Amicus Curiae Brief — Jason Wolford, et al., Petitioners v. Anne E. Lopez, Attorney General of Hawaii

No. 24-1046

In the Supreme Court of

the United States

JASON WOLFORD ET AL,

Petitioners

v.

ANNE E. LOPEZ,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR AMICUS CURIAE NATIONAL

AFRICAN AMERICAN GUN ASSOCIATION, INC.

IN SUPPORT OF PETITIONERS AND REVERSAL

STEPHEN P. HALBROOK* NEZIDA S. DAVIS

3925 Chain Bridge Road Davis Bakari Law LLC

Suite 403

2915 Pleasant Ridge Dr.

Fairfax, VA 22030

Decatur, GA 30034

(703) 352-7276

(404) 771-1832

protell@aol.com

nsdavis@davisbakarilaw.com

*Counsel of Record

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether the Ninth Circuit erred in holding, in

direct conflict with the Second Circuit, that Hawaii

may presumptively prohibit the carry of handguns by

licensed concealed carry permit holders on private

property open to the public unless the property owner

affirmatively gives express permission to the handgun

carrier?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST

OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Louisiana Jurisdictions Initially

Adopted “Regulations Applying

Exclusively to the Negro” . . . . . . . . . . . . . . . . 9

II.

The Act on Carrying Firearms on the

Premises Or Plantations of Another

Without Consent Continued the

Policies of the Black Codes . . . . . . . . . . . . . . 15

III.

Testimony Before the Joint Committee

on Reconstruction Showed that the

Laws Were Selectively Enforced Against

the Freedmen . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

IV.

Louisiana’s Gun Ban was Inconsistent

with The Civil Rights and Freedmen’s

Bureau Acts and the Fourteenth

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

TABLE OF AUTHORITIES

CASES

Page

District of Columbia v. Heller,

54 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McDonald v. City of Chicago,

61 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

New York State Rifle & Pistol Ass'n, Inc.

v. Bruen, 42 S. Ct. 2111 (2022) . . . . . . . . . . . . 2, 6, 31

State v. Hebert, 179 La. 190,

153 So. 688 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Timbs v. Indiana, 586 U.S. 146 (2019) . . . . . . . . . 18

Wolford v. Lopez, 116 F.4th 959

(9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Wolford v. Lopez, 125 F.4th 1230

(9th Cir. 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

CONSTITUTIONS

U.S. Const., Amend. II . . . . . . . . . . . . . . . . . . . . 7, 8, 9

U.S. Const., Amend. XIV . . . . . . . . . . . . . . 4, 9, 25, 28

v

STATUTES

Acts Passed by the General Assembly of the

State of Louisiana (Extra Session 1865) . . . . . . . . 15

Civil Rights Act, 14 Stat. 27 (1866 . . . . . . . 4, 5, 9, 25

Freedmen’s Bureau Act,

14 Stat. 173 (1866) . . . . . . . . . . . . . . . . . . . 4, 5, 9, 25

Haw. Rev. Stat. § 134-9.5 . . . . . . . . . . . . . . . . . . . . . 6

Reconstruction Act of 1867, 14 Stat. 428 . . . . . . 6, 30

LEGISLATIVE MATERIALS

Conditions of the South, H.R. Rep. No. 261,

43d Cong., 2d Sess. (1875) . . . . . . . . . . . . . . . . . . . 21

Cong. Globe, 39th Cong.,

1st Sess. (1866) . . . . . . . . . . . . . . . . . . . . . 4-5, 10, 25

Report of Carl Schurz on the States of South

Carolina, Georgia, Alabama, Mississippi, and

Louisiana, Senate Exec. Doc. No. 2, 39th Cong.,

1st Sess. (Dec. 19, 1865) . . . . . . . . . . . . . . . . . . . . . 10

Report of the Joint Committee on

Reconstruction, H.R. Rep. No. 30 (1866) . . . . . . 4, 23

vi

OTHER AUTHORITIES

1 W. Fleming, Documentary History of

Reconstruction (1950) . . . . . . . . . . . . . . . . . . . . . . . . 8

1 W. Fleming, Documentary History of

Reconstruction (1906) . . . . . . . . . . . . . . . . . . . . . . 31

Halbrook, Stephen, Freedmen, the

Fourteenth Amendment, and the

Right to Bear Arms (1998) . . . . . . . . . . . . . . . . . . . . 8

Loyal Georgian, Feb. 3, 1866 . . . . . . . . . . . . . . . . . 28

New York Tribune, Mar. 7, 1866 . . . . . . . . . . 3, 20, 21

9 Public Opinion: A Comprehensive

Summary of the Press Throughout the

World on All Important Current Topics,

Jan.–June 1866 (1866) . . . . . . . . . . . . . . . . . . . . . . 20

Smith, Mark, “Attention Originalists:

The Second Amendment was Adopted in

1791, not 1868,” 31 Harvard J. of Law &

Pub. Policy 1 (Fall 2022) . . . . . . . . . . . . . . . . . . . . . . 8

Tunnell, Ted, Crucible of Reconstruction:

War, Radicalism and Race in Louisiana,

1862–1877 (1984) . . . . . . . . . . . . . . . . . . . . . . . 20, 31

1

STATEMENT OF INTEREST

OF AMICUS CURIAE

Amicus curiae National African American Gun

Association, Inc. (NAAGA) is a nonprofit association

headquartered in Griffin, Georgia, with tax exempt

status under Internal Revenue Code § 501(c)(4).1

NAAGA was founded on February 28, 2015, to defend

the Second Amendment rights of members of the

African-American community. NAAGA has over 80

chapters in 33 states, and more than 50,000 members

living in every state of the United States and the

District of Columbia.

