One of the most bizarre aspects of modern Second Amendment litigation is how supporters of gun control are forced to favorably cite Jim Crow laws. In all other contexts, these sort of anti-canonical statutes would be untouchable. Yet, when it comes to guns, all the usual rules go out the window. In Wolford v. Lopez, one of the leading authorities for Hawaii's law is an 1865 Louisiana statute. Neal Katyal described it as a "dead ringer" for the Hawaii statute.

During the oral argument, Justice Gorsuch was incredulous that Hawaii was relying on this shameful precedent. He asked Wolford's counsel if it was appropriate to rely on such a law to inform the nation's traditions.

JUSTICE GORSUCH: Your friends on the other side in the Ninth Circuit relied on two statutes in particular. One was the 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left unmentioned was an 1865 Louisiana statute that was adopted immediately after the Civil War as part of an effort, it appears, to disarm black people. A Reconstruction governor later explained that this law, of course, was aimed at the freedmen. Do you think the black codes, as they're called, should inform this Court's decision-making when trying to discern what is this nation's traditions?

MR. BECK: I do not, Your Honor.

JUSTICE GORSUCH: Well, your friend on the other side says it should and that the 1865 statute is a "dead ringer" for this statute.

MR. BECK: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don't see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.

Gorsuch had a similar question for Sarah Harris, the Principal Deputy SG:

JUSTICE GORSUCH: And then, lastly, there's been some discussion about the black codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they're a dead ringer. Thoughts?

MS. HARRIS: It is 2026 and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.

Yet, Justice Jackson tried at great length to explain why the Black Code statute was relevant. First, Jackson tried to suggest that disregarding the Black codes undermines the Bruen test, which looks at all traditions.

JUSTICE JACKSON: Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I'm wondering --your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruen test, that to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I --I think there might be something wrong with the test. So can you speak to that?

MR. BECK: There's nothing wrong with the Bruen test, Your Honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small -

Second, Jackson said that Beck's approach would ignore the lived experience of those who were subject to Black Codes.

JUSTICE JACKSON: To --to people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them?

MR. BECK: No. What I'm saying is that the --the black codes dealt with a very --it wasn't a law of general applicability. It was designed to discriminate against --it was a racist law designed to iscriminate against African Americans, whereas, here, the law at issue here is a law that applies to everyone. We can't use a racist, discriminatory law to justify a modern-day law that applies to the general public, Your Honor.

That was not at all Beck's point. A blatantly unconstitutional law cannot form part of the tradition for purposes of Bruen.

Jackson offered similar questions for Harris:

JUSTICE JACKSON: So I guess I really don't understand your response to Justice Gorsuch on the black codes. 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?

Harris offered a different response. She countered that the black codes were unconstitutional ab initio.

MS. HARRIS: Absolutely. Black codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves are returned to a condition of sharecropping -

Justice Jackson did not like that response. Jackson argued that the laws were not halted by the courts, so they were not unconstitutional.

JUSTICE JACKSON: Okay. Let me stop you there. They were not deemed unconstitutional at the time that they were enacted. They were part of the history and tradition of the country. And when we have a test now that's asking us to look at what people were doing back then, I don't understand why they should be excluded.

MS. HARRIS: Because they are outliers. They are by definition unconstitutional. They have been -

JUSTICE JACKSON: That was later.

MS. HARRIS: --found unconstitutional.

JUSTICE JACKSON: Afterwards, not at the time. And if the test says what's happening at the time tells us what's constitutional for this purpose, why aren't they in?

MS. HARRIS: Respectfully, a law is always unconstitutional when it --from its inception --it's --when it's -

This is a fascinating exchange. Jackson's conception of constitutionality turns on whether the courts declared the codes unconstitutional. The SG's office counters that the law was unconstitutional from the moment it was signed into law, even if no court had said so. I am a departmentalist, and favor the executive's answer. Jackson, a judicial supremacist, does not. I wonder how Jackson would view Lincoln's treatment of the Dred Scott decision.

