On June 25, the U.S. Supreme Court invalidated a Hawaii law that sought to ban the carrying of firearms (including licensed concealed carry) on private property open to the public, unless the carrier obtained affirmative permission from the property owner. In doing so, the High Court set the island jurisdiction straight on what takes precedence in American constitutional law: the Second Amendment or “Aloha Spirit,” as reflected in the 19th-century decrees of King Kamehameha III. The case was Wolford v. Lopez.
While Wolford reversed a judgment from the Ninth Circuit Court of Appeals, it also settled a score left open by the Hawaii Supreme Court case State v. Wilson. The Wilson decision made an unseemly point of mocking the U.S. Supreme Court’s Second Amendment jurisprudence in resolving a case under Hawaii’s own constitutional right to arms. The High Court passed on reviewing Wilson itself, but Justices Thomas and Alito and, separately, Justice Gorsuch issued statements that indicated the Hawaii court’s disrespect did not go unnoticed. As we wrote at the time: “The court of last resort, in maintaining its judicial dignity and decorum, sometimes speaks softly. But it always gets the last word.”
That word came in a majority opinion written by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The proponents of the Hawaii law attempted to defend it by, among other things, recharacterizing it as a state property law issue, rather than a Second Amendment one.
According to Hawaii, it is uncontested that private property owners can exclude individuals from their land, including because they are carrying guns. And the state has the authority to determine default rules for property law. All its law did, Hawaii claimed, was change the normal default rule as it applies to lawfully armed individuals entering publicly accessible private property. Rather than assuming they were welcome, the rule assumed they were unwelcome, consistent with a “Hawaiian tradition … that Hawaiians disfavor the carrying of guns in their midst.”
Or, as the Wilson case put it, “The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”
The Supreme Court’s majority, however, was having none of it. According to Justice Alito’s opinion:
the Second Amendment has the same meaning in all parts of the United States. … It cannot give way to “the spirit of Aloha” in Hawaii, contra, State v. Wilson, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald).
Wolford thus establishes it’s not a good idea to try to justify a gun control in the face of a Second Amendment challenge by admitting its motivation is the jurisdiction’s “long history of antipathy to the private possession of firearms.”
The Court also brushed aside the rationale that the regulation merely concerned rules about private property, not about carrying guns. To illustrate the fallacy of this argument, Justice Alito invoked another character from Second Amendment lore, Jaime Caetano. Ms. Caetano was at the center of a Massachusetts Supreme Judicial Court opinion on the Second Amendment that was so wrong and poorly written that it was summarily reversed by the entire U.S. Supreme Court without even the formality of oral argument.
In Wolford, Justice Alito portrayed Jaime Caetano as the distressed damsel of a concealed carry scenario in which she is thwarted at every turn as she tried to go about her day in Hawaii, even though she is being menaced by her violent ex-boyfriend. The example made clear that the practical effect of Hawaii’s “property rule” was to abolish the right to carry recognized in Bruen.
Those who can read between the lines will discern an important takeaway from the Wolford opinion and its revisitation, not just of the U.S. Supreme Court’s 21st-century Second Amendment precedents, but of these examples of defiant state courts. Simply put: The High Court is manifestly fed up with anti-gun states ignoring the letter and spirit of its holdings on the fundamental right to keep and bear arms.
Yet another Hawaii gambit that did not fly with the majority was the state’s invocation of racist Black Codes from the post-Civil War South to try to illustrate a “historical tradition” that would support the challenged rule. The Court effectively took these sorts of laws off the table for use in illustrating the supposed scope of the Second Amendment.
“[T]here is another reason for rejecting Hawaii’s reliance on this statute,” Alito wrote. “[I]t provided a tool for disarming blacks and thus leaving them defenseless against attacks.” Yet this was directly at odds with both the Second and Fourteenth Amendments, as the Congress which enacted the latter did so in the context of “call[ing] for protection of the right to keep and bear arms for self-defense“ in exactly this situation.
Justice Barrett wrote a concurrence expanding upon this theme, joined in relevant part by Justices Thomas and Gorsuch. “It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction,” she wrote.
Finally, the majority also rejected Hawaii’s attempt to use what were essentially anti-poaching laws as analogues to its present-day anti-carrying-for-self-defense law. As Justice Alito’s opinion put it:
To test whether these analogues are “relevantly similar” to the challenged Hawaii law, we may ask the question set out earlier: “Because it was accepted that prohibiting unauthorized hunting on private land was consistent with the Second Amendment right, can we infer that it is also consistent with that right to ban a person who is lawfully carrying a concealed handgun for self-defense from entering a gas station, coffee shop, grocery store, or other private property open to the public without express and unambiguous consent?” The question answers itself.
At the end of the day, Wolford concerned a narrow legal issue, one adopted in only five of the same jurisdictions, Justice Alito pointed out, that issued concealed carry permits on a discretionary basis at the time of Bruen. For most keen observers of Second Amendment case law, the outcome of Wolford was virtually a foregone conclusion. The Second, Third, and Fourth Circuits (historically no friends to the Second Amendment) had already invalidated various versions of the rule in New York, New Jersey, and Maryland. Only the legendarily anti-gun Ninth Circuit would have allowed California’s version of the law to be enforced.
Yet the case is also highly significant for what it says about defiance of the Second Amendment; couching gun control in other legal principles; and use of odious Black Codes designed to thwart the Second Amendment rights of freed slaves as a modern template to thwart the same rights for all.
There is a reason gun control supporters went 0 for 2 this term at the Supreme Court, lowering their overall win-loss record for 21st-century Second Amendment cases to a dismal 1 to 6.
One can only hope the Court’s stern tone in Wolford reflects a determination to continue righting the many wrongs against the right to keep and bear arms still being perpetrated by rebellious anti-gun states.
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