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.