Category: Second Amendment

  • Supreme Court Strikes Hawaii’s Consent-to-Carry Law

    The Supreme Court today ruled that a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner violates the Second Amendment.

    The ruling means that gun owners in Hawaii can now carry their weapons into restaurants, stores, gas stations, and more without first obtaining the owner’s consent.

    The case, Wolford v. Lopez, tested Hawaii’s law that prohibits a person from carrying a gun onto private property that’s open to the public without the owner’s permission. The Court applied its historical-tradition test from New York State Rifle & Pistol Ass’n, Inc. v. Bruen and ruled the law unconstitutional.

    The Court said first that Hawaii’s restrictions fall within the plain text of the Second Amendment, and that the law was therefore presumptively unconstitutional.

    The Court then said that Hawaii failed to present an historical analogue. It held that Hawaii’s “spirit of Aloha” can’t override the Second Amendment; that Hawaii’s proffered colonial and early state analogues, which prohibited hunting, weren’t sufficiently similar; and that the state’s other analogues (including an 1865 Louisiana statute depriving Black people of the right to bear arms and enacted as part of that state’s Black Codes) weren’t sufficiently similar and weren’t sufficiently widely adopted.

    Justice Barrett joined the Court but wrote separately to elaborate on the Court’s historical-tradition analysis. Justice Thomas and Gorsuch joined the portion of her opinion where she argued that Black Codes weren’t good analogues. (“It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”)

    Justice Jackson, joined by Justice Sotomayor, dissented. She argued that Hawaii’s law “fairly applies a first principle of property law–the right to exclude–and does not harm to the Second Amendment.” But even if the Second Amendment applied, she argued that the Court mis-applied its historical-tradition test.

    Justice Kagan dissented separately and joined the portion of Justice Jackson’s dissent where she showed that Hawaii’s law had sufficient historical analogues.

  • Supreme Court: Gun Prosecution of Casual Marijuana User Violates Second Amendment

    The Supreme Court ruled today that the prosecution of a casual marijuana user for unlawful gun possession violates the Second Amendment.

    The ruling extends Second Amendment rights to a casual marijuana user, but otherwise says little new about the Court’s historical-tradition approach to the Second Amendment.

    The case, United States v. Hemani, arose out of the government’s prosecution of Ali Hemani for knowingly possessing a gun in his home while being an unlawful drug user, in violation of 18 U.S.C. Sec. 922(g)(3). During the investigation, Hemani pointed federal agents to marijuana in his home and told them that he used it about every other day.

    The Court ruled that the prosecution violated the Second Amendment. It applied its historical-tradition approach under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and held that the government couldn’t point to a sufficiently similar historical analog to its prosecution of a person for casual marijuana use.

    In particular, the Court rejected the government’s sweeping theory that the statute validly bans “an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one,” regardless of the drug, or the amounts ingested, or the person’s dangerousness, or the reasons the person keeps a gun, or how safely the person keeps the gun. It said that the government’s analogy to historical “habitual drunkard” laws “fails on every metric.”

    According to the Court, the ruling “is narrow.” It doesn’t “address efforts to ban addicts, or those presently intoxicated, from possessing a firearm” or “other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.” It also doesn’t address federal law that “disarm[s] individuals convicted of felonies.” Finally, it doesn’t address cases where a particular person’s use of marijuana, or any other drug, renders the person dangerous.

    Justice Thomas concurred, adding that Section 922(g)(3) “appears to exceed Congress’s enumerated power to regulate interstate commerce.”

    Justice Jackson concurred, joined by Justice Sotomayor, expressing her view that the Court “veered off course in Bruen.”