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Just because the government passed a gun law 150 or 200 years ago does not automatically make it a legitimate model for today.

Some historical laws protected the constitutional order. Others were the exact kind of government abuse the Constitution was meant to stop.

That distinction sits at the center of a new Yale Law Journal Forum essay written by NRA-ILA Litigation Director Joseph Greenlee and University of Wyoming law professor George Mocsary.

The authors use the Supreme Court’s recent decision in Wolford v. Lopez to explain how courts should handle ugly or plainly unconstitutional chapters of American history when reviewing modern gun laws.

Hawaii’s ‘Vampire Rule’

After the Supreme Court’s 2022 Bruen decision confirmed that ordinary citizens have a right to carry firearms publicly for self-defense, Hawaii changed its approach.

Instead of simply refusing carry permits, the state made it illegal for licensed carriers to enter private property open to the public unless the owner gave express permission or posted a sign allowing firearms.

That meant gas stations, grocery stores, restaurants, coffee shops and other everyday businesses were automatically off-limits unless they specifically opted in.

The policy became known as a “vampire rule”—the armed citizen could not enter without an invitation.

Private-property owners have always retained the right to prohibit firearms on their property. The issue was whether the state could reverse the normal default and effectively turn nearly every publicly accessible business into a gun-free zone.

In June, the Supreme Court ruled 6-3 that Hawaii could not. The majority held that the law severely burdened the right to carry recognized in Bruen.

Hawaii’s Historical Examples Had Problems

Under Bruen, once conduct falls within the Second Amendment’s text, the government must show that its restriction fits America’s historical tradition of firearm regulation.

Hawaii went digging for old laws.

The state pointed to colonial anti-poaching laws, restrictions from Hawaii’s pre-statehood monarchy and an 1865 Louisiana Black Code.

The hunting laws did not fit because they dealt with people entering someone else’s land to kill game. Not licensed citizens carrying handguns for protection while buying groceries.

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The monarchical restrictions were also a poor fit. The Constitution has the same meaning in Hawaii as it does everywhere else. A state cannot shrink a national constitutional right by citing rules imposed before it joined the Union.

Then there was the Louisiana Black Code.

That law was part of a broader system designed to disarm newly freed Black Americans and leave them vulnerable to violence. The Supreme Court said Hawaii’s effort to use that history as support for a modern restriction “cannot be taken seriously.”

Bad Laws Can Be ‘Anti-Analogues’

Greenlee and Mocsary take the Court’s reasoning one step further.

Their basic point is that historical analysis must be constitutional, not merely descriptive. Courts should not ask only whether an old restriction existed. They must also ask whether that restriction represented the American constitutional tradition or an abuse later rejected by it.

The authors call discredited laws like the Black Codes “anti-analogues.”

In plain English, those laws are examples of what government must not do. They show the abuse that constitutional protections were intended to prevent.

Think about it this way: A historical segregation law proves that segregation once existed. It does not prove that segregation is consistent with the Fourteenth Amendment.

The same logic applies to laws intended to disarm vulnerable groups. Their existence does not make them valid blueprints for modern gun control.

Why This Matters Beyond Hawaii

The essay’s framework could matter in future Second Amendment cases because governments regularly comb through history looking for anything that resembles the restriction they are defending.

But resemblance alone should not be enough.

Courts must consider how widespread an old law was, why it was enacted, whether Americans accepted it and whether the constitutional order later rejected it.

That approach does not erase ugly laws from history. It puts them in their proper place.

As the NRA-ILA summary explains, laws created to disarm and subordinate newly freed citizens should not be recycled as support for modern restrictions.

The bottom line is simple: History can help define a constitutional right, but not every historical law deserves respect. Some deserve to be remembered as warnings.

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