Supreme Court doubts constitutionality of Hawaii’s ‘default’ ban on guns on private property that’s open to the public

By Tierney Sneed, CNN

(CNN) — The Supreme Court appeared poised Tuesday to strike down a Hawaii law that bars people from carrying guns onto private property without the explicit approval of the property owner, a stance that would that would be a setback to states that have tested new ways to reduce the presence of firearms in public.

During oral arguments, the six members of the court’s conservative bloc expressed skepticism of Hawaii’s statute, though there was some grappling over how the arguments against the law fit within the high court’s firearms precedents.

Justice Samuel Alito said Hawaii’s defense of the law was “relegating the Second Amendment to second class status.”

Justice Amy Coney Barrett questioned whether the law was dissimilar to a hypothetical state statute that required business owners to give affirmative consent before Black people could enter their properties.

The case is the latest gun rights dispute to reach the high court after its conservative majority adopted an expansive view of the Second Amendment in a blockbuster 2022 ruling that established that the Constitution protects the right to bear arms outside the home.

Some liberal justices used the arguments to take swings at that ruling, with questions suggesting that its emphasis on the nation’s historical gun laws was leading to a cherry-picking of that history.

The case, Wolford v. Lopez, concerns a law that passed in the wake of the 2022 Supreme Court decision known as Bruen. It says that if a concealed carry license holder wants to bring their firearm on private property that is open to the public, they must get express consent from the property owner – such as verbally or with a sign.

Gun control groups have framed the dispute as a property rights case – rather than a Second Amendment dispute – arguing there is a longstanding tradition of property owners being able to set rules about what is carried onto their property. All the Hawaii law does, they say, is flip the “default” legal position from one in which people are presumptively permitted to carry guns into stores to one in which they are presumptively prohibited from doing so.

However, that argument had little purchase with the GOP-appointed justices on the court. They also rejected assertions made by Neal Katyal, the attorney representing Hawaii in court, about the state having a tradition and culture of almost no public carry of firearms, until the Bruen ruling established public carry was a constitutionally protected right.

“Do we have different traditions in different states when it comes to applying Bruen?” Chief Justice John Roberts asked Katyal.

Katyal denied that Hawaii was asking the court to apply the Second Amendment differently in different states, and said his point about Hawaii’s culture was aimed towards how the definition of consent could vary state to state.

Four other blue states – California, New York, New Jersey, and Maryland – have similar regulations, though the challengers contend that Hawaii’s is the most extreme. A trial court blocked the Hawaii statute, but an appeals court panel sided with Hawaii and the full US 9th Circuit of Appeals – over the vigorous dissent of several members – refused to rehear the case. The law, however, is still on hold for the Supreme Court appeal.

The challengers – individuals with concealed carry permits in Hawaii as well as a gun rights group – allege that Hawaii is openly defying the 2022 ruling by going well beyond that ruling’s limits on where the government can ban firearms. They say it’s unconstitutional for Hawaii to make it the “default” rule that firearms are prohibited in privately owned public spaces, arguing that the consent requirement means that guns are presumptively banned in most public places. Such a law, they argue, would effectively make it impossible to carry a firearm in public.

The right to prohibit firearms “belongs to the property owner, not the State,” the gun owners said in court filings.

“Had Hawaii merely enacted a law that prohibited a knowing failure to obey a property owner’s decision to exclude arms, Petitioners would not have challenged it. Instead, Hawaii has made it a crime to carry arms even where the owner of property open to public is merely silent. That presumption tramples on the Second Amendment,” they told the court.

Hawaii counters that law does not touch on conduct covered by the Second Amendment, and even if it did, it says the law meets the requirements of the Bruen ruling for when gun regulations can be upheld.

The Bruen opinion, authored by Justice Clarence Thomas and joined by the court’s five other GOP appointees, says that a gun restriction regulating conduct covered by the Second Amendment is constitutional if it has some parallel in the types of firearm regulations that existed at the time of the Constitution’s framing.

“Both at the time of the Founding and in the Reconstruction Era, numerous state laws prohibited armed entry onto private property without the owner’s express content,” Hawaii Attorney General Anne Lopez wrote in court filings.

While the high court has required a heavy focus on history when weighing the constitutionality of guns laws, it has been murkier on the question of which period of history should guide.

When the Supreme Court announced it was reviewing the Hawaii case, it declined to take one of the questions gun rights advocates had teed up in its petition: whether courts must rely solely on Founding-era laws in assessing whether a state’s gun restriction has a sufficient historical analogue under Bruen. Or whether courts can look to the mid- to late 1800s as well, since that era marked the adoption of the 14th Amendment, which applied the Second Amendment to the states.

Hawaii’s opponents said that the 19th century laws that the state leaned on were not appropriate analogues, because they were anti-poaching laws that concerned private property that was not open to the public. The conservative justices latched on to that distinction, while the liberal justices pushed back on it, with questions that noted that those laws applied to a broader category of lands that were publicly accessible.

The way that the 9th Circuit embraced an 1865 Louisiana law to uphold Hawaii’s restrictions was a major focus of the hearing.

Hawaii’s opponents noted that the Louisiana law was part of the former Confederate state’s “Black Codes” that sought to “disarm” Black people, an “outlier” that “defies rather than reflects our constitutional tradition,” as US Solicitor General John Sauer wrote in a court filing siding with the law’s challengers.

Hawaii countered in court filings that there are plenty of other laws from both the 18th and 19th centuries that support the idea of a historical tradition around barring “armed entry onto a private property without the owner’s consent.”

On Tuesday, liberal Justice Ketanji Brown Jackson grilled Hawaii’s opponents on why the Black Codes shouldn’t be part of the historical tradition that courts assess, under Bruen, when deciding whether a gun regulation is constitutional.

“When we have a test now that’s asking us to look at what people were doing back then, I don’t understand why they should be excluded,” Jackson asked Sarah Harris, an attorney in the US solicitor general’s office, which was arguing in support of the gun owners in the case.

The law’s supporters have also pointed to Hawaii’s unique history prior to statehood in 1959. In 1833, Hawaii’s King Kamehameha III prohibited “any person or persons” from possessing deadly weapons, including knives, “sword-cane, or any other dangerous weapon.” That, Hawaii officials say, suggests there is a historical assumption that people were barred from carrying on private property.

“Requiring evidence of a more extensive and widespread historical tradition would turn the Second Amendment into a ‘regulatory straightjacket,’” Hawaii wrote.

While Barrett raised doubts about the constitutionality of Hawaii’s laws, she also signaled discomfort with a sweeping argument made by Alan Beck, the lawyer for the gun owners, asserting that Hawaii could not presumptively ban firearms on private property not open to the public.

“Hawaii can’t have that law about my house? Or Justice Gorsuch’s house?” she asked.

This story and headline have been updated following oral arguments.

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CNN’s John Fritze contributed to this report.