The Supreme Court will hear another significant gun rights case on Tuesday when it weighs a challenge to a sweeping Hawaii gun law preemptively barring people from carrying guns on private property.
Hawaii’s Act 52, enacted in 2023, bans handgun owners who have a concealed carry permit from bringing their weapon onto private property unless the owner or manager has given the person “express authorization to carry a firearm on the property.” Gun rights advocates have claimed the law is too sweeping and violates the Second Amendment, while anti-gun advocates frame the dispute as a matter of private property rights.
Gun rights advocates view the law as an attempt to outlaw public concealed carry
The Supreme Court’s landmark June 2022 decision in New York Rifle & Pistol Association v. Bruen upheld the Second Amendment’s right to bear arms by striking down a sweeping New York law that required a person to show “proper cause” to be given a permit to carry a concealed handgun in public. The holding in Bruen found that gun laws must conform with the history and tradition of the country’s firearm regulations.
Justice Clarence Thomas wrote for the 6-3 majority that “the constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
With the Hawaii law at the center of the dispute in Wolford v. Lopez, the coalition of gunowners suing the state argues that Act 52 fails the Bruen test. Their brief to the high court said the lower appeals court cited two “outlier state laws separated by almost a century” to justify upholding the law at the center of the case.
“One law was limited to private lands closed to the public and was a racist statute enacted by a former Confederate state prior to being readmitted to the Union and was designed to strip former slaves of their right to bear arms. The second law was a single Founding era law that the court thought was a ‘dead ringer’ but, in fact, was enacted as a hunting regulation to punish poaching on private land not held open to the public,” the brief said.
“Neither of these outlier laws is relevantly or distinctly comparable in the ‘how or why’ to the Hawaii default rule. Even taken together, these two outlier laws do not amount to a well-established, representative or enduring national tradition that could justify Hawaii’s default rule,” the brief continued.
The brief also warned that the law prohibits or creates “a presumption against carrying in 96.4% of the publicly accessible land in Hawaii,” and it pointed to the broad New York law overruled in Bruen as being similar to Act 52.
“Such a rule, the Court explained, swept ‘far too broadly’ because it ‘would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.’ Thus, the government may not ban arms simply because the public may ‘congregate’ or gather in a location,” the brief said.
“Hawaii has gone much further, effectively banning firearms in public for the entire State,” the brief continued.
The lawsuit has garnered support from several gun rights groups, with various organizations filing briefs in support of the coalition of Hawaii gunowners seeking to strike down the Aloha State’s Act 52. Many of the briefs argue that the sweeping nature of the law is what makes it plainly unconstitutional.
Michael Williams, general counsel for the pro-gun group American Suppressor Association, previously told the Washington Examiner the law at the center of the case makes it “basically impossible for anybody who wants to be law-abiding to actually exercise their constitutional right to bear arms outside the home.”
The coalition of gunowners also received backing from the Trump administration, with the Department of Justice filing a brief in support of striking down the law and receiving time to argue that position before the justices on Tuesday.
“Hawaii’s restriction is blatantly unconstitutional as applied to private property open to the public. States cannot evade Bruen by banning public carry through indirect means. History establishes that firearms regulations are per se unconstitutional if they are designed to thwart the right to publicly carry arms, or if they effectively negate the right,” the DOJ’s brief said.
The Justice Department explained in its brief how the law puts gun owners at risk in most publicly open places.
“In Hawaii, public-carry licensees who stop for gas with a pistol in the glove compartment risk a year in prison if they fail to obtain the gas-station owner’s unambiguous consent. The same goes for licensees who run errands at grocery stores, dine at restaurants, or stop to buy coffee. A mere nod from the property owner—or an insufficiently conspicuous sign—puts license-holders at risk of prosecution even if the owner welcomes firearms but failed to express his approbation clearly enough,” the brief said.
Anti-gun advocates believe the law upholds private property rights
While gun rights advocates have argued the law is plainly unconstitutional, Hawaii officials and anti-gun advocates have argued it falls in line with other laws restricting activities on private property.
“Hawai’i’s law therefore respects the Second Amendment right of its citizens to bear arms, while vindicating their fundamental right to exclude unwanted entry onto private property,” Hawaii Attorney General Anne Lopez said in a brief to the high court.
Lopez argued in her brief to the Supreme Court that the state law aimed to balance “both the right to bear arms and property owners’ undisputed right to choose whether to permit armed entry onto their property.”
“The resulting law requires a person to obtain consent to bring a gun onto private property. That consent can come from the property owner or one of his agents, and it can be oral or written,” Lopez said.
“The law therefore permits a person to bring a gun into any shop, convenience store, or other retail establishment so long as he gets an employee’s on-the-spot okay. And if a property owner wants to dispense with the need for a conversation, he can post a sign or website notice reflecting his consent,” Lopez added.
Anti-gun groups have also defended the law as being more about setting default rules for private property, rather than an attempt to infringe on Second Amendment rights.
“At the core of this private property right is the right to exclude, to tell others to stay off your private property, or to limit what they can do there. Hawaii’s law that’s under attack here in the Supreme Court is part, an integral part, of the long history of laws supporting that right,” Douglas Letter, chief legal officer for the anti-gun group Brady, told reporters ahead of Tuesday’s arguments.
“States have frequently set default rules, like Hawaii’s, that require a private property owner’s permission to do certain things on that private property, to hunt, for example, or graze cattle,” he added. “The basic principle is that private property owners are empowered to set the rules for their property, and the state can make it easier for those private property owners to do so.”
SUPREME COURT COULD LOAD UP ON GUN CASES THIS TERM
The Supreme Court will hear arguments in Lopez at 10 a.m. Tuesday, after the high court issues an order list at 9:30 a.m. and is expected to release at least one ruling ahead of the beginning of oral arguments.
A ruling in the case is expected by the end of June, when many of the other hotly contested cases of the Supreme Court’s current term will also be decided.