Justice Jackson Defends Racist Black Codes As Constitutional History

On Tuesday, there was a hearing at the Supreme Court regarding a law in Hawaii that bans guns from being carried into supermarkets, gas stations, and other public locations without the property owner’s permission.

Instead of property owners issuing a statement saying, “You can’t come in here with a gun,” the idea would be that you wouldn’t be able to walk in with a gun unless the shop owner gives you explicit permission.  

This is the opposite of how the Second Amendment is supposed to work. It is quite possible under the Second Amendment for people to say, “You can’t come into my establishment carrying a gun,” but this argument would reverse that presumption.

Justice Samuel Alito said the state was relegating the Second Amendment to second-class status.

The Supreme Court ruled that people have a constitutional right to carry outside the home for self-defense in 2022, but now lawmakers are attempting some sort of back door to prevent people from doing that. The law is similar to restrictions that already exist in California, Maryland, New York, and New Jersey as well.  

A truly bizarre moment in the hearing came when Justice Ketanji Brown Jackson — who’s become infamous for making dumb comments in the middle of oral arguments — decided that she was going to talk about the “Black Codes.” The codes were legitimately created by racists in order to prevent black people from owning guns. She was talking about them as precedent.

SCOTUSBlog noted the argument against the law made by its opponents:

In upholding Hawaii’s ban, they say, the court of appeals relied on two laws, neither of which is analogous. The first was a 1771 New Jersey law that barred poaching on lands that were closed to the public. But that law, the challengers wrote, “simply codified the American rule that hunters could hunt on unimproved lands not their own, while improved lands remained off limits. That is a trespass law,” they concluded, rather than a law that – like Hawaii’s – generally prohibits “carrying firearms on any and all private property without advance express consent.” 

And the second, the challengers continue, was an 1865 Louisiana law, enacted as part of that state’s Black Codes to restrict the rights of formerly enslaved people, that barred the carrying of guns on “premises or plantations” – that is, private property – without the owner’s consent.

Jackson said, “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. So, can you say more about that?”

Sarah Harris, the U.S. Principal Deputy Solicitor General, responded, “Absolutely. 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 sharecropping.”

Jackson: “Okay, let me stop you there. 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.”

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

Jackson: “Afterwards, not at the time. And if the test says what is happening at the time tells us what’s constitutional for this purpose, why aren’t they in?”

Harris: “Respectfully, a law is always unconstitutional from its inception.”

Jackson: “So the history doesn’t matter. We shouldn’t care about the history, then.”

Jackson seems to be making the argument that when Dred Scott was ruled unconstitutional, the reversal of the decision doesn’t mean that Dred Scott was ever wrong.

This is a truly bizarre agreement she’s making.

She’s implying that Plessy v. Ferguson, which said that segregation under the Equal Protection laws was fully legal, was good constitutional law, and only later was reversed. That means that if there was a subtextual or secondary part of that law, we should look to it as good law even though the Supreme Court’s ruling was a bad decision.

This is absolutely incoherent and nonsensical.