NAAGA’s mission is to establish a fellowship by

educating on the rich legacy of gun ownership by

African Americans, offering training that supports safe

gun use for self defense and sportsmanship, and

advocating for the inalienable right to self defense for

African Americans. Its goal is to have every African

American introduced to firearm use for home

protection, competitive shooting, and outdoor

recreational activities. NAAGA welcomes people of all

religious, social, and racial perspectives, including

African-American members of law enforcement and

active/retired military.

NAAGA’s interest in this case stems in part

from the fact that the Second Amendment right to bear

arms was denied to African Americans under the the

1

No counsel for a party authored this brief in whole or in

part nor did such counsel or any party make a monetary

contribution to fund the preparation or submission of this brief.

No person other than this amicus curiae, its members, or its

counsel made such a monetary contribution.

2

post-Civil War Black Codes, and the Ninth Circuit in

this case seeks to rely on one such law from Louisiana

from 1865 to justify Hawaii’s restrictions. NAAGA will

bring before the Court in this brief matter on this issue

not brought to its attention by the parties.

SUMMARY OF ARGUMENT

Hawaii’s ban on a licensee carrying a firearm on

another’s property without express authorization is

covered within the plain text of the Second

Amendment and is presumptively protected. To

demonstrate that the restriction is “consistent with

this Nation’s historical tradition of firearm regulation,”

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1, 17 (2022), the Ninth Circuit relies on two

supposed analogues, a 1771 New Jersey law that made

it an offense to carry a gun on another’s lands without

a license or written permission, and an 1865 Louisiana

law prohibiting the carrying of firearms on the

premises or plantation of another without consent.

The existence of merely two such laws almost a

century apart, neither of which was subjected to

judicial scrutiny, fails to establish a historical

tradition. This brief focuses solely on the 1865

Louisiana law, which was enacted during a

tumultuous period in the aftermath of the abolition of

slavery.

In the immediate post-war period, Louisiana

jurisdictions adopted “regulations applying exclusively

to the Negro.” Senate Ex. Doc. No. 2, 39th Cong., 1st

Sess., 23 (Dec. 19, 1865). The town of Opelousas

exemplified the trend with its ordinance providing that

3

“No freedman ... shall be allowed to carry firearms”

within the town limits “without the special permission

of his employer, in writing, and approved by the mayor

or president of the board of police.” Id. at 23 & 89.

When they came to its attention, the Freedmen’s

Bureau overruled such restrictions. It became clear

that prohibitions on freedom of movement and the

right to bear arms could no longer explicitly limit their

applicability to the “freedmen.” Laws of general

applicability would be enacted that were intended and

functioned to apply to the freed slaves.

The 1865 enactment making it unlawful to carry

a firearm on another’s premises or plantations without

consent was part of several enactments signed by

Governor Madison Wells that deleted explicit

references to the “freedmen” while continuing the

policies of the black codes. The gun carry ban could be

enforced to prevent freedmen from carrying firearms

on premises and on plantations without no-trespassing

signage. Another law made it a crime to enter upon a

plantation without permission, without any

requirement that the land be posted, which limited the

freedom of movement of freedmen.

Another law provided for the conscription of

“vagrants” who could be detained and hired out to an

employer or made to do hard labor on public works for

as much as a year. Still another prohibited enticing a

person to leave his employer, which kept the freedmen

in a condition of servitude.

These laws received national attention in

publications like the New York Tribune, March 7,

1866, which recited the law making it unlawful to

“carry fire arms on the premises or plantations of any

4

citizen” without consent and concluded: “For the blacks

we find a code of laws establishing a system of

serfdom, forbidding the free passage of blacks from one

plantation to another, and under the form of

apprenticeship and Vagrant laws reenacting slavery in

fact.”

Testimony before the Joint Committee on

Reconstruction established that such laws would have

been selectively enforced against the freedmen.

Governor Wells, a former slave owner, appointed

sheriffs, judges, district attorneys, mayors, and other

officers who were recently in the Confederate army.

One witness testified that in the courts, “as far as

justice to a freedman is concerned, it is a pretence and

a mockery.” Report of the Joint Committee on

Reconstruction, pt. iv, 81 (1866). Another quoted

Governor Wells as saying that “the government must

pay for the slaves that had been emancipated....” Id. at

116.

Louisiana’s ban on carrying a firearm on

premises or plantations without consent was the type

of law that Congress sought to render void in the

Freedmen’s Bureau Act, S. 60, and the Civil Rights

Act, S. 61, which were enacted in 1866. It was also the

kind of law sought to be prohibited by the Fourteenth

Amendment.

In Congress, former Louisiana governor Michael

Hahn was quoted as stating: “It is necessary ... to see

that slavery throughout the land is effectually

abolished, and that the freedmen are protected in their

freedom.... ‘The right of the people to keep and bear

arms’ must be so understood as not to exclude the

colored man from the term ‘people.’” Cong. Globe, 39th

5

Cong., 1st Sess. 217 (1866). Representative Thomas D.

Eliot quoted the above Opelousas ban on freedmen

carrying firearms as an example of the restoration of

slavery in fact. Id. at 517.

Supporters of S. 61 praised the order by General

Sickles in South Carolina recognizing the

constitutional right to bear arms, which did not

“authorize any person to enter with arms on the

premises of another against his consent.” Id. at 908

(emphasis added). That was the normal rule, in

contrast the Louisiana’s law requirement that one

could not go on another’s premises “without the

consent” of the owner.

