Article by NRA-ILA Litigation Director Joseph Greenlee and Professor George Mocsary Published in Yale Law Journal Forum

A new Essay authored by NRA-ILA Litigation Director Joseph Greenlee and University of Wyoming College of Law Professor George Mocsary has been published in the Yale Law Journal Forum.

The Essay examines the Supreme Court’s recent decision in Wolford v. Lopez and explains why Hawaii’s attempt to defend its restrictive carry law failed under Bruen’s history-and-tradition test. Hawaii relied on an 1865 Louisiana Black Code, colonial and early American anti-poaching laws, and pre-statehood monarchical restrictions. Going beyond the Court’s opinion, the authors argue that “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.” Historical practices that reflect the abuses the Second Amendment was designed to prevent—including efforts to disarm newly freed citizens—cannot be used as affirmative precedents for modern restrictions. Instead, such laws serve as “anti-analogues”—examples of the governmental overreach the Constitution rejected. This framework supplies a clearer method for evaluating historical evidence in future Second Amendment cases without allowing discredited practices to diminish the right.

The authors’ abstract reads:

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.

Please stay tuned to www.nraila.org for future updates on NRA-ILA’s ongoing efforts to defend your constitutional rights, and please visit www.nraila.org/litigation to keep up to date on NRA-ILA’s ongoing litigation efforts.