If you had “a sitting Supreme Court Justice defending post–Civil War Black Codes as legitimate Second Amendment precedent” on your 2026 bingo card, congratulations — you win. On January 20, 2026, the Supreme Court heard oral argument in Wolford v. Lopez, No. 24-1046, a direct challenge to Hawaii’s concealed carry law, Haw. Rev. Stat. § 134-9.5, which effectively prohibits licensed carriers from entering any private property open to the public — restaurants, gas stations, grocery stores — without advance written consent from the owner. Justice Ketanji Brown Jackson used the argument to launch a sustained assault on the Bruen framework itself, wielding Louisiana’s 1865 Black Code as her weapon of choice.
What Hawaii Is Actually Defending
Haw. Rev. Stat. § 134-9.5 bars a licensed carrier from entering any privately owned space open to the public unless the owner or manager has given express permission ahead of time. In practice that is impossible — half the time you cannot find out who owns a chain gas station or a strip-mall Starbucks. The Ninth Circuit upheld it at 116 F.4th 959 (9th Cir. 2024), which is why we are now at the Supreme Court.
Under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), Hawaii must first clear the plain-text hurdle: does the law restrict what United States v. Rahimi, 602 U.S. 680 (2024), calls “arms-bearing conduct”? Hawaii conceded that point. The entire fight in Wolford is therefore on the historical-tradition prong. Hawaii needs a genuine, nationally representative founding-era analogue. What it came up with is a single Louisiana statute from 1865 — a Black Code purpose-built to strip newly freed African Americans of their gun rights.
Three Reasons the Louisiana Law Gets Rejected
Hawaii’s reliance on that 1865 Louisiana statute should have ended its case. There are at least three independent reasons it fails as historical evidence under Bruen, and I laid them out as clearly as I can:
First, it is a geographic outlier. One state enacting one law does not establish a “longstanding national tradition.” A tradition requires broad, widespread practice across the states. Louisiana stood alone.
Second, Louisiana was not even part of the United States in 1865. The state had not yet been readmitted to the Union after the Civil War at the time the law was enacted. A statute passed by a state legislature outside the federal compact cannot anchor a national constitutional tradition.
Third — and most fundamentally — the law was unconstitutional from birth. It was designed explicitly to deprive formerly enslaved African Americans of the ability to carry firearms, denying them the means to hunt, provide for themselves, or resist coercion. Stephen P. Halbrook, attorney and Senior Fellow at the Independent Institute, highlighted the damning contemporary record in his amicus brief: the New York Tribune reported on March 7, 1866, that the statute making it “unlawful to carry firearms on the premises or plantations of any citizen without consent” was part of “a code of laws for blacks, establishing a system of serfdom… reenacting slavery in fact.”
That is what Hawaii wants to use as its historical anchor.
Justice Jackson’s Argument — and Why It Fails
Justice Ketanji Brown Jackson pushed hard on this during argument, suggesting that Bruen itself might be “broken” because it excludes the Black Codes from the historical accounting. Her position, stripped to its core: the Black Codes were part of American history, Bruen directs courts to look at history, therefore the Black Codes should count.
That argument conflates two distinct things: considering evidence and accepting it as reflecting a legitimate tradition. Bruen requires courts to examine all historical evidence — including outliers. But the analysis does not stop at “this law existed.” Courts must determine whether evidence reflects a broad, genuine, constitutionally sound tradition. A law enacted only in one non-readmitted state, targeting only a disfavored minority, is by definition not a tradition.
There is also a timing problem. The relevant moment for understanding the Second Amendment’s scope is 1791, when it was ratified. The Louisiana Black Code of 1865 is 74 years too late. Reconstruction-era statutes cannot define the contours of a 1791 constitutional right.
Acting SG Harris Sets the Record Straight
The best moment of the argument came from Acting Solicitor General Sarah M. Harris, who argued on behalf of the United States — the Trump administration — in support of the Second Amendment position. When Justice Jackson pressed her on why the Black Codes should not count, Harris was direct:
“Black codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves are returned to a condition of sheer servitude.”
Justice Jackson pushed back, arguing that the codes “were not deemed unconstitutional at the time that they were enacted” and asking why that should exclude them from the Bruen analysis. Harris held her ground:
“Respectfully, a law is always unconstitutional from its inception… The history and tradition of the Second Amendment are particularly important because it is codifying a pre-existing right… 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.”
That is exactly right. If a law is unconstitutional, it was always unconstitutional — the court’s later ruling simply declares what was true from day one. An unconstitutional outlier targeting an excluded minority cannot anchor a “tradition.”
What Comes Next
My read is that the Second Amendment wins Wolford 6–3 in June 2026. Justice Jackson’s questioning shows she is searching for a hook to invalidate Bruen, not to apply it. She does not have the votes. The majority understands that considering evidence and accepting it as legitimate tradition are fundamentally different moves — and a law built to re-enslave freed Black Americans is not a foundation on which to strip gun rights from all Americans today.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.