Black Codes, enacted after the Civil War to restrict newly freed African Americans, took center stage at the Supreme Court on Tuesday as it considered a challenge to a Hawaii gun law.

With the conservative majority’s Second Amendment test requiring states to justify gun measures with historical analogues, Hawaii and other states have turned to the Black Codes to justify gun control efforts.

At Tuesday’s arguments, Justice Neil Gorsuch and other conservative justices appeared reluctant to credit them given their racist origins.

“I want to understand how you think Black Codes should inform this court’s decisionmaking. It’s quite an astonishing claim to me,” Gorsuch asked Hawaii’s lawyer.

“So, the Black Codes are undoubtedly a shameful part of our history,” responded the lawyer, Neal Katyal. “But that doesn’t at all mean that this particular law is irrelevant to Second Amendment analysis.”

The Supreme Court heard arguments Tuesday on whether Hawaii can ban carrying a handgun on private property without the owner’s consent. Several Democratic-led states have similar measures.

Three firearms owners and a local gun rights group, backed by the Trump administration, are challenging Hawaii’s law. They contend it runs afoul of the Supreme Court’s expanded gun rights test, which was announced in 2022 and requires gun control measures be consistent with the nation’s historical tradition of firearm regulation.

Hawaii points to anti-poaching laws enacted near the nation’s founding and gun restrictions Louisiana passed in 1865 as part of its Black Codes.

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