The Black Codes Are a Cautionary Tale, Not a Useful Precedent

It has not been a great few months for Neal Katyal. As Charlie Cooke has detailed, Katyal and Hawaii got trounced, and properly so, in Wolford v. Lopez, which sought to masquerade a state law by which the government criminalizes having a gun on any private property as merely private conduct, because it allows the property owner to explicitly permit guns to be carried. Nobody in the 6–3 majority was fooled.

The really contemptible thing in this case was Katyal trolling the Court’s consideration of history and tradition in gun regulation by arguing that Hawaii was just following in the path of Southern states that adopted strict “Black Codes” during Reconstruction that limited the right of freedmen to carry guns. As I explained after the argument in January, this is the worst possible use of history:

It was left to Justice Thomas to ask the obvious rejoinder: “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?”

Thomas is right. It’s not just that the Black Codes were later found to be unconstitutional; it’s that the people who wrote and ratified the 14th Amendment were specifically responding to those laws. . . .

The history of the Black Codes [should be read] not as proof of our history and tradition, but as proof of what defenders of that history and tradition were aiming to abolish by enacting the 14th Amendment.

. . . Reading the Black Codes into the 14th Amendment is like reading the law of slavery into the 13th Amendment or reading bans on black voting into the 15th. It has the whole point of the amendment precisely backward.

Alito dismissed Katyal’s troll with the scathing contempt it deserved, saying that it “cannot be taken seriously” given the actual history. But Justice Ketanji Brown Jackson was taken with the argument, and as has happened several times of late when Jackson decides to promote some nonsense about the methodology of the Court’s work, Justice Amy Coney Barrett felt compelled to respond.

Jackson — joined by Justice Sonia Sotomayor but, pointedly, not by Justice Elena Kagan  — leaped at the analogy to the Black Codes as a club to wield in her continuing campaign against the use of history and tradition in reading the Second Amendment. That’s why Katyal was offering her the argument — not because he seriously believed that anybody applying the Court’s existing tests in good faith would fall for this hackish fallacy, but so that the Court’s test itself could be attacked. That’s also why commentators such as Mark Joseph Stern like the argument: “Virtually all of the laws that SCOTUS credits as relevant to the Bruen analysis were written by racist white men . . . by and for heterosexual white males.” Here’s Jackson:

As I see it, there are two potential reasons to use—or exclude—the Black Codes in Bruen’s history-and-tradition test. First, it could be that the Black Codes regulated guns consistent with the Second Amendment but States chose to exercise their regulatory authority in a discriminatory fashion. . . . Under this framing, those gun regulations are not examples of an unconstitutional abridgment of the right to bear arms, but rather exemplify a violation of a different constitutional Amendment—the Fourteenth.

Alternatively, it could be that States did not have the constitutional authority under the Second Amendment to enact such regulations but did so anyway for discriminatory reasons. Under that framing, not only did the States violate the Constitution by acting on the basis of race; they also violated the right to bear arms. Only the second set of circumstances justifies removing these laws (and the experiences of those they targeted) from the body of evidence that determines the historical reach of the Second Amendment under Bruen.

Jackson writes this as if she is completely oblivious to both the cause-and-effect relationship between the Black Codes and the enactment of the 14th Amendment and the fact that states could violate the Second Amendment with impunity before 1868 because until then it only bound the federal government. (Of course, nearly all such states had their own state constitutional guarantees, but Jackson just blows past the distinction.)

The 14th Amendment problem with these laws is not just that they would be struck down as racially discriminatory; it’s that even race-neutral laws that aimed to restrict the rights of freed black Southerners were a big reason the Republican Congress went beyond banning race discrimination and included within Section 1 of the 14th Amendment much broader guarantees against states stripping their citizens of rights. In 1865, Louisiana could ban guns or speech without violating federal law; in 1868, it could not.

Also, the fact that the laws were discriminatory in intent, often discriminatory on their face, regionally particular, broke with how white men were regulated across the country, and flew in the face of prior practice, are certainly all reasons to consider them a poor representative of an established, nationwide tradition. (Jackson cites the opinions of Daniel Sickles, but Sickles’ views of gun rights were hardly consistent, given that he shot the U.S. attorney for D.C. to death in the street for sleeping with his wife.)

The race discrimination isn’t merely an embarrassing footnote; it’s in many cases a sign that laws were being imposed on the minority that the majority would not have tolerated and did not tolerate in states without large populations of newly freed slaves. In the case of the 1865 Louisiana law cited by Katyal, it should be noted that putting the burden of applying the law on the decision of a private actor (the property owner) was fairly clearly a way of ensuring that it could be applied in discriminatory fashion.

It would be a different story if these were widely adopted laws that were also used by racists for racist reasons. There are many such cases. But the Black Codes were such a prominent part of Hawaii’s argument here because there were so few other straws to grasp.

Barrett was not fooled and explained why Jackson simply refuses to understand the test she’s complaining about:

It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction. We can put aside the question whether they are legitimate evidence of the Second Amendment’s scope . . . because regardless, they do not help Hawaii.

The State seems to think Bruen is a matching game: Southern States enacted broad default rules, Hawaii reasons, so it can do the same today. But even if Hawaii is right that the how is analogous, it also must identify an analogous why.

The Black Codes were enacted to subordinate newly freed slaves. Hawaii obviously does not contend that its law promotes an analogous interest. So its law and the default rules in the Black Codes are not relevantly similar. . . . Most would take that as a compliment. . . .

The principal dissent contends that the Black Codes shared a “why” with the 18th-century laws because all “were enacted to prevent poaching and other related harms.” . . . But the relevant question under Bruen . . . is not simply whether two laws targeted similar conduct.

It is instead why they targeted that conduct—that is, what reason justified the restriction. . . . For the 18th-century laws, it was the risk of harm to persons and property caused by hunting.

For the Black Codes, it was the ability of blacks to provide for themselves without working on plantations. Because the two sets of laws did not share an analogous justification, they do not stand for the same regulatory principle. [Emphasis in original; citations, quotations, and footnotes omitted.]