How far can a state go to regulate the right to bear arms? Can a state override a person’s property rights? Can Hawaii proactively prohibit lawful gun owners from carrying on private property without the owners’ prior consent? That is the question in the Supreme Court case Wolford v. Lopez.
Presumptuous State
Lord Acton once said “Power tends to corrupt and absolute power corrupts absolutely.” So when I see a state presumptuously use its power to corrupt people’s property rights, it gets my attention. The question of property rights is the first of the two questions presented in this case, and that will be the focus of this piece.
The questions presented are:
1. Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, 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?
2. Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?
Wolford v. Lopez – Petition for Certiorari
Can a state tell private property owners that carrying a firearm on their property is presumed to be prohibited? Or does the right to bear arms mean a presumption of permission unless the property owner says otherwise? Let’s get to the arguments.
ALAN A. BECK, behalf of the Petitioners.
As always, arguments begin with the attorney for the petitioners, Alan Beck.
MR. BECK: Mr. Chief Justice, and may it please the Court:
Bruen holds the Second Amendment protects the right to publicly carry firearms. By banning people from carrying firearms on private property that is open to the public unless they first obtain affirmative permission, Hawaii has run roughshod over that constitutional right. The presumptive ban clearly implicates the Second Amendment’s plain text because it regulates arms-bearing conduct. As such, the burden is on Hawaii to justify the presumptive ban with relevantly similar historical analogs reflecting a national historical tradition of firearms regulation.
Hawaii comes nowhere close to carrying the burden. Its presumptive ban defies a national tradition allowing people to carry onto private property open to the public unless the owner objects. Hawaii’s threshold position that this Court should adopt a state-by-state community standard lacks support in this Court’s precedent, and Hawaii’s argument the laws of the Kingdom of Hawaii should determine Petitioners’ Second Amendment rights is completely without merit.
Wolford v. Lopez – Oral Arguments
Mr. Beck’s argument focuses on the Bruen decision and the presumption of constitutionality included in that decision. While that is important information, it is not the focus of this article.
NEAL K. KATYAL, on behalf of the Respondent.
We go on to the arguments for the respondent, Mr. Lopez the Attorney General of Hawaii. The arguments are presented by Mr. Katyal.
MR. KATYAL: Thank you, Mr. Chief Justice, and may it please the Court:
This case is about two fundamental rights, the right to bear arms and the property right to exclude. And there’s lots of agreement among how — among the parties about how those rights interact. Everyone agrees there’s a right to carry on private property if the owner wants guns on his property. That was elicited by Justice Sotomayor to my friends. And everyone also agrees there’s also no such right if the owner doesn’t want guns.
The only question is whether there’s a Second Amendment right to assume the owner wants guns on his property when he’s been — when he’s been silent. There is not. There is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun.
The Constitution protects the right to keep and bear arms. It doesn’t create implied consent to bring those arms onto another’s property. At bottom, that is Petitioners’ theory, and yet they have zero support for this, zero support from the founding or for the next 200 years, no treatise, no commentator, no court.
Wolford v. Lopez – Oral Arguments
Sounds like a solid argument. However, there are plenty of holes in it when you start digging into the details.
Rights in Conflict
This case clearly revolves around two rights in conflict, the right to bear arms and private property rights. What happens when these two rights are in conflict?
JUSTICE SOTOMAYOR: All right. So you say that there is a constitutional right to carry a gun on private property?
MR. BECK: Yes, Justice.
JUSTICE SOTOMAYOR: I’ve never seen that right. I mean, I understand that there is a right to carry a gun on private property with an owner’s consent, express or implicit, correct?
MR. BECK: The Second Amendment —
JUSTICE SOTOMAYOR: My question is very simple. Is there a constitutional right to enter private property with a gun without an owner’s express or implicit consent? The answer has to be simply no. You can’t own — enter an owner’s property without their consent, correct, express or implicit?
MR. BECK: Correct, because that would be a trespass, Your Honor.
Wolford v. Lopez – Oral Arguments
I don’t know if she realized it, but Justice Sotomayor just opened a crack in Hawaii’s case. You cannot enter private property without the owner’s consent. The real question of this case is, can Hawaii determine implied consent?
