The Supreme Court struck down a Hawaii law on Thursday that forbid concealed-carry permit holders from bringing their guns onto private property without the owner’s express permission. “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,” Justice Samuel Alito wrote for the court. “We hold that the law is unconstitutional.”
The 6-3 decision in Wolford v. Lopez, which fell along the usual ideological lines, is the court’s latest effort to apply its relatively new history-and-tradition test to state gun-control laws. Along the way, the court raised new questions about what kinds of “historical analogues” can be used to defend gun restrictions—and whether the bigotries of past generations should be a factor.
In 2022, the Supreme Court adopted a new Second Amendment test for lower courts in New York State Rifle and Pistol Association v. Bruen. At issue in Bruen was New York’s restrictive law for granting concealed-carry licenses. In a 6-3 ruling, the court’s conservative majority held that the law violated the Second Amendment because it fell outside the historical bounds of gun rights in America.
Bruen’s history-and-tradition test, as articulated by the court, has two steps. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas explained in his majority opinion. “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.”
At first, lower courts found themselves applying Bruen to a wide range of long-standing gun restrictions. Different courts also reached wildly different conclusions on when and how to use historical evidence to decide whether a law fit within “the nation’s historical tradition.” Two years years later, in United States v. Rahimi, the conservatives clarified the Bruen test: the government need only identify a “historical analogue” to survive judicial scrutiny, not a perfect match or a “dead ringer.”
After Bruen, states that historically favored greater restrictions on guns rewrote their laws to accommodate the Supreme Court’s ruling. Among those states was Hawaii. One of their changes was to the state’s “default rule” for trespassing. Before Bruen, it was lawful to bring a concealed weapon onto private property that is generally open to the public—restaurants, stores, gas stations, and so on—unless the owner specifically prohibited it. (For brevity’s sake, I’ll just refer to this as “private property” from now on, even though I am not literally referring to all private property in the state.)
Hawaii reversed that presumption: Now it would be illegal to bring a gun onto private property unless the owner had explicitly allowed it. With only a handful of exceptions, the law requires private-property owners to provide “clear and conspicuous signage” that grants permission or “unambiguous written or verbal authorization.” As Alito noted in his opinion, Hawaii also bans concealed carry altogether in a variety of other locations, like public buildings, parks, banks, schools, hospitals, beaches, playgrounds, and so on.
A group of Hawaii gun owners sued to challenge the law in federal court, arguing that it violated their Second Amendment rights by depriving them of the ability to feasibly carry their concealed weapons anywhere in public. The state defended the law by arguing that the individual right to bear arms does not supersede an owner’s right to exclude people from their property. The Ninth Circuit Court of Appeals sided with the state last year.
Since the Bruen decision was announced, lower courts and litigants have sharply disagreed on what counts as evidence of a “historical tradition” in Second Amendment cases. Hawaii, which had a unique path to entry into the Union, cited legal texts from the Kingdom of Hawaii in the early 19th century that strictly limited when and how weapons could be carried in public. This tradition, the state argued, supported Hawaii’s passage of a new default-rule law. Not so, said Alito.
“The Second Amendment has the same meaning in all parts of the United States,” the justice wrote in his majority opinion. “It cannot give way to ‘the spirit of Aloha’ in Hawaii, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald [v. Chicago]). It applies in the same way to our 50th State (where about 8 percent of adults possess guns) and our 49th State (where the figure is roughly 59 percent).”
In other words, the Second Amendment’s interpretation must flow from British common-law sources and those found in the colonial and early founding era, the court held. (There is an ongoing dispute over how Reconstruction-era sources apply, but I’ll come back to that later.) Hawaii cited those laws as well, pointing to 18th-century statutes in Maryland, New Jersey, New York, and Pennsylvania that restricted gun owners from carrying their weapons in private fields at certain times of the year.
Unsurprisingly, Alito dismissed their value as historical evidence as well. The laws that Hawaii cited, he wrote, “consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property,” and did not implicate stores, restaurants, and the like. “They had little if any impact on the Second Amendment’s central objective: protecting the fundamental right to self-defense,” Alito claimed. “And their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting.”
The three liberals justices disagreed in their dissents. Justice Elena Kagan, writing only for herself, noted that Bruen envisioned that historical analogues might be enacted for different purposes. Both the Hawaii law and the colonial-era laws cited by the state meant to address, in her view, the problems that would come with unauthorized gun possession on private property.
