By Tanya Metaksa
What’s New— SCOTUS: Wolford v. Lopez, Case No. 24-1046: Summary of plaintiff’s position and listing of amici as of December 1, 2025; Escher v. Noble; Case No. 1:25-cv-10389: This federal lawsuit challenging Massachusetts’ statewide ban on the possession and carrying of handguns and semiautomatic firearms by adults aged 18–20 was filed on Feb. 12, 2025. Can the Right to Bear Arms Be Waived?, a review of the latest Duke Center for Firearms Law guest post.
SCOTUS
Wolford v, Lopez; Case No. 24-1046: On Writ of Certiorari: The oral argument is scheduled for Jan. 20, 2026. As of Dec. 1, 21 amicus briefs have been submitted to The Court:
Amici supporting petitioners
- United States (Trump DOJ).
- National Association for Gun Rights.
- Second Amendment Law Center, California Rifle & Pistol Association, Delaware State Sportsmen’s Association, Hawaii Rifle Association, Gun Owners of California, Federal Firearms Licensees of Illinois, Second Amendment Defense and Education Coalition, Operation Blazing Sword–Pink Pistols, and (at cert stage) National Rifle Association of America (joint filings in support of petitioners).
- Foundation for Moral Law.
- Montana and a multistate coalition of state attorneys general.
- The Buckeye Institute.
- Association of New Jersey Rifle & Pistol Clubs, Inc. (including later joint filings with other state clubs).
- National African American Gun Association, Inc.
- Second Amendment Foundation and allied gun‑rights organizations (including California Gun Rights Foundation / California Rifle & Pistol Association, Minnesota Gun Owners Caucus, etc.).
- Gun Owners of America and allied groups (including Gun Owners Foundation, Hawaii Rifle Association, California Rifle & Pistol Association, Gun Owners of California).
- National Rifle Association of America and Independence Institute (and associated rifle and pistol clubs in later filings).
- National Shooting Sports Foundation.
- U.S. Sportsmen’s Alliance Foundation.
- Liberty Justice Center.
- Firearms Policy Coalition.
- Claremont Institute’s Center for Constitutional Jurisprudence.
- California Gun Rights Foundation, et al. (as listed in the “California Gun Rights Foundation, et al.” amici curiae entry).
- Clayton Cramer, et al. (historians/individuals supporting petitioners).
- Amici supporting the respondent
- Peace Officers Research Association of California, et al.
- Amici supporting neither party
- Patrick J. Charles.
- Professor J. Joel Alicea.
Summary of the arguments
Plaintiffs in Wolford v. Lopez argue that Hawaii’s “default no-carry” regime effectively bans ordinary, licensed citizens from exercising the core Second Amendment right to bear arms in public, and that the Ninth Circuit’s approval of that regime squarely conflicts with Bruen and broader historical tradition.
Hawaii’s law and the burden of carrying
- Hawaii makes it a crime for a properly licensed concealed-carry permit holder to bring a handgun onto most private property that is open to the public—such as restaurants, stores, gas stations, and parking lots—unless the owner gives clear permission, like a “guns welcome” sign or direct approval.
- Plaintiffs argue that this “opt‑in” default shifts both property and constitutional standards: instead of public carry being the norm with narrow, historically based exceptions, carry is now presumed to be prohibited in nearly all everyday settings.
- Their main point is that, in practical terms, Hawaii’s statute “effectively bans public carry in Hawaii,” undermining the right recognized in Bruen by restricting lawful carry to a limited set of locations that don’t reflect normal public movement and interaction.
- Bruen, history, and the “default” problem
- Plaintiffs and aligned amici argue that Bruen requires Hawaii to justify its law by citing a well-established historical tradition of similar restrictions, and that no such tradition exists for a blanket rule that treats all publicly open private property as gun-free without explicit permission.
- They emphasize that historically, the default understanding was that peaceable armed citizens could carry firearms in public and quasi-public places, with governments and property owners creating specific, targeted exceptions for truly sensitive locations or clearly posted private areas.
- The argument labels Hawaii’s “default no‑carry” approach as a recent innovation in anti‑gun policy rather than a continuation of historical practice, and criticizes the Ninth Circuit for perceiving it as consistent with tradition while ignoring Bruen’s requirement for close, not broad, historical analogies.
- Second Amendment as a public right, not a landlord’s veto
- Plaintiffs do not deny that private owners can exclude guns from their property as part of their usual property rights; instead, they challenge the State’s decision to criminalize carrying on all such property unless owners choose to allow it, thus turning individual property decisions into a state‑imposed, categorical public carry ban.
- They argue this regime effectively overrides a constitutional right in favor of the unspoken preferences of countless third-party owners, turning the right to bear arms into a revocable privilege depending on whether businesses are willing to promote themselves as gun-friendly.
- In their view, Bruen recognized a “general right to publicly carry arms” that cannot be overridden by a legal framework in which nearly every destination of daily life—such as commerce, work, or socializing—is presumed to be off‑limits unless a proprietor explicitly waives the statutory default.
