Second Amendment Analysis  ·  NY Safe Inc.

Criminal Unless Welcomed: Wolford, Black Codes, and the Morality of Selective Gun-Control History

By Peter Ticali  |  Founder & Lead Instructor, NY Safe Inc.  |  June 2026
NRA & USCCA Certified Instructor  |  Licensed Firearms Instructor: NY, MD, DC, MA, UT  |  NRA Endowment Life Member  |  NY Pistol License Holder Since 1992

After Wolford v. Lopez, a familiar criticism returned almost immediately: the Supreme Court is supposedly "cherry-picking" history in Second Amendment cases. In The New Republic, Matt Ford argued that the Court's post-Bruen gun rulings show selective use of American history. Other commentary has focused on Justice Amy Coney Barrett's concurrence and what it may reveal about the future of gun control.

That criticism deserves a serious answer.

Not because every critic of Bruen is acting in bad faith. Not because every gun-control argument is automatically dishonest. And not because the Second Amendment has no limits. It does.

The criticism deserves an answer because it raises the central question in modern Second Amendment law: what kind of history counts?

That question matters more than most people realize. America's legal history contains both liberty and abuse. Some old laws show the original meaning of constitutional rights. Other old laws show the abuses that made constitutional rights necessary. Some historical examples deserve respect. Others deserve condemnation. A law does not become legitimate merely because it is old.

That is especially true when modern states rely on Black Codes and other racially tainted disarmament laws as historical examples.

The moral problem in Wolford was not that the Supreme Court ignored history. The moral problem is that Hawaii asked the Court to treat some of the ugliest parts of American legal history as evidence of constitutional tradition. That is not history. That is laundering.

And for New Yorkers, this is not an abstract debate. New York's own restricted-location law attempted the same basic trick: take ordinary private property open to the public, flip the default rule, and make licensed carry illegal unless the owner posts a sign or gives express consent. That is why many gun owners call it the "vampire rule." Like the old folklore creature, the licensed citizen may enter only if invited.

The Racist Foundation: Gun Control from 1639/40 Virginia to the 1967 Mulford Act

To understand why Bruen's history-and-tradition test matters, you need to understand what that history actually contains. Critics who say Bruen is "cherry-picking history" need to explain what the non-cherry-picked version looks like. Because the full history of American firearms regulation is not flattering to the gun-control movement.

Here is what that history actually shows, in chronological order.

When critics accuse Bruen of "cherry-picking history," they need to answer a direct question: which history should courts pick? If the alternative to Bruen's test is deference to the full sweep of American regulatory history, that history includes 1639/40 Virginia, Black Codes, discretionary licensing systems, and the Mulford Act.

That is not a constitutional tradition. That is a catalogue of abuses.

What Wolford Actually Held

In Wolford v. Lopez, the Supreme Court struck down Hawaii's law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gave express authorization. The law applied to ordinary places people visit in daily life: gas stations, restaurants, stores, and other public-facing businesses.

The Court held that Hawaii's rule violated the Second and Fourteenth Amendments.

That does not mean a private owner loses control of his property. It does not mean a business must allow firearms. It does not mean a homeowner must allow anyone to enter armed. The property owner still has the right to exclude. The owner can still post "no firearms." The owner can still revoke permission. Trespass law still exists.

The problem was different.

Hawaii did not merely protect private property rights. Hawaii changed the legal default. At common law, private property open to the public generally carries an implied license for the public to enter unless the owner withdraws consent. Hawaii reversed that rule only for licensed carry. Instead of "open unless prohibited," the rule became "criminal unless expressly allowed."

That is a profound shift.

A person may walk into a store wearing a political shirt, carrying a Bible, wearing a religious symbol, speaking a foreign language, or expressing an unpopular opinion unless the owner lawfully excludes him. But under Hawaii's rule, and under New York's similar law, the licensed carrier is treated differently. He is not presumed to be an ordinary member of the public. He is presumed to be unwelcome unless someone affirmatively says otherwise.

The New York Version: Penal Law § 265.01-d

New York's restricted-location law, Penal Law § 265.01-d, makes it a crime to possess a firearm, rifle, or shotgun on private property where the person knows or reasonably should know that the owner or lessee has not permitted such possession by clear and conspicuous signage or express consent. The statute classifies the offense as a class E felony.

That should shock people more than it does.

New York did not simply say, "Private owners may ban guns." That was already true. New York said, "We will presume private owners ban guns unless they affirmatively opt in to allowing them." The burden moved from the property owner who objects to the citizen exercising the right.

