This past Tuesday, the Supreme Court heard oral arguments in Wolford v. Lopez, the Second Amendment case out of Hawaii in which the Aloha State is defying the Constitution and claiming it can ban concealed carry holders from all private property that is open to the public unless they have the explicit permission of the owner. Thus, you can spend a year in jail if you carry a gun that you have a license to carry onto private property that is open to the public such as a mall or a gas station where the owner is completely silent on the issue.
In other words, silence equals prison in Hawaii.
The oral arguments were full of questions, debates, and discussion of the Second Amendment and the Supreme Court’s prior holdings on this very important provision of the Bill of Rights. But what was shocking was the reliance by Hawaii’s lawyer, Neal Katyal, a distinguished Supreme Court advocate, on blatantly bigoted state laws — the infamous Black Codes — to justify Hawaii’s defiance of the Second Amendment rights of its residents.
The Black Codes were some of the first laws passed in the United States to restrict gun ownership — and they were implemented in segregationist states like Louisiana after the end of the Civil War. They had one purpose, and one purpose only: to prevent newly freed black Americans from being able to defend themselves from the threats, assaults, intimidation, and killings perpetrated by the Ku Klux Klan and other white, racist segregationists.
Justice Neil Gorsuch said he was “astonished” that Hawaii would “rely very heavily on an 1865 black code law in Louisiana,” with Katyal seemingly claiming that Hawaii’s law is “a dead ringer and reason alone to affirm the judgment.” Gorsuch said he really wanted “to understand how that could be,” that Hawaii is relying on a racist, historical outlier to support its argument that its law ought to be upheld.
Katyal didn’t seem to want to answer the question, referring to a California law instead, and Gorsuch chided him saying, “Why don’t you answer the question posed? I want to understand how you think black codes should inform this Court’s decision making.” Katyal admitted, “The black codes are undoubtedly a shameful part of our history,” but then made the astounding claim, “That doesn’t at all mean that this particular [Louisiana] law is irrelevant to Second Amendment analysis.”
Gorsuch’s response to Katyal’s rambling explanation of why Hawaii was embracing the racist black codes to try to uphold Hawaii’s firearms restrictions was akin to a vampire embracing garlic. In short, suggesting that such reasoning was unfathomable, inexplicable, and harmful to Hawaii’s argument.
Justice Samuel Alito piled on, asking Katyal:
“[W]asn’t the purpose of the [gun] laws 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 wanted to disarm the black population in order to help the Klan terrorize them and other law enforcement officers in that period in that region. . . . 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 American rights, to cite this as an example of what the Second Amendment protects?”
Katyal’s answer was that Congress allowed Louisiana to rejoin the Union as a state despite this blatantly bigoted law being in place, as if that somehow remedied its malign purpose.
Trying desperately to salvage Hawaii’s position, Justice Sonia Sotomayor’s questions and assertions were at times embarrassing. At one point, she asked the lawyer for the Hawaiians who sued the state, Alan Beck, whether it was correct that “in Hawaii, for 200 years, there’s been no custom of carrying weapons” until the Supreme Court’s decisions clarifying that the Second Amendment protects a personal right to bear arms.
When Beck agreed that was correct, Sotomayor tried to justify this restriction by saying that “nothing about Hawaii’s customs, tradition, or culture creates an expectation that the general public carries guns wherever they go.” At that point, Beck reminded Sotomayor that Hawaii “is part of the United States” and therefore the Second Amendment and “our national tradition” applies in Hawaii just as it does in the rest of the country.
No “custom, tradition, or culture” in a specific state can be used as a basis for violating the Bill of Rights. Nonetheless, Sotomayor kept arguing that “local custom” should control — an absurd notion when it comes to the rights protected in the Constitution and one that Southerners fervently and shamefully believed in at one time.
Of course, we settled that issue on April 9, 1865, when Robert E. Lee surrendered to Ulysses S. Grant at Appomattox.
The bottom line in this case is that historical outliers like the discriminatory Black Codes cannot be used to justify a state government violating explicit provisions of the Bill of Rights, including the Second Amendment. What’s next? States arguing that the restrictive laws that were passed to prevent black Americans from registering and voting after the end of Reconstruction would justify tossing out the Equal Protection Clause of the 14th Amendment?
And neither can “local customs” and “local culture” be used for that purpose. The rights protected by the Second Amendment apply everywhere that the American flag flies, from sea to shining sea, and even in the middle of the Pacific in the last state to join the Union.