The Civil Rights Act provided that all citizens

“shall have the same right ... to full and equal benefit

of all laws and proceedings for the security of person

and property, as is enjoyed by white citizens....” 14

Stat. 27. The Freedmen’s Bureau Act expanded that

language to protect the right “to have full and equal

benefit of all laws and proceedings concerning personal

liberty, personal security, and the acquisition,

enjoyment, and disposition of estate, real and personal,

including the constitutional right to bear arms....” 14

Stat. 173.

The reference to “the constitutional right to bear

arms” was originally proposed by Representative

Nathaniel P. Banks, who as a major general had

formed the Union government in Louisiana in 1864.

Cong. Globe at 585. It was agreed that the expanded

language did not change the meaning, implying that

the Civil Rights Act also protected the right to bear

arms.

In 1867, Congress declared that “no legal State

6

governments” existed in Louisiana and nine other

States, which were subjected to military authority. 14

Stat. 428.

Given that Louisiana was not even considered a

state from its secession in 1861 and when it passed the

Act making it unlawful “to carry fire-arms on the

premises or plantations of any citizen, without the

consent of the owner or proprietor,” it cannot be said

that this law was “consistent with the Nation’s

historical tradition of firearm regulation,” Bruen, 597

U.S. at 24 (emphasis added).

ARGUMENT

Introduction

“A person licensed to carry a firearm shall not

carry a firearm on the property of another without

express authorization, written or verbal, or posting of

clear and conspicuous signage at the entrance of the

building or on the premises.” H.R.S. § 134-9.5.

“[W]hen the Second Amendment’s plain text covers an

individual’s conduct, the Constitution presumptively

protects that conduct. To justify its regulation, ... the

government must demonstrate that the regulation is

consistent with this Nation’s historical tradition of

firearm regulation.” New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1, 17 (2022).

For historical analogues, the Ninth Circuit relies

on two laws “banning the carrying of firearms onto any

private property without the owner’s consent.”

Wolford v. Lopez, 116 F.4th 959, 994 (9th Cir. 2024). A

1771 New Jersey law made it an offense “to carry any

7

Gun on any Lands not his own, and for which the

Owner pays Taxes, or is in his lawful Possession,

unless he hath License or Permission in Writing from

the Owner or Owners or legal Possessor.” Id. An 1865

Louisiana law prohibited “carry[ing] fire-arms on the

premises or plantation of any citizen, without the

consent of the owner or proprietor.” Id.

Wolford claims that no evidence exists “that

these laws were viewed as controversial or

constitutionally questionable. Instead, they were

viewed as falling well within the colony’s or the State’s

ordinary police power to regulate the default rules

concerning private property.” Id. However, a West

Law search reveals not a single judicial decision on

either law by the courts of New Jersey and Louisiana

respectively.

From what it called these two historical “dead

ringers,” Wolford concluded “that the Nation has an

established tradition of arranging the default rules

that apply specifically to the carrying of firearms onto

private property” and that “Hawaii’s modern law falls

well within the historical tradition.” Id. at 995.

It goes without saying that “two state

laws—nearly a century apart—cannot establish a

historical tradition at odds with the text of the Second

Amendment.” Wolford v. Lopez, 125 F.4th 1230, 1238

(9th Cir. 2025) (VanDyke, J., dissenting from denial of

rehearing en banc). The New Jersey law was “an

antipoaching and antitrespassing ordinance—not a

broad disarmament statute.” Id. The Louisiana law

“was enacted as part of Louisiana’s notorious Black

Codes that sought to deprive African Americans of

their rights, including the right to keep and bear arms

8

otherwise protected by state law.” Id. at 1239, citing

McDonald v. City of Chicago, 561 U.S. 742, 771, 779

(2010); id. at 845–47 (Thomas, J., concurring).2

This brief focuses solely on the 1865 Louisiana

law. “In the aftermath of the Civil War, there was an

outpouring of discussion of the Second Amendment in

Congress and in public discourse, as people debated

whether and how to secure constitutional rights for

newly free slaves.” District of Columbia v. Heller, 554

U.S. 570, 614 (2008), citing S. Halbrook, Freedmen, the

Fourteenth Amendment, and the Right to Bear Arms,

1866-1876 (1998). “Since those discussions took place

75 years after the ratification of the Second

Amendment, they do not provide as much insight into

its original meaning as earlier sources.”3 Id.

Heller has another insight relevant here. A

1783 Massachusetts law forbade the residents of

Boston to “take into” a dwelling loaded firearms, which

was a fire safety measure. Id. at 631. “In any case, we

would not stake our interpretation of the Second

Amendment upon a single law, in effect in a single

city, that contradicts the overwhelming weight of other

evidence regarding the right to keep and bear arms for

defense of the home.” Id. at 632. While that same

2

One of the sources McDonald cites on those pages is

Regulations for Freedmen in Louisiana, in 1 Documentary History

of Reconstruction 279-80 (W. Fleming ed.1950), which includes an

ordinance of St. Landry parish that is discussed below.

3

See Mark W. Smith, “Attention Originalists: The Second

Amendment was adopted in 1791, not 1868,” Harvard Jour. of

Law & Public Policy (Dec. 7, 2022).

9

point applies here, it is nonetheless important to

explain how the Louisiana law was part of the black

codes that functioned to violate the right to bear arms

of the freedmen. It is in no way a legitimate analogue

to establish the original public understanding of the

Second Amendment.

The following traces how in the immediate postwar period, Louisiana jurisdictions adopted

“regulations applying exclusively to the Negro.”

Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec.