“The ‘how’ is identical: The new law, just like the old ones, sets a default rule against gun carry that a private landowner may reverse,” Kagan explained. “The ‘why’ is sufficiently close. Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property. That the old laws had a special (though by no means exclusive) concern with poaching does not matter.”
Justice Ketanji Brown Jackson, in a separate dissent joined by Justice Sonia Sotomayor, took the same view of Hawaii’s historical analogues. She additionally argued that the case should be primarily viewed as a property-law case where the state is owed more deference than a Second Amendment case. Alito countered that Bruen clearly applied, since it commanded judges to apply it in any case involving gun restrictions.
Perhaps the most controversial citation made by Hawaii was to an 1865 law in Louisiana that made it illegal to bear arms “on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.” Alito dismissed the statute because it was an isolated example and not “widespread, well-known, or widely accepted.”
The conservative justices have left open a debate over whether Reconstruction-era gun laws have any weight in the Bruen test. Under the court’s precedents, the Second Amendment applies to the states through the Fourteenth Amendment’s Due Process Clause. Therefore, the “original public meaning” that the court claims to seek might naturally take them to the 1860s when the Fourteenth Amendment was ratified, and not just the 1790s when the Second Amendment was adopted or earlier.
But there’s a complicating factor here: Louisiana did not adopt the 1865 law in a vacuum. Instead, it enacted the restriction as part of what became known as the Black Codes—laws specifically designed to deprive formerly enslaved Black Americans of the fundamental rights that they would otherwise enjoy. In other cases, states have cited founding-era gun restrictions drafted to disarm Native Americans and enslaved people. To what extent does that reflect the “original public meaning” of the Second and Fourteenth Amendments?
In Alito’s eyes, such laws hold no weight. He concluded that the Radical Republicans who drafted and ratified the Fourteenth Amendment intended to protect Black civil rights, including an individual right to bear arms, and that this intent supersedes that of Southern state legislatures. “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,” he wrote.
Alito was not the only conservative member of the court to criticize Hawaii for its choice of historical analogue. Justice Amy Coney Barrett wrote a separate concurring opinion where she specifically castigated Hawaii for invoking the Black Codes, which she described as “vile laws,” in a 21st-century case.
“The State seems to think Bruen is a matching game: Southern states enacted broad default rules, Hawaii reasons, so it can do the same today,” Barrett wrote. “But even if Hawaii is right that the how is analogous, it also must identify an analogous why.” She noted that the Black Codes were enacted to “subordinate newly freed slaves,” and that since Hawaii did not have the same intent, the laws did not count as a historical analogue.
It is always a welcome sight to see the Supreme Court condemn the bigotry and discrimination of the past. The majority’s words would also carry slightly more weight, however, if they were more consistent about it in the present. Their condemnation, for example, would have more moral weight if she and her conservative colleagues had not gone out of their way to sanitize Trump’s racist bile towards Haitians as merely a strong, constitutionally permissible critique of immigration in Mullen v. Doe—a case decided on the same day as Wolford.
Alito’s appeal to the intent of the Reconstruction Amendment’s drafters is also laudable. At one point, he cites the Republican Party’s platforms in 1856 and 1860 to illustrate how the Fourteenth Amendment’s drafters meant its protections to operate for certain rights. One can only hope that he and his colleagues show the same deference to the Reconstruction Amendments’ purpose when they decide the imminent case on birthright citizenship next month. It is lamentable that Reconstruction’s lessons have already been forgotten or disregarded by Alito and his allies in cases on voting rights, racial gerrymandering, and insurrectionist disqualifications.
Jackson agreed with her colleagues in the majority that the Black Codes were “ugly” and “racist.” She also argued that the court “cannot have it both ways” by selectively drawing from relevant statutes. Though Jackson was not on the court when it decided Bruen, she criticized its approach to constitutional law in follow-up cases and described it on Thursday as “a grave mistake.”
“Either history does matter, and if so, all potentially relevant historical experiences must be thoroughly examined to determine whether they reflect our Nation’s history and tradition of firearm regulation,” Jackson argued. “Or, it does not, and the Court should just admit that the test it has created is boundless, allowing it to accept or excise any historical analogue it chooses for any reason it prefers.”
That is problematic, Jackson explained, because the court’s original rationale for the Bruen test was to rein in lower courts that were upholding too many gun restrictions. “Of course, the real irony is that the Court’s effort to rein in judicial discretion has resulted in an arbitrary rule that unleashes judges to thwart gun regulation at every turn,” she explained. It is hard to disagree with that assessment, just as it is hard to believe that future Second Amendment cases will not be similarly arbitrary.
