What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test?
In Wolford v. Lopez, Justice Alito wrote an opinion for a 6-3 Court, holding that a Hawaii law that requires express consent from the owner of private property otherwise open to the public to bring a firearm onto the private property violates the Second Amendment as made applicable to the states via the Fourteenth Amendment. Much of the dispute followed a familiar pattern in ideologically divisive Second Amendment cases. The conservatives invoked history and tradition to say that the challenged law is an impermissible innovation; the liberals objected to the test but said that even applying it, the law should be upheld.
Beyond the usual back-and-forth, Justice Jackson, dissenting for herself and Justice Sotomayor, chastised the majority for considering history and tradition only at step 2 of the Bruen test. The logic of originalism, she said, would make the question whether Hawaii's law even infringed Second Amendment rights subject to an inquiry into the original understanding of the Second Amendment.
That's not a bad argument, but I think it's pretty clearly foreclosed by earlier cases, in which the Court has said that the threshold inquiry is whether the challenged law infringes on the right, with history-and-tradition coming in at the point at which the Court evaluates whether the regulation is permissible. What Justice Jackson's objection shows, to my mind, is that the Bruen framework is not originalism as such but a Court-created test that, for reasons that are never satisfactorily explained, incorporates history and tradition. Thus, while I agree with Justice Jackson that this bifurcation is unjustified, I think her dissent would be more persuasive on this point if it were offered as a reason to modify the Bruen framework.
Another divide concerned whether to characterize Hawaii's law as a regulation of firearms at all. The state argued, and Justices Jackson and Sotomayor agreed, that the challenged law is simply a regulation of property rights. Because everyone agrees that there is no Second Amendment right to take a firearm on private property without the property owner's consent, the law is a kind of no-trespassing rule that has nothing to do with the Second Amendment, they said.
As I explained here on the blog after the oral argument in Wolford, I think the contention that the Hawaii law is only about property is wrong. But I also think it might have been presented and received in a way that was at least arguable. My post-oral-argument analysis on this point remains true now, so I'll simply reproduce it:
The state law flipping the default rule is state action that in many circumstances restricts firearms. Before the law was passed, one could go armed into a coffee shop in Hawaii that had no sign posted regarding firearms. Now one cannot without first obtaining the owner's permission. Just as a law requiring a property owner's prior consent to engage in door-to-door solicitation infringes First Amendment rights, the argument goes, so the Hawaii law likewise infringes Second Amendment rights.
Analogizing Second Amendment rights to First Amendment rights is a common move by the Roberts Court. Although the analogy isn't perfect, I do think that here it illustrates the point that a law changing the default rule for determining a private property owner's consent or lack thereof can infringe other rights. Thus, I did not find the it's-just-about-property line of argument to be persuasive.
Now, that's not to say that a more persuasive argument couldn't have been built on these grounds. Suppose the state had commissioned a reputable researcher to determine opinion regarding the views of property owners, and it determined that a very high percentage of them did not want people coming onto their property armed, even if their property was otherwise open to the public. In that situation, perhaps one could say that flipping the presumption doesn't reflect any adverse treatment of people carrying firearms but merely does a better job of effectuating property owners' preferences when they are silent.
To be sure, one might still think that the Second Amendment places a thumb on the scale. I could imagine the Court saying that a presumption that solicitation is unwelcome violates the First Amendment, even if that presumption corresponds to the views of most or even an overwhelming majority of property owners. And whether actual property owners' preferences get disregarded might be different for First Amendment versus Second Amendment purposes.
The closest the state came to advancing the kind of argument I'm hypothesizing was by pointing to the very long tradition of firearms restrictions in Hawaii--going back to its time as a kingdom. Unfortunately for the state, however, this argument was not received as evidence of property owners' preferences but as an attempt by Hawaii to argue that it has a state-specific history and tradition that satisfies the second step of Bruen. But the plaintiffs, the U.S., and the conservative Justices were not at all receptive to that notion, as they plainly think that the history-and-tradition test is satisfied or not on a national basis. And thus, the Court will reach Bruen step 2.
