In what would be a major victory for Second Amendment advocates, the Supreme Court appears likely to strike down a Hawaii law that functions as a de facto blanket ban on concealed carry rights. The decision could also effectively nullify similar laws in other liberal cities and states.
On January 20, the Supreme Court heard arguments in Wolford v. Lopez, a case concerning Hawaii’s limits on concealed carry. Under current law in the Aloha State, it is illegal for an individual with a concealed carry license to carry their firearm on private property that is open to the public without “express authorization” from the property owner.
For instance, if an individual with a concealed carry license carries his firearm into a gas station or a grocery store without seeking explicit permission from the property owner in advance, he or she would technically be in violation of state law. The plaintiffs in the case argue that this restriction is a backdoor gun ban and constitutes a violation of the Second Amendment.
The law in question in the Wolford case is a response to the Supreme Court’s ruling in the 2022 case New York State Rifle and Pistol Association v. Bruen. In that case, the Court held that New York’s requirement that applicants show “proper cause” to obtain a license to carry a handgun in public violated the Second Amendment.
Justice Clarence Thomas, writing for the majority, opined that the right to “keep and bear arms” protects carrying firearms outside the home for self-defense and that governments may regulate guns only if their laws are consistent with the nation’s historical tradition of firearm regulation.
The Bruen decision struck down “may-issue” permitting schemes then present in many liberal states that gave officials broad discretion to deny carry permits and reshaped Second Amendment analysis nationwide.
Following Bruen, Hawaii rewrote its laws to nominally allow for concealed carry – thus appearing to comply with the ruling – but disallowed gun owners from actually carrying their firearm “unless the property owner has given express consent for the carrying of guns,” according to a summary by theNational Rifle Association’s website.
Subsequent legal challenges by Second Amendment advocates led the case to the Supreme Court – where a majority of justices seem ready to rule against Hawaii’s scheme.
“[V]irtually all of the court’s six Republican appointees seemed to agree with the challengers,” Amy Howe wrote for SCOTUSblog, a center-left legal commentary website.
Howe detailed how at least five of the right-leaning justices, save for Justice Amy Coney Barrett, were skeptical of Hawaii’s arguments.
Chief Justice John Roberts said the Second Amendment had been treated as a “disfavored right” in past cases. Roberts further compared Hawaii’s law to a hypothetical situation where political candidates had to get explicit permission to knock on someone’s door to ask for their vote, arguing this would clearly violate the First Amendment.
Joining in on the criticism, Justice Samuel Alito said Hawaii was “relegating the Second Amendment to second-class status.” Justice Brett Kavanaugh had an even blunter statement: “Here, there’s no sufficient history supporting the regulation. End of case.” He also told the challengers their case seemed “simple.”
“When you’re looking for a historical tradition that justifies an exception to the textually expressed right, it has got to be a deeply rooted tradition, broadly consistent over time and broad among a lot of states,” Kavanaugh said.
“You don’t have anything like that here,” Kavanaugh added, referencing the lack of historical support for Hawaii’s laws. “So just kind of, from your perspective, it’s pretty simple.”
Shockingly, one of the scant historical references Hawaii mustered up to defend its laws was the racist codes that restricted the rights of black Americans following the end of the Civil War.
Louisiana once had a law similar to Hawaii’s, which prohibited freed slaves from bringing guns onto a plantation property without the plantation owner’s consent. The law was part of the “Black Codes,” which were meant to restrict the rights of freed slaves.
Justice Alito pointed out that siding with those who opposed the rights of freed black Americans only underscores how gun restrictions are a violation of constitutionally protected liberties.
“They wanted to disarm the black population in order to help the Klan terrorize them and law enforcement officers in that period in that region,” Justice Alito said. “They wanted to put them at the mercy of racist law enforcement officers.”
“So, is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right, to cite this as an example of what the Second Amendment protects?” he asked an attorney for the state of Hawaii.
Justice Neil Gorsuch also picked up on this point during the hearing. “I want to understand how you think Black Codes should inform this Court’s decision-making,” he said, calling it an “astonishing claim.”
“So, the Black Codes are undoubtedly a shameful part of our history,” Hawaii’s attorney Neal Katyal admitted. “But that doesn’t at all mean that this particular law is irrelevant to Second Amendment analysis.”
However, these laws should not form the basis of Second Amendment jurisprudence, as a former Department of Justice attorney and legal scholar argued.
“[H]istorical outliers like the discriminatory Black Codes cannot be used to justify a state government violating explicit provisions of the Bill of Rights, including the Second Amendment,” Hans von Spakovsky wrote in his analysis of the case for National Review.
“What’s next? States arguing that the restrictive laws that were passed to prevent black Americans from registering and voting after the end of Reconstruction would justify tossing out the Equal Protection Clause of the 14th Amendment,” he asked rhetorically.
Though the Court’s final decision likely won’t be handed down until this spring, the tone of the arguments suggests that the originalist majority is set to deliver another victory for preserving Second Amendment freedoms.
Matt Lamb is a contributor for AMAC Newsline and an associate editor for The College Fix. He previously worked for Students for Life of America, Students for Life Action, and Turning Point USA. He previously interned for Open the Books. His writing has also appeared in the Washington Examiner, The Federalist, LifeSiteNews, Human Life Review, Headline USA, and other outlets. The opinions expressed are his own. Follow him @mattlamb22 on X.
