The history the court would rather not see

In 2021’s New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that modern gun laws must be “consistent with the Nation’s historical tradition of firearm regulation” to survive a Second Amendment challenge. Under that newly announced history-and-tradition test, defenders of gun laws must point to historical analogs that similarly regulated firearms to pass constitutional muster.

From the start, Bruen’s methodology raised many questions. How analogous to a historical law must a current law be? How many analogs must a law have to be consistent with the “historical tradition”? What historical periods are relevant when searching for analogs? I could go on. And as lower courts and commentators endeavored to make sense of Bruen, they repeatedly expressed frustration with the seemingly endless indeterminacy of the history-and-tradition test.

This term’s case of Wolford v. Lopez was supposed to clear up some of the confusion. Wolford concerned a Hawaii law that required licensed gun carriers to obtain a property owner’s permission before bringing a firearm onto private property open to the public. California, Maryland, New York, and New Jersey have similar laws. With Justice Samuel Alito writing for the 6-3 conservative majority, the court struck down the Hawaii law, holding that the law “unquestionably imposed a new and significant burden on the exercise of the right” to bear arms.

In reaching this decision and by purporting to elucidate Bruen’s history-and-tradition test, Wolford highlighted yet another question that the court’s history-and-tradition methodology has never adequately answered: What should a court do when the relevant history is morally abhorrent? Reading Wolford suggests the court has no clear answer.

To defend its law, Hawaii relied on an 1865 Louisiana statute making it unlawful “to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor.” As historical analogs go, the Louisiana law was a “dead ringer.” But, despite being race-neutral on its face, the statute was a Black Code, enacted as part of a broader legal regime designed to disarm formerly enslaved Black people and preserve white supremacy in the wake of emancipation.

Alito dismissed the relevance of the statute outright, calling it a “tainted artifact” whose invocation “cannot be taken seriously.” Justice Amy Coney Barrett’s concurrence was even sharper, chastising Hawaii for citing a law “designed to suppress newly freed blacks.”

No one disputes that the Black Codes deserve moral condemnation. Hawaii itself conceded that the “Black Codes are undoubtedly a relic of a shameful portion of American history.” But as Hawaii continued, that does not necessarily “mean that the laws contained within them are irrelevant to the Second Amendment’s historical analysis.” Put another way, moral condemnation is not a substitute for rigorous legal reasoning.

As leading Second Amendment scholar Professor Jake Charles argued in his essay Sordid Sources, a constitutional methodology built on history must have some account of how courts should treat historical laws rooted in racism or other forms of oppression. A court simply declaring that the law is too tainted to matter and move on is hardly principled reasoning. As Charles explains, it is problematic for courts “to artificially excise what are indisputable traditions of historical gun regulations because they, like so much of American history, are grounded in bigotry.” Such an approach, as Justice Ketanji Brown Jackson (joined by Justice Sonia Sotomayor) charged in her dissent, allows “the court to cavalierly pick and choose which parts of the historical record count.”

If history is supposed to constrain judges, the court should have explained why some history counts and why some does not. The Wolford majority offers no coherent account on this front. Indeed, the court relied on the same Reconstruction period to reinforce its understanding of the Second Amendment and its application against the states, explaining that the framers of the 14th Amendment understood that “the right to keep and bear arms was critically important for vulnerable blacks during this period.” And this was not a new move. Throughout its modern Second Amendment jurisprudence, the court has weaponized the racist history of disarming Black people to justify its expansive view of the Second Amendment’s scope.

Now, one might think there is a difference between citing racist laws as evidence that a right existed (laws intended to disarm Black people are proof of a right that was wrongly denied), versus citing racist laws as evidence of how rights can be constricted (laws intended to disarm Black people are proof of permissible regulation that were impermissibly implemented). But the majority in Wolford did not draw that distinction or articulate how such a distinction fits into its broader historical methodology. For her part, Barrett explained that Louisiana’s law was not analogous because of why it was enacted (to subordinate Black people), but nobody else joined her concurrence. We are therefore left to wonder what work a history of racism does in the Bruen history-and-tradition test. If it simply turns on a justice’s moral perception of what counts as “too tainted,” then the court’s use of history is not much of a principled constraint at all.

Jackson put her finger on this problem. A court committed to historical analogizing cannot simply declare portions of the historical record off limits. It must explain why they no longer bear on constitutional meaning. The court rejected the Louisiana statute not because it discriminated on its face, but because of the historical context in which it was enacted, without providing a satisfactory answer for why that context renders the analog irrelevant as a matter of constitutional analysis.

The problem with this type of historical editing is not merely methodological, any more than the Black Codes are simply laws from the past. Black Codes are evidence of why the 14th Amendment was necessary in the first place. They exposed the limits of formal emancipation, demonstrating how states could use facially neutral laws to thwart racial equality. In turn, these laws and the context from which they arose helped produce the constitutional transformation of Reconstruction and are important to understanding the scope of the Reconstruction Amendments. They are not an embarrassing footnote to constitutional history. They are one of its defining chapters. And if the court wants to continue with this historical mode of constitutional interpretation, it must confront how the more unsavory moments of our history shape our understanding of the Constitution, especially when those moments are chock-full of constitutional meaning.

To treat those laws as too morally contaminated to engage is not simply to leave a gap in the court’s historical analysis. It diminishes Black Americans’ place in our constitutional history by erasing the legal harms that Black people have faced, the effects of which reverberate through today. Across the country, public institutions have softened or removed references to slavery, segregation, and racial discrimination as if they were not a part of the American tradition. There is a growing impulse to sanitize the ugliest chapters of American history. Wolford seems to reflect a similar instinct.