Race Looms Large In Gun-rights Arguments At Supreme Court

As the Supreme Court debated the constitutionality Tuesday of a Hawaii law that restricts people from carrying guns in some public places, the subject turned again and again to race — specifically, laws passed just after the Civil War aimed at preventing newly freed Black Americans from possessing firearms.

The justices traded thinly-veiled accusations of hypocrisy over the relevance of the 19th Century “Black codes” to the current fight over the constitutionality of a law that makes it illegal to take a gun into a business without the owner’s consent.

To defend the law Hawaii enacted roughly three years ago, the state invoked an 1865 statute from Louisiana that required express consent before bringing a firearm onto someone else’s property — a measure that Louisiana officials admitted was aimed at formerly enslaved people.

Conservative Justice Neil Gorsuch said he was shocked to see people who consider themselves progressive on racial issues seize on the racist laws to advance the case for gun control today.

“I understand a lot of people like to cite the Black codes who promote gun restrictions, who….otherwise, they would be garlic in front of a vampire in front of them. But, here, they like them, they embrace them. And I'm really interested in why.”

Conservative Justice Samuel Alito joined in, describing the “Black codes” as part of an effort by state officials to disarm African-American citizens “to help the Klan terrorize them” and embolden “racist law enforcement officers.”

“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?” Alito asked Neal Katyal, the attorney representing Hawaii.

Katyal declared that the Black codes were “undoubtedly a shameful part of our history,” but he insisted the specifics of Louisiana’s former law are relevant to modern restrictions. He said that law requiring consent to possess firearms on private property was “race-neutral” and, unlike other elements of the Black codes, was “implicitly blessed” by Congress when Louisiana was readmitted as a state in 1868.

But Justice Ketanji Brown Jackson suggested her colleagues were failing to adhere faithfully to their landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen — which said the Second Amendment only permits gun restrictions consistent with the nation’s “history and tradition.”

“To the extent that the test today is tying us to historical circumstances, it would seem to me that all of 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 going to be a problem with respect to the accuracy of our test.” Jackson said.

Principal Deputy Solicitor General Sarah Harris, arguing for the Trump administration against the Hawaii law, said the racist roots of the Louisiana statute meant it should be cast aside when looking at the nation’s traditions.

“Unconstitutional laws do not count in illuminating a valid tradition,” Harris said. She also agreed with justices who called the Louisiana law, and some others limiting hunting on private lands, “outliers” that ran against the broader history of allowing guns in most places open to the public.

By the end of the two-hour argument, the justices seemed to signal that they’ll strike down Hawaii's statute. Gorsuch, Alito, and Justices Clarence Thomas and Brett Kavanaugh appeared convinced the measure was unconstitutional, with Chief Justice John Roberts leaning in that direction.

Jackson and Justice Sonia Sotomayor appeared inclined to uphold the Hawaii law, while the stances of Justices Amy Coney Barrett and Elena Kagan were harder to discern.

A ruling in the case, Wolford v. Lopez, is expected by late June.