- Public safety, empirical evidence, and gun‑free zones
- The gun‑rights amici supporting plaintiffs, including the Crime Prevention Research Center, present a complementary empirical argument: licensed concealed-carry holders are among the most law-abiding segments of the population, with very low revocation and conviction rates and no proven tendency to increase violent crime.
- Several amici argue that broad “gun-free zones,” especially where police cannot offer constant protection, serve as attractive targets for violent offenders by signaling that only criminals will be armed, thereby raising risks for law-abiding citizens rather than lowering them.
- This view holds that Hawaii’s law not only lacks historical backing but also weakens public safety in practice, making it a poor candidate for any judicial exception to the basic right of responsible adults to carry handguns for self-defense.
- Role of the Trump DOJ and strategic posture at SCOTUS
- Plaintiffs’ position is strengthened by the Trump DOJ’s amicus brief, which describes Hawaii’s law as a “severe burden” on Second Amendment rights and urges the Supreme Court to grant certiorari to stop states from using default rules on private property to “effectively nullify” the right to carry.
- The Duke Center for Firearms Law observes that the second Trump administration has taken an assertive amicus strategy in Second Amendment cases, especially where it believes lower courts are resisting Bruen, and that Wolford is one of the DOJ’s chosen cases to clarify the extent to which states can go in designating large parts of the community as off-limits for carrying guns.
- For plaintiffs, that institutional support emphasizes their view of Wolford as a test case: they ask the Court to rule that states cannot use a broad “no‑carry unless invited” rule for private businesses to indirectly do what Bruen prohibits directly—effectively removing most citizens’ ability to carry guns in public for self-defense.
District Court
Escher v. Noble; Case No. 1:25-cv-10389: This federal lawsuit challenging Massachusetts’ statewide ban on the possession and carrying of handguns and semiautomatic firearms by adults aged 18–20 was filed back on Feb. 12. The plaintiffs, including Mack Escher and several Second Amendment advocacy groups (FPC, GOA, SAF, NRA), argue that the law violates the Second Amendment by categorically prohibiting law-abiding young adults from exercising their rights.
Key Challenge:
HB 4885, as passed and signed into law, bans all individuals aged 18–20 from acquiring, possessing, or carrying handguns and semiautomatic firearms. Plaintiffs argue that this ban is unconstitutional because the Second Amendment protects all law-abiding adults, including those 18–20, and they contend there is no historical precedent for such a broad age-based restriction. The lawsuit cites Supreme Court decisions and historical context showing that people in this age group were considered “the people” protected by the Second Amendment and were also required to serve in the militia at the time of the country’s founding.
Recent Motions:
- On Nov. 20, both plaintiffs and state defendants filed motions for summary judgment.
- The plaintiffs’ motion requests the U.S. District Court to strike down the Massachusetts law, arguing it has no constitutional or historical basis.
- The state defendants’ motion defends the age-based ban, and a separate motion by Brewster Police Chief Heath Eldredge also seeks summary judgment.
- Summary:
- The main issue before the court is whether Massachusetts’s complete ban on firearm possession for 18–20-year-olds can stand up to Second Amendment scrutiny in light of recent Supreme Court rulings and historical analysis.
- Plaintiffs are requesting a ruling that declares the law unconstitutional.
- Litigation Status:
- Both sides have filed motions for summary judgment, and the case is now at a stage where the court is being asked to decide on the merits without a full trial, based on the legal arguments and evidence in these filings.
The outcome will further define the scope of Second Amendment protections for younger adults following the Supreme Court’s recent rulings on gun rights and historical analogs.
Can the Right to Bear Arms Be Waived?
In the Nov. 24 Duke Center for Firearms Law article by Eric Ruben, the author bends over backward trying to expand the limitation that SCOTUS approved in United States v. Rahimi. According to Ruben, the findings in Rahimi are…
“Sustained the statute, only insofar as the restraining order contained a finding that the respondent ‘poses a credible threat to the physical safety’ of an intimate partner. Left unresolved was the law’s alternative disarmament provision, which applies when a restraining order “by its terms” prohibits the use or threat of physical force — even where there is no judicial finding that a person poses a threat to another’s safety.”
Many states, however, permit firearm restrictions under protective orders without requiring judicial findings, leading to constitutional uncertainty.
Ruben notes that the defendant, Rahimi, agreed to the protection order and its disarmament requirement, raising the question of whether such agreement is a voluntary waiver of Second Amendment rights. Consequently, he argues that the concept of waiving constitutional rights is well-established, as long as the waiver is “voluntary, knowing, and intelligent.” In reality, courts differ on how formal the waiver process must be.
During the Rahimi hearing, the dissent argued for stricter procedures, warned that the lack of a hearing transcript could harm informed consent, and suggested that a formal colloquy would prevent superficial waivers. Naturally, Ruben emphasizes the need for clearer drafting of protective orders when waiving constitutional gun rights. In this article, he asserts that the Second Amendment, like other constitutional rights, can be waived through genuine, informed consent and careful legal processes.
I question how a waiver of First, Fourth, and other rights under the Bill of Rights would function alongside the rights waiver Mr. Ruben is proposing.
