Justice Clarence Thomas' Response to Hawaii Gun-Control Law, Grounded in Racist Black Codes

The most conservative member of the Supreme Court, Justice Clarence Thomas, slammed Neal Katyal, the lawyer defending Hawaii’s so-called "Vampire Rule," which requires explicit permission to carry concealed firearms on private property open to the public, such as shops and restaurants. Thomas criticized the legal argument for relying on the racist “Black Codes” that restricted the freedoms of newly freed slaves after the Civil War as justification for curbing Second Amendment rights in Hawaii, calling it self-defeating because the 14th Amendment, specifically its Privileges or Immunities Clause, was designed to prevent exactly such restrictions.

"If you're going to cite the Louisiana Black Codes of 1865, don't you also have to cite the subsequent adoption of the 14th Amendment that was in part generated because of laws like that?" Justice Thomas asked.

"So that is exactly our point," Katyal replied. "That the Reconstruction Congress that ratified the 14th Amendment, this is the unusual case, in which you have those folks saying effectively, Louisiana should come in, and many of the parts of the Black Codes, including parts that Justice Alito referred to that were racially discriminatory about firearms, were struck from the Louisiana law. But this law stayed in effect."

"And so yes, we do think it is relevant history, we don't think our argument depends on it, because there is statute after statute from the Founding on. And the idea that the number of statutes we've provided isn't enough, I think, is very hard to reconcile when you have zero tradition, zero evidence on the other side saying these statutes were problematic. I mean, these statutes were around; you would've thought someone, if this was an infringement on the right to keep and bear arms, would have had a court case, a commentator, anything like what you had in Bruen. You've got none of that."

"Well, actually, there was quite, as I said, in my McDonald opinion, quite a bit of discussion of these sorts of laws," Justice Thomas replied. "And the consideration of some, that they thought the privileges or immunities clause, in the 14th Amednment preempted these. That's simply my point."