19, 1865). The Act on carrying firearms on the

premises or plantations of another without consent

deleted references to the freedmen but continued the

policies of the black codes. Testimony before the Joint

Committee on Reconstruction established that laws

were selectively enforced against the freed slaves.

Congress sought to do away with such measures

through passage of the Civil Rights Act and the

Freedmen’s Bureau Act and the proposal of the

Fourteenth Amendment.

I. Louisiana Jurisdictions Initially Adopted

“Regulations Applying Exclusively to the

Negro”

Post-War Louisiana was in a condition of chaos

under military occupation that could hardly be said to

be a functioning state. Louisiana jurisdictions enacted

black codes that severely restricted the freedom of

African Americans to set foot on property outside the

plantations where they worked and virtually

eliminated their right to bear arms.

On December 19, 1865, President Andrew

10

Johnson transmitted to the Senate the report of Major

General Carl Schurz concerning conditions in the

South.4 It was published as an executive document of

the U.S. Senate entitled Report of Carl Schurz on the

States of South Carolina, Georgia, Alabama,

Mississippi, and Louisiana.5 The following analysis

concerns the black codes and the treatment of the freed

slaves in the State of Louisiana.

Schurz observed that J. Madison Wells, who

would become Louisiana governor, “placed men into

official positions who had hardly returned from the

rebel army,” and expressed opposition to his

nomination for governor.6 “Governor Wells informed

me that he had filled the parish offices with men

recommended to him by the people of the parishes, and

it is fair to assume that in most cases the appointees

represented the views and sentiments of the ruling

class.”7 For instance, the police board of the parish of

Bossier “attempt[ed] to revive at once the old slave

laws, and to prevent the freedmen from obtaining

employment (away) from their former masters.”8

4

Cong. Globe, 39th Cong., 1st Sess. 78 (Dec. 19, 1865).

5

Senate Ex. Doc. No. 2, 39th Cong., 1st Sess. (Dec. 19,

1865).

https://archive.org/details/senateexecutived00unit/mode/1up.

6

Id. at 11.

7

Id. at 23.

8

Id. at 23 & 89.

11

To the same effect was the ordinance of the town

Opelousas containing “a number of regulations

applying exclusively to the negro, and depriving him of

all liberty of locomotion....”9 Similar ordinances were

enacted in the town of Franklin and the parish of St. Landry.10

These ordinances were appended as attachments No.

34 and 35, discussed below.

While what was called the new “organization of

free labor” “would not be exactly the re-establishment

of slavery in its old form, ... the difference would only

be for the worse. The negro ... is positively prohibited

from working or carrying on a business for himself; he

is compelled to be in the ‘regular service’ of a white

man, and if he has no employer he is compelled to find

one.”11 The report continued:

Such was the “organization of free labor”

ordained by officials appointed by

Governor Wells, and these ordinances

were passed while both the emancipation

proclamation and a provision in the new

constitution of Louisiana abolishing

slavery in that State forever were

recognized as being in full force. It is

needless to say that as soon as these

proceedings came to the knowledge of the

Freedmen’s Bureau and the department

commander they were promptly

9

Id.

10

Id.

11

Id. at 24.

12

overruled. But Governor Wells did not

remove the police boards that had thus

attempted to revive slavery in a new

form.12

The Schurz report included a number of

attachments of original documents that provided more

detail to his text. In one instance he referred to

documents that were “not of a recent date, but may be

taken as true representations of the ideas and

sentiments entertained by large numbers today.”13

Attachment No. 30 contained “suggestions on the

wants of planters before embarking their capital in the

cultivation of staple crops,” which was submitted by a

committee of planters in New Orleans on November

21, 1864.14 One of the rules restricted the freedom of

movement of the freedmen: “The negroes should not be

allowed to go from one plantation to another without

the written permit of their employer, nor should they

be allowed to go to any town or store without written

permission.”15 Another deprived them of arms: “The

possession of arms or other dangerous weapons

without authority should be punished by fine or

imprisonment and the arms forfeited.”16

12

Id.

13

Id. at 22.

14

Id.

15

Id. at 85.

16

Id.

13

Attachment No. 34 included a report from W.B.

Stickney, Assistant Superintendent of Freedmen,

dated August 1, 1865, about relations with freedmen.

It described an attempt by the police jury of Bossier

parish “to revive at once the old slave laws” under

which officers on patrol duty were directed “to arrest

and take up all idle and vagrant persons running at

large without employment.”17 The Freedmen’s Bureau

issued an order revoking the law and “prohibit[ing] the

parish police juries, established by the civil

authorities, from arresting freedmen unless for

positive offence against the law.”18

Attachment No. 34 also included the ordinance

of the town of Opelousas dated July 3, 1865, “relative

to the police of recently emancipated negroes or

freedmen,” which provided that “no negro or freedman

shall be allowed to come within the limits of the town

of Opelousas without special permission from his

employers,” that prohibited “every negro freedman”

from being on the streets after 10:00 p.m. without a

pass from his employer, that “No negro or freedman

shall be permitted to rent or keep a house within the

limits of the town,” and that “No negro or freedman

shall reside within the limits of the town of Opelousas

who is not in the regular service of some white person

or former owner....”19 Further:

17

Id. at 23.

18

Id.

19

Id. at 92.