There is an implied consent that people can enter private property for legitimate purposes. Without that implied consent you could not receive deliveries at your door, Girl Scouts could not sell you cookies, and your neighbor could not come to ask to borrow a cup of sugar. This implied consent is expanded when someone opens their private property for public access; think of a retail store, a museum, or a church. Of course this implied consent can be terminated by the property owner.
JUSTICE BARRETT: But do you agree that all of the business owners and — and maybe also private property owners in Hawaii could get together and say we don’t want this, and they could not give consent — let’s say the law is — is flipped, says it’s — it’s illegal to enter if you have been denied permission to carry a gun on the property.
You agree that all property owners could get together and say: We’re denying permission and they could put such, you know, placards up in their window and then you would still not be able to carry a gun on 97 percent of the property in Hawaii?
MR. BECK: Yes, Justice. Everyone — every private property owner has the right to affirmatively put up a sign or otherwise not give permission for people to enter a property with a firearm.
The crux of our argument is that Hawaii has flipped that historical default from them having to affirmatively say guns are not allowed here to the current law.
Wolford v. Lopez – Oral Arguments
It seems to me the issue isn’t the historical default, but the question of implied consent. I’ll talk more about this in the section Second Class Right.
Justice Jackson asked Sarah Harris, Principal Deputy Solicitor General, Department of Justice, about the Second Amendment issue.
JUSTICE JACKSON: But, Ms. Harris, can we just be a little bit more specific about the Second Amendment right that you say is being infringed here? This is — the — the point that I guess I’m still stuck on is whether or not, in a world in which we all concede — and I think the United States is on board with this — that the Second Amendment yields to the property interests of a private property owner such that the private property owner gets to consent as to whether or not you can carry a gun on his property, when we’re in that world, what Second Amendment right is being infringed when the property owner says no or when the state says the property owner’s consent has to be expressed?
Wolford v. Lopez – Oral Arguments
There is a world of difference between the two scenarios Justice Jackson put forth. When a property owner says no, they are exercising their property rights. When the state says your implied consent doesn’t not extend to the right to bear arms, they are infringing on the right by treating it as a Second Class Right.
Private vs Public
During questioning, Justice Barrett brought up the question of public vs private property.
JUSTICE BARRETT: Counsel, do you agree that the state as property owner could exclude someone, not — not this implied consent law, but let’s say that the state as property owner — put aside the fact that the sensitive places here include state-owned property. Assume that that’s not so.
Could the state as a property owner say that you can’t carry a gun onto state-owned property as a matter of consent under property law?
MR. BECK: No, Your Honor. I think that’s a different analysis because —
JUSTICE BARRETT: Okay. Why?
MR. BECK: — now we’re dealing with direct state action.
Wolford v. Lopez – Oral Arguments
This question is more important that it may seem at first, because it gets into the question of public ownership. Governments, as in state, local, and federal, own property, and like any other man-made entity or “artificial person” as used in the law, they hold that property in trust for the people they represent. The state may own the property, but it was paid for by the people of the state, making them the ultimate owners. As such, they do not have the private right to determine usage, since the people who are in government are representatives of the people. This means the states are bound by the constitution of both their state and the United States, which says that right of the people to bear arms shall not be infringed.
What about private property that is open to the public? That is commonly referred to as a place of public accommodation.
CHIEF JUSTICE ROBERTS: We’ve been talking about private property and public property. A gas station on the side of the highway is private property. It’s owned by the gas company or whatever.
A — is — is — do you assume that you have the right to go on that private property even without an express permission?
MR. BECK: Yes, Your Honor.
CHIEF JUSTICE ROBERTS: Even though it’s private property?
MR. BECK: Yes, absolutely, Your Honor.
CHIEF JUSTICE ROBERTS: Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets about a particular —
MR. BECK: Yes, Your Honor, up until — up to the doorknob or — yeah, there is.
CHIEF JUSTICE ROBERTS: Even though it’s private property?
