Supreme Court Sets Hawaii Straight on Second Amendment

Doug Hamlin, CEO of the National Rifle Association.

This morning, the Supreme Court issued its opinion in Wolford v. Lopez, an important opinion clarifying the scope of the Second Amendment’s right to bear arms outside of the home.

The issue before the court this time was whether the 9th U.S. Circuit Court of Appeals erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.

In a 6-3 decision, Justice Samuel Alito wrote for the majority, holding that Hawaii’s law violates the Second and 14th Amendments.

The Second Amendment Cases

As a refresher, in 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual right to possess a firearm not connected with service in a militia and to use that firearm for lawful purposes such as self-defense within the home.

Two years later, the Supreme Court ruled in McDonald v. City of Chicago that the Second Amendment right of individuals to keep and bear arms in self-defense applies against state and local governments as well as the federal government. As the Supreme Court said in McDonald, “The Second Amendment does not protect a second-class right, but one that is fundamental to our scheme of ordered liberty and applicable against the states through the Fourteenth Amendment.”

Unfortunately, many lower courts have refused to treat Heller or McDonald with respect, upholding gun control laws across the country.

In 2022, the Supreme Court issued a 6-3 opinion in New York State Rifle & Pistol Association v. Bruen. In Bruen, the court held that New York’s Sullivan Act—a 1911 law requiring individuals to demonstrate “proper cause” to obtain a license to carry a handgun in public—violated the Second Amendment because it imposed a discretionary standard on the exercise of a constitutional right.

The court held that the Second Amendment guarantees a “general right to publicly carry arms for self-defense.” The implications of this ruling far exceeded 20th-century state law: The court made clear that modern gun regulations must adhere to historical practice and a constitutional reading of the Second Amendment.

Hawaii Gun Law Response

States with the most restrictive gun laws responded legislatively. On June 2, 2023, the Hawaii Legislature passed Act 52, a staggering overhaul of firearm regulations. While the law allowed for licensed public carry, it established a sprawling list of “sensitive places” where public carry was not permitted. Act 52 established “a default rule with respect to carrying firearms on private property of another person.” The stated purpose of the rule was to protect “the right of private individuals and entities to choose for themselves whether to allow or restrict the carrying of firearms on their property.”

These areas included schools, government buildings, parks, stadiums, movie theaters, beaches, and more. The law also specified that for private businesses, express authorization, in the form of signage, words, or writing, was required as permission to carry a firearm onto the premises. Despite these restrictive terms, the state maintained it had followed the Bruen framework.

Jason Wolford, a Hawaii concealed-carry license holder, and two others similarly situated, sued the Hawaii attorney general, claiming that Act 52 violated the Second Amendment.

Wolford argued that the law’s list of prohibited areas was so exhaustive that it all but nullified his permit. This form of compliance reflects what critics have described as the “vampire rule,” a regulatory construct that preserves the right to bear arms in theory while rendering it functionally unusable in practice. Under Hawaii’s approach, firearms are presumptively banned on private property open to the public unless the owner affirmatively grants permission, flipping the traditional presumption that a constitutional right may be exercised without permission.

Backed by the Hawaii Firearms Coalition, Wolford sought relief in the U.S. District Court for the District of Hawaii. U.S. District Court Judge Leslie Kobayashi granted a partial temporary restraining order.

Despite the state’s claim that there was a historical analogue to Hawaii’s law, Kobayashi found the evidence for these claims to be insufficient. Further, Kobayashi contended that the state had overreached by presuming bans on behalf of public property owners, rather than deferring to a property owner’s fundamental right to exclude. Kobayashi concluded that because plaintiffs had continued to carry their firearms in prohibited areas, they faced immediate irreparable harm in the form of potential criminal charges.

The state appealed to the 9th Circuit, which evaluated Hawaii’s laws alongside a similar set of laws enacted in California. The court affirmed in part and reversed in large part the lower court injunction. While California’s requirement for a physical sign was deemed too rigid, Hawaii’s rule was upheld. Analogizing historical trespass laws, the court reversed the injunction because the law allowed for consent to be given orally, in writing, or through signage.

Unlike Kobayashi, the 9th Circuit allowed for a less stringent standard in the application of historical practice. The state needs only “evince a principle” in historical practice regulating firearms in places relevantly like those covered by the challenged law. Appellees requested en banc review but were denied. On Oct. 3, 2025, the Supreme Court granted review.

On Jan. 20, 2026, the U.S. Supreme Court held oral argument. Alan Beck, arguing for petitioners, claimed that Hawaii’s law prevented licensed concealed carry in approximately 97% of public areas. Beck also accused the state of improperly bolstering the historical record with Black Codes, which he characterized as discriminatory anti-poaching laws meant to target African Americans.

Neal Katyal, attorney for respondents, took a different tack. Katyal framed the debate as centering on two legal rights: the right to bear arms and the property right to exclude. The right to bear arms, Katyal argued, is insufficient to establish implied consent onto private property. Allowing states flexibility to balance both rights as “laboratories” of democracy, he contended, is the most prudent approach in adapting to a post-Bruen world.

The Holding

The court held that the restrictions imposed by Hawaii’s law fell within the plain text of the Second Amendment. The law departed sharply from the standard common law rule on access to private property held open to the public. Under the common law rule, everyone, including those lawfully carrying firearms, could enter unless expressly prohibited from doing so. The Hawaii law flipped the script: no one carrying a firearm could enter private property open to the public without the property owner’s express authorization.

At the outset, the court noted that owners of establishments that are open to the public can admit or exclude people who are carrying guns for self-defense under either the common law or Hawaii law.

But the new law “unquestionably imposes a new and significant burden on the exercise of the right recognized in Bruen.” The historical analogues proffered by Hawaii do not support the constitutionality of its new default rule.

Justice Elena Kagan dissented, writing that the Hawaii law is a “modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property.”

Justice Ketanji Brown Jackson dissented, joined by Justice Sonia Sotomayor, writing that this case is not about the Second Amendment, but rather a property rights issue, and as such, the law is constitutional as it preserves private property owners’ rights to exclude people from their property.

Charles “Cully” Stimson is acting director of the Institute for Constitutional Government, senior legal fellow, and manager of the National Security Law Program at The Heritage Foundation.

Reprinted with Permission from The Daily Signal – By Cully Stimson

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.