That is pretty much exactly how the issue played out.
I turn now to the other issue that got some considerable attention during the oral argument and that re-surfaced in the opinions and the principal dissent. (Justice Kagan wrote a short separate dissent agreeing with that portion of the Jackson dissent that characterized the colonial-era laws to which Hawaii pointed as sufficiently analogous to satisfy the Bruen test.)
Hawaii pointed to colonial-era laws and post-Civil War laws as analogous to its challenged law. The majority rejected the colonial-era laws on the (contested) ground that they were mostly about preventing poaching. The majority and a concurrence by Justice Barrett (joined by Justices Thomas and Gorsuch with respect to the relevant portion) rejected the post-Civil War laws on the ground that they were odious--enacted as part of the infamous Black Codes that sought to reinstate slavery in all but name and to which Congress and the People responded by adopting the Fourteenth Amendment.
Justice Jackson pushed back. Yes, she said, of course the Black Codes are odious, but was the relevant provision odious only because it was racially discriminatory or also because it infringed what was taken to be a Second Amendment right? She offered evidence to suggest the former.
Justice Barrett responded by saying that an acceptable analogical antecedent under Bruen must be similar both with respect to how it regulated firearms and also with respect to why. And she went on, obviously Hawaii did not switch its default rule about arms-carrying on private property open to the public for the racist reason that motivated the Black Codes, so the "why" part of the analogy fails.
I'm not quite sure what to make of that response. It strikes me that Justices Jackson and Barrett were answering different questions. And as with all of these cases applying Bruen, much depends on the level of generality.
That said, I think Justice Barrett can be understood to be making a broader point as well. She wrote: "It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction." There is a sense in which she seems to be saying that the Black Codes are such a despicable part of our national history that they are simply off-limits as any kind of precedent. That is certainly how Justice Jackson read both Justice Barrett's concurrence and the Alito majority opinion.
Justice Jackson was careful to say that the Black Codes aren't necessarily useful precedent. But she did insist that they could be, at least for some purposes, and that to dismiss them the majority and Justice Barrett need a better developed account of what history counts and what history doesn't count.
The debate over whether to regard anything from the Black Codes as an acceptable legal source is in an important sense a debate over what I called in a 2011 lecture and 2012 law review article "tainted law." It also resonates with broader cultural divides.
The conservative super-majority is not fully Trumpian in their attitude towards history. They do not regard American history as one glorious triumph after another. They acknowledge that slavery and the Black Codes were evil. Still, in seeing them as vile outliers, there is a Trump-adjacent triumphalism. As a general matter, they say, we can turn to history to define our current rights, even though, at the time of the Constitution's adoption, fewer than half of the states forbade slavery, and three of the ones that did had enacted gradual emancipation schemes that had not yet taken full effect.
Justices Jackson and Sotomayor share the majority's view that the Black Codes were, in Justice Barrett's term, "vile," but they see such enactments as continuous with American history more broadly. That is why Justice Jackson demands an explanation from the majority of how it separates those laws that are too tainted to count as part of the salient history and tradition from those that count. Whatever they might think about all of the details, the Court's liberals share the attitude of the 1619 Project and Jill Lepore's These Truths that slavery and racial oppression were woven into the warp and woof of the American republic. If courts must automatically discount laws tainted by inegalitarianism, then there will be no place at all for history in interpretation.
A critic might say that this is what the liberals want: to banish the likes of Bruen's history-and-tradition test. But that misses the point. It is the conservatives who insist on looking to history and tradition but, apparently, only sometimes. Understood in wider context, Justice Jackson is challenging the conservatives to confront our actual history rather than to rely on a sanitized version in which the nasty bits can be easily excised.
-- Michael C. Dorf