Reading the Black Codes into the 14th Amendment is like reading the law of slavery into the 13th Amendment. It has the whole point of the amendment backward.
Hans von Spakovsky has covered the bizarre assertions by Neal Katyal and Justice Ketanji Brown Jackson, during Tuesday’s Supreme Court oral arguments in Wolford v. Lopez, that Hawaii’s effort to severely restrict the public carrying of firearms is constitutional because it resembles the infamous “Black Codes” enacted in Southern states after the Civil War. Those laws imposed multiple burdens on the civil rights of black Americans, including restricting them from carrying firearms. Under the Hawaii law, it is a crime to carry a gun onto any private property (even by parking a car with a gun inside on a privately owned parking lot) unless the owner of the property gives explicit permission to have guns there. The Hawaii Supreme Court upheld this law on the preposterous grounds that “the spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” This is probably the first time a state supreme court has defined the Bill of Rights as a “lifestyle.”
Katyal’s problem, in arguing the case for Hawaii, is the Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, (2022), under which restrictions on the right to bear arms are permitted only when “consistent with the Nation’s historical tradition of firearm regulation.” Justice Clarence Thomas’s opinion in Bruen, a master class in originalist analysis, required the government to show that the restrictions it proposed were an analogue to something widely done and accepted historically — but stressed that such precedents need not be a “dead ringer” or a “historical twin.” Moreover, the occasional outlier does not prove the existence of a tradition. The Court explained in United States v. Rahimi, permitting the restriction of gun rights by people found dangerous by a court, how the test works:
Why and how the regulation burdens the right are central to this inquiry. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding.
This raises a question that the Court has yet to entirely settle, and which Thomas and Justice Amy Coney Barrett debated in Bruen: what time period counts as the “founding” when applying the Second Amendment to state laws? The Second Amendment, which drew its language from state constitutional amendments enacted in the 1770s (and to a broader extent from the English Bill of Rights a century earlier) passed Congress in 1789 and was ratified by the states in 1791. But, like the rest of the Bill of Rights, it applied only to restrict the federal government; it was only applied to the states by the 14th Amendment, which passed Congress in 1866 and was ratified by the states in 1868. There remains ongoing debate, therefore, as to the weight that a history-and-tradition test should place on American history that came after the amendment’s language was written, but before it was applied to the states. That isn’t just a gun-rights question; it was also much debated in Dobbs, given that explicit abortion bans were much more widespread in America by the 1860s than in the 1780s, although in Dobbs the case for looking at the earlier period was weaker because it did not involve any textually enumerated right added to the Constitution in 1791 (or ever).
There are a couple of problems with citing the Black Codes to satisfy the Bruen test. One is simply that the Black Codes were, on their face, unconstitutional race discrimination. A related problem is that they only limited a subset of the population from carrying guns, and were embedded in a larger set of invidious judgments about people rather than about guns.
But it gets worse than that. Progressives, in their attempt to use this argument to undermine or troll the Bruen test’s use of history, have missed the most important reason why the argument simply doesn’t work under Bruen. Justice Jackson, for example, asserted to the challengers’ lawyer:
I understand why you’re saying [the Black Codes] can’t be used, but it’s because we’ve moved away from that history, not because that history didn’t exist. And so, to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And if we start taking pieces off, whether it’s because we’ve moved away from it or we don’t agree with it anymore, I think there’s –there’s going to be a problem with respect to the accuracy of our test. . . . The fact that the black codes were at some later point determined themselves to be unconstitutional doesn’t seem to me to be relevant to the assessment that Bruen is asking us to make. [Emphasis added.]
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, which had just been adopted and which spurred Congress into action to stamp them out. The Civil Rights Act of 1866 was adopted in direct response to the Black Codes, and the 14th Amendment grew directly out of congressional concern to put that act on sound constitutional footing. Thomas quoted some of that history in his concurrence in McDonald v. City of Chicago, the case that found the Second Amendment applicable to the states, including citing Frederick Douglass in 1865 arguing that “the black man has never had the right either to keep or bear arms” and “absent a constitutional amendment to enforce that right against the States, [Douglass] insisted that ‘the work of the Abolitionists [wa]s not finished.’” In Timbs v. Indiana, both Thomas and Justice Ruth Bader Ginsburg cited the abuses of fines in the Black Codes as reason to incorporate the Eighth Amendment’s excessive fines clause into the 14th Amendment against the states — again, treating the history of the Black Codes 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. As the ACLU wrote at the time in cheering this reading of the Black Codes, “Justice Ginsburg and Justice Thomas both conclude that the protection from excessive fines extends to state and local conduct because this right is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’”
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 13th. It has the whole point of the amendment precisely backward.
Katyal’s lame excuse, when pressed, was that “the same Congress that ratified the 14th Amendment, implicitly blessed by admitting Louisiana back in.” But of course, anyone familiar with the history of Reconstruction knows that much of what Congress did in writing legal protections went unenforced, for reasons ranging from crass partisanship to moral exhaustion. These were promissory notes that took a long time to be collected. But that is no reason to read the rights safeguarded by the Reconstruction Amendments out of the Constitution.