Justice Gorsuch returned to the theme during an extended colloquy with Neal Katyal, counsel for Hawaii. He asked how the black codes should inform the Court's analysis:

JUSTICE GORSUCH: The other question I want to ask you is the black codes. I --I struggle to see what relevance laws that are outliers --and in Bruen, we're not supposed to consider outliers. They're put aside under our test. We're looking for the mainstream and a significant tradition. And you rely very heavily on an 1865 black code law in Louisiana. You say it's a dead ringer and a reason alone to affirm the judgment. And I really --I --I really want to understand how that could be.  I want to understand how you think black codes should inform this Court's decision-making. It's quite an astonishing claim to me.

Katyal tried to explain that the black codes, as a general matter, were bad, but this particular statute was not racist legislation. After all, Katyal explained, Congress admitted Louisiana to the Union with this law on the books.

MR. KATYAL: So --so the black codes are undoubtedly a shameful part of our history, but that doesn't at all mean that this particular law is irrelevant to Second Amendment analysis for two reasons. First, the Solicitor General says correctly, as she did just now, that Louisiana wasn't a state in 1865. The relevant point is what happened in 1868, when Louisiana was admitted to be a state. The Act of June 22nd, 1868, admitted Louisiana as a state. That was the radical Reconstruction Congress. It examined the Louisiana laws, including this specific statute, and Louisiana was admitted into the union by the Reconstruction Congress.

To be clear, the Fourteenth Amendment was ratified a few weeks later on July 9, 1868. (Seth Barrett Tillman and I discuss the act to admit Louisiana, as well as other statutes, in our article on Section 3 at FN 426.)

Justice Gorsuch interrupted, and said Katyal was dancing around the question:

JUSTICE GORSUCH: You're not answering the question. The question is it's an outlier, and --and you just called it a shameful outlier. And I --I agree with that. And Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed and, yes, when Louisiana was admitted to the union. I understand a lot of people like to cite the black codes who promote gun restrictions, who would -otherwise, they would be garlic in front of a vampire in front of them. But, here, they -they like them, they embrace them. And I'm really interested in why.

Katyal repeated that this particular law was not racist.

MR. KATYAL: So, Justice Gorsuch, when I said the black codes were a shameful period, there are parts of the black codes like this particular statute which were race-neutral, which the Congress of the United States, the -the same Congress that ratified the Fourteenth Amendment, implicitly blessed by admitting Louisiana back in. It didn't treat that with the same --with respect to other laws from other states, but it did here. And, most importantly, even the opponents of the black codes recognized, as the Sickles general order says, that you have no right to carry a firearm onto someone's property absent their consent.

The period of Reconstruction and readmission was a very messy. The records on Section 3 speak to this complexity. At different points, different factions in Congress took different positions with respect to a whole host of issues. Ultimately, all we have is a bill readmitting those states, with a host of conditions. It is tough to argue that Congress "implicitly blessed" a particular gun law by admitting Lousiana, as well as several other states, a few weeks before the Fourteenth Amendment was ratified. Is there any evidence that Congress scanned all of the law books, line by line, to determine what laws to maintain? I think it more likely that Congress prioritized the most egregious laws that were being enforced, and deprioritized laws that did not have much of an effect. Was there any record of how often this Louisiana law was enforced; that is, how many prosecutions were there for people who carried a firearm into a business without permission.

Justice Alito challenged the notion that this law was somehow race neutral.

JUSTICE ALITO: Mr. Katyal, wasn't the purpose of the laws in the post---in the post-Reconstruction south that disarmed black people precisely to prevent them from doing what the Second Amendment is designed to protect, which is to defend yourself against attacks? They didn't want the --they wanted to disarm the black population in order to help the Klan terrorize them and other --and law enforcement officers in that period in that region, they wanted to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?

MR. KATYAL: So, Justice Alito, we quite agree with you that parts of the black codes were motivated by and had exactly that operation. Our point to you is this consent requirement did not operate that way. Indeed, if anything, it protected black churches and black-owned businesses and the like by insisting on this consent rule. And that is why the radical Reconstruction Congress admitted Louisiana back in. They said no to various laws, but they never did that with respect to this. And this law stayed on the books for a long time.

