Bad History

Essay - by and Online Edition - Volume 105

Introduction

In many states, when a property owner opens their door to the public, the default rule is an implied invitation to carry firearms onto the property. In our 2020 book, Weapon of Choice, we proposed flipping this default so that an owner would have to provide express consent to gun carrying or it would be prohibited.[1] Think about that ubiquitous “No Firearms” sign at Starbucks. If our proposal were adopted, there’d be no need for that sign. Guns would be prohibited by default. Bass Pro Shops[2] and other gun-friendly establishments would have to post “Firearms Welcome,” or give consent in some other way.

Our proposal gained traction after the Supreme Court, in its 2022 Bruen decision,[3] radically restricted states’ ability to limit gun-carrying in public places.[4] Five states (California,[5] Hawaii,[6] Maryland,[7] New Jersey,[8] and New York[9]) responded by adopting our proposal.[10] The Second Amendment challenges came quickly and ultimately resulted in a circuit split,[11] with the Ninth Circuit upholding Hawaii’s version.[12] The Supreme Court granted certiorari in Wolford v. Lopez and heard argument on January 20, 2026.[13] One of the most debated questions was whether an 1865 Louisiana statute (the “Statute”) was, or was not, part of the so-called “Black Code.”

In a 6–3 decision, the Wolford Court struck down Hawaii’s statute as applied to businesses “open to the public.”[14] All nine Justices agreed that the Louisiana statute was part of its Black Code.[15] Justice Jackson’s dissenting opinion, joined by Justice Sotomayor, suggested that the majority had inappropriately excluded the Statute from consideration as a historical analogue.[16] Whether the majority opinion in fact made that mistake is not entirely clear.[17] There are important implications for Second Amendment law moving forward. Perhaps most significant is the fate of the ban on firearm possession by convicted felons,[18] which accounts for the lion’s share of federal gun prosecutions,[19] and which has also produced a circuit split post-Bruen.[20]

This Essay proceeds in four steps. First, we review the Bruen test and the problem of “sordid sources.” Next, we examine the question so hotly debated at oral argument in Wolford: was the Statute even part of Louisiana’s “Black Code”? Yes, we conclude, but only after a deep dive into history. Third, we consider the relevance of the racist origin of the Statute to the Second Amendment and defend our view that gun regulations with deplorable motivations nonetheless can constitute part of our country’s historical tradition of gun regulation. The only historical gun regulations disqualified from consideration are those that violated the right to bear arms at the time they were enacted. Properly read, the majority and lead dissent in Wolford actually agree on this point. Finally, we apply this test to the Statute and conclude that it should have been considered in Wolford as a historical analogue.

 I. Background: Bruen, Wolford, and Bad History

To understand why classification of the Statute as part of Louisiana’s Black Code could matter for the constitutionality of a twenty-first century law that no one alleges is racist, one needs to better understand Bruen. In Bruen, the Supreme Court held that “when the Second Amendment’s plain text covers an individual’s conduct, . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[21] “Consistent with” historical tradition does not mean identical to it. The government must therefore identify regulations that are “historical analogue[s],” not “historical twin[s]” or “dead ringer[s].”[22] Old and new laws must be “relevantly similar,” as measured by at least two metrics: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”[23]

In Wolford, Hawaii cited the Statute as part of the “Nation’s historical tradition of firearm regulation” because it is a historical “dead ringer,” almost to the word.[24] Louisiana’s law stated that “it shall not be lawful for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.”[25] Hawaii’s law states that a person shall not “enter or remain on private property of another person while carrying a . . . firearm . . . unless the person has been given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property.”[26] Hawaii exempts certain law enforcement officers and members of the military.[27]

The challengers in Wolford responded that the Statute was not “relevantly similar” to Hawaii’s law because it differed on “how and why” it regulated firearm possession.[28] First, the Statute was part of the Louisiana Black Code, which was intended to preserve as much as possible the racist legacy of slavery, and therefore cannot be considered part of our legitimate historical tradition.[29] This is an argument about “why.” Second, the challengers argued that the mechanism chosen to restrict the right to bear arms on plantations was designed to target newly freed persons, many of whom were still forced to live on plantations.[30] This is an argument about “how.”

Other judges and scholars have observed and struggled with this problem of “sordid sources” in Second Amendment litigation.[31] We are among the first to recognize the full breadth of the problem and the fact that it implicates both the “why” and “how” metrics of “relevant similarity.” Take the other Second Amendment case argued this Term, United States v. Hemani,[32] involving a challenge to the prohibition on firearm possession by drug users. The parties invoked state “habitual drunkard” statutes thirty-two times at argument[33] and over fifty times in their briefs,[34] not once observing that such a statute today might violate the Eighth Amendment[35] or the Due Process Clause.[36] Similarly, courts have relied on old civil commitment laws that violated Due Process[37] to uphold the current prohibition on gun possession by the mentally ill.[38] Then-circuit court Judge Amy Coney Barrett relied in part on anti-Catholic gun laws to conclude that “the state can take the right to bear arms away from a category of people that it deems dangerous,” notwithstanding the obvious Free Exercise defect.[39]

Of course, we are not defending any of these old laws.[40] But we are arguing for a more coherent approach to how they are used, or not used, in deciding Second Amendment claims. Our first claim is that the only basis to dismiss a historical law entirely from consideration in the Bruen analysis is if that law itself unconstitutionally infringed the right to bear arms. Other defects are orthogonal to the Second Amendment question, including all of the potential defects listed in the previous paragraph. The nine circuits that addressed this issue before Wolford was decided all agreed that bad history cannot be categorically excluded from the Bruen analysis.[41] Wolford should not unsettle this consensus.