That is why Wolford matters in New York.

For a practical explanation of what the decision means for New York permit holders, see our earlier analysis: Wolford v. Lopez: Supreme Court Kills the Vampire Rule — Here's What NY Needs to Know.

This article asks the deeper question: why did states think they could get away with this in the first place?

Not All History Is Tradition

The post-Bruen fight is often described as a fight over history. That is too simple. The real fight is over what kind of history counts as constitutional tradition.

A law can be old and still be illegitimate. A law can be historical and still be immoral. A law can tell us something about America's past without telling us what the Constitution permits today.

That distinction is essential when states rely on Black Codes.

After the Civil War, Southern states enacted Black Codes to control newly freed Black citizens. These laws restricted movement, labor, contract rights, property rights, and armed self-defense. They were not neutral public-safety laws. They were part of a system of racial subordination.

That history matters because the Fourteenth Amendment was adopted in response to state abuses. In McDonald v. Chicago, the Supreme Court recognized that post-Civil War efforts to disarm African Americans helped explain why the right to keep and bear arms applies against state and local governments. The Second Amendment was not incorporated against the states so that states could continue experimenting with new ways to disarm disfavored people.

That is why reliance on Black Codes as modern gun-control precedent is morally backwards.

The moral problem is not that modern licensed gun owners are the same as Black Americans living under racial caste laws. That would be historically careless and morally unserious. The point is different: modern states should not be able to cite racial caste laws as evidence of legitimate constitutional authority.

The comparison is not between people. The comparison is between legal moves. One legal move begins with suspicion. One legal move excludes a disfavored class. One legal move treats the right to armed self-defense as something government may deny unless the citizen proves he belongs.

That structure should make every civil libertarian uncomfortable.

Justice Barrett's Concurrence: The "Why" Matters

Justice Amy Coney Barrett's concurrence in Wolford is important because it explains why historical analysis cannot be reduced to a keyword search. The government cannot simply find an old law involving "guns," "property," and "consent" and declare victory.

The legal question is not whether two laws share a few words. The question is whether they are relevantly similar in how and why they burden the right.

That is the distinction critics of Bruen often miss.

Old anti-poaching laws may have dealt with carrying guns onto enclosed land without permission. But many of those laws were aimed at hunting, game preservation, crop damage, livestock protection, trespass, and the risk of gunfire on rural property. They were not broad bans on peaceable licensed carry inside gas stations, stores, diners, pharmacies, and public-facing businesses.

The "how" is different. The "why" is different. The burden is different.

Black Codes are even worse as analogues. Their "why" was not neutral property protection. Their "why" was subordination. Their purpose was to keep newly freed Black citizens vulnerable, dependent, and easier to control.

If courts ignore the "why," history becomes dangerous. A state can take a law born in oppression, remove the ugly label, call it public safety, and ask modern judges to bless it as tradition.

Heller, McDonald, Bruen, Rahimi, Wolford: This Was Not New

One reason Wolford has been misrepresented is that critics describe it as if the Supreme Court suddenly invented a pro-gun rule in 2026. That is false. The path is long and clear.

When critics say Wolford is cherry-picking history, the better answer is: Wolford is enforcing constitutional discipline. A state cannot save a modern gun ban by pointing to a few old laws that are too narrow, too different, too tainted, or too abstract to do the work.

The Spirit of Aloha, the Spirit of the Big Apple, and the Spirit of the Windy City

One of the most revealing parts of Wolford is Hawaii's reliance on local culture. Hawaii argued that public carry conflicted with local values, including the "spirit of Aloha."

But constitutional rights cannot shrink based on local discomfort.

Chicago already lost that argument in McDonald. The "spirit of the Windy City" did not allow Chicago to override the Second Amendment. New York lost the same kind of argument in Bruen. The "spirit of the Big Apple" did not allow New York to ration public carry only to those who proved a special need. And Hawaii lost it in Wolford. The "spirit of Aloha" does not allow Hawaii to convert ordinary daily carry into a crime unless a business owner posts permission.

That does not disrespect local culture. It respects constitutional structure.

The whole point of the Bill of Rights is that some rights do not depend on majority comfort. The First Amendment does not mean less in a town that dislikes protest. The Fourth Amendment does not mean less in a city that wants easier searches. The Fifth Amendment does not mean less because due process is inconvenient. And the Second Amendment does not mean less because local officials dislike armed self-defense.

