By Tanya Metaksa
What’s New— SCOTUS: Wolford v. Lopez, Case No. 24-1046; Hearing was held Tuesday, Jan. 20. Probably no ruling until late June.
SCOTUS
Wolford v. Lopez, Case No. 24-1046. Second Amendment case challenging Hawaii’s law that effectively bans concealed carry on private property open to the public unless the owner has affirmatively given permission. This is the first Second Amendment case in which the US Department of Justice is arguing for the Second Amendment plaintiffs.
Key Holding of the Ninth Circuit
A three-judge panel of the Ninth Circuit, in an opinion issued on Sept. 6, 2024, held by a 2–1 vote that Hawaii’s default rule—barring concealed carry on private property open to the public unless the owner allows it—is constitutional under the Second Amendment as interpreted in New York State Rifle & Pistol Ass’n v. Bruen.
The court specifically reversed a district court preliminary injunction that had blocked enforcement of this “default rule” with respect to bars, restaurants, beaches, parks, and adjacent parking lots, thereby allowing Hawaii to enforce the consent requirement while the case proceeds.
Oral argument: summary
The Jan. 20 oral argument in Wolford v. Lopez (No. 24-1046) focused on whether Hawaii may presume that guns are banned on private property open to the public unless the owner gives express permission, and how that presumption fits with both the Second Amendment and traditional property rights.
Core issues at argument
- The justices questioned both sides about how the text-and-history test from New York State Rifle & Pistol Ass’n v. Bruen should be applied to a default rule regarding guns on private property, rather than to licensing or “sensitive place” bans.
- Questions focus on whether historical laws requiring owner consent to carry arms on fenced or developed land are “relevantly similar” to Hawaii’s broad rule for modern businesses, stores, and other publicly accessible private property.
Petitioner’s (gun owners’) position
- Petitioners argued that the Second Amendment safeguards a broad right to carry handguns in public for self-defense and that Hawaii’s default rule criminalizes that right in most everyday places such as stores, parking lots, and restaurants, effectively nearly banning public carry.
- They emphasized that property owners already have the authority to exclude firearms but argued that the State cannot change the default so that silence from the owner makes carrying a crime; in their view, that presumption “tramples” the right recognized in Bruen and has no well-established historical analogue.
Hawaii’s defense of the law
- Hawaii framed the statute as a way to vindicate both the right to bear arms and the longstanding right of property owners to control who enters their land—with or without weapons.
- The state pointed to colonial and early American laws requiring explicit permission to bring guns onto another’s enclosed or developed property, arguing that these are historically grounded limits and that the Second Amendment did not create any right to enter private property with a gun without consent.
Role of the United States / Trump administration
- The United States, under President Donald Trump, participated as amicus supporting petitioners, arguing that Hawaii’s regime effectively negates the right to publicly carry arms and that regulations designed to thwart that right are per se unconstitutional under Bruen’s framework.
- The government stressed practical burdens: that ordinary tasks like getting coffee, shopping for groceries, or using parking lots become legally risky for licensed carriers under Hawaii’s default rule, which it characterized as lacking any well-established historical analogue.
Themes in the justices’ questioning
- Several justices tested where to draw the line between legitimate “sensitive place” regulations and an overbroad default that covers virtually all publicly accessible private property, probing whether Hawaii’s scheme leaves a meaningful space for public carry.
- Other questions explored how to balance the competing interests of property owners (who may not want to post conspicuous pro-gun signs) and licensed carriers, and whether a consent requirement that operates only when owners speak, rather than when they remain silent, would better track historical practice
The Jan. 20 Wall Street Journal has a very positive article on this case entitled Hawaii Tries to Evade the Second Amendment. Its author is John Lottj.
Internet Comments on the hearing by interested parties
As of 6:30 pm EST, several outlets and commentators have already published reactions, previews, and issue-focused pieces around Tuesday’s Wolford v. Lopez arguments. The link to the article is enclosed in [] for your use.
Major legal commentary
- Balls & Strikes has a detailed oral‑argument recap emphasizing how the justices wrestled with Bruen’s “history and tradition” test and the use of racist Black Codes as potential analogues.[ballsandstrikes]
- SCOTUSblog links to an analysis by Amy Howe titled “Supreme Court appears sympathetic to gun owners’ challenge to Hawaii law,” describing a bench generally skeptical of Hawaii’s default no‑carry rule.[scotusblog]
Advocacy and issue‑side analysis
- Everytown for Gun Safety / Everytown Law has explanatory pieces that frame Wolford as about respecting private property owners’ choices by making “no guns” the default on publicly accessible property.[everytown]
- Pro-Second Amendment commentary includes coverage from outlets like America’s 1st Freedom and a Wall Street Journal opinion column arguing that Hawaii is trying to “evade the Second Amendment” and urging the Court to strike the law.[wsj]
Academic and doctrine‑focused posts
- The Duke Center for Firearms Law blog has a post on “Presumed Intent: Wolford, Property Default Flips, and An Unlikely Precedent,” linking the case to default‑rule doctrine in contracts (e.g., Sveen v. Melin).[firearmslaw.duke]
- The Independent Institute published an essay by Stephen Halbrook arguing that Wolford is an opportunity to pare back reliance on expert historian testimony in Second Amendment litigation and to clarify legislative vs. adjudicative facts.[independent]
Official materials and recordings
- The Supreme Court’s site has the official audio and transcript for today’s argument, which many commentators are using as their primary source.[supremecourt]
- C‑SPAN has posted full video coverage, framing the case as a challenge to a state gun-regulation regime governing carry on private property open to the public.[youtube]
