The Supreme Court handed down three decisions yesterday that amount to welcome if not unexpected victories for the Second Amendment and, in a pair of immigration decisions, for textualism.
Hawaii’s End-Run Around the Second Amendment Is Dead on Arrival
In Wolford v. Lopez, the Court, by a 6–3 margin, struck down Hawaii’s attempt to limit Second Amendment rights and end-run the 2022 New York State Rifle & Pistol Association v. Bruen decision.
The law at issue was a clever piece of mischief. After Bruen recognized the right to carry a handgun outside the home for self-defense, Hawaii flipped the age-old common-law presumption that an individual, including those carrying firearms lawfully, may enter private property held open to the public unless the property owner says otherwise. Hawaii’s new law reversed that default entirely, requiring gun owners to obtain the express, affirmative consent of property owners before carrying—effectively burying the right to bear arms in a regime of “severe restrictions on the daily activities of residents who have satisfied the State’s rigorous requirements for the issuance of a carry permit,” as Justice Alito explained in his opinion for the Court.
When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, 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.
The Court employed the same Bruen test it applied last week in United States v. Hemani, including assessment of the “how” and the “why” of any asserted historical analogues for the gun regulation at issue. As in the previous case, the Court found no valid historical analogues for the challenged law—here, in fact, they were perhaps even more glaringly weak. Hawaii dug up a handful of colonial-era anti-poaching hunting restrictions and tried to pass them off as relevant precedent—and the Court wasn’t buying it. The cited statutes, enacted in several colonies between the 1720s and 1770s, “targeted unauthorized hunting and focused on land where game could be found,” Alito explained.
Another supposed analogue, apparently advanced for its chronological proximity to the Fourteenth Amendment, backfired against Hawaii: Louisiana’s 1865 law making it illegal “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, other than in lawful discharge of a civil or military order.” This law was part of the notorious Black Codes. Its purpose was preventing freed blacks from being able to defend themselves against mounting attacks in the aftermath of the Civil War. “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,” wrote Alito, echoing the exasperation he and Justice Gorsuch had earlier expressed toward Neal Katyal (Hawaii’s counsel) during oral argument on the same point.
Another memorable passage from Alito’s majority opinion countered Hawaii’s invocation of “its long history of antipathy to the private possession of firearms.” No, Alito explained, citing both Bruen and an earlier Second Amendment decision in McDonald v. Chicago (2010):
[T]he Second Amendment has the same meaning in all parts of the United States. . . . 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). It applies in the same way to our 50th State (where about 8% of adults possess guns) and our 49th State (where the figure is roughly 59%). Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment. [citations omitted]
Justice Barrett filed a concurrence, joined in part by Justices Thomas and Gorsuch, piling on regarding the Black Codes: “It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.” Barrett also further explicated the Bruen framework and took on the principal dissent—in which Justice Jackson, joined by Justice Sotomayor, argued that “[t]his case is about property rights, not gun rights.” Because no one has the right to enter private property without the owner’s consent, Hawaii merely adjusted the form that consent must take, leaving the Second Amendment uninvoked. Justice Barrett dispatched that argument cleanly: “when a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment”—just as the First Amendment would prevent a state from requiring express consent before someone could “wear religious head garb (say, a hijab) onto private property open to the public.”
The Court made the right call, and there are many states that, like Hawaii, are trying to find a way out of the Second Amendment. They will have to go back to the drawing board.
Two More Wins for Textualism in Immigration Cases
In two immigration decisions yesterday, the Court reminded lower courts, advocacy organizations, and the Left in general that statutes mean what they say. In Mullin v. Al Otro Lado, the Court considered this question: Have you “arrived in” the United States if you haven’t crossed the border yet? The Court said no—and I’d wager any native speaker of English would agree.
The Immigration and Nationality Act (8 U.S.C. § 1158) grants asylum rights to an alien who “arrives in the United States.” The Ninth Circuit incredibly had held that an alien standing on the Mexico side of the border, blocked by a U.S. official, has already arrived in the United States for purposes of the asylum statute. Justice Alito, writing for the Court, reached the contrary conclusion and brought some common sense to the analysis: “The running back does not arrive in the end zone (and six points do not go up on the scoreboard) when he is tackled at the 1-yard line by the defense.” You arrive somewhere when you enter it—not when you attempt to. This is basic English, and frankly it shouldn’t require a Supreme Court opinion to establish it.
Several features of the statutory text reinforced the plain-meaning reading. Congress elsewhere in the INA “refer[s] to both actual entrance into the United States and attempted entrance,” but the asylum provisions contain no reference to attempted entry. Congress also amended the relevant language in 1996, replacing “at a land border or port of entry” with “arrives in the United States.” That change signals that the phrases are not synonymous, and that current law requires actual presence inside the country.
This case is a textbook example of why it matters to have a textualist court. If the immigration advocacy group Al Otro Lado wants to expand the availability of asylum for immigrants, it should take its case to Congress, not the Supreme Court. Not that the liberal justices are on board with basic textualism, as the 6–3 margin in the case reflects. Justice Sotomayor’s dissent offers characteristically measured language: “The consequences of today’s decision are predictable. More people will die.” Of course, the consequences of rewriting statutes from the bench are also predictable—and they include the erosion of democratic accountability that makes self-governance possible.
The Court’s 6–3 textualist margin also appeared in Mullin v. Doe—with Justice Alito again writing for the Court. Unsurprisingly, the decision held that a statute saying there is “no judicial review of any determination” about Temporary Protected Status for migrants means—wait for it—there is no judicial review for TPS determinations.
There are lots of policy arguments about the problems with a “temporary” status that has been renewed reflexively for over a decade. But the Court’s decision was not to parse the policy rationales, as compelling as they are. The statute says “no judicial review.” What part of “no” is hard to understand?
The TPS challengers advanced increasingly creative arguments to read around the plain text—that “determination” means only substantive decisions, not those based on procedural errors; that it refers only to country-condition assessments; and that only the homeland security secretary’s ultimate determination is unreviewable while subsidiary decisions are somehow carved out. The dissent by Justice Kagan for the three liberals advanced the latter argument. But the Court dispatched each argument in turn, pointing out both plain language and broader statutory context that the respondents challenging their TPS status had disregarded. Words have ordinary meanings, and courts are not authorized to supply escape hatches that Congress declined to provide.
The Court also held that an equal protection claim that challenged Haiti’s TPS designation fell short. In an interesting parallel to its analysis in Louisiana v. Callais (another Alito opinion) in April, the Court warned against jumping to the conclusion without sufficient evidence that a government decision is racially motivated. Here, Alito pointed out, “None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” Opposition to TPS and advocacy of tighter immigration restrictions may occur for “reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations.” Here—ironically—the respondents themselves offered a race-neutral explanation for the administration’s actions: the secretary’s “preordained decision” to terminate every TPS designation that came up for renewal, across countries of varying demographics.
Yesterday was a day for Justice Alito to shine, and his three decisions contributed important originalist and textualist victories to the Court’s already impressive tally.