The Supreme Court will hear oral arguments on Tuesday in Wolford v. Lopez, a case that will determine whether the nation’s highest court is serious about its Second Amendment precedents. The matter is simple. Hawaii passed a law that, in practice, prohibits the state’s concealed carry permit holders from exercising their right to armed self-defense in virtually any location outside of their homes. Hawaii knows well that this law violates both the spirit and letter of Bruen v. New York State Rifle & Pistol Association, the Supreme Court’s 2022 landmark case on public carry. It just does not care.
Now, the state should brace itself for a more-than-deserved judicial head-bopping.
Hawaii has long resisted so much as acknowledging that the Second Amendment applies within its borders. This resistance is often aided and abetted by the Supreme Court of Hawaii (which once invoked, I’m not kidding, the “Spirit of Aloha” as a legitimate reason for restricting the right to keep and bear arms) and by the 9th Circuit (which notoriously struggles to find any gun control measure restrictive enough to run afoul of the Constitution).
In Bruen, the Supreme Court struck down a New York law that reserved concealed carry permits only for those lucky few applicants who could convince the government they had an extraordinary need to protect themselves with firearms outside the home. In doing so, the court affirmed that ordinary citizens have a right to bear handguns in public for self-defense.
Bruen both implicitly and explicitly implicated Hawaii’s public carry laws, which at the time did not bother with even a pretense of offering permits to ordinary citizens. But rather than comply with the spirit of Bruen and respect the Second Amendment rights of its residents, Hawaiian officials, perhaps intoxicated by the “Spirit of Aloha,” chose to get creative in their noncompliance.
If the state could no longer deny concealed permits to ordinary citizens, it would simply make those permits worthless. After all, what’s the practical difference between a gun owner who can’t obtain a public carry permit and a gun owner with a public carry permit that does not allow him to carry anywhere in public?
First, Hawaii dramatically expanded the list of public spaces from which concealed carry permit holders would be categorically excluded from bringing their firearms, including beaches, playgrounds, any recreational facility maintained or managed by a government entity, amusement parks, museums, zoos, fairs, and public libraries. These became Second Amendment-exclusionary zones. Stadiums, movie theaters, concert halls, or any other “place at which a professional, collegiate, high school, amateur, or student sporting event is being held” became “sensitive places” exempt from Bruen‘s demands.
Unsatisfied with eliminating most publicly owned spaces from the purview of armed public carry, Hawaii also eyed privately owned spaces. It passed the statute now before the Supreme Court in Wolford — a rule presumptively banning lawfully armed civilians from any private property (including businesses or other locations open to the public) unless the owner gives express permission for patrons to be armed.
To be clear, the problem is not that the law allows private property owners to prohibit armed patrons. Every state allows businesses to exclude people from their property for any lawful reason, including because that person is armed. But for centuries, the default rule across the nation has presumed that lawfully armed patrons are welcomed into public-facing businesses on the same footing as any other patron. Businesses wishing to exclude armed patrons may do so, but they must take active steps to notify those customers (or any other group of unwanted guests) that they are not welcome.
The simple reality is that most business owners have no desire to take extra steps to grant or revoke special permissions of any kind. This is especially true when, like here, the special permissions risk wading into politically fraught waters. So, in practice, few businesses will affirmatively tell lawfully armed patrons that they are welcome, even if they would not otherwise bother excluding them.
Hawaii’s new rule exploits this tendency of property owners toward silence and inaction, purporting to speak on behalf of those who are otherwise unconcerned with or neutral about the presence of armed customers. The new law’s impact on the right to bear arms in public in Hawaii is not just devastating — it eviscerates the right. For example, an estimated 96.4% of Maui County is off limits to legally armed concealed carry permit holders.
Hawaii says the measure is necessary for public safety and to “vindicate” the rights of property owners. It’s a terrible cover story. After all, concealed carry permit holders are among the most law-abiding segments of society. They rarely commit any crimes, much less violent crimes that are meaningfully facilitated by their ability to lawfully carry guns in public. If Hawaii’s true concern is public safety and property rights, why not also presume that business owners wish to exclude categories of patrons that are far more likely to cause problems, such as groups of unaccompanied minors, individuals with criminal histories, or people under the influence of alcohol?
No, the truth is both far more obvious and far more insidious: Hawaii wants to vindictively punish the state’s lawful gun owners for Bruen, in this case by extinguishing all practical usefulness of the concealed carry permits now begrudgingly issued to them. As is too often the case, the 9th Circuit was happy to oblige, abusing and misusing Bruen‘s “historical analogue” test in precisely the manner that the Supreme Court warned against in Bruen.
THE WHITE HOUSE’S FALSE START ON HOUSING
The Supreme Court has vowed to raise the right to keep and bear arms from its century-long status as a second-class right. If the court is serious, it has only one choice in Wolford: Hawaii must finally pay the piper over its Second Amendment recalcitrance.
May it head-bop away, aloha and amen.
Amy Swearer is a senior legal fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom.
