a footnote but failed to discuss their contents.  The brief of what it self-characterizes as "the Amici States – the District of Columbia" et al. (sic) cites no historical laws.

As Bruen held, "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."  Hawaii may not have an easy time at oral argument explaining how it has met its burden.