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

By Tierney Sneed, CNN

(CNN) — The Supreme Court on Thursday struck down a Hawaii law that banned guns on private property open to the public where the owner hadn’t explicitly condoned the carrying of firearms.

In the ruling, the conservative majority said the law – passed after a blockbuster 2022 ruling from the high court expanding gun rights – was unconstitutional.

“This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. We hold that the law is unconstitutional,” Justice Samuel Alito said in the majority opinion for the court.

The 6-3 ruling along conservative-liberal lines is a major setback for gun-safety advocates who had been looking for new ways to limit the presence of guns in retail stores and in other public spaces after the 2022 Supreme Court decision that enshrined public firearm carry as a Second Amendment right.

“The ruling in the Hawaii case crosses a line that the justices had thus far resisted — holding that the Second Amendment protects the right of Americans to bring firearms even onto private property so long as that property is open to the public,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

In a dissent joined by Justice Sonia Sotomayor, Justice Ketanji Brown Jackson wrote a dissenting opinion that said the court’s ruling “overrides Hawaii’s considered—and in my view, constitutionally sound—judgment that the property interests of its residents should be protected against unauthorized armed entry.” Justice Elena Kagan wrote a separate dissent, while Justice Amy Coney Barrett wrote concurrence partially joined by fellow conservative Justices Clarence Thomas and Neil Gorsuch.

Three other states have laws similar to Hawaii’s “default” ban on guns in privately owned public places. Hawaii’s opponents said that property owners are free to proactively prohibit firearms on their property but the state could not make such a ban the “default” for private property open to the public.

The conservative majority agreed with the challengers, with the Alito writing that it “burdens those wishing to exercise their Second Amendment right.”

The dispute over the Hawaii law is the latest case that asked the justices to grapple with the 2022 ruling, known as Bruen, that laid out a historical test for assessing the constitutionality of gun laws.

Under the 2022 opinion by Thomas, known as Bruen, restrictions regulating Second Amendment conduct can only be upheld by courts if there were similar laws that existed at the time of the constitution’s drafting.

Alito said that the old laws that the state was pointing to argue that it passed that test “are vastly different from Hawaii’s new default rule.”

“They consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property,” he said.

Jackson’s dissent reiterated her view that Bruen was wrongly decided, but she said that the court, with its ruling Thursday, had “manipulated” that precedent “into a free-for-all that lets the Judiciary thwart the will of legislatures by privileging access to firearms above all else.”

“Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently preserving any principle of law,” she said.

Barrett’s concurrence, meanwhile, offered more commentary on how the Bruen test should be applied to Hawaii’s law. “To satisfy Bruen, Hawaii must identify historical laws that pursued an analogous goal in an analogous way,” she said. The analogies failed because the founding-era laws had different aims than the statute Hawaii is now trying to defend, Barrett said.

Kagan’s dissent rejected that argument, arguing that goals of Hawaii’s and the older laws were “sufficiently close.”

“Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property,” she wrote.

Defenders of Hawaii’s law tried to frame the dispute around property rights, rather than the Second Amendment, and Hawaii’s lawyers argued that even if the justices concluded the law does touch on constitutionally protected conduct, there are enough historical analogues allowing it to be upheld.

The law’s challengers, individuals with concealed carry permits in Hawaii as well as a gun rights group, countered that the laws the state is relying on were not enough of a match, and more broadly accused Hawaii of openly defying the Bruen ruling.

A lawyer for the challengers cheered the ruling, calling Hawaii’s law a “de facto ban on public carry.”

New Jersey Attorney General Jennifer Davenport, whose state has a similar law, said in a statement that this “badly mistaken decision will make it harder for businesses open to the public to exclude guns from their property, putting additional burdens on them to keep their patrons safe.”

“Today’s opinion vindicates my clients right to public carry,” Alan Beck, who argued the case in January, said in a statement.

Kris Brown, the president of Brady United Against Gun Violence said that “deeply dangerous majority opinion privileges guns over everything and all people in society.”

At oral arguments, an 1865 Louisiana law that the US 9th Circuit of Appeals embraced to side with Hawaii was a subject of intense debate. The law prohibited the carrying of “premises or plantations of any citizen” without the property’s owner consent. Hawaii’s decried the use of the law to defend Hawaii’s current restrictions because it was part of the “Black Codes” aimed at restricting the rights of African Americans, though Jackson suggested that the challengers shouldn’t get cherry-pick the history used to assessed the law’s constitutionality.

On Thursday, Alito said Hawaii’s attempt to compare its law to the “tainted artifact” of the black codes “cannot be taken seriously,” while Barrett wrote that it was “beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”

However, Jackson criticized the conservative majority for not providing a more thorough explanation for why Hawaii could not rely on those laws as its historical comparison.

“Where the Court has opted to tether its Second Amendment analysis to facts about America’s past, it must contend with our Nation’s entire history, warts and all. To do otherwise calls into question the legitimacy of the Court’s endeavor to rely solely on historical guidance,” she said.

This story has been updated with additional details.

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