14

No freedman who is not in the

military service shall be allowed to carry

firearms, or any kind of weapons, within

the limits of the town of Opelousas

without the special permission of his

employer, in writing, and approved by

the mayor or president of the board of

police. Any one thus offending shall

forfeit his weapons and shall be

imprisoned and made to work for five

days on the public streets or pay a fine of

five dollars in lieu of said work.20

Similar ordinances, including almost identical

prohibitions on firearms, were enacted by the parish of

St. Landry21 and the town of Franklin.22 (Attachment

No. 35.) Thomas W. Conway, Assistant Commissioner

of the Freedmen’s Bureau, declared that the Franklin

ordinance was “in violation of the emancipation

proclamation, the orders of the War Department, and

the orders of these headquarters,” and ordered his

subordinates to “prevent their enforcement and arrest

any person attempting to carry them out.... This

ordinance, if enforced, would be slavery in

substance....”23

It was now clear that prohibitions on freedom of

movement and the right to bear arms could no longer

20

Id. at 93.

21

Id. at 93-94.

22

Id. at 95.

23

Id. at 96.

15

explicitly limit their applicability to the “freedmen.”

Laws of general applicability would be enacted that

were intended and functioned to apply to the freedmen.

II. The Act on Carrying Firearms on the

Premises Or Plantations of Another Without

Consent Continued the

Policies of the Black Codes

At issue here is the enactment providing that “it

shall not be lawful for any person or persons to carry

fire-arms on the premises or plantations of any citizen,

without the consent of the owner or proprietor, other

than in the lawful discharge of a civil or military

order....”24 This law was part of several enactments

that sanitized explicit references to the “freedmen”

while continuing the policies of the black codes.

When the Louisiana General Assembly began

meeting on November 23, 1865, Governor J. Madison

Wells addressed the legislature about the need for

“organization of the militia of the State,” which would

“be speedily followed by the abolition of martial law

within our borders, and the withdrawal of all troops

not required for garrison or fort purposes.”25 Given the

24

Acts Passed by the General Assembly of the State of

Louisiana, Extra Session, Held and Begun in the City of New

Orleans, on the 23rd of November, 1865, at 14 (1866). Hereafter

“Acts

Passed by the

General

Assembly.”

https://library.search.tulane.edu/discovery/delivery/01TUL_INS

T:Tulane/12434206700006326.

25

Official Journal of the Proceedings of House of

Representatives of the State of Louisiana, Extra Session,

16

existence of martial law, actions of the legislature

could not be considered the functions of a normal state.

The General Assembly proceeded to pass several

resolutions and enactments of an extraordinary

nature. It declared that “this Representative body”

was “the first that has assembled in Louisiana since

the surrender....”26 Acknowledging that the state

“failed in the late struggle for separate government,” it

quoted President Andrew Johnson as saying that “the

Southern people must be trusted” and praised his

efforts “to restore these States to representation in

Congress....”27 Obviously, Louisiana was not one of

“the United States” in the normal sense of the word.

Governor Wells signed into law the enactments

discussed below. Wells had “belonged to the planter

elite that had dominated the state before the war,”28

and owned nearly 100 slaves.29

As pertinent here, the legislature enacted two

trespass laws, a law concerning vagrants, and a law

that discouraged free employment. First, Act No. 10

November 23, 1865, at 14 (New Orleans 1866). In 1864, General

Nathaniel Banks issued a proclamation declaring: “The

fundamental law of the State is martial law.” Ted Tunnell,

Crucible of Reconstruction: War, Radicalism and Race in

Louisiana, 1862-1877, at 47 (1984), quoting Banks to President

Lincoln, Jan. 11, 1864.

26

Acts Passed by the General Assembly, at 4.

27

Id. at 6.

28

Tunnell, Crucible of Reconstruction, at 98.

29

Id. at 22.

17

provided that “it shall not be lawful for any person or

persons to carry fire-arms on the premises or

plantations of any citizen, without the consent of the

owner or proprietor, other than in the lawful discharge

of a civil or military order....”30 It provided for a fine of

$1 to $10 and imprisonment not less than one day or

more than ten days.31 That could be enforced to

prevent freedmen from carrying firearms on premises

such as businesses in towns, or on potentially-massive

plantations without signage.

Second, Act No. 11 provided that “whosoever

shall enter upon any plantation without the

permission of the owner or agent, shall be deemed

guilty of a misdemeanor, and shall be liable to be

arrested and brought before any court of competent

jurisdiction, and upon proof of the fact shall be fined in

sum not exceeding one hundred dollars, and

imprisoned for a term not exceeding one month....”32

The person could also be required to give bond for six

months for good behavior.33 This had a more severe

penalty than the above law but did not apply to

premises, only plantations.

This law could be selectively enforced against

the freedmen to limit their movement. Plantations

30

Id. at 14.

31

Id. at 14 & 16.

32

Id. at 18.

33

Id.

18

could encompass vast acreage, and no requirement

existed that the land be posted.34

Third, Act No. 12 provided that the justice of the

peace must require a accused vagrant to enter into a

bond “for his good behavior and future industry” for

one year, and if he failed to do so, “to detain and to hire

out such vagrant for a period not exceeding twelve

months, or to cause him to labor on the public works,

roads, and levees....”35 But if the accused “abandoned

his employer, before his contract expired, the

preference shall be given to such employer of hiring the

accused....”36 Further, in New Orleans, “the accused

may be committed to the workhouse for a time not

exceeding six months, there to be kept at hard labor on

the public works, roads, or levees.”37

As this Court has remarked, “Among these

[Black Code] laws’ provisions were draconian fines for

violating broad proscriptions on ‘vagrancy’.... When

newly freed slaves were unable to pay imposed fines,

34

See State v. Hebert, 179 La. 190, 191, 153 So. 688 (1934)

(quoting a statute from 1910 punishing “whoever shall enter upon

any plantation or farm, or upon any grounds upon which crops or

fruits of any kind are grown, or into any enclosure without the

permission of the owner,” but providing that it shall apply only “to

such enclosures as are properly and sufficiently posted by the

owner warning trespassers off such premises.”).