At common law, churches were not open to the public, in the same sense that a common carrier might be. Indeed, churches have the unique authority to exclude for reasons protected by the Free Exercise Clause. For these reasons, Justice Sotomayor's questions about carrying in churches were a bit of a non-sequitur. But did the "consent rule" really keep the KKK out of black businesses? I am doubtful. If only those who perpetrated the Colfax Massacre of 1873 had dutifully observed the laws on carrying arms.

Towards the end of the argument, Justice Thomas felt compelled to speak up during the seriatim round, something he rarely does.

JUSTICE THOMAS: If you're going to cite the Louisiana black codes of 1865, don't you also have to cite the subsequent adoption of the Fourteenth Amendment that was in part generated because of laws like that?

MR. KATYAL: Right. So that is exactly our point, that the Reconstruction Congress that ratified the Fourteenth 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 were referring 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's statute after statute from the founding on. And the idea that those --that the number of statutes we've provided isn't enough, I think, is --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 have 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.

Thomas pointed to his McDonald dissent, which laid this history out in detail.

JUSTICE THOMAS: Well, actually, there was quite --as I said in my McDonald opinion, quite a bit of discussion of these sorts of laws and the consideration of some that they thought that the Privilege --or Immunities Clause in the Fourteenth Amendment preempted these. That's simply my point.

Or maybe the better argument is there is no relevant tradition to support Hawaii's law.

Our family in Minnesota knows we worry about them, and so yesterday they sent a family-wide email.

This is surely one of many thousands like it. Maybe you’ve written one of these. Maybe you will write one of these.

Below is the email from Jen (with permission and with original formatting):

Update from MN

Hello family and friends outside of Minnesota,

Many of you have reached out to see how we are doing and Pete and I both thank you for that. We appreciate it. As middle-class White people, Pete and I are largely ok. Technically, speaking. And I cannot believe that is a sentence I just typed in the year 2026. But here we are. Our neighborhood is relatively quiet. For now. We are doing what we can to support those that we can. We are speaking out and calling our representatives. So far 20,000 people in this state have taken conscientious bystander training. As actors, Pete and I have created/rehearsed monologues or responses if we find ourselves witnessing the illegal doings of these “agents”. The people here are subdued, but not hopeless. Defiant, but not violent. We are doing our best to protest peacefully as this is what our constitution allows.

Why do I write to you of these things?

For a few reasons: 1. Depending on what media you are seeing you may be getting no coverage on this or varying degrees of truth to outright propaganda. I thought it best you hear it from someone who is actually living in MN right now. 2. No matter where you fall on the political spectrum I believe we can all agree that we have rights in this country: free speech, the right to peacefully protest, the right to due process to name a few. 3. Any support we can get, even if it is simply trying to combat disinformation with truth, from within our country or around the world is helpful and important. 4. If you wish to do other things, this is a good website which compiles many places/groups that are trying to help combat this situation. https://www.standwithminnesota.com/.

Now to some things that are happening here:

In addition to Jonathon Ross murdering Renee Good, the very same day they went to a high school and attempted to arrest students and staff. One day after this, 6 men with guns kicked in the door of someone’s home without a legal warrant and dragged the husband out in cuffs. He is an American citizen. Today local law enforcement in and around the Twin Cities held a press conference calling out these “agents” in breaking the law. They are now targeting and attempting to detain off-duty officers. Every single one of the officers they targeted are people of color. It is straight up racial profiling. They are smashing car windows and tear-gassing people including toddlers. People are carrying their passports and birth certificates around with them and often they are not even allowed to show these “agents” their paperwork before they are beaten and/or abducted.

I have a dear friend who passed her citizenship test 6 years ago and is now carrying her documentation with her wherever she goes. She did everything “the right way” yet she is worried. Frankly, because she doesn’t look Hispanic or African she will probably be ok. Again, I can’t believe I just typed this sentence. Our nephew’s elementary school (in a very affluent, predominantly White suburb) canceled their school’s International Night for fear it would draw Immigrant Enforcement to the school. Pete and I are witnessing field trips to the Science Museum cancel left and right because schools are afraid they will target the children.