 II. Was the 1865 Louisiana Law Part of the State’s “Black Code”?

As noted, all nine Justices concluded that the Statute was part of Louisiana’s Black Code. We agree with the conclusion, but pause here to explain why even that basic question has been the subject of dispute.

 A. The Case for “No”

The Statute is not a Black Code because it is race neutral on its face.[42] It restricts gun-carrying by “any person or persons.” It protects every “owner or proprietor.” There are no racial terms or limits in the text of the statute. Notably, the Statute covers not just “plantations,” which may have been primarily (or even exclusively) owned by whites, but also “premises,” which is a broad enough term to cover “black churches and black-owned businesses.”[43] The historian William L. Richter concludes that a closely analogous Texas statute “could be seen as a measure to disarm black laborers but, as it was not racially specific, it loosely followed [Freedmen’s Bureau] directives on such matters.”[44] The Bureau had aimed to disarm mostly white people inside towns.[45]

Whatever the motive, the impact on Black citizens may have been slight.[46] The seminal 1906 Documentary History of Reconstruction collected Black Codes from Southern states.[47] The entry for Louisiana[48] includes only parish-level regulations, explaining that:

It seems to have been a custom for the Louisiana parishes and towns to make such regulations as the following [examples of Black Codes], and, during 1865, they were approved by the military authorities. The legislature of Louisiana passed no laws of importance relating to the blacks, though by custom they were more stringently regulated in Louisiana than in other Southern states.[49]

(This is not because the Louisiana legislature did not know how to pass an explicitly discriminatory “Black Code.” To the contrary, “Black Code” was precisely how the legislature denoted its pre-Civil War regulation of slaves, which included a prohibition on arms-carrying not limited by location.[50])

Thus, the effect of the Statute must be viewed in context. Given that parishes and towns after the Civil War prohibited gun-carrying by Black people,[51] the Statute’s only practical effect was to restrict gun-carrying by white and other non-Black people. White people commonly carried concealed revolvers during this era.[52] And armed white terrorist groups like the Klan and the Knights of the White Camellia “did not need or wait for racist gun control schemes” to “disarm[] former slaves.”[53] Even if the intent of the Statute was discriminatory, its impact on Black firearm possession may have been marginal.[54]

Finally, as Professors Akhil Reed Amar and Vikram David Amar have observed, the same Reconstruction Congress that enacted the Fourteenth Amendment tacitly approved the Statute.[55] Southern states were required to repeal their Black Codes as a condition of readmission to the Union. Louisiana was readmitted without repealing the Statute.[56] Nor was Louisiana at any point ejected from the Union, which happened to Georgia when it adopted laws that violated the Reconstruction Amendments.[57] To the contrary, the Statute stayed on the books in Louisiana at least until 1915.[58] That timeframe, of course, includes the decade 1868–1877, “when Louisiana had a higher percentage of Black government officials than just about any other state in the Union.”[59] A racially diverse state legislature chose not to repeal the Statute.

 B. The Case for “Yes”

A “Black Code” can be defined by its function. The preeminent historian of Reconstruction, Eric Foner, states that the “centerpiece” of the Black Codes was “to stabilize the black work force and limit its economic options apart from plantation labor.”[60] Foner quotes a Radical Republican who described the Louisiana legislature’s goal in 1865 as “getting things back as near to slavery as possible.”[61] Another historian singles out the Statute in particular as an “essential feature” of “Louisiana’s version of the post-war Black Codes.”[62] But how did this race-neutral law regarding landowner consent to gun-carrying work to support a system akin to slavery?[63]

Again, context is critical.[64] As noted above, Texas adopted a nearly identical provision to the Statute. The only difference is that it was limited in application to “enclosed” premises and plantations.[65] Historian Brennan Gardner Rivas explains the source of the racially disparate impact:

Because virtually no black Texans owned their own land in 1866 and thus had to live and work on land owned by whites, the law effectively prevented freedmen from carrying—or even owning—a gun without their landlords’ or employers’ permission. This solution . . . essentially re-inscribed the antebellum statute that had given whites strict control over blacks bearing arms, and thus it constituted a point of continuity between antebellum and early Reconstruction Texas rather than the opening of a new era of gun regulation.[66]

No doubt a similar racial disparity in property ownership rates existed in Louisiana.[67] An 1875 subset of a Congressional committee on the state of the South concluded that the Statute had the effect of “depriving the great mass of the colored laborers of the State of the right to keep and bear arms, always jealously prized and guarded by his white employers.”[68]

