Quote of the Day
With the conservative majority’s Second Amendment test requiring states to justify gun measures with historical analogues, Hawaii and other states have turned to the Black Codes to justify gun control efforts.
At Tuesday’s arguments, Justice Neil Gorsuch and other conservative justices appeared reluctant to credit them given their racist origins.
Hawaii points to anti-poaching laws enacted near the nation’s founding and gun restrictions Louisiana passed in 1865 as part of its Black Codes.
“They wanted to disarm the Black population in order to help the Klan terrorize them and law enforcement officers in that period in that region. They wanted to put them at the mercy of racist law enforcement officers,” Justice Samuel Alito said.
“So is it not the height of irony,” he asked Katyal, “to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right, to cite this as an example of what the Second Amendments protects.”
Katyal said he agreed parts of the Black Codes did exactly that.
Zach Schonfeld
January 20, 2026
Conservative justices reluctant to credit Black Codes in Hawaii gun law case
One has to be in awe of people capable of such mind warping ability that they use a racist and unconstitutional law as supporting the assertion their law is constitutional. Did they think appealing to racist laws would make it more a palatable to the conservative justices? If so, it backfired, but it did appeal to one of the justices:
“So I guess I really don’t understand your response to Justice Gorsuch on the Black Codes,” Jackson, a Biden appointee, told Harris. “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 Bruin is asking us to make.
I have given up trying to make sense of this argument. I have far more important things to do. I need to clip my fingernails.
Ketanji Brown Jackson is a straight-up DEI hire, in the most literal interpretation of the phrase. If she wasn’t black, she’d never have been considered for a judgeship, let alone the highest position in the land. She’s there because she will reliably carry water for her handlers, and inject random stupidity everywhere to help bread down our system of justice.
People like her are why in the old days they didn’t think blacks or women were smart, logical, or consistent enough to vote. Arguably, if she’s the best example of what they have to offer, she’s making a strong case they were right.
So, the fact that the Black Codes survived as the supreme law of the land for X years, Hawaii gets that same number of years to infringe on its people’s right to keep and bear arms? Might I propose the number of years between Plessey v Ferguson and Brown vs Board of Education, et al, as a place to start the discussion.
Rather than giving Hawaii that same number of years, considering that Separate but Equal was stricken as a basis for making a law seventy years ago, the Supreme Court should school Hawaii’s lawyers (and their legislators AND the judges there, from the lowliest Small Claims Judge pro Tem to the Supreme Court Justices) how decisions from the higher courts and both precedent and Stare Decisis operate within the US judicial system.
They are welcome to read Bruen and the various other Second Amendment decisions as closely as they are able in order to discover a work-around, but they don’t get to use the laws those cases overruled as a basis to continue down their path to totalitarianism.
There are any number of laws in the antebellum south that could support their foray into cloud cuckoo land, but they are similarly gone with the wind and have no more jurisdiction now than a law from some country no longer found on the map.