These people are not targeting the “worst of the worst” as they claimed they would do. They are not following the law or allowing due process. Minnesota is under siege. They are now telling observers who are giving witness and recording these crimes that “they should learn a lesson or they will be next.” Currently, these “agents” outnumber our local law enforcement 4 to 1. Donald Trump and Noem have particularly targeted Minnesota even though our state falls far behind other states in the amount of undocumented workers. Everyone is on edge. No one is untouched by this chaos.

I don’t know what is going to happen. I don’t know what has happened to empathy and humanity. I do know that I wouldn’t be here if it weren’t for my ancestors who immigrated here from Sweden, England, Ireland, and the Netherlands. But they did. So for their legacy and for the little kids who deserve to live without fear I will continue to show up and help where I can.

Thanks for taking the time to read this and feel free to share this with those who may be curious to what is actually happening in Minnesota.

Love to all of you. Take care of each other.
Jen and Pete

mRNA’s potential

Previous data from the trial reported that 107 participants received the mRNA vaccine and Keytruda treatment, while the remaining 50 only received Keytruda. At the two-year follow-up, 24 of the 107 (22 percent) who got the experimental vaccine and Keytruda had recurrence or death, while 20 of 50 (40 percent) treated with just Keytruda had recurrence or death, indicating a 44 percent risk reduction. The companies did not report the breakdown of the two groups in the press release this week for the five-year follow-up, but said the risk reduction was 49 percent, which is also what the companies reported for the three-year follow-up.

As for side effects, the companies reported that little had changed from previous analyses; adverse events were similar between the two groups. The top side effects linked to the vaccine were fatigue, injection site pain, and chills.

The results “highlight the potential of a prolonged benefit” of the vaccine combined with Keytruda in patients with high-risk melanoma,” Kyle Holen, a senior vice president at Moderna, said.

They also “illustrate mRNA’s potential in cancer care,” he said, noting that the company has eight more Phase 2 and Phase 3 trials going for mRNA vaccines against a variety of other cancers, including lung, bladder, and kidney cancers.

Marjorie Green, a senior vice president at Merck, called the five-year follow-up data a “meaningful milestone” and “encouraging.”

“[W]e look forward to late-stage data from the INTerpath clinical development program with Moderna, across a range of tumor types where significant unmet needs remain,” she said.

While the top-line results appear positive, conclusions can’t be drawn until the full data from the trial are published. The vaccines are also being developed amid a political environment hostile to mRNA vaccines. Anti-vaccine Health Secretary Robert F. Kennedy Jr. has railed against mRNA COVID-19 vaccines, making false claims about their safety and efficacy. In August, Kennedy unilaterally canceled $500 million in grant funding for the development of mRNA-based vaccines against diseases that pose pandemic threats.

The Post asked for an expedited briefing and hearing schedule. Porter ordered the government to file a reply by January 28 and scheduled oral arguments for February 6.

Post: “Government refused” to stop search

FBI agents reportedly seized Natanson’s phone, a 1TB portable hard drive, a device for recording interviews, a Garmin watch, a personal laptop, and a laptop issued by The Washington Post. Natanson has said she’s built up a contact list of 1,100 current and former government employees and communicates with them in encrypted Signal chats.

“The day the FBI raided Natanson’s residence, undersigned counsel reached out to the government to advise that the seized items contain materials protected by the First Amendment and the attorney-client privileges,” attorneys for The Washington Post and Natanson told the court. “Undersigned counsel asked the government to refrain from reviewing the documents pending judicial resolution of the dispute, but the government refused.”

The filing said that unless a standstill order is issued, “the government will commence an unrestrained search of a journalist’s work product that violates the First Amendment and the attorney-client privilege, ignores federal statutory safeguards for journalists, and threatens the trust and confidentiality of sources.”

The six devices seized from Natanson “contain essentially her entire professional universe: more than 30,000 Post emails from the last year alone, confidential information from and about sources (including her sources and her colleagues’ sources), recordings of interviews, notes on story concepts and ideas, drafts of potential stories, communications with colleagues about sources and stories, and The Post’s content management system that houses all articles in progress,” the Post said. “The devices also housed Natanson’s encrypted Signal messaging platform that she used to communicate with her more than 1,100 sources. Without her devices, she ‘literally cannot contact’ these sources.”