Supreme Court Addresses Historical Context in Gun Regulation Rulings

The Supreme Court in 2021 established a standard for evaluating modern gun laws. In *New York State Rifle & Pistol Association v. Bruen*, the court ruled that gun regulations must align with the nation’s historical tradition of firearm control to withstand Second Amendment challenges. This methodology requires proponents of gun laws to identify historical precedents that similarly regulated firearms.

This historical standard has prompted various inquiries. Courts and legal commentators have questioned the required level of similarity between current and historical laws, the necessary number of historical examples, and the relevant historical periods for consideration. Reports have noted challenges in applying this framework.

This term, the case of *Wolford v. Lopez* aimed to provide clarification on these issues. *Wolford* examined a Hawaii law that mandated gun permit holders obtain a property owner’s permission before carrying a firearm on private property open to the public. States including California, Maryland, New York, and New Jersey have comparable statutes. The court, in a 6-3 decision with Justice Samuel Alito writing for the majority, invalidated the Hawaii law. The majority stated the law imposed a "new and significant burden on the exercise of the right" to bear arms.

In its decision, the court further highlighted a methodological question: how courts should approach historical laws with morally objectionable origins. Hawaii, in its defense of the law, presented an 1865 Louisiana statute as a historical precedent. This statute prohibited carrying firearms on private property without owner consent. Although appearing race-neutral, the Louisiana statute was a Black Code, part of a legal system designed to disarm formerly enslaved Black individuals during the Reconstruction era.

Justice Alito dismissed the Louisiana statute, describing it as a "tainted artifact" and its invocation as something that "cannot be taken seriously." Justice Amy Coney Barrett, in a concurring opinion, also criticized Hawaii for citing a law "designed to suppress newly freed blacks." Hawaii acknowledged the Black Codes represented a "shameful portion of American history" but argued their moral condemnation did not negate their relevance to historical Second Amendment analysis.

Professor Jake Charles, a scholar focusing on the Second Amendment, has discussed how courts should manage historical legal sources rooted in discriminatory practices. Charles observed that courts face difficulties when they "artificially excise what are indisputable traditions of historical gun regulations because they, like so much of American history, are grounded in bigotry." He argued that declaring a historical law too "tainted" to consider lacks a clear rationale. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor in dissent, noted that this approach permits the "court to cavalierly pick and choose which parts of the historical record count."

A court committed to historical analysis must explain its criteria for including or excluding historical evidence. The *Wolford* majority did not offer a consistent explanation for why certain historical elements are relevant and others are not. The court relied on the Reconstruction period to support its understanding of the Second Amendment and its application to states, noting that the framers of the 14th Amendment recognized the importance of the right to bear arms for Black individuals during that time. The court has previously referenced the history of disarming Black people in its Second Amendment jurisprudence.

One might differentiate between citing racist laws to demonstrate the existence of a right (e.g., laws disarming Black people indicating a right was denied), and citing them as evidence of permissible restrictions. The *Wolford* majority did not elaborate on this distinction or its place within the historical methodology. Justice Barrett explained her view that the Louisiana law was not analogous due to its purpose – to subjugate Black individuals. However, no other justices joined her concurrence. Therefore, the role of racist history in the *Bruen* test remains an open question. If judicial discretion determines what history is "too tainted," then the historical methodology may lack consistent application.

Justice Jackson highlighted this issue, emphasizing that a court engaged in historical analogizing cannot simply disregard parts of the historical record. The court rejected the Louisiana statute based on its historical context rather than its facial discrimination, without fully explaining why that context nullified its analytical relevance. The Black Codes also illustrate the need for the 14th Amendment and demonstrate how ostensibly neutral laws could impede racial equality. They contribute to understanding the constitutional transformations of Reconstruction and the scope of its amendments. Disregarding such historical elements diminishes the experiences of Black Americans in constitutional history by overlooking documented legal harms.