In what amounts to a significant win for Second Amendment rights, the US Supreme Court voted 6-3 to strike down Hawaii’s gun restriction that forbade concealed-carry permit holders from keeping their firearms with them on private property. The Aloha state had demanded “express authorization” to carry in these publicly open places. Justices in the majority based their decision on the Second and Fourteenth Amendments to the US Constitution.
Justices Samuel Alito, John Roberts, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett agreed the gun restriction went too far. Dissenting were Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor.
The Second Amendment: Hawaii Is Not Listening
In Wolford et al v. Lopez, Attorney General of Hawaii, a majority of the justices sided with Wolford. Citing their decision in New York State Rifle & Pistol Ass’n, v. Bruen, Alito asserted: “Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result.” The fact that the 50th state was not abiding by the court’s decision was not lost on Alito. The law, he said, “severely burdens the ability to carry a firearm.”
Aloha State residents already had to jump through hoops to obtain their concealed carry licenses. Hawaii’s new law made it impossible for these people to get gas, go to a local pharmacy, and, in general, go about their daily lives while carrying. The majority opinion, however, points out that the standard common-law rule provides that “everyone, including those lawfully carrying firearms, may enter [public places] unless expressly prohibited from doing so. By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner’s express authorization.” Alito summed it up:
“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.”
The majority opinion then provided lengthy explanations of its other Second Amendment cases, including District of Columbia v. Heller. Dick Heller was a special DC police officer who wanted to keep a handgun for self-defense purposes. However, the District of Columbia, which “made it virtually impossible for a resident to keep a handgun at home for self-defense, denied his application for a permit. Unwilling to accept this plight, Heller sued in federal court to vindicate his Second Amendment right,” the justice recounted.
In Heller, the court provided the meaning they apply to the Second Amendment, which is as plain as day. It is not something that only pertains to “state militia” but rather “protects an individual right enjoyed by ‘the people.’”
He then went on to explain what is meant by “to keep and bear arms,” essentially making the point that the court used a common definition, saying that it means to “have” and “carry arms.” After all, the Supremes said, the central concern of the Second Amendment was to secure “the fundamental right of self-defense.” Such common sense is refreshing, proving that you don’t need to twist the wording into a pretzel to determine what the Founders were saying.
Flipping the Default Rule
Where there’s a will, there’s a way. States with an unfriendly attitude toward the Second Amendment decided to effectuate an end-run around the Court’s decisions in Heller and Bruen. So they flipped “the default rule on private property open to the public.”
Common law informs us that private property made open to the public implies that “all may enter.” However, in his opinion, Alito remarked that:
“After Bruen, Hawaii and four other States singled out in that decision flipped this default rule. Rather than allowing all to enter private property open to the public unless specifically prohibited, these new laws provided that no one carrying a firearm may enter without express authorization.”
As an example, imagine for a moment that the Hawaii legislature required restaurants to post signage explicitly allowing MAGA hats or else they would be committing a felony. The felony would then be entering the restaurant with a MAGA hat without explicit permission.
The majority opinion called out the states that flipped the default rule to undermine the Supreme Court decisions. They made it clear that there isn’t much interpretation needed for the Second Amendment, and they are careful to single out states that were determined to thwart the laws the Supreme Court either struck down or upheld. Any way you look at it, the conservative majority on the court has worked diligently to protect our Second Amendment rights, much to the chagrin of gun grabbers.
Dig Deeper: Enter the Liberty Vault
New York State Rifle & Pistol Association, Inc. v. Bruen
District of Columbia v. Heller