Another provision in Louisiana’s 1865 “Black Code” was designed to maintain the racial disparity in property ownership in perpetuity: “the Louisiana legislature amended the 1855 criminal code to direct sheriffs outside New Orleans ‘to hire out’ convicted vagrants, with preference given to any previous employers with whom the accused had broken contract.”[69] Vagrancy was broadly defined and often captured non-wage workers in towns and cities.[70] The change in law was manifestly designed to send freed Black laborers who dared leave back to work at their former plantations.[71]

* * *

To summarize, in terms of its intended function, the Statute does appear to have been part of Louisiana’s Black Code. The goal was to keep formerly enslaved people disarmed and, especially when coupled with the vagrancy law, to maintain the racial and economic pre-Civil War status quo. However, it is an open historical question whether the Statute actually disarmed many Black people or whether they had already been disarmed by local laws, violent gangs, and custom.[72] Even without the Statute, a former slaveowner could simply announce a no-guns policy on their land. This was a default-flipping law, not a mandatory prohibition. Still, in terms of both intent and impact, the Statute is best understood as part of a discriminatory Black Code.

 III. What Do We Do with Bad History?

In his leading piece on what he termed “sordid sources,” Jacob Charles argued that there were three options under Bruen’s history and tradition test: (1) embrace sordid sources (like racist gun laws), (2) renounce them and exclude them from the analysis, or (3) abstract higher-order principles from them.[73] No one would seriously embrace and apply old laws that violate other provisions of the Constitution or are morally unacceptable by today’s standard, so option one, Charles argued, is off the table.[74]

As between options two and three, Charles argued that abstraction was the approach most consistent with Bruen.[75] The abstraction approach was at least partially vindicated by the Court’s next major Second Amendment case, United States v. Rahimi.[76] Mr. Rahimi challenged the federal ban on firearm possession by individuals subject to domestic violence restraining orders.[77] It is not surprising that the government could not identify any closely analogous laws from the Founding or Reconstruction given the political and social status of women in those eras.[78] Nonetheless, the Court held that surety and going-armed laws were relevantly similar to the modern domestic violence prohibitor because each temporarily disarmed individuals found to be dangerous.[79] The Court justified abstracting to this level of “how and why” as looking to “the principles that underpin our regulatory tradition.”[80] To be clear, Rahimi did not expressly endorse abstraction from bad history. It assumed that the surety and going-armed laws were not unconstitutional. And the Court dodged problematic historical laws that the government had offered as analogues.[81] In other words, renunciation does not directly conflict with Rahimi.

Properly read, Bruen is clear that historical restrictions that violated the right to bear arms cannot be considered part of our historical tradition of firearm regulation (i.e., adopting the “renunciation” option). The history that counts is the history “that delimits the outer bounds of the right to keep and bear arms.”[82] Bruen explains that “if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.”[83] That is exactly why the Bruen Court later rejects the government’s invocation of mid-19th century statutory prohibitions on public carry.[84]

Only statutes that violate the right to bear arms can be categorically excluded. In her Wolford dissent, Justice Jackson argues that if the Statute violated the Fourteenth Amendment but not the Second, it would nonetheless form part of our historical tradition of gun regulation.[85] She concludes, “the Black Codes are invalid inputs for Bruen’s test . . . only if they violated the Second Amendment—which may or may not be the case.”[86] Notably, Justice Jackson does not reach a conclusion as to the constitutionality of the Statute under the Second Amendment.[87] Rather, she objects to the Court’s failure to analyze the question or to provide meaningful “guidelines on how to determine the type of history that can be considered.”[88]

Justice Jackson draws the correct distinction, but, and this is the critical point, so does the majority opinion, albeit less clearly. Here is the relevant passage from the majority opinion:

[T]here is another reason for rejecting Hawaii’s reliance on this statute. It was adopted by the Louisiana Legislature between the end of the Civil War and the beginning of Reconstruction. When the war ended, the legislatures in defeated Confederate States quickly enacted so-called Black Codes that aimed to perpetuate the subjugation of blacks. The statute Hawaii cites was part of Louisiana’s Black Code, and it provided a tool for disarming blacks and thus leaving them defenseless against attacks.

As we laid out in McDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. And this was well-understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. The Republican Party Platforms of 1856 and 1860 called for protection of the right to keep and bear arms for self-defense. Unless we put history entirely out of our minds, Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.[89]

Read as a whole, the Court is focused much more on the intent and effect of the Statute to deny the right to bear arms for self-defense to a vulnerable population than racial discrimination per se. The Wolford majority pretty clearly believes that the Statute violated the Second Amendment. To the extent there is ambiguity about which defect is decisive—i.e., the precise source of the “taint”—lower courts should continue to consider as part of the Bruen analysis problematic historical analogues that did not violate the right to bear arms.

