Who decides who can carry a firearm onto your property and under what conditions? Does the Second Amendment presume permission or restriction? According to the Hawaiian legislature, they decide who carries and presumes restriction.
Background
The State of Hawaii has a history of antagonism against the Second Amendment and the people’s right to keep and bear arms.
For years, the State of Hawaii made it almost impossible to obtain a license to carry a firearm. Four years ago, however, this Court held in New York State Rifle & Pistol Assn., Inc. v. Bruen, .., that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense. Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result. At issue in this case is a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner.
Wolford et al. v. Lopez, Attorney General of Hawaii
Who gets to decide when someone is allowed to carry on your private property, you or the State? According to the Hawaii legislature, people need expressed affirmative consent from the owner to carry on their property. This means, before you walk into a convenience store, doctor’s office, or even a parking lot, you need express, affirmative proof that you have the owner’s permission.
EXPRESS. That which is express is laid out in words.
EXPRESS – The Free Legal Dictionary
AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative.
AFFIRMATIVE – The Free Legal Dictionary
Imagine requiring proof you have permission to enter a business open to the public. What if they don’t like the saying on your T-Shirt, or the color of your pants, or the fact that you have a child in a stroller? Yes, private property holders can deny access in any of these cases, but nowhere does a legitimate government require proof of permission to exercise your freedom of speech, press, or liberty before entering a publicly accessible location.
Hawaii’s new rule imposes severe restrictions on the daily activities of residents who have satisfied the State’s rigorous requirements for the issuance of a carry permit. When these permit holders leave home, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, restaurants, and stores. This law flips the default rule at common law, under which anyone has an implied license to enter property held open to the public unless the property owner withdraws consent.
Wolford et al. v. Lopez, Attorney General of Hawaii
No one is saying that property owners cannot prohibit those carrying firearms from entering their property. All they have to do is post a sign at the entrances with the infamous no-guns image. However, what Hawaii is trying to do is turn public access upside down, but only for those who exercise their rights under the Second Amendment.
In District of Columbia v. Heller, … this Court held that the Second Amendment protects an individual right to keep and bear arms, with the Amendment’s “central” concern being the fundamental right of self-defense. … Heller instructed courts to ascertain the scope of the right by looking to history and emphatically rejected an ahistorical “judge-empowering ‘interest-balancing inquiry.’ ”
Wolford et al. v. Lopez, Attorney General of Hawaii
According to the court, the central concern of the Second Amendment is the right to self-defense. That is partially true, since the Second Amendment also clearly states that a State’s militia is necessary to its security.
Petitioners—three residents of Maui County who possess concealed-carry permits and an organizational plaintiff with members who have such permits—filed suit in federal court seeking temporary and permanent injunctive relief, contending that the law at issue violates their constitutional rights. The District Court enjoined enforcement of the law as applied to private property open to the public, but the Ninth Circuit reversed that injunction.
Wolford et al. v. Lopez, Attorney General of Hawaii
The three resident petitioners sued in federal court, claiming Hawaii’s law violated their rights protected by the Constitution of the United States. Personally, I think there’s more to this case, but let’s start with what the court found.
Second Amendment
As the court points out, Hawaii’s law plainly falls within the text of the Second Amendment.
The restrictions imposed by Hawaii’s challenged law fall within the plain text of the Second Amendment, so the law is presumptively unconstitutional. No party disputes that petitioners are among “the people” protected by the Second Amendment or that they seek to “bear” “Arms.” Therefore, “the plain text of the Second Amendment protects” what petitioners want to do: carry handguns for self-defense.
Wolford et al. v. Lopez, Attorney General of Hawaii
So the petitioners want to bear arms, including in publicly accessible areas of private property. But what about the owner’s property rights?
To be sure, owners of establishments that are open to the public can admit or exclude persons who are carrying guns for self-defense under either the common-law rule or Hawaii’s law. But Hawaii’s shift from the common-law rule unquestionably imposes a new and significant burden on the exercise of the right recognized in Bruen.
