Gorsuch, Thomas Hammer Hawaii Gun Law: Supreme Court Warns Against Racist Precedents

Paul Riverbank, 1/22/2026Supreme Court debates if racist post-Civil War laws should shape today’s gun rights rulings.

Critics, and there are plenty, argue that this restriction all but locks most citizens out of exercising any real right to carry. Their logic? So much of American life unfolds not in the public square, but on those ambiguous stretches of private land open to all.

But the real fireworks in the chamber swirled around a much deeper question: Should the Supreme Court weigh laws authored in America’s grimmer chapters—specifically, those written under the so-called Black Codes—when deciding what the Second Amendment means today? The Black Codes, after all, weren’t a secret; they were blunt tools used after the Civil War to keep Black Americans down, stripping them of guns and power in an effort to keep them tethered to the old order.

Justice Neil Gorsuch cut right to the chase: “There’s been some discussion about the Black Codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they’re a dead-ringer. Thoughts?” No mincing of words there.

Sarah Harris, standing in for the Solicitor General’s office, was almost indignant. “It is 2026, and it is somewhat astonishing that Black Codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like,” she shot back. Her message: you can’t build a constitutional argument out of ruins that were rotten to begin with.

Then Justice Ketanji Brown Jackson weighed in, looking none too convinced. “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,” she pointed out. She’s referencing the Court’s modern “history and tradition” test for gun rules—a test that means, in plain English, the Court looks over its shoulder at American legal tradition to see if a given restriction fits.

Harris remained unswayed: “Black Codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves were returned to a condition of sharecropping.”

Still, Jackson stood her ground: even if bad history is ugly, it’s still history. If Bruen’s “at the time” test is the yardstick, why wipe those offenses from the record? Isn’t that erasing the evidence?

Harris countered that the Black Codes were never part of mainstream legal tradition—they were “outliers,” she said, illegitimate even as ink dried on the page.

It was a moment that laid bare a split, not just between Harris and Jackson, but across the bench. On one side, the view that invoking racist, discredited laws to justify present-day limits is not just misguided, but dangerous. On the other, a caution: picking and choosing which history to weigh invites its own bias.

Things got testier when Justice Clarence Thomas took the microphone. Neal Katyal, Hawaii’s legal defender, had pointed to Louisiana’s 1865 gun law—yes, part of the toxic Black Codes—as a close parallel to Hawaii’s modern approach. Thomas was blunt. “If you’re going to cite the Louisiana Black Codes of 1865, don’t you also have to cite the subsequent adoption of the 14th Amendment that was in part generated because of laws like that?” He didn’t need to spell out the implication: the country back then saw the injustice and amended the Constitution to correct it.

Katyal, for his part, tried to walk a careful line. He conceded that parts of the old laws, especially the most overtly racist ones, had been tossed, but insisted the rest endured: “We do think it is relevant history, we don't think our argument depends on it, because there is statute after statute from the Founding on.”

Justice Samuel Alito, meanwhile, wasted no time cutting to the heart of the matter: Wasn’t the whole point of gun restrictions in the post-Reconstruction South to stop Black Americans from enjoying the rights the Second Amendment was meant to guarantee? Using such tainted laws as precedents, he suggested, was “the height of irony.”

Katyal answered by drawing a line between the discriminatory features of the old codes and provisions—like consent requirements for carrying on private land—that, he claims, could in some cases serve to protect, not harm, vulnerable communities.

Amid these exchanges, the underlying problem revealed itself: America’s history with gun laws is tangled, troubled, and deeply contested. Building today’s constitutional limits on that mixed foundation is no simple affair. Yet, ignoring the story altogether—for fear of repeating its worst parts—risks rewriting the past to fit the present.

Toward the end, Justice Gorsuch pressed Katyal once more. “Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed... I understand a lot of people like to cite the Black Codes who promote gun restrictions… and here, they…they like them, they embrace them. And I’m really interested in why.”

So this case, nominally about the reach of Hawaii’s new gun law, has become something much larger. At stake is not only which gun rules stand or fall, but whose history the country chooses to honor, which traditions survive the scrutiny of the Court, and what role the shadows of the past should play in defining American rights today. As the justices wrestle with these questions, the outcome could well reshape both our understanding of the Second Amendment and how we reckon with the complicated, unfinished story of American liberty.

