The Supreme Court’s Second Amendment history-and-tradition Justices agreed (sort of) on finding a Second Amendment violation in Wolford v. Lopez, decided Thursday. From Justice Alito’s 6-3 majority opinion:
For years, the State of Hawaii made it almost impossible to obtain a license to carry a firearm. Four years ago, however, this Court held in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense. Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result. On a large portion of the land within the State’s boundaries, possession of a firearm is now flatly prohibited. And the law now before us severely burdens the ability to carry a firearm in much of the rest of the State by prohibiting firearms on private property without the express and affirmative consent of the property owner.
This law departs sharply from the standard common-law rule on access to private property held open to the public. Under that rule, everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so. By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner’s express authorization. The effect of this new rule is to impose severe restrictions on the daily activities of residents who have satisfied the State’s rigorous requirements for the issuance of a carry permit. When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, “big box” stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats. This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. We hold that the law is unconstitutional.
Justice Barrett, joined by Justices Thomas and Gorsuch, concurred, mostly it seems to elaborate a methodological point. From her introduction:
I join the Court’s opinion in full. I write to add a few points about why Hawaii’s law triggers—and fails—Second Amendment scrutiny.
…
Hawaii and the principal dissent insist that this is a case about property law, not the Second Amendment. The argument goes like this: No one has the right to enter private property—let alone to bring firearms onto it—without the owner’s consent. Brief for Respondent 14–15. Whether consent can be implied or must be express depends on local custom and property rules, which States have always had authority to modify. Id., at 15–16. By requiring express consent, Hawaii has simply modified a default rule of property law. And because the “‘pre-existing [Second Amendment] right’” did not require any particular default rule, Hawaii’s law does not even implicate the Second Amendment. Id., at 13 (quoting New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 20 (2022)); see post, at 6–13 (JACKSON, J., dissenting). No further analysis is necessary.
This argument misunderstands the role of historical evidence in a Second Amendment challenge. Bruen establishes a two-part test for assessing whether a modern law is consistent with the Second Amendment. See 597 U. S., at 24. Each step requires a court to look at different evidence—plain text at the first, tradition at the second—but together, the two steps illuminate the original scope of the right. See ibid. While history is relevant to both steps, it plays a different “rol[e]” at each one. United States v. Rahimi, 602 U. S. 680, 738 (2024) (BARRETT, J., concurring). We look to history that “elucidates how contemporaries understood the text—for example, the meaning of the phrase ‘bear Arms’”—at Bruen’s first step. 602 U. S., at 738–739. We save “historical gun regulations,” however, for Bruen’s second step. 602 U. S., at 739.
At Volokh Conspiracy, Steven Halbrook comments: Second Amendment Roundup: Supreme Court Decides Wolford:
Given that Hawaii banned activity that is clearly within the text – “the people” are “bearing arms” – the burden is on the state to justify it by historical tradition. That entails consideration of the number of jurisdictions that adopted analogous laws, the extent to which they were well-accepted (such as being judicially upheld or being “open, widespread, and unchallenged”), and whether the analogues are “relevantly similar” to the modern law. That last factor entails “how” and “why” the analogue restricted the right.
For analogues, Hawaii “recounts its long history of antipathy to the private possession of firearms. It tells us that one of the very first written laws of the Kingdom of Hawaii, issued in 1833 by King Kamehameha III, prohibited the possession of all deadly weapons.” That fell flat with the Court, as “the Second Amendment has the same meaning in all parts of the United States…. It cannot give way to ‘the spirit of Aloha’ in Hawaii [citing State v. Wilson (Haw. 2024)], any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald).”
But most of Hawaii’s analogues were colonial or founding laws that prohibited unauthorized hunting of deer or small game on someone else’s private property, which flunked both the “how” and “why” tests. They are not “relevantly similar” to Hawaii’s law because prohibiting unauthorized hunting on private land has no relation to banning the carrying of a handgun for self-defense at a gas station or other private property open to the public without express consent.
Congratulations to University of San Diego School of Law alumnus Alan Beck, who argued for the claimants.
Posted at 6:05 AM