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The attorney who helped persuade the Supreme Court to strike down Hawaii’s private-property concealed-carry restriction on Thursday criticized the state’s reliance on a Reconstruction-era Black Code to defend the law.
In a 6-3 decision in Wolford v. Lopez, the Court held that Hawaii cannot require licensed gun owners to obtain express permission before carrying firearms onto private property open to the public. Gun-rights challengers dubbed the policy the “vampire rule” because lawful gun owners had to be “invited in” before entering businesses while armed.
“It is disgraceful that any state would rely on a law specifically aimed at taking away the Second Amendment rights or any constitutional right of Black Americans as it was at that time,” attorney Kevin O’Grady, who represented the plaintiffs, told Digital.
“And it’s not surprising, however, that Hawaii would rely on it as they are diametrically opposed to the Second Amendment. 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.”
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Justice Ketanji Brown Jackson speaks on stage during the “Ketanji Brown Jackson on Lovely One: A Memoir” panel at The Atlantic Festival in Washington, D.C., on Sept. 20, 2024. (Tasos Katopodis/Getty Images for The Atlantic)
A major flashpoint was Hawaii’s effort to justify the law under the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. Since Bruen, courts evaluating firearm regulations have generally asked whether modern gun restrictions are consistent with the nation’s historical tradition of firearm regulation.
Hawaii cited several historical laws, including an 1865 Louisiana statute enacted as part of the post-Civil War Black Codes. The law made it unlawful to carry firearms onto another person’s property without the owner’s consent.
Justice Samuel Alito, writing for the majority, rejected that argument outright, calling the Louisiana statute a “tainted artifact” that was enacted to disarm newly freed Black Americans and leave them defenseless after the Civil War. He concluded the law “cannot be taken seriously” as evidence of the Second Amendment’s original public meaning.
Justice Ketanji Brown Jackson, however, argued in her dissent the Court skipped an important constitutional question.
Jackson did not defend the Black Codes, which she acknowledged were racist and used to oppress newly freed Black Americans. But she argued the Court should have first decided whether the Louisiana law itself violated the Second Amendment, or whether the real constitutional problem was that it was enforced in a racially discriminatory way.
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Todd Settergren handles pistols inside his display case at Setterarms gun shop in Walnut Creek, Calif., on Jan. 13, 2017. (Michael Macor/The San Francisco Chronicle via Getty Images)
“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.”
Instead, she argued that under the Supreme Court’s Bruen framework, the Court could not simply dismiss those laws without first explaining why they should not count as historical evidence.
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. The Court, she argued, never resolved that question before excluding the Louisiana law from consideration.
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“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.”
Her reasoning immediately drew pushback from critics, who argued the Fourteenth Amendment was passed in response to laws like the Black Codes that denied newly freed Black Americans their constitutional rights, like the right to bear arms.
Rain clouds roll over the United States Supreme Court building in Washington, D.C., on June 18, 2026. (Chip Somodevilla/Getty Images)
“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,” Hannah Hill, vice president of the National Association of Gun Rights, told Digital.
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“That right there is your answer,” Hill continued. “Yes, there was a historical tradition — they enacted a constitutional amendment to fix that deprivation of rights, and that is also in the Constitution now, so I think she should probably go back to law school.”
Tyler Yzaguirre, president of Second Amendment Institute, echoed O’Grady and Hill’s criticism.
“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 told Digital. “The Court was right to reject the notion that such laws could define the historical limits of the Second Amendment.”
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Businesses may still ban guns by posting or enforcing a “no firearms” policy. But what Hawaii can’t do, the Court said, is treat every business as off-limits to licensed gun owners unless the owner specifically says guns are allowed.