Wolford et al. v. Lopez, Attorney General of Hawaii
As I mentioned before, any property owner who does not want people to be armed on their property merely needs to post a sign to that effect. In some states, violating that sign is merely trespass, while other states treat such violations as crimes. What about the reverse though? Would people post a sign saying permit holders are welcome to carry on the premises?
For example, proprietors who do not object to entry by carry-permit holders may be reluctant to post welcoming signs for fear of alienating customers.
Wolford et al. v. Lopez, Attorney General of Hawaii
Funny how the court, like so many people, isn’t worried about alienating customers by telling them they are not allowed to carry on their premises. I have pointed out to several establishments the business I would not do with them because I was not welcome to carry on their premises.
So under Hawaii’s new default rule, a proprietor in this category may only be willing to consent discreetly to the entry of permit holders who make the effort to inquire. This arrangement imposes a new burden on permit holders who will have to somehow obtain permission to carry a firearm on the property before stepping foot on it. The law severely hampers the ability of law-abiding citizens to exercise the right Bruen recognized as they go about their daily lives.
Wolford et al. v. Lopez, Attorney General of Hawaii
For those of you who do not carry firearms, consider this. You’re going about your daily life; doctor appointments, shopping, possibly stopping for a bite of lunch. At every location you enter, you first look for a “No Firearms” sign, and avoid any locations that have them. Now you’re in Hawaii, going about your business as before. Now, however, you cannot enter any business until you have proof that you have explicit permission to enter. While this law does not prohibit bearing arms in public, it makes it practically impossible to do so without violating the law.
Hawaii claimed there are historical analogues to this law. The court disagreed.
Hawaii’s argument that its “particular customs and laws,” … support the new default rule fails because the Second Amendment has the same meaning in all parts of the United States. The Second Amendment cannot give way to “the spirit of Aloha” in Hawaii, … any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.
Wolford et al. v. Lopez, Attorney General of Hawaii
The Fourteenth Amendment argument mentioned here is nothing more than the ongoing devotion to an unfounded decision by the court in the case Barron v. Mayor & City Council of Baltimore. I discussed this case in my article The Incorporation Doctrine.
Justice Alito is correct: the meaning of the Constitution doesn’t change from state to state. And since, according to the Supremacy Clause, the Constitution of the United States supersedes the laws and constitutions of the several states, its meaning must hold over any local “spirit,” regardless of the state or city which holds it. Furthermore, it appears that the examples Hawaii brought are not even relevant to this law.
The State’s colonial and early state law analogues consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property. … Those laws had little if any impact on the Second Amendment’s central objective of protecting the fundamental right to self-defense, and their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting. The gap between the State’s anti-poaching analogues and its new rule is too wide.
Wolford et al. v. Lopez, Attorney General of Hawaii
I don’t know who enters a restaurant or store looking to poach animals, so I would agree with Justice Alito on this point as well.
Jackson Dissent
Both Justices Kagan and Jackson wrote dissenting opinions. However Justice Kagan’s dissent is in support of Justice Jackson’s. So let’s go to the source of the dissent.
Today the Court declares unconstitutional Hawaii’s efforts to protect the rights of its residents—both those who wish to carry guns and those who prefer that guns are not carried on their private property without their express permission.
Wolford et al. v. Lopez, Attorney General of Hawaii
How, Justice Jackson, does Hawaii’s law protect the rights of those who wish to carry guns? The answer is, it doesn’t, which means it infringes on the right to keep and bear arms, which violates the Second Amendment. Or as Justice Jackson sees the majority opinion:
To hear the majority tell it, Hawaii’s law is a blatant attempt to end-run our Second Amendment precedents.
Wolford et al. v. Lopez, Attorney General of Hawaii
That does seem to be the purpose behind Hawaii’s law. As I’ve already pointed out, it all but prohibits the ability to carry a firearm in public unless the person already has proof of explicit permission to carry in any publicly accessible business. If there is any possibility I may need to stop at a location where I do not have proof of permission, I must either go unarmed or be prepared to violate Hawaii’s law. Sadly, Justice Jackson does see this.