Wolford v. Lopez – Oral Arguments
As I’ve already stated, when you open a place to the public you extend an implied right to enter the property. Be it a gas station or a Walmart, it is implied you have permission to enter. But does that permission include carrying a firearm?
Second Class Right
This is where we see the Second Amendment treated as a second class right.
JUSTICE KAGAN: So suppose —
CHIEF JUSTICE ROBERTS: Well —
JUSTICE KAGAN: — there were a — a state that said: We’re going to flip the default rule so that you cannot leaflet in shopping centers unless you secure permission first.
MR. KATYAL: Yeah.
JUSTICE KAGAN: Would that be constitutionally problematic or not?
MR. KATYAL: The — the — the problem there is that oftentimes, in the First Amendment context, the First Amendment rules are different than the Second Amendment because they forbid content discrimination and viewpoint discrimination. And a leafleting law often will have some sort of illicit thumb on the scale for a certain set of viewpoints.
Wolford v. Lopez – Oral Arguments
I wish to remind Mr. Katyal that the first five words of the First Amendment are “Congress shall make no law…”. So a law that Justice Kagan describes, where a state restricts the distribution of leaflets, cannot violate the First Amendment, because Congress did not make the law. But notice the underlying premise: Your implied consent to enter private property includes First Amendment protections, but not Second Amendment ones.
And it strikes me that one of the things that your side of the case has to come to grips with is that it is a very clear constitutional right under the First Amendment if I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, you know, give me your vote, that’s exercising a First Amendment right.
But you say that it’s different when it comes to the Second Amendment, that you can walk up — one of the candidates wants to walk up and he’s carrying a gun, is — is — what — what exactly is the basis for the distinction?
Because part of, again, what — what our precedents talk about in this area is that the Second Amendment has been treated as sort of, you know, a second-level right. And that’s one area where I — given this law, I don’t really see the basis for the distinction.
MR. KATYAL: So we totally agree, the Second Amendment has no disfavored right. At the same time, there are rules about the Second Amendment and I think rules that this Court laid down in Bruen in which you’ve said the relevant question is whether or not the scope of the Second Amendment’s text as informed by history would say that there is a violation of the right.
Wolford v. Lopez – Oral Arguments
“[W]e totally agree, the Second Amendment has no disfavored right, but here are the rules that disfavor it. This argument would be laughable if it wasn’t so serious. Justice Barrett took this arguments further.
JUSTICE BARRETT: — one more question. So let me take it out of the First Amendment for you. I mean, let — let’s pretend that public accommodation laws don’t exist. Because the Fourteenth Amendment doesn’t apply to private action, only state action, let’s say that a state, in the absence of public accommodation laws, decides to flip the default and say, unless the owner affirmatively consents, black people cannot enter your home.
MR. KATYAL: Yeah. So I think that’s a — that’s one which would be unconstitutional —
JUSTICE BARRETT: Why?
MR. KATYAL: — every day of the week because it would violate the Equal Protection Clause because the government on its face is making a racial classification. So —
JUSTICE BARRETT: Because there’s state action in the way the government is adjusting its property defaults?
MR. KATYAL: Absolutely.
JUSTICE BARRETT: Even if there’s a long history and tradition, say, in Louisiana —
MR. KATYAL: Yeah.
JUSTICE BARRETT: — of this kind of discrimination at the doorstep?
MR. KATYAL: Right. It would still violate the equal protection.
JUSTICE BARRETT: Why isn’t there state action here when the state is flipping the default? It’s not just a matter of property law.
Wolford v. Lopez – Oral Arguments
Why is state action a violation of equal protection for race, but not firearms? After all, if the Constitution is the supreme law of the land (Article VI, Clause 2), shouldn’t it apply equally in such cases? Mr. Katyal’s response to this line of questioning truly shows the arrogance and overreach of the State of Hawaii.
MR. KATYAL: Right. Our point is not whether there’s state action or not. It’s that there’s no underlying right. My friend assumes — has — has conceded this. He said there is no right to come onto private property absent consent. And so the only question is whether the state can fill in the conditions —
JUSTICE BARRETT: Yeah, there’s no right —
MR. KATYAL: — of that consent.
