Justice Ketanji Brown Jackson raised pointed questions about the Supreme Court's historical methodology for evaluating gun regulations during oral arguments in *Wolford v. Lopez*, a Second Amendment case challenging Hawaii's firearm carry restrictions.
The case centers on Hawaii's law that presumptively bans licensed individuals from carrying firearms in establishments open to the public without the proprietor's affirmative consent. This policy effectively flips the traditional presumption about where guns can be carried, requiring explicit permission rather than prohibition.
During arguments, Justice Jackson questioned whether excluding historically discriminatory laws like the post-Civil War Black Codes from constitutional analysis undermines the reliability of the Supreme Court's current approach to gun rights. "If the Black Codes are excluded from consideration, does that signal a problem with the Bruen test, to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account?" Jackson asked.
The justice's inquiry directly challenges the framework established in the 2022 case *New York State Rifle Pistol Association v. Bruen*, where the Supreme Court held that the Second Amendment protects a right to carry firearms in public. More significantly, *Bruen* established that to justify any restriction on firearm-related conduct, the government must demonstrate that the restriction aligns with the "Nation's historical tradition of firearm regulation."
This historical test has become the cornerstone of Second Amendment jurisprudence, requiring courts to examine centuries of American gun laws to determine what restrictions are constitutionally permissible. However, Jackson's questions highlight a fundamental tension in this approach: how to handle the extensive history of racially discriminatory firearm regulations.
Following the Civil War, Southern states enacted comprehensive "Black Codes" designed to subjugate newly freed persons and maintain the social and economic structures of slavery. These laws specifically restricted Black Americans from possessing firearms, among other civil rights violations. The codes represented a systematic effort to deny constitutional rights to an entire racial group.
The challenge these laws present to originalist interpretation is significant. If courts must rely on historical tradition to evaluate gun regulations, the existence of widespread discriminatory laws creates a methodological problem. Including such laws in the historical analysis could potentially justify modern restrictions that perpetuate historical discrimination. Excluding them, however, may create an incomplete picture of regulatory tradition.
Hawaii's contested law emerged as part of a broader response by several states to the *Bruen* decision. After the Supreme Court struck down various gun-licensing schemes as unconstitutional, states including New York, Maryland, California, New Jersey, and Hawaii adopted new approaches to firearm regulation.
The Hawaii policy appears to draw from academic work by Yale Professor Ian Ayres, who argued with a co-author that flipping the presumption about gun carry "would radically expand the private spaces where guns could not be carried." Rather than requiring property owners to post signs prohibiting firearms, the law requires them to affirmatively consent to armed individuals on their premises.
Under *Bruen*'s history-based test, Hawaii must now defend its presumptive ban by demonstrating historical precedent for such regulations. This requirement places the state in the position of arguing that historical firearm restrictions support their modern policy approach.
The case illustrates broader tensions within constitutional interpretation methodology. Originalist approaches, which seek to understand constitutional provisions based on their historical meaning and application, must grapple with periods when those same historical practices violated fundamental principles of equality and human rights.
Justice Jackson's questioning suggests skepticism about whether the current historical test adequately addresses these methodological challenges. Her concerns extend beyond the specific Hawaii law to the broader framework courts use to evaluate Second Amendment claims.
Legal scholars have debated how courts should handle discriminatory historical practices in constitutional interpretation. Some argue that excluding such laws is necessary to prevent constitutional analysis from perpetuating historical injustices. Others contend that selective historical analysis undermines the intellectual honesty required for originalist interpretation.
The *Wolford* case will likely provide important guidance on how the Supreme Court intends to apply the *Bruen* framework when faced with these methodological challenges. The court's resolution of Justice Jackson's concerns could significantly impact how lower courts evaluate gun regulations going forward.
The decision will also affect property rights and the balance between individual gun rights and business owners' autonomy over their premises. Hawaii's approach essentially empowers private property owners to control firearm presence on their property through explicit consent requirements.
As the court considers these competing interests, the case represents a crucial test of how historical methodology in constitutional law can account for the complex realities of American legal history, including its most troubling chapters.