Supreme Court Decision Syllabus (SCOTUS Podcast)

WOLFORD v. LOPEZ (2nd Amendment and Hawaii)

Attorney RJ Dieken, Loki Esq Law, Montana Season 2025 Episode 58

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Hawaii's rules about not allowing people to concealed carry on private property unless the owner posts consent is unconstitutional.

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Hello, this is RJ Deakin, reading the Supreme Court of United States opinion syllabus in Wolford v. Lopez, Attorney General of Hawaii, certiary to the United States Court of Appeals for the Ninth Circuit, argued January 20th, 2026, and decided June 25, 2026. For years, the state of Hawaii made it almost impossible to obtain a license to carry a firearm. Four years ago, however, this court held in New York State Rifle and Pistol Association versus Bruin that the 2nd and 14th Amendments protect the right to carry handguns outside the home for self-defense. Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result. At issue in this case is a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner. Hawaii's new rule imposes severe restrictions on the daily activities of residents who have satisfied the state's rigorous requirements for the issue of a carrying permit. When these permit holders leave home, 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, restaurants, and stores. This law flips the default rule at common law, under which anyone has an implied license to enter property held open to the public unless the property owner withdraws consent. In District of Columbia v. Heller, this court held that the Second Amendment protects an individual right to keep and bear arms, with the amendment's central concern being the fundamental right of self-defense. Heller instructed courts to ascertain the scope of the right by looking to history and emphatically rejected an ahistorical, judge-empowering, interest balancing inquiry. In Bruin, the court fleshed out the process of historical analysis required in a Second Amendment case, holding that the analysis involves two steps. First, a court must determine whether the challenge law falls within the plain text of the amendment's language by asking whether the law applies to the people, i.e., all members of the political community, and restricts the keeping, i.e. possession, or bearing, i.e. carrying, of arms, i.e., weapons customarily used for offensive or defensive purposes. If a challenge law falls within the plain text, it is presumptively unconstitutional, which means that it may violate the preexisting right that the amendment codified. But the government may show that its challenge law did not infringe the historical understanding of the codified right. While a variety of sources may aid this inquiry, the best evidence is often what Bruin called historical analogs, old legal rules from which a court may draw a strong inference that the modern law at issue is consistent with the codified right. Bruin identified three important inquiries for evaluating proffered historical analogs, the number of jurisdictions in which they were adopted, the extent to which they were well accepted, and whether any analog or collection of analogues is relevantly similar to the modern law in terms of how and why it restricted the keeping or bearing of arms. Petitioners, three residents of Maui County who possess concealed carry permits, and an organizational plaintiff with members who have such permits, filed suit in federal court seeking temporary and permanent injunctive relief, contending that the law at issue violates their constitutional rights. The district court enjoined enforcement of the law as applied to private property open to the public, but the Ninth Circuit reversed that injunction. The Supreme Court held decision below is reversed and remanded. Hawaii's law prohibiting licensed concealed carry permit holders from carrying handguns on private property open to the public without the property owner's express authorization violates the Second and Fourteenth Amendments. The restrictions imposed by Hawaii's challenge law fall within the plain text of the Second Amendment, so the law is presumptively unconstitutional. No party disputes that petitioners are among the people protected by the Second Amendment, or that they seek to bear arms. Therefore, the plain text of the Second Amendment protects what petitioners want to do carry handguns for self-defense. That's citing Bruin. To be sure, owners of establishments that are open to the public can admit or exclude persons who are carrying guns for self-defense under either the common law rule or Hawaii's law, but Hawaii's shift from the common law rule unquestionably imposes a new significant burden on the exercise of the right recognized in Bruin. For example, proprietors who do not object to entry by carry permit holders may be reluctant to post welcoming signs for fear of alienating customers. So under Hawaii's new default rule, a proprietor in this category may only be willing to consent discreetly to the entry of permit holders who make the effort to inquire. This arrangement imposes a new burden on permit holders who will have to somehow obtain permission to carry a firearm on the property before stepping foot on it. The law severely hampers the ability of law abiding citizens to exercise the right. Bruin recognized as they go about their daily lives. To exercise the right, Bruin recognized as they go about their daily lives. Hawaii's proffered historical analogs do not support the constitutionality of its new default rule. Hawaii's argument that its particular customs and laws, uh brief for respondent 24, support the new default rule fails because the Second Amendment has the same meaning in all parts of the United States. The Second Amendment cannot give way to the spirit of Aloha in Hawaii. Um fifty-four Hawaii eight. Any more than it can yield to the spirit of the Big Apple, Bruin, or the Windy City, McDonald. 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. The state's colonial and early state law analogs consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else's private property. These laws, including a 1721 Pennsylvania law, 1722 New Jersey Statute, 1728 Maryland Statute, and 1763 New York law, and 1771 New Jersey Law, targeted unauthorized hunting and applied to land where game could be found, not retail establishments, that residents frequent as part of their daily routines. Those laws had little, if any, impact on the Second Amendment's central objective of protecting the fundamental right to self-defense, and their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting. The gap between the state's anti-poaching analogs and its new rule is too wide. The state's remaining analogs are even weaker. In 1893, Oregon law prohibited armed trespass on enclosed premises, but is unclear whether such premises included commercial establishments open to the public. Regardless, a loan statute adopted nearly a century after the adoption of the Second Amendment and well after the adoption of the Fourteenth Amendment sheds little, if any, light on the meaning of the Second Amendment right. Hawaii also relies on an 1865 Louisiana statute enacted as part of the notorious black codes to disarm blacks and leave them defenseless against attacks. As the court laid out in MacDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. This was well understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. Against this history, Hawaii's claim that this tainted artifact from Louisiana's Black Code illuminates the original understanding of the right to keep and bear arms cannot be taken seriously. And even setting aside the statute's pedigree, it carries no weight, because it was neither widespread nor widely accepted. The decision below is reversed and remanded. Justice Alito delivered the opinion of the court in which Chief Justice Roberts and Justices Thomas Gorsuch, Kavanaugh, and Barrett joined. Justice Barrett filed a concurring opinion in which Justice Thomas and Gorsuch joined as to Part 2B. Justice Kagan filed a dissenting opinion. Justice Jackson filed a dissenting opinion in which Justice Sotomayor joined. Thanks for listening. I do remember living in Hawaii in the early 2000s, and yeah, it was really hard to get any kind of firearms permissions if you weren't a law enforcement officer.