The Supreme Court took up Wolford v. Lopez, testing Hawaii’s rule that requires property owners to expressly authorize handguns on private property open to the public, and the exchange over Black Codes at oral argument laid bare sharp divisions about how history should inform Second Amendment law.

The case challenges a Hawaii law that criminalizes carrying a handgun on private property open to the public unless the owner gives explicit permission. Challengers say the law effectively prevents public carry because so much daily life happens on privately owned but publicly accessible spaces. This dispute reached the Supreme Court while conservative justices signaled skepticism about the state’s restrictions.

Three Hawaii residents with concealed-carry licenses and a Honolulu gun rights group appealed a lower court ruling that upheld the measure as likely constitutional under the Second Amendment. The challengers are backed by the federal government in the current administration. The debate focused on how to apply the Court’s precedent for assessing historical analogues to modern firearm rules.

Hawaii’s statute demands “express authorization” to bring a handgun onto private property open to the public, whether that authorization is verbal, written, or given via “clear and conspicuous signage.” Several other states have comparable rules that prompt similar constitutional questions about public carry. The lawyers and justices pressed on whether such laws fit within the nation’s historical tradition of firearm regulation.

“The Constitution protects the right to keep and bear arms,” Katyal said. “It doesn’t create implied consent to bring those arms onto another’s property.”

Justice Gorsuch pressed Principal Deputy Solicitor General Sarah Harris on the history of post-Civil War restrictions, raising a fraught comparison with the Black Codes that sought to limit Black Americans’ rights after emancipation.

“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?” Gorsuch asked.

“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,” Harris replied. “Those laws are dead-ringers only in the sense that this law too is an unconstitutional pretext. The Black Codes were offered, as you mentioned, by states before their readmission to the Union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.”

The argument turned on the Bruen framework, the Court’s test that requires gun regulations to align with the nation’s historical tradition of firearm regulation. Justice Ketanji Brown Jackson pushed back hard on Harris’s dismissal of the Black Codes as relevant historical analogues.

“So I guess I really don’t understand your response to Justice Gorsuch,” Justice Brown Jackson said, “on the Black Codes. I mean, I thought the Black Codes were being offered here under the Bruen test to determine the constitutionality of this regulation. And it’s because we have a test that asks us to look at the history and tradition. 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.”

Not understanding the historical argument is a recurring criticism from conservatives about Justice Brown Jackson’s approach, and today’s exchange reinforced that view. Her insistence that Black Codes belong in the Bruen inquiry surprised observers who see those laws as racially motivated outliers. The back-and-forth exposed a deep split on how to treat clearly discriminatory statutes when tracing a national tradition.

“Absolutely,” Harris replied. “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.”

“Okay. Let me stop you there,” Brown Jackson said. “They were not deemed unconstitutional at the time that they were enacted. They were part of the history and tradition of the country and when we have a test now that’s asking us to look at what people were doing back then, I don’t understand why they should be excluded.”

“Because they are outliers,” Harris said. “They are by definition unconstitutional…”

“Found later. Afterwards,” Brown Jackson interrupted. “Not at the time, and if the test says what’s happening at the time, tells us what’s constitutional for this purpose, why aren’t they in?”

“Respectfully,” Harris replied,” a law is always unconstitutional when…from its inception —”

“So the history doesn’t matter? We shouldn’t care about the history then.” Brown Jackson asked, pushing the point to its limits while Harris tried to explain the framework’s mechanics. Harris returned to the central Bruen idea that clearly unconstitutional laws should not be treated as examples of a legitimate national tradition.

“We should deeply care about the history,” Harris replied. “But the whole point of the Bruen framework is as follows: the history and tradition of the Second Amendment are particularly important because it is codifying a preexisting right. To figure out, in a sort of common law fashion, what the national history and tradition are, you throw out outliers. And i can think of no greater outlier than blatantly unconstitutional laws that flipped what had been the tradition in states like Louisiana and during the period before those states were readmitted to the union, for the purpose of trying to reduce newly freed slaves back to conditions of servitude, made it a new crime, a new trespass in order to go about armed on private property. Those are obvious outliers. And should not count under the whole point of Bruen.”

President Biden didn’t choose Brown Jackson for her keen jurisprudence, and it shows. Her performance in this argument will reinforce doubts among conservatives about her fitness to apply historical tests to constitutional rights. Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.