In Wolford, Hawaii relies on the Black Codes

I have filed an amicus curiae brief in Wolford v. Lopez, which is pending in the Supreme Court, on behalf of the National African American Gun Association.  As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.

Hawaii enacted this ban in defiance of the Supreme Court’s ruling in Bruen that the Second Amendment protects the right to bear arms in public.  The Ninth Circuit upheld the ban under Bruen based on the existence of two purported historical analogues, one of which was an 1865 Louisiana law.  I’ve written extensively on the black codes in Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the “Constitutional Right to Bear Arms,” which both Heller and McDonald cite as authority. Thus, I focused on the Louisiana law in the amicus brief.  The following summarizes the argument.

Hawaii’s ban on a licensee carrying a firearm on another’s property that is open to the public without express authorization is covered within the plain text of the Second Amendment and is presumptively protected.  To demonstrate that the restriction is “consistent with this Nation’s historical tradition of firearm regulation,” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another’s lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.

The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition.  This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery.  It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.

In the immediate post-war period, Louisiana jurisdictions adopted “regulations applying exclusively to the Negro.”  Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec. 19, 1865).  The town of Opelousas exemplified the trend with its ordinance providing that “No freedman … shall be allowed to carry firearms” within the town limits “without the special permission of his employer, in writing, and approved by the mayor or president of the board of police.”  Id. at 23 & 89.

The Freedmen’s Bureau overruled such restrictions when they came to its attention.  It became clear that prohibitions on freedom of movement and the right to bear arms could no longer explicitly limit their applicability to the “freedmen.”  Laws of general applicability would be enacted that were intended and functioned to apply to the freed slaves.

The 1865 law making it unlawful to carry a firearm on another’s premises or plantations without consent was part of several enactments signed by Governor Madison Wells that deleted explicit references to the “freedmen” while continuing the policies of the black codes.  The gun carry ban could be enforced to prevent freedmen from carrying firearms on premises and on plantations without no-trespassing signage.  Another law made it a crime to enter upon a plantation without permission, without any requirement that the land be posted, which limited the freedom of movement of freedmen.

Another law provided for the conscription of “vagrants” who could be detained and hired out to an employer or made to do hard labor on public works for as much as a year.  Still another prohibited enticing a person to leave his employer, which kept the freedmen in a condition of servitude.

These laws received national attention in publications like the New York Tribune, March 7, 1866, which recited the law making it unlawful to “carry firearms on the premises or plantations of any citizen” without consent and concluded: “For the blacks we find a code of laws establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact.”

Testimony before the Joint Committee on Reconstruction established that such laws would have been selectively enforced against the freedmen.  Governor Wells, a former slave owner, appointed sheriffs, judges, district attorneys, mayors, and other officers who were recently in the Confederate army.  One witness testified that in the courts, “as far as justice to a freedman is concerned, it is a pretence and a mockery.”  Report of the Joint Committee on Reconstruction, pt. iv, 81 (1866).  Another quoted Governor Wells as saying that “the government must pay for the slaves that had been emancipated….”  Id. at 116.

Louisiana’s ban on carrying a firearm on premises or plantations without consent was the type of law that Congress sought to render void in the Freedmen’s Bureau Act, S. 60, and the Civil Rights Act, S. 61, which were enacted in 1866.  It was also the kind of law sought to be prohibited by the Fourteenth Amendment.

In Congress, former Louisiana governor Michael Hahn was quoted as stating: “It is necessary … to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom…. ‘The right of the people to keep and bear arms’ must be so understood as not to exclude the colored man from the term ‘people.'”  Cong. Globe, 39th Cong., 1st Sess. 217 (1866).  Representative Thomas D. Eliot quoted the above Opelousas ban on freedmen carrying firearms as an example of the restoration of slavery in fact.  Id. at 517.

Supporters of S. 61 praised the order by General Sickles in South Carolina recognizing the constitutional right to bear arms, which did not “authorize any person to enter with arms on the premises of another against his consent.”  Id. at 908 (emphasis added).  That was the normal rule, in contrast the Louisiana’s law requirement that one could not go on another’s premises “without the consent” of the owner.

The Civil Rights Act provided that all citizens “shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens….”  14 Stat. 27.  The Freedmen’s Bureau Act expanded that language to protect the right “to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms….”  14 Stat. 173.

The reference to “the constitutional right to bear arms” was originally proposed by Representative Nathaniel P. Banks, who as a major general had formed the Union government in Louisiana in 1864.  Cong. Globe at 585.  It was agreed that the expanded language did not change the meaning, implying that the Civil Rights Act also protected the right to bear arms.

In 1867, Congress declared that “no legal State governments” existed in Louisiana and nine other States, which were subjected to military authority.  14 Stat. 428.

Given that Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865 Act making it unlawful “to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor,” it cannot be said that this law was “consistent with the Nation’s historical tradition of firearm regulation,” Bruen, 597 U.S. at 24 (emphasis added).

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The Court did not grant cert on petitioners’ issue number two, of whether the Ninth Circuit erred in also relying on supposed analogues from the post-Reconstruction Era and later.  My amicus brief does not cover that issue, although it is sure to be debated in other briefs.  While there is much more to be said, petitioners’ merits brief clinches the issue with a single sentence from Rahimi: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'”