SCOTUS justices grill attorney for arguing 1865 law banning black people from owning guns justifies Hawaii’s gun control laws

The justices questioned why such a law should be considered under the Bruen test, which was established in the wake of the 2022 New York State Rifle & Pistol Association v Bruen case, in which the court ruled that gun laws should be weighed to see whether they align with American "history and tradition."

Justice Neil Gorsuch asked, "I struggle to see what relevance laws that are outliers, and in Bruen, we're not supposed to consider outliers that they're put aside under our test. We're looking for the mainstream and significant tradition, and you rely very heavily on an 1865 Black Code law in Louisiana, you say it's a dead ringer and a reason alone to affirm the judgment. And I really, I really want to understand how that could be."

Neal Katyal, arguing for Hawaii, began by talking about a California law, to which Gorsuch said, "That wasn't the question. And why don't you answer the question posed… I want to understand how you think Black Codes should inform this Court's decision-making. It’s quite an astonishing claim to me."

Katyal called the Black Codes "undoubtably a shameful part of our history," but said "that doesn’t at all mean that this particular law isn’t irrelevant to Second Amendment analysis for two reasons." He said that when Louisiana was readmitted to the United States in 1868, the Reconstruction Congress examined Louisiana’s laws, including the statute in question, and admitted it.

Gorsuch cut him off, saying, "You’re not answering the question. The question is, it's an outlier, and you just call it a shameful outlier. And I agree with that. And Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed. And yes, when Louisiana was admitted to the Union." He continued, "I understand a lot of people like to cite the Black Codes, who promote gun restrictions, who would 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."

Katyal claimed that the statute in the Black Codes was "race-neutral," and that Congress "implicitly blessed” it by allowing Louisiana back into the Union.

Justice Samuel Alito said, "Wasn't the purpose of the laws in the post—in the post reconstruction south that disarmed black people precisely to prevent them from doing what the Second Amendment is designed to protect, which is to defend yourself against attacks. They didn't want that. They wanted to disarm the black population in order to help the Klan terrorize them and other and law enforcement officers in that period in that region, they wanted to put them at the mercy of racist law enforcement officers.

"So 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," he continued.

Katyal agreed that "parts of the Black Codes were motivated by and had exactly that operation," but added that "our point to you is this consent requirement did not operate that way. Indeed, if anything, it protected black churches and black-owned businesses and the like by insisting on this consent rule."

Justice Brett Kavanaugh cited the 2020 case of Ramos v Louisiana regarding non-unanimous juries, which "we flatly rejected" as a historical example "for the exact reason that Justice Alito and Justice Gorsuch have been mentioning. Those were rooted in racial prejudice designed to prevent black jurors from having their votes counted on juries in the wake of a decision Strauder in 1880. And we just said, no, that’s inadmissible to account for that as somehow justifying an exception to the constitutional rights. Seems like the same kind of thing here."

Katyal replied, "Kavanaugh, we just disagree with the idea that that applies to this particular law from Louisiana in 1865 but regardless, our tradition goes way back before that," citing laws from the 1760s and 1770s from New Jersey, Pennsylvania, and New York.

Kavanaugh added, "Of those laws, a couple of them that you cite, seems to me you're approaching the whole analysis upside down from how the Court's cases have approached it the Court's cases have started with the text, which declares an individual right." He said that after the cases of Hellen and Bruen, the court elaborated that there are "some exceptions," but "those exceptions to be recognized must be historically rooted, deep tradition, broad tradition, widely recognized, commonly recognized, not isolated examples, particularly not ones from the Black Codes."