Second Amendment Roundup: Supreme Court Decides Wolford
· Reason
On June 25, the Supreme Court decided Wolford v. Lopez, holding 6-3 that Hawaii may not "prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission." Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Kagan dissented, as did Justice Jackson, joined by Justice Sotomayor.
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The Court calls out both lower courts and states that have resisted its Second Amendment jurisprudence. In the dozen years between McDonald and Bruen, "lower courts rejected nearly all Second Amendment claims based on reasoning that resembled that in Justice Breyer's Heller dissent." "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense by flipping the default rule on private property open to the public." They enacted what has become known as the "Vampire Rule," under which guns are banned on private property open to the public unless a "Guns Welcome" sign is posted or other affirmative consent is given. As to such signage: "Some proprietors who do not themselves object to entry by carry-permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers."
The same states also enacted "sensitive place" bans in public parks, assemblies, and certain establishments. As Wolford notes about Hawaii, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited." While these absolute bans have been challenged, the Court's comments do not bode well for them should they reach the Court. (On the Second Circuit's false historical narrative in Antonyuk upholding New York's place bans, see my exposé here.)
To consider the overwhelming impact of Hawaii's Vampire Rule, the Court lists places that people routinely visit on a daily basis where they cannot be armed, 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. A day in the life of a hypothetical Ms. Caetano (based on Justice Alito's concurrence in Caetano) is traced to show the impossibility of asking for actual consent to enter one place after another when armed – the person is already in violation when in the parking lot and when looking for someone with authority to give consent.
At the jurisprudential level, Wolford starkly clarifies the methodology of text first and history second, which are often flipped to uphold infringements. In determining whether a law clashes with the plain text, three questions arise:
First, does the law apply to "the people"—which is to say, to "all members of the political community"? …. Second, does it concern any form of "Arms," i.e., any weapon customarily used for offensive or defensive purposes? … Third, does the law place any restrictions on either the "keep[ing]" (i.e., possession) or the "bear[ing]" (i.e., carrying) of arms?
Regarding "the people," in the Court's recent decision in Hemani, the Court referred to "the right of 'all Americans' to keep and bear firearms for self-defense." Curiously, the summary of prior precedents in Wolford does not mention Hemani. Maybe that's of no significance, as Hemani tested purported historical analogues as applied to the ban on firearm possession by pot users (see my post here) without introducing any new doctrines. It has also been suggested that Wolford was finalized before Hemani but simply not handed down before it.
Arms "customarily used" for offense or defense, the Court elsewhere noted, "refers to implements used for offense or defense," such as handguns that are (quoting Heller) "overwhelmingly chosen by American society" for self-defense. Perhaps next Term the Court will grant cert in a case that will confirm how the American people customarily and overwhelmingly choose semiautomatic rifles for self-defense.
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.
But "the State's most remarkable analogue" is the 1865 Louisiana statute that made it unlawful "for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor…." Not only was that law "neither widespread nor widely accepted," it was "part of Louisiana's Black Code" that "provided a tool for disarming blacks and thus leaving them defenseless against attacks." "Unless we put history entirely out of our minds, Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously." (For more details, see my amicus brief for the National African American Gun Ass'n.)
Justice Barrett, joined in part by Justice Thomas and Justice Gorsuch, doubled down on the discrepancy between the purported analogues and Hawaii's law, which "does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns." However, "Mere disapproval of protected conduct is not a valid reason to severely restrict it."
Justice Kagan's brief dissent simply asserts that the historical laws cited by Hawaii sufficed as proper analogues, which "is enough for me to resolve this case, without addressing Bruen's step-one inquiry or the use at step two of Louisiana's Black Code." Good way to avoid two of the case's sticking points.
Finally, Justice Jackson, with whom Justice Sotomayor joins, dissenting, reminds us once again that, "For what it is worth, I think Bruen was wrongly decided." As to the analogues, Louisiana's 1865 law and the other Black Code provisions violated the antidiscrimination portion of the Fourteenth Amendment (although the words "equal protection" don't appear in her dissent), but did not violate the Second Amendment.
In so arguing, Justice Jackson quotes General Sickles' 1866 order rescinding South Carolia's Black Code where he stated, "The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." She adds that "in his view, no person (of any race) had the right to carry a firearm onto private land without consent." But Sickles actually said that the right to bear arms "did not "authorize any person to enter with arms on the premises of another against his consent." That expressed the traditional common-law rule that Wolford upholds, namely that private property open to the public implies a license to enter, absent notice otherwise.
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