35

Acts Passed by the General Assembly, at 18.

36

Id.

37

Id.

19

States often demanded involuntary labor instead.”

Timbs v. Indiana, 586 U.S. 146, 153 (2019). 38

Fourth, Act No. 16 punished “any one who shall

persuade or entice away, feed, harbor, or secrete” a

person who leaves his employer with whom he is

contracted or assigned to live, or an apprentice who is

bound as an apprentice without permission of his

employer.39 An offender was liable for damages to the

employer and was subject to a fine of $5 to $500 and

imprisonment for ten days to twelve months.40

Acts No. 12 and 15 were the subject of testimony

before the Joint Committee on Reconstruction, which

was charged with investigating the condition of the

Southern States.41 Lawyer Ezra Hienstadt from New

Orleans was asked whether, if federal authorities were

withdrawn, “Would they seek in spirit to restore a

system of servitude, or would they in good faith carry

out the spirit of the emancipation amendment of the

Constitution?”42 He responded by reference to “the

38

“Vagrant laws ... are calculated and intended to reduce

them to slavery again; and laws which provide for selling these

men into slavery in punishment of crimes of the slightest

magnitude . . . .” Cong. Globe, 39th Cong., 1st Sess., 1123 (1866)

(remarks of Rep. Burton Cook on the Civil Rights Bill).

39

Acts Passed by the General Assembly, at 24.

40

Id.

41

Cong. Globe, 39th Cong., 1st Sess. 30 (Dec. 12, 1865).

42

Report of the Joint Committee on Reconstruction, H.R.

strident. No. 30, 39th Cong., 1st Sess., pt. 3, at 24-25 (Jan. 27,

1866).

20

enactments of the legislature of Louisiana recently in

session,” explaining:

They passed most stringent laws, making

it a highly penal offense for any one to do

anything that might be construed into

encouraging the blacks to leave the

persons with whom they have made

contracts for labor; and also making it a

misdemeanor for the blacks to do so,

subjecting them to be arrested as

vagrants and sold as such during the

remaining portion of the time for which

they had contracted, and giving the

preference in buying them at such rate to

the persons with whom they had made

contracts.43

Act No. 11 was seen as part of the same group of

laws designed to repress the freedmen. Henry Clay

Warmoth, a Republican leader, was appointed in 1864

by General Nathaniel Banks as judge of the provost

court in New Orleans, after which he practiced law on

issues related to the military occupation.44 He wrote a

pamphlet that was excerpted in the New York Tribune,

March 7, 1866, in which he stated: “The Legislature

which has just adjoined was composed almost

exclusively of persons lately in insurrection against the

43

Id. at 25. He added: “There have been several instances

in the parishes ... where the local authorities passed most strident

ordinances on that subject, but which have been overturned by

the military authorities.” Id.

44

Tunnell, Crucible of Reconstruction, 151-52.

21

Government.”45 He added that “the Executive” –

meaning Governor Wells – “has abandoned the party

which originally elected him ..., gone clean over to the

Rebels....”46 About the gun ban and other laws, the

Tribune stated:

The Legislature backs up the Governor

with a law prohibiting “any person or

persons to carry fire arms on the

premises or plantations of any citizen,

without the consent of the owner or

proprietor, other than in the lawful

discharge of a civil or military order,” –

under penalty of fire or imprisonment....

For the blacks we find a code of laws

establishing a system of serfdom,

forbidding the free passage of blacks from

one plantation to another, and under the

form of apprenticeship and Vagrant laws

reenacting slavery in fact.47

As late as 1875, a report by Representative

George F. Hoar, chairman of a committee on the

conditions in the South, recalled Louisiana’s legislative

45

“A Test Case for the President,” New York Tribune,

March 7, 1866, at 6.

https://www.loc.gov/resource/sn83030213/1866-03-07/ed-1/?sp=6

&st=image&r=-0.074,-0.126,1.225,0.468,0.

This article was

reprinted in 9 Public Opinion: A Comprehensive Summary of the

Press Throughout the World on All Important Current Topics,

Jan.–June 1866, at 304 (1866). https://bit.ly/4evpaQE.

46

Id.

47

Id.

22

session of 1865, which “enacted a series of laws which

must have been designed to restore the negro to a state

of practical servitude.”48 The ban on carrying a firearm

on the premises or plantation of another without

consent “depriv[ed] the great mass of the colored

laborers of the State of the right to keep and bear

arms, always jealously prized and guarded by his

white employers.”49 The ban on entering a plantation

without permission “prevent[ed] any person from

seeking any intercourse with the negro for the purpose

of giving political or other information except such as

his master should approve.”50

The provision on vagrants “put[] it into the

power of any local magistrate, on summary process, to

remand the laborer to a condition of practical

slavery.”51 And the ban on enticing a person to leave

his employer meant that “no laborer can leave his

employer without leave without becoming an outcast,

to whom food and shelter must be denied by all

mankind.”52

Those were the views of the supporters of the

rights of freedmen of the law that the Ninth Circuit

relied on in this case to uphold Hawaii’s prohibition.

48

Condition of the South, Report No. 261, 43d, 2d Sess., at

10 (1875).

49

Id.

50

Id.

51

Id.

52

Id.

