Supreme Court Associate Justice Ketanji Brown Jackson used legislation passed as part of the post-Civil War “Jim Crow” laws Tuesday to justify a Hawaii gun control law.
The Supreme Court heard a case challenging legislation passed by the Hawaii Legislature after the Supreme Court’s June 2022 ruling in New York State Rifle and Pistol Association v. Bruen. Jackson questioned United States Principal Deputy Solicitor General Sarah Harris regarding the constitutionality of a law that prohibited concealed carry permit holders from carrying a firearm on private property without permission.
“So I guess I really don’t understand your response to Justice Gorsuch on the Black Codes,” Jackson, a Biden appointee, told Harris. “I mean, I thought the Black Codes were being offered here under the Bruen test to determine the constitutionality of this regulation. And it’s because we have a test that asks us to look at the history and tradition.”
“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?” Jackson continued.
Merriam-Webster defines the Black Codes, which were also known as Jim Crow laws, as “racially discriminatory laws that were passed in 1865 and 1866 in states that had been part of the Confederate States of America and that were enacted in order to maintain white supremacy.”
Jackson’s question to Harris left some on social media stunned.
“Things I didn’t have on my bingo card today: Justice Jackson defending the racist Black Codes as precedent for what we should consider constitutional,” Carrie Severino of the Judicial Crisis Network posted on X.
“It was an honor to attend the SCOTUS hearing on this important gun case, and to see the amicus brief we co-authored @CivilRights argued VERY ably by Sarah Harris, deputy SG,” Assistant Attorney General for Civil Rights Harmeet Dhillon posted. “It was interesting to hear Justice Jackson defend the invocation of ‘black laws’ that targeted African Americans during the reconstruction era, as an appropriate analogue for the constitutionality of Hawaii’s broad anti-2A laws.”
Democrats have decried Supreme Court rulings on abortion, nationwide injunctions, the Second Amendment, restrictions on child sex changes, and free expression in recent years, prompting some to seek “reforms” of the high court.
Then-President Joe Biden proposed reforms to the Supreme Court in a July 2024 op-ed in The Washington Post, citing the court’s ruling in United States v. Trump that granted immunity from prosecution for a president’s official acts and claiming the reforms, including 18-year-terms for Supreme Court justices, were necessary to “strengthen the guardrails of democracy.”
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