But the statute at issue does no such thing. Instead, it fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment.
Wolford et al. v. Lopez, Attorney General of Hawaii
Hawaii’s law does not apply any recognized principle of property law, because the law determines for the property owner the conditions under which they may allow a legally armed individual to enter their premises. This law actually violates the rights of private property owners.
Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.
Wolford et al. v. Lopez, Attorney General of Hawaii
We all agree that no one has the right to carry firearms on private property without the owner’s permission. But what role does the State of Hawaii have in determining said permission? After all, in all the other states, a private property owner who does not wish people to carry firearms on their property, merely has to place a legally approved sign to that effect at the entrances of their property. Compare that to a property owner under Hawaii’s law, that in order to allow someone to carry on their premises, they must provide proof that the persons is allowed. Could they place a sign saying “Legal Carry Welcome” in the entrances to their businesses? Yes, but only because the State of Hawaii has decided their anti-gun bias lets them dictate to private property owners how someone may be allowed to lawfully carry on their property. That is is a requirement placed on the exercise of no other right.
Petitioners believe that having to ask for permission to carry a firearm onto private property open to the public is an unconstitutional burden on their Second Amendment rights. But their bid to invoke the Constitution stumbles out of the gate—at step one of this Court’s Bruen test. There is no constitutional right to enter private property without the owner’s permission, let alone with a firearm. So the question this case presents is merely how a property owner must communicate his decision to exclude or to invite armed carry, including whether a State may alter the background property-law rules that set the default as one or the other. The Second Amendment has nothing to say about that. Petitioners’ constitutional rights are thus not implicated here, and their claim should meet its end at Bruen’s first step.
Wolford et al. v. Lopez, Attorney General of Hawaii
For this argument to make sense, the court would have to require permission to enter the property at all. Why is Justice Jackson only targeting legal gun owners in her alleged protection of private property rights? Imagine this logic being applied to any other right protected by the Bill of Rights. Before I enter a business, must I get permission to wear a T-Shirt with a specific saying on it? Or prove that the store will not require my ID except when legally required?
Since Hawaii’s law is the one infringing on the right to keep and bear arms, by placing an unreasonable burden on that right it violates the Second Amendment. By applying the need to get permission only to legal gun owners, Hawaii violates the Equal Protection clause of the Fourteenth Amendment, not some fictitiously based incorporation doctrine.
Furthermore, I assume that law enforcement is exempt from this law. Which means they can enter private property while armed, without the express consent of the owners. Or are police held to the same ridiculous standard which Hawaii wants to hold everyone else?
Conclusion
How did the court decide this case?
Held: Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and Fourteenth Amendments.
Wolford et al. v. Lopez, Attorney General of Hawaii
Hawaii’s law violates the Second Amendment because it infringes on the right to keep and bear arms. Contrary to what the dissenting judges stated, the law does not “enhance” or protect the property rights of the owners, since they have alway been able to legally prohibit firearms on their property. What the State of Hawaii tried to do was make legal firearm carry burdensome, since the burden differential between the presumption of allowance vs the presumption of prohibition is not equal. A legal firearm carrier could be denied access to a business not because the owner wants to deny them, but merely because they have not provided proof of their acceptance. Meanwhile, the burden of placing a sign denying access to anyone with a firearm is extremely small. Even without a sign, a property owner can simply trespass anyone who brings a firearm on their property, which has criminal consequences if the trespassed person does not comply. Add to this the unequal treatment under the law for firearms owners vs anyone else, and we see the Fourteenth Amendment violation.
This case, however, is not yet finished.
The Hawaii law at issue here violates the constitutional right to keep and bear arms. Therefore, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Wolford et al. v. Lopez, Attorney General of Hawaii
Since the Ninth Circuit’s decision is reversed, the District Court’s injunction against enforcing the law remains in place until the case itself is decided, hopefully following the Supreme Court’s opinion.