But how should courts decide whether historical statutes violated the right to bear arms? There is a circularity problem after Wolford. If historical statutes define the scope of the Second Amendment, how can such statutes themselves violate the Second Amendment? The whole idea of Bruen is that the enacting legislators, with a contemporaneous and therefore superior understanding of the right to bear arms, would not have enacted unconstitutional laws, so their actions and inaction give us insight into the Amendment’s meaning. Of course, legislatures can overreach, so the argument is not quite circular, but this rationale for excluding precedent statutes is a particularly malleable version of what Justice Breyer warned about in his Bruen dissent: “pick[ing] . . . friends out of history’s crowd.”[90] Justice Jackson echoed this concern in her Wolford dissent.[91]

In addition to the circularity and malleability problems, retroactive analysis of historical statutes under Bruen could create a problem of infinite regress. Each historical analogue would need its own analogues, and so on. Then, whichever law started the chain would have to be dismissed as having no historical analogue (or as being an outlier at the time[92]). Rather, as Bruen itself states, courts should examine “a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its . . . ratification.”[93]

Regulations that were held by a contemporaneous judicial decision to violate the Second Amendment or an analogous state-level right to bear arms can be categorically excluded from the Bruen analysis. As explained above, the reason Bruen instructs courts to consider historical analogues is precisely because contemporaneous lawmakers are assumed to have better understood and respected the Second Amendment.[94] So too contemporaneous judges and potential litigants. On the other hand, regulations that were never challenged in court are presumptively part of our historical tradition of firearm regulation.[95] Bruen flips the normal presumption of constitutionality only for regulations adopted well after the Founding or Reconstruction eras.[96] Earlier regulations are instead potential analogues.

 IV. The Louisiana Statute Did Not Violate the Second Amendment

Where does this leave the Louisiana Statute? Recall the Bruen test: “when the Second Amendment’s plain text covers an individual’s conduct, . . . the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[97] The Court in Wolford adopted a broad reading of the plain text,[98] so we move to step two, the historical tradition. The fact that the Louisiana Statute was never challenged in court suggests that no one at the time with standing and capacity to sue believed it violated the Second Amendment. Obviously, no judge expressed that opinion.

The Louisiana Statute had three sets of well-established historical analogues. As discussed above, the motivation for the Statute was to keep formerly enslaved people disarmed. By maintaining white control over Black gun ownership, it “constituted a point of continuity between [the] antebellum and early Reconstruction [eras] rather than the opening of a new era of gun regulation.”[99] The Statute was a direct descendant of the slave codes that barred gun ownership.

The second category of historical analogues is also sordid. Pre-Founding, Founding, and antebellum laws restricted firearm possession by Catholics, Loyalists, and Native Americans. The rationale was that these groups were dangerous. That was Justice Barrett’s conclusion when she was still sitting on the Seventh Circuit: “[F]ounding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.”[100] These groups included “full-fledged members of the political community as it then existed—i.e., free, Christian, white men.”[101] The dangerousness rationale was likely shared by the Statute—an armed resident workforce would have been harder to intimidate and control.

Finally, anti-poaching laws are appropriate historical analogues for the Statute. In her Wolford concurrence, Justice Barrett offered this rationale for the Louisiana Statute: “It ‘restricted the ability of blacks to feed themselves on open land,’ thus ‘pushing [them] into the agricultural labor market.’”[102] At least one historian applying a Marxist framework concluded that poaching laws before industrialization (1850) “served as a tool to control members of the lower class.”[103] And no less a commentator than Blackstone claimed that restrictive game laws derived from feudalism and slavery.[104] The “why” is basically the same. The “how” is identical: a default against gun carrying that a property owner can reverse.[105] In other words, the Statute is relevantly similar to anti-poaching laws. And none of these anti-poaching statutes were challenged on Second Amendment grounds.

Moreover, contemporaneous non-judicial and non-legislative sources, on balance, support the conclusion that the Statute did not violate the Second Amendment. The two sides in Wolford pointed to one source each. The challengers quoted part of an 1875 report by three congressmen,[106] whose relevant sentence reads in full:

[The Louisiana Statute] provides that, under penalty of fine or imprisonment no person shall carry fire-arms on to the premises or plantation of any citizen without the consent of the owner, thus depriving the great mass of the colored laborers of the State of the right to keep and bear arms, always zealously prized and guarded by his white employers.[107]

The congressmen are implying that the white landowners’ failure to give consent to arms-carrying on their property denies the right to bear arms. But landowners have always had the right to exclude people carrying firearms onto their property. The majority and lead dissent in Wolford agree on this point.[108]

Hawaii’s contemporaneous source underscores this point and provides further support for the Louisiana Statute. General D.E. Sickles, Commander of the Department of South Carolina, issued a decree preempting South Carolina’s Black Codes and providing that, while the “constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed, nevertheless this shall not be construed to . . . authorize any person to enter with arms on the premises of another against his consent.”[109] The challengers argued that the word “against” (rather than “without”) converts the old default of implied consent to carry into a constitutional requirement,[110] but that is not persuasive even if the General was using the word in such a hyper-technical way. As Justice Jackson explains, “there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.”[111] In short, because the Louisiana Statute did not violate the right to bear arms, it should have been included as an historical analogue for the Hawaii law challenged in Wolford.

Conclusion

To evaluate Second Amendment challenges, courts after Bruen generally must ask whether a modern gun regulation fits within our “historical tradition of gun regulations.” But not all history counts. Historical laws that themselves violated the right to bear arms are not part of this tradition. All other laws, no matter how distasteful, belong in the analysis. Justice Jackson explicitly articulates and justifies this distinction in her dissent in Wolford. The majority opinion, properly read, at least implicitly agrees. Given the problematic nature of many historical gun regulations, this doctrinal move will likely have significant impact on the development of Second Amendment caselaw, most notably the ban on gun possession by felons.