23

III. Testimony Before the Joint Committee on

Reconstruction Showed that the Laws Were

Selectively Enforced Against the Freedmen

Act No. 10 making it unlawful “to carry

fire-arms on the premises or plantations of any citizen,

without the consent of the owner or proprietor,” and

other laws would have been enforced by authorities

selected by Governor Wells, who sought to keep the

freedmen in a condition of servitude.

Several

witnesses testified to that effect before the Joint

Committee on Reconstruction.

Thomas Conway, who served as general

superintendent for freedmen for Louisiana,53 testified

that “I was in Governor Wells’s headquarters

frequently in New Orleans, and saw him give

commissions as judges, district attorneys, mayors of

towns, and other officers, to men who yet wore their

confederate uniforms, and many of whom I knew had

scarcely been back five days from the rebel army.”54 At

the same time, he ejected every “loyal man” from

office.55

Conway added that “I frequently attended the

sittings of courts in and out of New Orleans, and in the

main, found as far as justice to a freedman is

53

Report of the Joint Committee on Reconstruction, pt. iv,

78 (Feb. 22, 1866).

54

Id. at 81.

55

Id.

24

concerned, it is a pretence and a mockery.”56 No

question exists that the above laws would have been

selectively enforced against the freedmen.

John T. Allen, the district attorney for the fourth

judicial district of Louisiana, testified that Governor

Wells removed the “loyal officers” appointed by former

Governor Michael Hahn, adding: “Sheriffs, clerks,

recorders, justices of the peace, and police jurors, were

all successively removed, and in their places were

appointed disloyal men, all of them identified with

secession and rebellion....”57

John Covode, who had visited Louisiana under

orders from the Secretary of War,58 testified that

“Governor Wells went to work immediately upon his

return from Washington to remove from office the loyal

people who had been appointed by Governor Hahn, and

to fill their places with returned rebel officers, men of

the worst class generally.”59 In conversations, Wells

“said the government must pay for the slaves that had

been emancipated, for it had taken or destroyed

property enough for that purpose.”60 Covode added

about Wells: “The old master was not inclined to treat

them differently from what he did when they were

56

Id.

57

Id.

58

Id. at 114 (Mar. 3, 1866).

59

Id. at 115.

60

Id. at 116.

25

slaves; and they, knowing they were free, were not

willing to submit to any such treatment.”61

In sum, now that the laws explicitly restricting

where African Americans could go and banning them

from carrying arms were nullified, new, faciallyneutral laws were in place, and they could be expected

to be enforced selectively against African Americans.

IV. Louisiana’s Gun Ban was Inconsistent with

The Civil Rights and Freedmen’s Bureau

Acts and the Fourteenth Amendment

Louisiana’s ban on carrying a firearm on

premises or plantations without consent was the type

of law that Congress sought to render void in the Civil

Rights Act and the Freedmen’s Bureau Act of 1866. It

was also the kind of law sought to be prohibited by the

Fourteenth Amendment.

On January 5, 1866, Senator Lyman Trumbull

introduced S. 60, a bill to enlarge the powers of the

Freedmen’s Bureau, and S. 61, the Civil Rights Bill.62

These bills would become of unprecedented importance

in regard to both the passage of the Fourteenth

Amendment and to recognition of the right to keep and

bear arms.

S. 60 provided the Freedmen’s Bureau with

jurisdiction in areas where the war had interrupted

the ordinary course of judicial proceedings and where

State or local laws denied various “civil rights or

61

Id.

62

Cong. Globe, 39th Cong., 1st Sess., 129 (Jan. 5, 1866).

26

immunities,” including the “full and equal benefit of all

laws and proceedings for the security of person and

estate,” on the basis of race, color, or any previous

condition of slavery.63

S. 61, the Civil Rights Bill, contained virtually

identical language, likewise protecting the right “to

full and equal benefit of all laws and proceedings for

the security of person and property.”64

While numerous references to infringement of

the right to bear arms by the freedmen were made in

the Thirty-Ninth Congress, several mentioned

Louisiana specifically. In debate on a bill to allow

black suffrage in the District of Columbia, a speech by

former Louisiana governor Michael Hahn was quoted

as stating: “It is necessary ... to see that slavery

throughout the land is effectually abolished, and that

the freedmen are protected in their freedom.... ‘The

right of the people to keep and bear arms’ must be so

understood as not to exclude the colored man from the

term ‘people.’”65

In debate on S. 60, Senator James F. Wilson

referred to the laws of Louisiana and other Southern

states as “codes of laws that practically make the

freedman a peon or a serf.”66 Exemplifying that,

Representative Thomas D. Eliot presented the entire

ordinance of Opelousas, Louisiana, including the

63

Id. at 209 (Jan. 12, 1866).

64

Id. at 211.

65

Id. at 217 (Jan. 12, 1866).

66

Id. at 340 (Jan. 22, 1866).

27

provision that “No freedman who is not in the military

service shall be allowed to carry fire-arms, or any kind

of weapons, within the limits of the town of Opelousas

without the special permission of his employer, in

writing, and approved by the mayor or president of the

board of police.”67

Representative Nathaniel P. Banks, who as a

major general had formed a Union government in

Louisiana in 1864, moved to amend S. 60 to recognize

for the freedmen “the civil rights belonging to white

persons, including the constitutional right to bear

arms....”68

In debate on S. 61, Senator Henry Wilson

referred to General Sickles’ order in South Carolina as

having the most provisions “than have ever been

issued by an official in the country, for the security of

the rights of the freedmen.”69 Representative William

Lawrence identified it as Sickles’ General Order No. 1

(dated January 1, 1866), which declared regulations for

“civil rights and immunities,” including:

The constitutional rights of all

loyal and well disposed inhabitants to

bear arms, will not be infringed;

nevertheless this shall not be construed

to sanction the unlawful practice of

carrying concealed weapons; nor to

authorize any person to enter with arms

67

Id. at 517 (Jan. 30, 1866).

