Attorney Kevin O'Grady, who represented gun-rights challengers in Wolford v. Lopez, on Thursday criticized Hawaii's use of a Reconstruction-era Black Code to defend its concealed-carry restrictions. In a 6-3 decision, the Supreme Court held that Hawaii cannot require licensed gun owners to obtain express permission before carrying firearms onto private property open to the public.
The policy, which gun-rights advocates dubbed the 'vampire rule' because lawful gun owners had to be 'invited in' before entering businesses while armed, was challenged by plaintiffs who argued it unconstitutionally burdened their Second Amendment rights. Hawaii attempted to justify the law using historical precedent under the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen.
What the Left Is Saying
Justice Ketanji Brown Jackson offered a dissenting view in the case, arguing that the Court skipped an important constitutional question before dismissing Hawaii's historical evidence. While she did not defend the Black Codes themselves, which she acknowledged were racist and used to oppress newly freed Black Americans, Jackson argued the Court should have first decided whether the Louisiana law itself violated the Second Amendment.
"It might well be that the Black Codes are invalid inputs for Bruen's test," Jackson wrote, "but only if they violated the Second Amendment — which may or may not be the case." She outlined two possibilities: either the firearm restrictions in the Black Codes were constitutional but enforced in a racially discriminatory manner, making the constitutional defect an equal-protection problem; or the restrictions independently violated the Second Amendment. Jackson argued the Court never resolved that question before excluding the Louisiana law from consideration.
"Either history does matter, and if so, all potentially relevant historical experiences must be thoroughly examined," she wrote. "Or, it does not, and the Court should just admit that the test it has created is boundless." Gun-control advocates have pointed to her reasoning as raising important questions about how courts should evaluate historical gun regulations.
What the Right Is Saying
Gun-rights advocates celebrated the ruling as a significant victory for Second Amendment protections. O'Grady called Hawaii's reliance on the Black Code "disgraceful" and said it was not surprising given the state's opposition to gun rights.
"It's not surprising, however, that Hawaii would rely on it as they are diametrically opposed to the Second Amendment," O'Grady told Fox News Digital. "We fully expected that the Supreme Court would identify that as the kind of law that one absolutely should not look to determine whether or not something is constitutional because this is the perfect example of something which is not constitutional."
Hannah Hill, vice president of the National Association of Gun Rights, pointed to Justice Alito's majority opinion as confirmation of their position. "I would simply point her to what Justice Alito pointed out in the majority ruling — it was in response to these types of laws that the Fourteenth Amendment was enacted in the first place," Hill said. She argued the constitutional amendment itself provides the answer, noting that Black Codes were among the reasons the amendment was passed to protect newly freed Americans' rights.
Tyler Yzaguirre, president of Second Amendment Institute, echoed the criticism of using historical restrictions designed to disarm Black Americans as precedent for modern gun laws. "Those laws were not legitimate expressions of our Nation's constitutional tradition; they were examples of government using its power to deprive Americans of a fundamental right," Yzaguirre said.
What the Numbers Show
The Supreme Court's decision in Wolford v. Lopez was a 6-3 ruling, with Justice Samuel Alito writing for the majority and Justices Thomas, Roberts, Scalia, Kavanagh, Gorsuch, and Barrett joining. Justices Sotomayor, Kagan, and Jackson dissented.
Under the Bruen framework established in 2022, courts evaluating firearm regulations must determine whether modern restrictions are consistent with the nation's historical tradition of firearm regulation. Hawaii cited several historical laws to justify its 'vampire rule,' including an 1865 Louisiana statute enacted as part of post-Civil War Black Codes that made it unlawful to carry firearms onto another person's property without the owner's consent.
Justice Alito called the Louisiana statute a "tainted artifact" that was enacted to disarm newly freed Black Americans and concluded the law "cannot be taken seriously" as evidence of the Second Amendment's original public meaning.
The Bottom Line
The ruling represents another expansion of Second Amendment rights under the current Supreme Court majority, building on previous decisions including Bruen. Hawaii will need to revise its concealed-carry permitting system to comply with the decision. The case makes clear that states cannot rely on historically discriminatory laws to justify modern gun regulations, though disagreement remains about how courts should analyze historical precedent more broadly. Justice Jackson's dissent suggests some legal scholars believe the Court's approach to historical analysis warrants further examination.