  1. . Ian Ayres & Fredrick E. Vars, Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights 82–93 (2020). ↑
  2. . See What Are the Policies Regarding Bringing a Firearm Into Your Store?, Bass Pro Shops, https://help.basspro.com/retail-62159de3/what-are-the-policies-regarding-bringing-a-firearm-into-39e80dd7 [https://perma.cc/TW27-V9MW] (permitting lawful carrying). ↑
  3. . N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). ↑
  4. . See id. at 2122. ↑
  5. . Cal. Penal Code § 26230(a)(26) (West 2024). ↑
  6. . Haw. Rev. Stat. Ann. § 134-9.5(a) (West 2023). ↑
  7. . Md. Code Ann., Crim. Law § 6-411(d) (West 2023). ↑
  8. . N.J. Stat. Ann. § 2C:58-4.6(a)(24) (West 2022). ↑
  9. . N.Y. Penal Law § 265.01-d(1) (McKinney 2023). ↑
  10. . These five states together represent over one-fifth of the U.S. population. See Rank List: States in Profile, StatsAmerica (Aug. 28, 2026), https://www.statsamerica.org/sip/rank_list.aspx?rank_label=pop1&ct=S18 [https://perma.cc/C6CL-5EVN]. ↑
  11. . See Petition for a Writ of Certiorari at 8–10, Wolford v. Lopez, 146 S. Ct. 2032 (2026) (No. 24-1046) (describing the circuit split). ↑
  12. . See Wolford v. Lopez, 116 F.4th 959, 971 (9th Cir. 2024), reh’g denied, 125 F.4th 1230 (9th Cir. 2025). ↑
  13. . Transcript of Oral Argument at 1, Wolford, 146 S. Ct. 2032 (No. 24-1046). ↑
  14. . Wolford, 146 S. Ct. at 2052. The “no guns” default remains in place with regard to residences and other private property not open to the public. ↑
  15. . Id. at 2053 (majority opinion joined by six Justices); id. at 2061 (Kagan, J., dissenting); id. at 2077 (Jackson, J., dissenting, joined by Sotomayor, J.) ↑
  16. . Id. at 2077. ↑
  17. . See id. at 2053 (majority opinion). ↑
  18. . 18 U.S.C. § 922(g)(1). ↑
  19. . Federal Weapons Prosecutions Rise for Third Consecutive Year, TRAC Reports (Nov. 29, 2017), https://tracreports.org/tracreports/crim/492/ [https://perma.cc/RWZ3-D77K] (noting that § 922(g)(1) accounted for three-quarters of federal gun prosecutions). ↑
  20. . Compare Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc) (holding § 922(g)(1) unconstitutional with respect to persons convicted of non-violent felonies), with United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025) (en banc), cert. denied, 223 L. Ed. 2d 556 (Jan. 20, 2026) (upholding § 922(g)(1) as applied to non-violent felons). ↑
  21. . N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). ↑
  22. . Id. at 2133. ↑
  23. . Id. at 2132–33. ↑
  24. . See Respondent’s Brief at 27–28, 32–33, Wolford v. Lopez, 146 S. Ct. 2032 (2026) (No. 24-1046). ↑
  25. . 1865 La. Acts 14, No. 10, § 1. ↑
  26. . Haw. Rev. Stat. Ann. § 134-9.5(a) (West 2023), invalidated by Wolford, 146 S. Ct. 2032. ↑
  27. . Id. §§ 134-9.5(d), 134-11. ↑
  28. . See supra note 23 and accompanying text (describing Bruen’s “how and why” prongs). ↑
  29. . Brief of Petitioners at 31–33, Wolford, 146 S. Ct. 2032 (No. 24-1046). ↑
  30. . Id. at 31. ↑
  31. . E.g., Jacob D. Charles, On Sordid Sources in Second Amendment Litigation, 76 Stan. L. Rev. Online 30, 30 (2023). ↑
  32. . 146 S. Ct. 1677 (2026). ↑
  33. . See Transcript of Oral Argument at 140, Hemani, 146 S. Ct. 1677 (No. 24-1234). ↑
  34. . See Brief for Respondent, Hemani, 146 S. Ct. 1677 (No. 24-1234) (28 times); Brief for the United States, Hemani, 146 S. Ct. 1677 (No. 24-1234) (22 times). ↑
  35. . See Robinson v. California, 370 U.S. 660, 666–67 (1962) (describing the criminalization of mental illness as cruel and unusual under the Eighth and Fourteenth Amendments and categorizing the criminalization of narcotic addiction in the same class of laws). ↑
  36. . See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 165, 170–71 (1972) (holding a vagrancy ordinance to be void for vagueness); see also City of Grants Pass v. Johnson, 603 U.S. 520, 544–45 (2024) (stating that due process “framing [in Robinson] may have made some sense”). ↑
  37. . E.g., O’Connor v. Donaldson, 422 U.S. 563, 564, 576 (1975) (holding unconstitutional the civil commitment of nonviolent individuals capable of living safely in freedom); Lynch v. Baxley, 386 F. Supp. 378, 384–85, 387, 397 (M.D. Ala. 1974) (holding unconstitutional three Alabama involuntary commitment statutes and establishing minimum standards for constitutional involuntary commitment). ↑
