Wolford v. Lopez · ¶185

As I see it, there are two potential reasons to use—or exclude—the Black Codes in Bruen’s history-and-tradition test. First, it could be that the Black Codes regulated guns consistent with the Second Amendment but States chose to exercise their regulatory authority in a discriminatory fashion. See I. Bartrum, Structural Originalism: A Second Amendment Case Study, 27 U. Pa. J. Const. L. 846, 902– 907 (2025) (explaining that the Black Codes were understood to be a discriminatory application of permissible regulations on the right to armed self-defense). Under this framing, those gun regulations are not examples of an unconstitutional abridgment of the right to bear arms, but rather exemplify a violation of a different constitutional Amendment—the Fourteenth. Alternatively, it could be that States did not have the constitutional authority under the Second Amendment to enact such…

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