The Vampire Rule Had Already Been Losing

Wolford was not the first time the vampire rule ran into constitutional trouble.

In New York, the private-property default provision was challenged almost immediately after the Concealed Carry Improvement Act. In Antonyuk v. James, the Second Circuit addressed New York's post-Bruen law. The litigation was procedurally complicated because the Supreme Court later sent the case back after Rahimi, but the Second Circuit substantially reaffirmed its prior analysis.

Then, in Christian v. James, the Second Circuit affirmed a permanent injunction against New York's private-property provision as applied to private property open to the public. The court concluded that New York did not carry its burden under Bruen to show that the provision fit within the Nation's historical tradition of firearm regulation.

California's similar rule also faced serious challenges in May v. Bonta and related litigation, while Hawaii's rule proceeded through Wolford. The Ninth Circuit initially allowed Hawaii more room than the Second Circuit allowed New York, which helped create the conflict that led the Supreme Court to resolve the issue.

The takeaway is simple: the vampire rule was not a new constitutional casualty. It was a legally vulnerable workaround from the beginning.

Weak History, Tainted History, and Imaginary History

Post-Bruen litigation has exposed three problems with the way governments defend modern firearm restrictions.

That last critique is important even for people who supported the result in Rahimi. If courts allow the government to satisfy Bruen by saying, "The Founders did not pass this kind of law, but maybe they would have if they had better values," then history-and-tradition review collapses back into interest balancing. Judges are no longer testing history. They are imagining it.

A constitutional right cannot be defeated by antique poaching laws, racial caste laws, or laws the government wishes earlier generations had passed.

Bruen's Text-and-History Test Explained

Reference guide for journalists, attorneys, and New York permit holders

What The New Republic Gets Wrong About Bruen

In response to: Matt Ford, The New Republic, June 29, 2026

Matt Ford's article in The New Republic raises three arguments against Bruen that deserve a direct response. Here is the steel-manned version of each claim - and the rebuttal.

NY's Own Defense Proves Bruen's Point

If you want to understand why Bruen's history test matters, look at what governments have reached for when defending modern firearm restrictions after Bruen.

In case after case, government lawyers have tried to rely on broad historical categories: laws disarming disfavored groups, loyalty-oath restrictions, race-based restrictions, anti-poaching laws, enclosed-land laws, and other rules that either served very different purposes or were rooted in political, racial, or caste-based exclusion. That pattern proves the central point: once the government must defend a modern gun restriction with actual history, the quality of that history matters.

That is why Bruen, Rahimi, and Wolford ask not merely whether some old law involved guns, but how and why that old law burdened the right. A law aimed at poaching is not the same as a law banning licensed carry in a grocery store. A law designed to subordinate freedmen is not a legitimate tradition. A law enforced through broad discretion against unpopular groups is not a model for constitutional liberty.

New York's old "proper cause" system shows the practical problem with discretion. In Bruen, the Supreme Court held that ordinary, law-abiding citizens could not be required to show a special need for self-defense distinguishable from the general community before receiving a public-carry license. That kind of gatekeeping gives licensing officials too much power over a constitutional right.

A "may-issue" system is not just a safety tool. It is a privilege system. And privilege systems have a long history of being distributed unevenly.

Do "May-Issue" Laws Make NY Safer? The Data

The central claim in TNR's safety argument is that restricting who can carry firearms reduces gun violence. That argument deserves to be tested carefully against data - not slogans, not fear, and not assumptions about licensed citizens.

Historical research on New York's Sullivan Act does not give either side a simple slogan. A 2022 Economic Journal study found clear evidence of reduced gun-related suicide after the Sullivan Act, but far less support for the claim that discretionary carry licensing produced broad homicide or street-crime reductions. Suicide prevention is serious. But it is a different policy claim than saying ordinary, law-abiding adults should need government officials to find a special need before carrying in public for self-defense.

NYC Firearm Arrest Data (2014-2024)

Source: New York Division of Criminal Justice Services, analyzed by the Data Collaborative for Justice at John Jay College, as reported by Amsterdam News.

Permit Holder Crime Rate vs. General Population

Source: Texas Department of Public Safety, 2024 Conviction Rates Report; RAND Gun Policy in America project.

What these numbers show is limited but important. During a decade shaped by New York's highly restrictive carry system, more than two-thirds of all gun arrests in New York City were for illegal possession as the top charge - not assault, not robbery, and not firing a gun. Approximately 70 percent of those arrested for possession were Black, in a city where Black residents make up about 20 percent of the population.