  38. . E.g., United States v. Gould, 163 F.4th 795, 803 (4th Cir. 2026), cert. denied, 146 S. Ct. 2749 (2026) (mem.) (citing a Virginia statute “authorizing justices of the peace to confine persons of ‘unsound mind’ to a hospital”). ↑
  39. . Kanter v. Barr, 919 F.3d 437, 454, 456–57, 464 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). “Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course.” Id. at 458. ↑
  40. . Any more than we would anticanonical caselaw. Cf. Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 384 (2011). ↑
  41. . United States v. Harrison, 153 F.4th 998, 1028 n.23 (10th Cir. 2025) (citing cases from Second, Sixth, Eighth, and Ninth Circuits); accord United States v. Vizcaíno-Peguero, 175 F.5th 34, 47 (1st Cir. 2026); Range v. Att’y Gen., 69 F.4th 96, 122 n.50 (3d Cir. 2023), cert. granted, judgment vacated, remanded sub nom. Garland v. Range, 144 S. Ct. 2706 (2024); United States v. Hunt, 123 F.4th 697, 706–07 (4th Cir. 2024); United States v. Connelly, 117 F.4th 269, 281–82 (5th Cir. 2024). There appeared to be a split within the Tenth Circuit. Compare Harrison, 153 F.4th at 1028 n.23 (noting that Bruen requires consideration of problematic analogues), with Ortega v. Grisham, 148 F.4th 1134, 1154 (10th Cir. 2025) (“Relying on [discriminatory] analogues would commit us to consider ‘a law trapped in amber’—amber formed in an era when blatant racism escaped constitutional scrutiny.” (quoting United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024)). The Seventh, Eleventh, and D.C. Circuits had yet to weigh in. ↑
  42. . See Akhil Amar & Vikram Amar, Four Answers to the Justices in Wolford v. Lopez, SCOTUSBlog (Jan 21, 2026), https://www.scotusblog.com/2026/01/four-answers-to-the-justices-in-wolford-v-lopez/ [https://perma.cc/NQ7H-95FP] (“What made a law a typical Black Code law was that it regulated Blacks as such.”). ↑
  43. . Transcript of Oral Argument at 100, Wolford v. Lopez, 146 S. Ct. 2032 (2026) (No. 24-1046). ↑
  44. . William L. Richter, Overreached on All Sides: The Freedmen’s Bureau Administrators in Texas, 1865-1868, at 95 (1991). ↑
  45. . Barry A. Crouch, “All the Vile Passions”: The Texas Black Code of 1866, 97 Sw. Hist. Q. 13, 29 n.40 (July 1993). Professor Crouch disagrees strongly with Professor Richter’s suggestion. See infra note 66 and accompanying text. ↑
  46. . The question of whether a statute is a Black Code is analogous to the question of whether a statute violates the Equal Protection Clause. And “[u]nder longstanding constitutional jurisprudence in the United States, facially race-neutral governmental policies do not violate the guarantee of equal protection unless there is both discriminatory impact and discriminatory purpose.” Jamie Fellner, Race, Drugs, and Law Enforcement in the United States, 20 Stan. L. & Pol’y Rev. 257, 279 (2009) (emphasis added); see also Dylan Morrissey, How Bruen and Dobbs Resolved Opposing Historical Traditions Through Hidden Equal Protection Analysis, 125 Colum. L. Rev. F. 112, 126 (2025). ↑
  47. . 1 Documentary History of Reconstruction 273–314 (Walter L. Fleming, ed. 1906). ↑
  48. . Id. at 279–81. ↑
  49. . Id. at 279. ↑
  50. . La. Rev. Stat. § 68, at 59 (U.B. Phillips 1856). ↑
  51. . E.g., Documentary History of Reconstruction, supra note 47, at 280. ↑
  52. . See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2152 n.27 (2022) (quoting a Southern lieutenant observing that “carrying a revolver concealed upon his person . . . [is] an offence which is committed hourly by every other white man I meet in the streets” (quotation omitted)). ↑
  53. . Joshua Horwitz & Casey Anderson, Guns, Democracy, and the Insurrectionist Idea 127 (2009). ↑
  54. . Cf. Irby v. Va. State Bd. of Elections, 889 F.2d 1352, 1355 (4th Cir. 1989) (“To establish an equal protection violation, a plaintiff must show discriminatory intent as well as disparate effect.”). ↑
  55. . Amar & Amar, supra note 42. ↑
  56. . Unlike the vagrancy law, which had to be repealed. See infra notes 69–71 and accompanying text (discussing the vagrancy law). ↑
  57. . Amar & Amar, supra note 42 (citing Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 Cornell L. Rev. 203 (1995)) (“Rarely does one have such powerful evidence from the very Congress that enacted a given amendment.”). ↑
  58. . 1 La. Rev. Stat. Ann. § 1809, at 599 (Robert H. Marr 1915). ↑
  59. . Amar & Amar, supra note 42 (emphasis added). ↑