68

Id. at 585 (Feb. 1, 1866).

69

Id. at 603 (Feb. 2, 1866).

28

on the premises of another against his

consent.70

That stated the normal rule that one could not

go on another’s premises with arms (or for any other

reason) “against his consent,” in contrast with the

Louisiana’s law requirement that one could not go on

another’s premises “without the consent” of the owner.

This “most remarkable order,” repeatedly

printed in the headlines of the Loyal Georgian,71 a

prominent black newspaper, was thought to have been

“issued with the knowledge and approbation of the

President if not by his direction.”72

As directed by the Select Committee on the

Freedmen’s Bureau, Chairman Eliot presented a

substitute to S. 60 so that it recognized the right “to

have full and equal benefit of all laws and proceedings

for the security of person and estate, including the

constitutional right to bear arms.”73 That passed the

House.74 Senator Lyman Trumbull explained to his

colleagues that insertion of “including the

constitutional right of bearing arms” did “not alter the

meaning.”75 The Senate then passed the bill as

70

Id. at 908 (Feb. 17, 1866) (emphasis added).

71

The Loyal Georgian (Augusta), Feb. 3, 1866, at 1.

72

Id. at 2.

73

Id. at 654 (Feb. 5, 1866).

74

Id. at 688 (Feb. 6, 1866).

75

Id. at 743 (Feb. 8, 1866).

29

amended.76 Without mention of that clause, President

Johnson vetoed the Freedmen’s Bureau Bill.77

The above offers insights into what became the

Fourteenth Amendment.

Representative John

Bingham quoted the Civil Rights Bill, including the

terms “full and equal benefit of all laws and

proceedings for the security of person and property,”78

and reiterated his support for “amending the

Constitution of the United States, expressly

prohibiting the States from any such abuse of power in

the future.”79 He explained that this clause and

another one in “the Freedmen’s Bureau bill enumerate

the same rights and all the rights and privileges that

are enumerated in the first section of this [the Civil

Rights] bill,” quoting the reference to having “full and

equal benefit of all laws and proceedings for the

security of person and estate, including the

constitutional right of bearing arms....”80

President Johnson vetoed the Civil Rights Bill,

but both houses overrode the veto and the Civil Rights

Act of 1866 became law. As enacted, § 1 provided that

all citizens “shall have the same right ... to full and

equal benefit of all laws and proceedings for the

76

Id. at 748.

77

Id. at 916 (Feb. 19, 1866).

78

Id. at 1291 (Mar. 9, 1866).

79

Id.

80

Id. at 1292.

30

security of person and property, as is enjoyed by white

citizens....”81

Similarly, Congress passed the second

Freedmen’s Bureau Act, H.R. 613, and overrode

President Johnson’s veto.82 Section 14 of the Act

declared its applicability wherever judicial proceedings

and constitutional relations to the government were

interrupted or discontinued by the rebellion, and until

a State was restored and represented in Congress, the

following was guaranteed:

the right to make and enforce contracts,

to sue, be parties, and give evidence, to

inherit, purchase, lease, sell, hold, and

convey real and personal property, and to

have full and equal benefit of all laws

and proceedings concerning personal

liberty, personal security, and the

acquisition, enjoyment, and disposition of

estate, real and personal, including the

constitutional right to bear arms....83

The Freedmen’s Bureau Act applied in

Louisiana, and any attempt to enforce Act No. 10 of

1865 against the freedmen would likly have been seen

by the Freedmen’s Bureau as a violation of “the

constitutional right to bear arms.”

Moreover, in 1867 Congress declared that “no

legal State governments or adequate protection for life

81

14 Stat. 27 (1866).

82

14 Stat. 173 (1866).

83

Id. at 176-77.

31

or property now exists in the rebel States of” Louisiana

and nine other States, which were “divided into

military districts and made subject to the military

authority of the United States....”84 Louisiana was

assigned to the Fifth Military District under the

command of General Philip H. Sheridan, who removed

Governor Wells and appointed a provisional governor.85

Louisiana was readmitted into the Union in 1868.86

Given that Louisiana was not even considered a

state between its secession in 1861 and its enactment

of Act No. 10 of 1865, making it unlawful “to carry firearms on the premises or plantations of any citizen,

without the consent of the owner or proprietor,” it

cannot be said that this ban was “consistent with the

Nation’s historical tradition of firearm regulation,”

Bruen, 597 U.S. at 24 (emphasis added).

CONCLUSION

This Court should reverse the judgment of the

court below and hold that H.R.S. § 134-9.5 violates the

Second Amendment.

84

An Act to Provide for the More Efficient Government of

the Rebel States, 14 Stat. 428 (1867).

85

86

Tunnell, Crucible of Reconstruction, 107.

1 Walter Fleming,

Reconstruction 476 (1906).

Documentary

History

of

32

Respectfully submitted,

NATIONAL AFRICAN AMERICAN GUN ASSOCIATION, INC.

AMICUS CURIAE

STEPHEN P. HALBROOK*

3925 Chain Bridge Road, Suite 403

Fairfax, VA 22030

(703) 352-7276

protell@aol.com

*Counsel of Record

NEZIDA S. DAVIS

Davis Bakari Law LLC

2915 Pleasant Ridge Drive

Decatur, GA 30034

(404) 771-1832

nsdavis@davisbakarilaw.com

Counsel for Amicus Curiae