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.
