Joseph G.S. Greenlee and George A. Mocsary have published the essay From Royal Decrees to Black Codes: Wolford v. Lopez and the Limits of Post-Bruen Evasion in the Yale Law Journal:
Historical practices can illuminate the scope of constitutional rights, but they can also embody the abuses those rights were intended to prevent. Hawai‘i’s reliance on a Reconstruction Era Black Code to justify restrictions on public carry brought this distinction into focus. This Essay argues that New York State Rifle & Pistol Ass’n v. Bruen’s history-and-tradition inquiry is constitutional, not merely descriptive: a historical law does not become an authoritative measure of constitutional meaning simply because it was enacted. Examining English game laws, Hawaiian monarchical restrictions, and Reconstruction Era Black Codes, the Essay distinguishes historical practices that exemplify the American constitutional order from practices that order rejected, most notably through the Reconstruction settlement’s repudiation of laws intended to disarm and subordinate newly freed citizens. Such enactments cannot be erased from history, but neither should they become affirmative precedents for modern restrictions merely because they existed. Instead, they should serve as “anti-analogues”—counterexamples illustrating the abuses that constitutional guarantees were intended to prevent. This approach accounts for the entire constitutional episode, including subsequent repudiation, and supplies a principled method for evaluating historical evidence without allowing discredited governmental practices to diminish constitutional rights.
--Dan Ernst
