The Volokh Conspiracy
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The Perversity of Citing The Black Codes To Defend Gun-Control Laws
Neal Katyal and Justice Jackson were placed in the uncomfortable spot of having to explain why racist legislation to disarm the freedman was actually relevant.
One of the most bizarre aspects of modern Second Amendment litigation is how supporters of gun control are forced to favorably cite Jim Crow laws. In all other contexts, these sort of anti-canonical statutes would be untouchable. Yet, when it comes to guns, all the usual rules go out the window. In Wolford v. Lopez, one of the leading authorities for Hawaii's law is an 1865 Louisiana statute. Neal Katyal described it as a "dead ringer" for the Hawaii statute.
During the oral argument, Justice Gorsuch was incredulous that Hawaii was relying on this shameful precedent. He asked Wolford's counsel if it was appropriate to rely on such a law to inform the nation's traditions.
JUSTICE GORSUCH: Your friends on the other side in the Ninth Circuit relied on two statutes in particular. One was the 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left unmentioned was an 1865 Louisiana statute that was adopted immediately after the Civil War as part of an effort, it appears, to disarm black people. A Reconstruction governor later explained that this law, of course, was aimed at the freedmen. Do you think the black codes, as they're called, should inform this Court's decision-making when trying to discern what is this nation's traditions?
MR. BECK: I do not, Your Honor.
JUSTICE GORSUCH: Well, your friend on the other side says it should and that the 1865 statute is a "dead ringer" for this statute.
MR. BECK: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don't see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.
Gorsuch had a similar question for Sarah Harris, the Principal Deputy SG:
JUSTICE GORSUCH: And then, lastly, there's been some discussion about the black codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they're a dead ringer. Thoughts?
MS. HARRIS: It 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. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.
Yet, Justice Jackson tried at great length to explain why the Black Code statute was relevant. First, Jackson tried to suggest that disregarding the Black codes undermines the Bruen test, which looks at all traditions.
JUSTICE JACKSON: Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I'm wondering --your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruen test, that 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, I --I think there might be something wrong with the test. So can you speak to that?
MR. BECK: There's nothing wrong with the Bruen test, Your Honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small -
Second, Jackson said that Beck's approach would ignore the lived experience of those who were subject to Black Codes.
JUSTICE JACKSON: To --to people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them?
MR. BECK: No. What I'm saying is that the --the black codes dealt with a very --it wasn't a law of general applicability. It was designed to discriminate against --it was a racist law designed to iscriminate against African Americans, whereas, here, the law at issue here is a law that applies to everyone. We can't use a racist, discriminatory law to justify a modern-day law that applies to the general public, Your Honor.
That was not at all Beck's point. A blatantly unconstitutional law cannot form part of the tradition for purposes of Bruen.
Jackson offered similar questions for Harris:
JUSTICE JACKSON: So I guess I really don't understand your response to Justice Gorsuch on the black codes. I mean 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. The fact that the black codes were at some later point determined themselves to be unconstitutional doesn't seem to me to be relevant to the assessment that Bruen is asking us to make. So can you say more about that?
Harris offered a different response. She countered that the black codes were unconstitutional ab initio.
MS. HARRIS: Absolutely. Black codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves are returned to a condition of sharecropping -
Justice Jackson did not like that response. Jackson argued that the laws were not halted by the courts, so they were not unconstitutional.
JUSTICE JACKSON: Okay. Let me stop you there. They were not deemed unconstitutional at the time that they were enacted. They were part of the history and tradition of the country. And when we have a test now that's asking us to look at what people were doing back then, I don't understand why they should be excluded.
MS. HARRIS: Because they are outliers. They are by definition unconstitutional. They have been -
JUSTICE JACKSON: That was later.
MS. HARRIS: --found unconstitutional.
JUSTICE JACKSON: Afterwards, not at the time. And if the test says what's happening at the time tells us what's constitutional for this purpose, why aren't they in?
MS. HARRIS: Respectfully, a law is always unconstitutional when it --from its inception --it's --when it's -
This is a fascinating exchange. Jackson's conception of constitutionality turns on whether the courts declared the codes unconstitutional. The SG's office counters that the law was unconstitutional from the moment it was signed into law, even if no court had said so. I am a departmentalist, and favor the executive's answer. Jackson, a judicial supremacist, does not. I wonder how Jackson would view Lincoln's treatment of the Dred Scott decision.
Justice Gorsuch returned to the theme during an extended colloquy with Neal Katyal, counsel for Hawaii. He asked how the black codes should inform the Court's analysis:
JUSTICE GORSUCH: The other question I want to ask you is the black codes. I --I struggle to see what relevance laws that are outliers --and in Bruen, we're not supposed to consider outliers. They're put aside under our test. We're looking for the mainstream and a significant tradition. And you rely very heavily on an 1865 black code law in Louisiana. You say it's a dead ringer and a reason alone to affirm the judgment. And I really --I --I really want to understand how that could be. I want to understand how you think black codes should inform this Court's decision-making. It's quite an astonishing claim to me.
Katyal tried to explain that the black codes, as a general matter, were bad, but this particular statute was not racist legislation. After all, Katyal explained, Congress admitted Louisiana to the Union with this law on the books.