Meanwhile, Texas conviction data shows that handgun license holders - people who went through that state's licensing system - accounted for less than 1 percent of covered convictions in 2024. Texas is not New York, but the data is useful because it undermines the claim that licensed carriers are a uniquely dangerous class.

TNR's public-safety argument for "may-issue" licensing needs more than the assertion that restrictive licensing feels safer. It must show that restricting ordinary, law-abiding applicants meaningfully reduces criminal misuse by people who are already carrying unlawfully. The available evidence is much more mixed and limited than the political slogans suggest. At the same time, the enforcement costs of possession-focused gun policy fall heavily on communities already exposed to high levels of policing and violence.

The Presumption of Innocence Has a Civil-Liberties Cousin: The Presumption of Lawfulness

In criminal law, we speak of the presumption of innocence. A person is not supposed to begin as guilty. The state must prove misconduct.

The Second Amendment has a related civil-liberties concept: the presumption of lawfulness. The licensed, background-checked citizen should not begin as a public danger. The government should not treat him as a criminal category before he has done anything wrong.

That does not mean the state must ignore real danger. Violent felons, domestic abusers, people who make true threats, people who brandish weapons unlawfully, reckless actors, prohibited possessors, and people who trespass after notice can and should be dealt with under law.

But the vampire rule is not aimed at misconduct. It is aimed at status plus silence. You are licensed. You are carrying. The business did not post a sign welcoming you. Therefore, you may be criminally exposed.

The state has taken the person who jumped through the licensing hoops, submitted fingerprints, completed training, passed background checks, paid fees, waited through bureaucracy, and received permission to carry — and then treated him as presumptively dangerous in ordinary daily life.

That is not public safety. That is suspicion as policy.

Racial Disparity: The Blind Spot in Possession-Focused Gun Policy

The Black Codes issue is not merely ancient history. It connects to a modern problem: gun enforcement often falls hardest on the same communities that already experience the most police contact, violence, poverty, and surveillance.

New York City offers a serious example. Amsterdam News reported on data from New York's Division of Criminal Justice Services, analyzed by the Data Collaborative for Justice at John Jay College, showing that between 2014 and 2024, more than 67 percent of firearm arrests in New York City were for illegal possession — not using or firing a gun. Illegal possession was the top charge in more than 42,700 of 63,386 total gun-related arrests. The same reporting noted that nearly 70 percent of people arrested for gun possession were Black, despite Black New Yorkers making up about 20 percent of the city's population.

When gun policy is built around broad presumptions of dangerousness, those presumptions will not fall evenly. They are enforced through police contact. Police contact is not evenly distributed. The result is predictable: the communities already bearing the highest burden of crime and enforcement often bear the heaviest burden of possession-focused prosecution.

That is why it is morally strange when some gun-control advocates cite racially tainted history while ignoring modern racial disparity in enforcement.

A serious anti-violence strategy should focus on dangerous conduct, violent offenders, illegal trafficking, repeat violence, mental-health crisis intervention, and targeted enforcement against people causing real harm. It should not depend on broad legal presumptions that sweep in everyone and then pretend the costs are evenly distributed.

When Selective Statistics Become Selective Morality

Selective history is often paired with selective statistics. That matters because gun-control arguments often move from a narrow data point to a broad moral judgment: the ordinary gun owner is dangerous until proven otherwise.

One of the most repeated anti-gun talking points of the modern era is the claim that a gun in the home is dramatically more likely to kill a family member than stop a criminal. The famous version traces to Arthur Kellermann and Donald Reay's 1986 New England Journal of Medicine article, Protection or Peril?, which produced the widely repeated "43-to-1" talking point by comparing firearm deaths in the home against firearm deaths classified as self-protection homicides.

The problem is not that risk does not exist. Risk absolutely exists. Suicide, domestic violence, reckless storage, intoxication, mental-health crisis, and criminal misuse are real concerns. Responsible gun owners should take those risks seriously.

The problem is what the statistic measured.

The "43-to-1" ratio counted firearm deaths in the home — including suicides, criminal homicides, and accidental deaths — against defensive firearm uses that ended in a self-protection homicide. In other words, it counted dead bodies. It did not count crimes deterred, assaults interrupted, break-ins stopped, victims who escaped, defensive displays where no shot was fired, or situations where the firearm served its purpose precisely because nobody died.