Anyone listening in on this week's Supreme Court session—or, perhaps even better, reading the transcript with a highlighter in hand—would have noticed the collision of old wounds and new worries playing out before the justices. Under debate: Hawaii’s strict new gun policy, a rule that more or less stops average folks from carrying handguns onto private property that happens to be open to the public—think corner stores and sprawling parking lots—unless the owner has put the green light out in plain view.Critics, and there are plenty, argue that this restriction all but locks most citizens out of exercising any real right to carry. Their logic? So much of American life unfolds not in the public square, but on those ambiguous stretches of private land open to all.But the real fireworks in the chamber swirled around a much deeper question: Should the Supreme Court weigh laws authored in America’s grimmer chapters—specifically, those written under the so-called Black Codes—when deciding what the Second Amendment means today? The Black Codes, after all, weren’t a secret; they were blunt tools used after the Civil War to keep Black Americans down, stripping them of guns and power in an effort to keep them tethered to the old order.Justice Neil Gorsuch cut right to the chase: “There’s been some discussion about the Black Codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they’re a dead-ringer. Thoughts?” No mincing of words there.Sarah Harris, standing in for the Solicitor General’s office, was almost indignant. “It is 2026, and it is somewhat astonishing that Black Codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like,” she shot back. Her message: you can’t build a constitutional argument out of ruins that were rotten to begin with.Then Justice Ketanji Brown Jackson weighed in, looking none too convinced. “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,” she pointed out. She’s referencing the Court’s modern “history and tradition” test for gun rules—a test that means, in plain English, the Court looks over its shoulder at American legal tradition to see if a given restriction fits.Harris remained unswayed: “Black Codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves were returned to a condition of sharecropping.”Still, Jackson stood her ground: even if bad history is ugly, it’s still history. If Bruen’s “at the time” test is the yardstick, why wipe those offenses from the record? Isn’t that erasing the evidence?Harris countered that the Black Codes were never part of mainstream legal tradition—they were “outliers,” she said, illegitimate even as ink dried on the page.It was a moment that laid bare a split, not just between Harris and Jackson, but across the bench. On one side, the view that invoking racist, discredited laws to justify present-day limits is not just misguided, but dangerous. On the other, a caution: picking and choosing which history to weigh invites its own bias.Things got testier when Justice Clarence Thomas took the microphone. Neal Katyal, Hawaii’s legal defender, had pointed to Louisiana’s 1865 gun law—yes, part of the toxic Black Codes—as a close parallel to Hawaii’s modern approach. Thomas was blunt. “If you’re going to cite the Louisiana Black Codes of 1865, don’t you also have to cite the subsequent adoption of the 14th Amendment that was in part generated because of laws like that?” He didn’t need to spell out the implication: the country back then saw the injustice and amended the Constitution to correct it.Katyal, for his part, tried to walk a careful line. He conceded that parts of the old laws, especially the most overtly racist ones, had been tossed, but insisted the rest endured: “We do think it is relevant history, we don't think our argument depends on it, because there is statute after statute from the Founding on.”Justice Samuel Alito, meanwhile, wasted no time cutting to the heart of the matter: Wasn’t the whole point of gun restrictions in the post-Reconstruction South to stop Black Americans from enjoying the rights the Second Amendment was meant to guarantee? Using such tainted laws as precedents, he suggested, was “the height of irony.”Katyal answered by drawing a line between the discriminatory features of the old codes and provisions—like consent requirements for carrying on private land—that, he claims, could in some cases serve to protect, not harm, vulnerable communities.Amid these exchanges, the underlying problem revealed itself: America’s history with gun laws is tangled, troubled, and deeply contested. Building today’s constitutional limits on that mixed foundation is no simple affair. Yet, ignoring the story altogether—for fear of repeating its worst parts—risks rewriting the past to fit the present.Toward the end, Justice Gorsuch pressed Katyal once more. “Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed... I understand a lot of people like to cite the Black Codes who promote gun restrictions… and here, they…they like them, they embrace them. And I’m really interested in why.”So this case, nominally about the reach of Hawaii’s new gun law, has become something much larger. At stake is not only which gun rules stand or fall, but whose history the country chooses to honor, which traditions survive the scrutiny of the Court, and what role the shadows of the past should play in defining American rights today. As the justices wrestle with these questions, the outcome could well reshape both our understanding of the Second Amendment and how we reckon with the complicated, unfinished story of American liberty.