  60. . Eric Foner, Reconstruction: American’s Unfinished Revolution, 1863–1877, at 199 (1988). ↑
  61. . Id. (quoting Benjamin F. Flanders). ↑
  62. . Germaine A. Reed, Race Legislation in Louisiana, 1864-1920, 6 La. Hist.: J. La. Hist. Ass’n. 379, 380 (1965). See also Bill Quigley, The Continuing Significance of Race: Official Legislative Racial Discrimination in Louisiana 1861 to 1974, 47 S.U. L. Rev. 1, 12 (2019) (acknowledging that the 1865 Louisiana statute was part of the Black Codes). ↑
  63. . One mechanism involved the ability of formerly enslaved people to hunt. Brief of Amicus Curiae Firearms Policy Coalition in Support of Petitioners at 26–27, Wolford v. Lopez, 146 S. Ct. 2032 (2026) (No. 24-1046) (noting that “[l]imiting hunting rights was a key part of this effort” to economically disempower freed people); Brian Sawers, Property Law as Labor Control in the Postbellum South, 33 L. & Hist. Rev. 351, 365–66 (2015) (describing how Southern planters sought to restrict hunting and fishing in order to make formerly enslaved people dependent on plantation labor). ↑
  64. . Cf. Washington v. Davis, 426 U.S. 229, 242 (1976) (“Necessarily, an invidious discriminatory purpose [as required for an Equal Protection Clause violation] may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.”). ↑
  65. . 5 The Laws of Texas 1822–1897 1008, ch. 92 (H.P.N. Gammel 1898). ↑
  66. . Brennan Gardner Rivas, An Unequal Right to Bear Arms: State Weapons Laws and White Supremacy in Texas,1836–1900, 121 Sw. Hist. Q. 284, 291 (2018) [hereinafter Rivas, An Unequal Right]. In her doctoral dissertation, Rivas calls out Richter: “The semblance of racial neutrality did not fool everyone at the time, but some scholars have chosen to take the legislature at its word.” Brennan Gardner Rivas, The Deadly Weapon Laws of Texas: Regulating Guns, Knives, and Knuckles in the Lone Star State, 1836-1930, at 39 n.76 (May 2019) (Ph.D. dissertation, Texas Christian University) (on file with author) (citing Richter, supra note 44, at 95). Professor Crouch agrees with Rivas, arguing that Richter “falls into the old trap that argued because the laws were non-discriminatory they, therefore, had to be more enlightened than previous statutes enacted by Southern states before the Texas legislation.” Crouch, supra note 45, at 29 n.40. ↑
  67. . Cf. Claude F. Oubre, “Forty Acres and a Mule”: Louisiana and the Southern Homestead Act, 17 La. Hist.: J. La. Hist. Ass’n 143, 143–44, 157 (1976) (recounting failure of Freedmen’s Bureau even to lease land to formerly enslaved people). ↑
  68. . H.R. Rep. No. 43-261, pt. 3, at 10 (2d Sess. 1875). ↑
  69. . John K. Bardes, Redefining Vagrancy: Policing Freedom and Disorder in Reconstruction New Orleans, 1862-1868, 84 J.S. Hist. 69, 97 (2018). ↑
  70. . Id. at 81–82. ↑
  71. . See also Cong. Globe, 39th Cong., 1st Sess. 1123 (1865) (remarks of Rep. Burton Cook on the Civil Rights Bill) (“Vagrant laws . . . are calculated and intended to reduce them to slavery again; and laws which provide for selling these men into slavery in punishment of crimes of the slightest magnitude . . . .”); Gary Stewart, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions, 107 Yale L.J. 2249, 2258–59 (1998) (describing how “broad vagrancy ordinances” helped southern officials “attempt[] to reestablish control over their former property”). ↑
  72. . Without a discriminatory impact, the Statute would not violate the Equal Protection Clause under modern standards. Irby v. Va. State Bd. of Elections, 889 F.2d 1352, 1355 (4th Cir. 1989). ↑
  73. . Charles, supra note 31, at 34–35. Adam Winkler had previously outlined the dilemmas posed by racist laws under Bruen. Adam Winkler, Racist Gun Laws and the Second Amendment, 135 Harv. L. Rev. F. 537, 539 (2022). ↑
  74. . Id. at 35. ↑
  75. . Id. ↑
  76. . 144 S. Ct. 1889 (2024). ↑
  77. . Id. at 1894. ↑
  78. . See Fredrick E. Vars, The Dog That Didn’t Bark Is Rewriting the Second Amendment, N.Y.U. L. Rev. F. (May 5, 2024), https://nyulawreview.org/forum/2024/05/the-dog-that-didnt-bark-is-rewriting-the-second-amendment/ [https://perma.cc/MNW5-SGBY] (“This country did not take domestic violence seriously until well into the 20th Century.”); see also State v. Philpotts, 194 N.E.3d 371, 373 (Ohio 2022) (table decision) (Brunner, J., dissenting) (“The glaring flaw in any analysis of the United States’ historical tradition of firearm regulation . . . is that no such analysis could account for what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations.”). ↑