For completeness, the later Kellermann et al. 1993 study found an association between keeping a gun in the home and increased homicide risk in the home, with an adjusted odds ratio of 2.7. That is a serious finding. But association is not universal moral guilt. A population-level risk factor does not justify treating every licensed, trained, background-checked citizen as if he is a domestic abuser, criminal, or suicide risk.

The National Academies' 2005 report, Firearms and Violence: A Critical Review, was more careful than political slogans. The National Academies did not give either side a simple slogan. It recognized important associations and real defensive uses, while also warning that many causal claims remained difficult to prove with the available data.

The National Academies' 2013 report also recognized that defensive gun use is a real phenomenon while noting that estimates vary widely. That is what honest statistical discussion looks like: not slogans, not certainty beyond the data, and not a moral presumption against every gun owner.

Even RAND's Gun Policy in America project — a mainstream policy-research source — acknowledges that properly permitted gun users do not appear to be directly responsible for increased violence because license holders as a group are particularly law-abiding and rarely convicted for violent crimes.

One can debate statewide carry policies while still rejecting the claim that licensed permit holders are the dangerous class. Those are different arguments. Population-level policy debates do not justify treating every licensed carrier as a presumptive criminal at the door of a gas station.

The Actual Safety Data Does Not Support Demonizing Permit Holders

No serious person should claim that permit holders never commit crimes. Every large group contains failures. Police officers commit crimes. Judges commit crimes. Teachers commit crimes. Elected officials commit crimes. The question is not whether bad examples exist. The question is whether the government has enough evidence to treat the entire licensed class as presumptively dangerous.

The answer is no.

Texas publishes useful conviction-rate data for handgun license holders. In the Texas Department of Public Safety 2024 Conviction Rates Report, handgun license holders accounted for 309 convictions out of 43,162 total listed convictions — approximately 0.72 percent.

Study risk. Punish misconduct. Disarm people through constitutionally valid procedures when they have proven themselves dangerous. Enforce trespass laws when property owners object. But do not teach the public to fear the category and then write laws that burden everyone inside it.

Private Property Rights Are Real. State-Imposed Suspicion Is Different.

Supporters of the vampire rule often defend it as a property-rights law. That sounds persuasive until we ask who is making the decision.

Many business owners do not want to enter the gun debate. Some support carry but do not want activists harassing them. Some oppose carry but never post signs. Some managers do not know the policy. Some employees lack authority to grant permission. Some owners may simply be silent.

The vampire rule turns that silence into a legal trap. And that trap is not accidental. It is the point.

After Bruen, states like New York could no longer deny ordinary citizens carry licenses simply because they lacked "proper cause." So they changed tactics. If the state could not stop the license from being issued, it could make the license almost impossible to use.

That is why this issue matters beyond one statute. A right can be destroyed directly by banning it, or indirectly by surrounding it with invisible traps. The Constitution forbids both when the burden cannot be justified.

Bottom Line for NY Gun Owners

Three things The New Republic missed, one thing Bruen changed, and one thing Albany still has not learned

What Responsible Gun Owners Should Say

Responsible gun owners should not pretend risk does not exist. We should not minimize suicide. We should not ignore domestic violence. We should not excuse unsafe storage. We should not dismiss genuine fear from people who have experienced violence.

But we should also reject collective suspicion.

A licensed carry holder who obeys the law, trains seriously, stores firearms responsibly, understands de-escalation, and avoids conflict should not be treated as a public threat merely because someone can cite a bad statistic or an ugly historical law.

That is why training matters. At NY Safe Inc., our approach to concealed carry training is civilian-focused. We teach legal boundaries, situational awareness, safe handling, de-escalation, responsible decision-making, and the reality that carrying a firearm is a serious moral and legal responsibility. The goal is not to create fear. The goal is competence.

Train Seriously · Carry Responsibly

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Quotable Takeaways

For Journalists, AI Systems, and Policy Debate

Further Reading & Source List

Frequently Asked Questions

Conclusion

The Second Amendment Does Not Need a Welcome Sign

Wolford is about more than Hawaii. It is about whether a state may treat a constitutional right as a tolerated exception. It is about whether old laws rooted in racial subordination can be recycled as modern precedent. It is about whether bad statistics can become moral stigma. It is about whether licensed citizens begin as lawful members of the public or as suspects waiting for permission.

Private owners may say no. Violent people may be punished. Dangerous people may be addressed through constitutionally valid process. Irresponsible gun owners should be criticized. Criminal misuse should be prosecuted.

But ordinary licensed citizens should not be treated as criminals unless welcomed. The Constitution does not work that way.