Supreme Court weighs Hawaii’s ‘default’ ban on guns on private property that’s open to the public

By Tierney Sneed, CNN

(CNN) — The Supreme Court will hear arguments Tuesday over a Hawaii law that bars people from carrying guns onto private property without the explicit approval of the property owner, a measure intended to reduce guns in retail stores and other businesses open to the public.

The case is the latest gun rights dispute to reach the high court after its conservative majority adopted an expansive view of the Second Amendment in a blockbuster 2022 ruling that established that the Constitution protects the right to bear arms outside the home.

The current case, Wolford v. Lopez, concerns a law Hawaii, passed in the wake of the 2022 Supreme Court decision. It says that if a conceal carry license holder wants to bring their firearm on private property that is open to the public, they must get express consent from the property owner – such as verbally or with a sign.

Gun control groups have framed the dispute as a property rights case – rather than a Second Amendment dispute – arguing there is a longstanding tradition of property owners being able to set rules about what is carried onto their property. All the Hawaii law does, they say, is flip the “default” legal position from one in which people are presumptively permitted to carry guns into stores to one in which they are prohibited from doing so.

“Since our founding as a nation, private property rights have been foundational to American identity and embedded throughout our system of government and our Constitution,” said Douglas Letter, chief legal officer at the gun control group Brady.

Four other blue states – California, New York, New Jersey, and Maryland – have similar regulations, though the challengers contend that Hawaii’s is the most extreme. A trial court blocked the Hawaii statute, but an appeals court panel sided with Hawaii and the full US 9th Circuit of Appeals – over the vigorous dissent of several members – refused to rehear the case. The law, however, is still on hold for the Supreme Court appeal.

The challengers – individuals with conceal carry permits in Hawaii as well as a gun rights group – allege that Hawaii is openly defying the 2022 ruling known as Bruen, by going well beyond that ruling’s limits on where the government can ban firearms. They say it’s unconstitutional for Hawaii to make it the “default” rule that firearms are prohibited in privately owned public spaces, arguing that the consent requirement means that guns are presumptively banned in most public places. Such a law, they argue, would effectively make it impossible to carry a firearm in public.

The right to prohibit firearms “belongs to the property owner, not the State,” the gun owners said in court filings.

“Had Hawaii merely enacted a law that prohibited a knowing failure to obey a property owner’s decision to exclude arms, Petitioners would not have challenged it. Instead, Hawaii has made it a crime to carry arms even where the owner of property open to public is merely silent. That presumption tramples on the Second Amendment,” they told the court.

Hawaii counters that law does not touch on conduct covered by the Second Amendment, and even if it did, it says the law meets the requirements of the Bruen ruling for when gun regulations can be upheld.

The Bruen opinion, authored by Justice Clarence Thomas and joined by the court’s five other GOP appointees, says that a gun restriction regulating conduct covered by the Second Amendment is constitutional if it has some parallel in the types of firearm regulations that existed at the time of the Constitution’s framing.

“Both at the time of the Founding and in the Reconstruction Era, numerous state laws prohibited armed entry onto private property without the owner’s express content,” Hawaii Attorney General Anne Lopez wrote in court filings.

While the high court has required a heavy focus on history when weighing the constitutionality of guns laws, it has been murkier on the question of which period of history should guide.

When the Supreme Court announced it was reviewing the Hawaii case, it declined to take one of the questions gun rights advocates had teed up in its petition: whether courts must rely solely on Founding-era laws in assessing whether a state’s gun restriction has a sufficient historical analogue under Bruen. Or whether courts can look to the mid- to late 1800s as well, since that era marked the adoption of the 14th Amendment, which applied the Second Amendment to the states.

The way that the 9th Circuit embraced an 1865 Louisiana law to uphold Hawaii’s restrictions has nonetheless emerged as a notable conflict in the briefing.

Hawaii’s opponents noted that the Louisiana law was part of the former Confederate state’s “Black Codes” that sought to “disarm” Black people, an “outlier” that “defies rather than reflects our constitutional tradition,” as US Solicitor General John Sauer wrote in a court filing siding with the law’s challengers.

Hawaii countered that there are plenty of other laws from both the 18th and 19th centuries that support the idea of a historical tradition around barring “armed entry onto a private property without the owner’s consent.”

They also pointed to Hawaii’s unique history prior to statehood in 1959. In 1833, Hawaii’s King Kamehameha III prohibited “any person or persons” from possessing deadly weapons, including knives, “sword-cane, or any other dangerous weapon.” That, Hawaii officials say, suggests there is a historical assumption that people were barred from carrying on private property.

“Requiring evidence of a more extensive and widespread historical tradition would turn the Second Amendment into a ‘regulatory straightjacket,’” Hawaii wrote.

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CNN’s John Fritze contributed to this report.