Wolford v. Lopez – Oral Arguments
Notice the language switch? No one argues that you have no right to enter private property without consent, that is not a question here. The question is, does Hawaii have the power to determine the level of consent necessary to enter private property? Put another way, does any state have the legal power to control access to your property for you?
Justice Alito helped Mr. Katyal bury this second class right argument even deeper.
JUSTICE ALITO: Mr. Katyal, you’re just — you’re just relegating the Second Amendment to second-class status. I don’t see how you can get away from that. If someone owns a store — or let’s say it’s a little restaurant and this person has very strong political opinions and does not want anybody in that restaurant who is wearing attire that is expressing approval of a particular political candidate. That person — the owner of that store — restaurant has the right to say you can’t come in, right?
MR. KATYAL: Yes.
JUSTICE ALITO: All right. Now could Hawaii enact a statute that says that if you are wearing the attire, attire expressing approval of a particular political candidate, you can’t come in unless you get express consent from the owner of the restaurant?
MR. KATYAL: Again, that’s viewpoint discrimination and prohibited by —
JUSTICE ALITO: It’s a violation of the First Amendment. We have a violation of the First Amendment and what is — and a violation of the right that the Court held is protected by the Second Amendment in Bruen, which is the right of law-abiding citizens to carry a firearm for purposes — outside of the home for purposes of self-defense.
MR. KATYAL: I quite agree with much of what you’re saying. I think what’s the difference is that the Second Amendment, it’s not a second-class right. It just has — doesn’t have the same components of viewpoint discrimination or antidiscrimination for the Fourteenth Amendment. And it’s just not in the Second Amendment.
Wolford v. Lopez – Oral Arguments
“[T]he Second Amendment, it’s not a second-class right. It just has — doesn’t have the same components of viewpoint discrimination or antidiscrimination for the Fourteenth Amendment.” Why not just claim “separate but equal” when it comes to these rights? I guess the viewpoint of the right to carry firearms doesn’t count for Mr. Katyal. Justice Jackson seemed to try to throw Mr. Katyal a lifeline.
JUSTICE JACKSON: And what you’re saying, I think, is that there is no Second Amendment right to assume implicit consent.
MR. KATYAL: Yes.
Wolford v. Lopez – Oral Arguments
There’s not a Second Amendment right to implicit consent, but it does require that right not to be infringed. Besides, there is a Fifth and Fourteenth Amendment right for the property owner not to have the state decide for him who shall and shall not be allowed on his property.
Conclusion
It seems rather obvious, based on this and other laws, that the lawmakers in Hawaii really do not like the Second Amendment. Since those lawmakers were elected by the people of Hawaii, I can only surmise that they don’t like the Second Amendment much either. Justices Thomas and Alito made this point during questioning of Mr. Beck.
JUSTICE THOMAS: You argue that this law prevents access to about 97 percent of public areas. How do you arrive at that?
MR. BECK: We’re not arguing that this specific law is banning 97 percent, Your Honor. The overall package of laws passed by Act 52 bans — presumptively bans carry on 96.4 percent, and we arrived at that figure by having a architecture firm do a — go through the public records of the County of Maui to determine which areas were regulated by this package of laws, Your Honor.
Wolford v. Lopez – Oral Arguments
Ninety six point four percent of the public areas of the State of Hawaii prevent access to anyone, any civilian, who carries a firearm. Remember law enforcement is not prohibited from carrying firearms in these locations, only civilians. So it appears that Hawaii just has it out for the Second Amendment, and Justice Alito nailed that point.
JUSTICE ALITO: Under Hawaii law, are there any other objects besides guns that a person may not possess when that person enters private property that is open to the public?
MR. BECK: Not to my knowledge, Your Honor.
Wolford v. Lopez – Oral Arguments
This seems to be a clear case of attempting to demote the Second Amendment from its rightful place as the supreme law of the land. It also seems to be an example of Hawaii trampling property rights. If someone doesn’t want hunters, solicitors, or trespassers of any kind on their property, all they have to do is post a sign. Why should the rights to keep and bear arms be any different?
