This term, the Supreme Court has two Second Amendment cases on its docket. Tomorrow the Court hears oral argument in Wolford v. Lopez, challenging Hawaii’s 2023 law that bans firearms on private property open to the public unless the owner expressly allows guns.
Hawaii’s law represents one of the most brazen attempts yet to effectively nullify the Supreme Court’s landmark decision in New York State Rifle & Pistol Association v. Bruen (2022). After the Court made clear that citizens have a constitutional right to carry firearms in public for self-defense, several blue states immediately set about finding underhanded ways to make that right meaningless. Hawaii’s approach was particularly nefarious: The state enacted a “default rule” that critics have aptly termed a “vampire rule” because, like vampires who in legend have to ask permission before entering private property, citizens would be presumptively banned from carrying firearms onto nearly all private property—even that which is open to the public—until given permission. The law requires that they be “given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property.”
Think about what this means in practice. A law-abiding citizen with a carry permit cannot bring a firearm into a grocery store, restaurant, gas station, or shopping mall unless the owner or manager posts a sign or gives explicit verbal or written permission allowing firearms. Hawaii has essentially transformed the Second Amendment from a constitutional right into a privilege that exists only after property owners explicitly choose to permit it. This inverts the longstanding legal presumption that citizens could carry arms in public spaces unless the property owner chooses otherwise.
The Ninth Circuit upheld this scheme, claiming to apply Bruen’s history-and-tradition test. The panel pointed to a 1771 New Jersey hunting statute and an 1865 Louisiana law that it called “historical ‘dead ringers’” for the challenged law. Really? The 1771 law was a hunting regulation designed to combat poaching on lands closed to public in order to ensure “the preservation of deer and other game, and to prevent trespassing with guns, traps and dogs.” The 1865 law was a section of Louisiana’s infamous Black Codes that prohibited “carry[ing] fire-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.” Those laws aimed to deny those who had just been freed from slavery their civil rights, including the right to bear arms—an outrage that led Congress to counter the Black Codes with the Civil Rights Act of 1866, and to follow soon afterwards with the Fourteenth Amendment.
The Ninth Circuit’s purported historical analysis, far from complying with Bruen, was tendentious to the point of embarrassment. As Judge Lawrence VanDyke wrote in his dissent from the Ninth Circuit’s denial of rehearing en banc, the law belonged to an “invidious tradition and, far from being indicative of the Constitution’s meaning, is ‘probative of what the Constitution does not mean.’” (The quoted language is from Justice Kavanaugh’s concurrence in United States v. Rahimi (2024), where the Court upheld the disarmament of someone who was subject to a domestic violence restraining order, finding that our historical tradition permits disarming those who are “found by a court to pose a credible threat to the physical safety of another.”)
The Solicitor General’s amicus brief sided with the petitioners in its appeal to scrap Hawaii’s “novel firearms law that jettisons the rule that prevailed in all 50 States until two years ago.” It added another appeal to consistency that a majority of the current Court should appreciate: “Had Hawaii required the owner’s affirmative consent for First Amendment rather than Second Amendment activity, such a law would plainly be unconstitutional.”
The government is the party prosecuting the other Second Amendment case on the docket, United States v. Hemani, which will be argued on March 2. There the Court will consider whether 18 U.S.C. § 922(g)(3)—which prohibits firearm possession by anyone who “is an unlawful user of or addicted to any controlled substance”—violates the Second Amendment as applied to Ali Hemani, a Texas man found with marijuana, cocaine, and a handgun. The Solicitor General calls these “narrow circumstances where the government can satisfy” the “rigorous burden” of showing that the challenged law “is consistent with this Nation’s historical tradition of firearm regulation” under Bruen.
The Fifth Circuit disagreed. That court applied its decision in United States v. Connelly (2024), which held “that our history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon . . . but they do not support disarming a sober person based solely on past substance usage.” Under this standard, the government must prove someone was actually intoxicated at the time of possessing a firearm. Hemani is a drug dealer who admitted that he routinely used illegal drugs before his arrest. But because the government presented no evidence that Hemani was under the influence when agents found the gun, the Fifth Circuit dismissed his indictment.
The government counters that historical traditions of disarming habitual drunkards support disarming habitual drug users even when sober. The government points to three types of founding-era restrictions: vagrancy laws that classified habitual drunkards as vagrants subject to imprisonment; civil commitment laws that allowed habitual drunkards to be confined to asylums or placed under guardianship like “lunatics;” and surety laws that allowed magistrates to demand bond from “common drunkards” as a class—not just individuals caught drunk in a particular instance. These laws, the government argues, “subjected habitual drunkards to prophylactic restrictions that were not limited to exigent bouts of drunkenness.” Similarly, the government contends, habitual drug users present persistent risks: The cognitive and mood-altering effects of illegal drugs, the propensity to commit crimes to obtain money for drugs, and the violence associated with drug culture all justify categorical disarmament. Hemani argues that there is a critical distinction: Historical laws banned carrying weapons while under the influence of alcohol, but none barred gun possession by regular drinkers when sober.
Much of the argument parallels that of the Rahimi case, with similarly nuanced questions about the dangerousness of those targeted by the laws at issue. If the Court were to agree with the government in Hemani for similar reasons, it would not move the needle much on Second Amendment jurisprudence. Tomorrow’s argument in Wolford, by contrast, involves a direct assault on that amendment—and on a recent precedent like Bruen that too many aspiring gun-grabbing states would be happy to eviscerate.