  79. . Rahimi, 144 S. Ct. at 1893. ↑
  80. . Id. at 1898. See also Jamie G. McWilliam, Second Amendment Principles, 33 Wm. & Mary Bill Rts. J. 1127, 1154–55 n.208 (2025) (“The Court’s blessing of drawing higher order principles from history in Rahimi suggests that the [‘Abstraction Approach’] might be the approach the Court would prefer moving forward.”). ↑
  81. . See Brief for the United States at 22, United States v. Rahimi, 144 S. Ct. 1889 (2024) (No. 22-915) (citing Revolutionary War-era laws that disarmed “loyalists and others who refused to swear allegiance to the new Republic” as analogues to the law at issue). ↑
  82. . Bruen, 144 S. Ct. at 2127. ↑
  83. . Id. at 2131. ↑
  84. . Id. at 2146 (“[T]he history reveals a consensus that States could not ban public carry altogether.”). In particular, Bruen relies heavily on Nunn v. State, 1 Ga. 243 (1846), which upheld a general ban as applied to concealed carry, but held that applying the ban to public carry as well violated the right to bear arms. Id. at 2147. ↑
  85. . Wolford v. Lopez, 146 S. Ct. 2032, 2077–78 (Jackson, J., dissenting). ↑
  86. . Id. at 2077. ↑
  87. . Though she relies on it multiple times. Id. at 2068, 2073–74, 2076. ↑
  88. . Id. at 2077. ↑
  89. . Id. at 2053 (citations omitted). ↑
  90. . Bruen, 142 S. Ct. at 2180 (Breyer, J., dissenting). ↑
  91. . Wolford, 146 S. Ct. at 2079 (Jackson, J., dissenting). ↑
  92. . See Bruen, 142 S. Ct. at 2156 (dismissing the relevance of a few “outlier” statutes). ↑
  93. . Id. at 2127–28 (quoting D.C. v. Heller, 554 U.S. 570, 605 (2007)). ↑
  94. . Id. at 2136 (“[E]vidence of ‘how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century’ represent[s] a ‘critical tool of constitutional interpretation.’” (quoting Heller, 554 U.S. at 605)). ↑
  95. . Cf. id. at 2137 (“[W]here a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” (quoting NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring)). ↑
  96. . Cf. Ex parte Endo, 323 U.S. 283, 299 (1944) (“This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution.”). ↑
  97. . Bruen, 142 S. Ct. at 2126. ↑
  98. . See Wolford, 146 S. Ct. at 2043–44. ↑
  99. . Rivas, An Unequal Right, supra note 66, at 291. ↑
  100. . Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen, 142 S. Ct. 2111. ↑
  101. . Range v. Att’y Gen., 53 F.4th 262, 276 (3d Cir. 2022) (per curiam), vacated, 56 F.4th 992 (3d Cir. 2023) (en banc). ↑
  102. . Wolford, 146 S. Ct. at 2059 (Barrett, J., concurring) (quoting Brian Sawers, Race and Property After the Civil War: Creating the Right to Exclude, 87 Miss. L.J. 703, 748 (2018)). ↑
  103. . Stephen Eliason, From the King’s Deer to a Capitalist Commodity: A Social Historical Analysis of the Poaching Law, 36 Int’l J. Compar. & Applied Crim. Just. 133, 144 (2012). ↑
  104. . Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. Rev. 703, 710 (1976). ↑
  105. . See Wolford, 146 S. Ct. at 2061 (Kagan, J., dissenting). ↑
  106. . Brief of Petitioners, supra note 29, at 32 n.16 (quoting 3 Cong. Rec. 1648 (1875)). Justice Barrett also incorporated this quote into her concurrence. Wolford, 146 S. Ct. at 2059 (Barrett, J., concurring). ↑
  107. . 3 Cong. Rec. 1648 (1875). The version of this sentence recorded in the House Report uses “jealously,” while the Congressional Record version cited in Wolford uses “zealously.” See supra note 68 and accompanying text (quoting the House Report). ↑
  108. . Wolford, 146 S. Ct. at 2049 (noting the “undisputed principle that the owner of private property is generally free to exclude anyone from entering without consent”); id. at 2061 (Jackson, J., dissenting) (noting that “all agree” that “there is no right to carry a gun onto private property without consent”). ↑
  109. . Respondent’s Brief, supra note 24, at 37–38 (quoting Maj. Gen. D.E. Sickles, General Order No. 1 (Jan. 17, 1866), reprinted in A Handbook of Politics for 1868, at 37 (McPherson ed., 1868)). Both Justice Jackson in her Wolford dissent, 146 S. Ct. at 2077, and the Court in Bruen, 142 S. Ct. at 2152, cite the Sickles order with approval. ↑
  110. . Reply Brief of Petitioners at 23–24, Wolford, 146 S. Ct. 2032 (No. 24-1046), 2026 WL 176963, at *23–24. ↑
  111. . Wolford, 146 S. Ct. at 2061 (Jackson, J., dissenting). ↑ 

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