The Supreme Court hears oral argument today in Wolford v. Lopez, likely one of the most important originalist/history-and-tradition cases of the term. Here is the question presented:
Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.
SCOTUSblog’s overview of the case, by Amy Howe, is here: Court to hear oral argument on law banning guns on private property. From the core of the analysis:
In its brief on the merits, Hawaii insists its law does not target conduct covered by the Second Amendment at all, because the Second Amendment simply “codified the right to bear arms as it existed at the Founding” of the United States. At that time, Hawaii stresses, there was no right to enter private property without permission from the owner – much less to do so with a gun. And even if consent to enter the property might in some scenarios be implied, Hawaii continues, that determination rests on “state law and local custom.” “Accordingly,” the state says, “Hawai’i is free to enact a law clarifying that the public’s implied license to enter private property does not include an invitation to bring a gun, particularly because that accords with the well-established custom in Hawai’i.”
The challengers contend that the text of the Second Amendment “simply recognizes a right to bear arms, which is precisely what [they] wish to do. That is the end of the textual inquiry.” The challengers concede that property owners can bar other people, including people carrying guns, from their property. But the Hawaii law goes farther than that, they say, making “it a crime to carry guns even where the owner of property open to [the] public is merely silent. That presumption,” they argue, “tramples on the Second Amendment.”
Hawaii responds that, even if the Second Amendment does apply, its law does not violate the Constitution because “it fits comfortably within our Nation’s history of firearm regulation.” The state points to what it describes as a “raft of colonial-era laws” that required the owner’s explicit consent to bring guns onto private property, “at least where the land was developed or fenced, a category that readily includes the sort of retail facilities on which [the challengers] have focused their current challenge.” Such laws, the state argues, are “relevantly similar,” as Bruen requires, to Hawaii’s ban because they had the same purpose and they accomplished that purpose in the same way: The colonial-era laws were intended “to protect a property owner’s right to exclude firearms,” and they did so not by prohibiting guns altogether but by “condition[ing] that entry on obtaining the property owner’s consent.”
According to Hawaii, “[r]equiring evidence of a more extensive and widespread historical tradition would turn the Second Amendment into a ‘regulatory straightjacket.’ It would also [] overread legislative silence. As Justice Barrett has explained, ‘originalism does not require’ th[e] Court to ‘assume[] that founding-era legislatures maximally exercised their power to regulate.”
But the challengers push back, telling the justices that there is no historical tradition of laws “broadly banning law-abiding citizens from peaceably carrying firearms on private property open to the public without first getting express permission from the proprietor.” In upholding Hawaii’s ban, they say, the court of appeals relied on two laws, neither of which is analogous.
UPDATE: The oral argument transcript is here, and SCOTUSblog’s argument analysis is here. Congratulations to University of San Diego law alumnus (and my former student) Alan Beck, who argued for the petitioners.
Posted at 6:09 AM