MR. KATYAL: So --so the black codes are undoubtedly a shameful part of our history, but that doesn't at all mean that this particular law is irrelevant to Second Amendment analysis for two reasons. First, the Solicitor General says correctly, as she did just now, that Louisiana wasn't a state in 1865. The relevant point is what happened in 1868, when Louisiana was admitted to be a state. The Act of June 22nd, 1868, admitted Louisiana as a state. That was the radical Reconstruction Congress. It examined the Louisiana laws, including this specific statute, and Louisiana was admitted into the union by the Reconstruction Congress.
To be clear, the Fourteenth Amendment was ratified a few weeks later on July 9, 1868. (Seth Barrett Tillman and I discuss the act to admit Louisiana, as well as other statutes, in our article on Section 3 at FN 426.)
Justice Gorsuch interrupted, and said Katyal was dancing around the question:
JUSTICE GORSUCH: You're not answering the question. The question is it's an outlier, and --and you just called it a shameful outlier. And I --I agree with that. And Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed and, yes, when Louisiana was admitted to the union. I understand a lot of people like to cite the black codes who promote gun restrictions, who would -otherwise, they would be garlic in front of a vampire in front of them. But, here, they -they like them, they embrace them. And I'm really interested in why.
Katyal repeated that this particular law was not racist.
MR. KATYAL: So, Justice Gorsuch, when I said the black codes were a shameful period, there are parts of the black codes like this particular statute which were race-neutral, which the Congress of the United States, the -the same Congress that ratified the Fourteenth Amendment, implicitly blessed by admitting Louisiana back in. It didn't treat that with the same --with respect to other laws from other states, but it did here. And, most importantly, even the opponents of the black codes recognized, as the Sickles general order says, that you have no right to carry a firearm onto someone's property absent their consent.
The period of Reconstruction and readmission was a very messy. The records on Section 3 speak to this complexity. At different points, different factions in Congress took different positions with respect to a whole host of issues. Ultimately, all we have is a bill readmitting those states, with a host of conditions. It is tough to argue that Congress "implicitly blessed" a particular gun law by admitting Lousiana, as well as several other states, a few weeks before the Fourteenth Amendment was ratified. Is there any evidence that Congress scanned all of the law books, line by line, to determine what laws to maintain? I think it more likely that Congress prioritized the most egregious laws that were being enforced, and deprioritized laws that did not have much of an effect. Was there any record of how often this Louisiana law was enforced; that is, how many prosecutions were there for people who carried a firearm into a business without permission.
[Update: Stephen Halbrook's amicus brief for the National African American Gun Association addresses this issue:
An 1865 Louisiana law prohibited "carry[ing] fire-arms on the premises or plantation of any citizen, without the consent of the owner or proprietor." Id. Wolford claims that no evidence exists "that these laws were viewed as controversial or constitutionally questionable. Instead, they were viewed as falling well within the colony's or the State's ordinary police power to regulate the default rules concerning private property." Id. However, a West Law search reveals not a single judicial decision on either law by the courts of New Jersey and Louisiana respectively.
End Update]
Justice Alito challenged the notion that this law was somehow race neutral.
JUSTICE ALITO: Mr. Katyal, wasn't the purpose of the laws in the post---in the post-Reconstruction south that disarmed black people precisely to prevent them from doing what the Second Amendment is designed to protect, which is to defend yourself against attacks? They didn't want the --they wanted to disarm the black population in order to help the Klan terrorize them and other --and law enforcement officers in that period in that region, they wanted to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?
MR. KATYAL: So, Justice Alito, we quite agree with you that parts of the black codes were motivated by and had exactly that operation. 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.
At common law, churches were not open to the public, in the same sense that a common carrier might be. Indeed, churches have the unique authority to exclude for reasons protected by the Free Exercise Clause. For these reasons, Justice Sotomayor's questions about carrying in churches were a bit of a non-sequitur. But did the "consent rule" really keep the KKK out of black businesses? I am doubtful. If only those who perpetrated the Colfax Massacre of 1873 had dutifully observed the laws on carrying arms.
Towards the end of the argument, Justice Thomas felt compelled to speak up during the seriatim round, something he rarely does.
JUSTICE THOMAS: If you're going to cite the Louisiana black codes of 1865, don't you also have to cite the subsequent adoption of the Fourteenth Amendment that was in part generated because of laws like that?
MR. KATYAL: Right. So that is exactly our point, that the Reconstruction Congress that ratified the Fourteenth Amendment, this is the unusual case in which you have those folks saying effectively Louisiana should come in. And many of the parts of the black codes, including parts that Justice Alito were referring to that were racially discriminatory about firearms, were struck from the Louisiana law. But this law stayed in effect. And so, yes, we do think it is relevant history. We don't think our argument depends on it because there's statute after statute from the founding on. And the idea that those --that the number of statutes we've provided isn't enough, I think, is --is very hard to reconcile when you have zero tradition, zero evidence on the other side saying these statutes were problematic. I mean, these statutes were around. You would have thought someone, if this was an infringement on the right to keep and bear arms, would have had a court case, a commentator, anything like what you had in Bruen. You've got none of that.
Thomas pointed to his McDonald concurrence, which laid this history out in detail.
JUSTICE THOMAS: Well, actually, there was quite --as I said in my McDonald opinion, quite a bit of discussion of these sorts of laws and the consideration of some that they thought that the Privilege --or Immunities Clause in the Fourteenth Amendment preempted these. That's simply my point.
Or maybe the better argument is there is no relevant tradition to support Hawaii's law.
