The Supreme Court is running into a problem: There appears to be a gap between what the court writes in its opinions, and what the justices in the majority actually mean.
Over the last year, the conservative justices have chastised lower court judges for not following their unsigned orders in unrelated cases. Those orders often don’t have a majority opinion upon which other judges can rely, and they typically aren’t seen as a final view on the merits.
In a case in August, however, Justices Neil Gorsuch and Brett Kavanaugh gratuitously accused a lower court judge of “defy[ing]” the Supreme Court’s rulings—a cardinal sin in the federal judiciary—because the judge blocked the Trump administration from freezing certain grants by the National Institutes of Health.
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Gorsuch wrote. He pointed to an unrelated stay the court had issued in a Department of Education case, which involved different federal grants, different laws, and a completely different agency. I noted afterwards that the justices were essentially asking the lower courts to read their minds and guess the right outcome instead of applying existing law and precedent.
This problem was originally confined to the court’s shadow-docket cases, where things have proven to be a little more freewheeling. At oral arguments in Wolford v. Lopez on Tuesday, however, the telepathy gap now appears to be affecting the court’s merits cases—the ones that receive full briefing, oral argument, and a written opinion—as well.
Wolford is a follow-up case to New York State Pistol and Rifle Association v. Bruen, the court’s landmark Second Amendment ruling in 2022. In Bruen, the conservative majority struck down New York’s restrictive law for obtaining a concealed-carry permit and announced a new judicial test for evaluating whether a gun restriction violated the Second Amendment. (More on that test later.)
After the ruling in Bruen, multiple states revised their existing concealed-carry laws to comply with what they thought was the new legal framework. Among them was Hawaii, which did not allow concealed carry at all prior to Bruen. In addition to other changes, the Hawaii legislature passed a law that forbids gun owners from bringing firearms on private property that is accessible to the public without the owner’s permission.
This “default-property” rule flips the burden from the property owner to the gun owner when deciding whether it is lawful to carry a legally owned firearm in public. A group of Hawaii gun owners challenged the law, arguing that it violated their Second Amendment rights by requiring them to obtain permission from every privately owned business they visit—gas stations, restaurants, grocery stores, and so on.
Hawaii, on the other hand, said that the law was constitutionally sound because states had long regulated the carriage of firearms on private property. (For simplicity’s sake, I’ll stop noting the “generally accessible by the public” part from here on out.) The state cited antipoaching laws in the founding era and some later statutes, including a 1865 law in Louisiana that forbid people from carrying guns on “premises or plantations” that critics have claimed was part of the discriminatory “Black Codes” of the Reconstruction era.
Prior to Bruen, lower courts had weighed whether a gun restriction violated the Second Amendment with various balancing tests. On one end were state and federal interests in public safety. On the other was an individual right to bear arms for “ordinary, law-abiding citizens,” as one of the court’s prior decisions phrased it.
That approach had led lower courts to uphold many existing gun restrictions, as prior Supreme Court decisions had suggested they should. With Bruen, however, the court’s conservative majority explicitly forbade lower courts from engaging in such balancing tests. Instead, the court outlined a novel history-and-tradition test for judges to use when hearing constitutional challenges to gun restrictions.
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas wrote for the court. “The government must then justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”
This originalist approach, as I’ve noted before, led to chaos in the lower courts as judges struggled to figure out which historical laws were analogous to existing ones. The Supreme Court partially backtracked in the 2024 case United States v. Rahimi to conclude that only a common principle was needed, not a near-identical analogue. Hawaii argued that it had met that burden, a point on which the court’s liberal justices seemed to agree.
“There was a history of, in at least New York in 1763, just before the founding, that prohibited trespassing and hunting on other people’s lands because trampling on the land was destroying it,” Justice Sonia Sotomayor told Alan Beck, the lawyer arguing for the gun owners. “So you don’t need under Rahimi an exact duplicate historically. You just need an analogous principle.”
Justice Ketanji Brown Jackson also noted that the Hawaii law brought reasonable clarity to a status quo that Bruen had disrupted. “Once Bruen said you can carry the gun outside of your home, and there was an alternative, well-established principle that private property owners can exclude people,” she explained to Neal Katyal, the lawyer representing the state of Hawaii in the case, “I think the states were trying to make sure that property owners had the opportunity to do that.”
That did not stop the plaintiffs from claiming that Hawaii had some sort of animus against them. “There’s a clear body of evidence here that this was done to undermine Bruen and to undermine the Second Amendment right,” Beck claimed, “and, thus, this law very clearly implicates the Second Amendment.”
The reality of Hawaii’s law is that it would significantly impact the practical ability to carry a firearm in the state if one needs affirmative permission whenever entering private property. Under Bruen, however, the level of a law’s impact isn’t supposed to matter. The conservatives dispensed with balancing tests in that decision because too many gun restrictions were being upheld under those tests, leading Thomas, Alito, and others to make a familiar complaint: “Mr. Katyal, you’re just relegating the Second Amendment to second-class status,” Justice Samuel Alito bluntly told Katyal. “I don’t see how you can get away from that.”
The conservative justices noted that similar measures, if applied in the First Amendment context, might be unconstitutional. Justice Amy Coney Barrett noted, for example, that the First Amendment allows candidates to go door to door to solicit votes. “But you say that it’s different when it comes to the Second Amendment […] when the candidate wants to walk up and he’s carrying a gun,” she noted. “What exactly is the basis for the distinction?”
It is odd to imagine a candidate canvassing for votes with a gun at his side, but that may be beside the point. Katyal argued that it didn’t matter because the court had charted a radically different course with gun rights. “With the First Amendment, you’ve got burden tests and all sorts of stuff that this Court disclaimed in Bruen at page 22,” he told Justice Amy Coney Barrett. “And so it’s just going to apply somewhat differently.”
Barrett and Roberts, who appeared to be in favor of striking down the Hawaii law, pressed Katyal further on other First Amendment examples, such as soliciting. Barrett even proposed an eyebrow-raising hypothetical on which a private property owner—again, like a store or restaurant—could reject someone on the basis of race under Katyal’s reasoning.
“I mean, absent a public accommodations law or in a private residence, you could turn someone away on the basis of race,” she noted. Katyal disagreed with her premise under the Bruen framework. “There is no antidiscrimination component in the Second Amendment the way there is with the Equal Protection Clause,” he countered.
That prompted Alito’s aforementioned interjection that Katyal was reducing the Second Amendment to a “second-class right.” He respectfully disagreed, noting that the Bruen test was a much blunter instrument than the tests the court had developed in other areas of constitutional law. “It’s not a second-class right,” Katyal replied. “It just doesn’t have the same components of viewpoint discrimination or anti-discrimination for the Fourteenth Amendment, and it’s just not in the Second Amendment.”
What the case ultimately comes down to, in other words, is what the court really meant in Bruen. The justices could have adopted a more multi-faceted test, but they eschewed it in favor of a simpler, bright-line originalist test. If the conservative justices truly meant that Second Amendment restrictions are presumptively invalid unless they had a historical analogue, which Hawaii has readily provided here, then the case should not be as difficult as the justices made it sound on Tuesday.
If, on the other hand, the goal of Bruen was to demolish all concealed-carry restrictions in blue states, to force them to accept the presence of guns in nearly every aspect of everyday life, to treat gun owners as akin to a constitutionally protected class, and to elevate the right to carry over basic private property rights, then the court’s decision in Wolford will be as easy as the conservative justices made it sound on Tuesday. Lower courts will once again be left in the unenviable position of trying to guess what the Supreme Court really meant instead of relying on their written rulings for guidance. A decision is expected by the end of June at the latest.
