Supreme Court to Review a Private Property Gun Ban

Should someone be allowed to take a gun into a bar without permission? What about a gas station? A movie theater?

Hawaii’s lawmakers said “no” to all these questions. In 2023, Hawaii’s legislature passed a law banning firearms on private property which is made open to the public, at least without the owner’s prior consent. The law, Act 52, flips a default rule stretching back centuries that assumes that an owner consents to others bringing guns on to their land.

Now, the U.S. Supreme Court will decide Act 52’s constitutionality in the case of Wolford v. Lopez. Although the Court may strike Act 52 down, the ruling will likely clarify open questions on whether state-specific history and past discriminatory laws can justify gun restrictions.

The case turns on the Second Amendment right to “keep and bear Arms.” The Court recently explained in New York State Rifle & Pistol Association v. Bruen that, to be upheld as constitutional under the Second Amendment, any gun restriction must be supported by a “history and tradition” of similar regulations.

Modern legislators must now analogize the purpose and function of new gun restrictions—the “why” and the “how”—to those in the United States’ past. For Act 52, that means offering past examples of restricting guns on private property.

Bruen’s history and tradition test motivated the Hawaiian legislature to pass Act 52. The courts struck down Hawaii’s prior gun regime because it lacked clear analogs in “history and tradition,” though what makes a proper “history and tradition” remains unclear. The state’s previous stringent regulation  amounted to all but a total ban on guns. Under that regime, the state granted four licenses in 18 years.

In 2023, the Hawaiian legislature claimed to have history on its side. In passing Act 52, it pointed to both a more-than-one-hundred-year history of gun regulations in the state, as well as to an 1865 Louisiana law that closely parallels Act 52.

It remains to be seen whether this history is enough for the Court to uphold Act 52. The Court decided Bruen in 2022, relatively recently in the history of Second Amendment litigation. As such, the Court has provided little further guidance regarding Bruen’s history and tradition test. The Court’s decision in Wolford may answer at least two open questions: Do state-specific traditions matter for the Bruen test? And, when can controversial historical laws justify modern laws that are equally controversial?

The Court heard oral argument in January, and the justices focused many of their inquiries on these two unanswered questions.

Although the Supreme Court has not definitively announced whether state-specific traditions may satisfy Bruen’s history and tradition test, Hawaii’s lawyer pointed to the state’s 1833 total ban on deadly weapons as evidence of a longstanding tradition of regulating arms. That regulation was enacted prior to statehood and persisted in some form until just a few years ago, after Bruen. The parties challenging Act 52—supported by the federal government—claimed that the Hawaiian tradition was irrelevant.

“There is no Second Amendment for every single state,” the federal government’s lawyer argued.

As legal commentator Dan Epps explained, legislatures in states such as Florida can, and have, expanded the Second Amendment’s protections through laws that prohibit banning guns on certain types of private property. Hawaiian lawmakers, on the other hand, would not be able to pass laws like Act 52 that facilitate banning guns on private property.

Justice Sotomayor pushed back on the federal government’s position. She framed the Hawaiian tradition as evidence that the Second Amendment never required the presumption that private property owners consent to others bringing firearms onto their property—the presumption that Act 52 aimed to reverse. If the Court agrees with that reasoning, it could announce a broad understanding of Bruen’s history and tradition requirement, potentially granting flexibility for regulators to fashion gun laws tailored to their communities.

But Hawaii’s lawyer had more historical precedents to offer in support of Act 52, specifically an 1865 Louisiana law.

Hawaii argued that Louisiana’s law was a “dead ringer” to Act 52. That Louisiana statute banned all weapons on private property open to the public, unless the property owner gave their permission to bring weapons onto their property. Notably, at oral argument, neither the justices nor the petitioners denied the similarity to Act 52.

Given its unique and troubling history, the law’s challengers, the federal government, and several justices expressed skepticism that the Louisiana law was relevant. That law was passed as part of the state’s Black Codes. Black Codes were laws designed to enforce racial hierarchy in the Reconstruction South. The challengers argued that the Louisiana law does not embody a valid “history and tradition” sufficient to satisfy Bruen, because it was itself an illegal attempt at disarming Black citizens.

Hawaii’s lawyer said the story was more complicated. Because the law’s plain text is racially neutral, the U.S. Congress implicitly approved of it while overriding other parts of the Black Codes. Justice Gorsuch, however, thought that relying on a Black Code was “astonishing.” Justice Jackson, on the other hand, inquired whether the history and tradition test should consider all of history—the good and the bad.

The federal government argued that any attempt to reduce the number of guns in circulation that very reason necessarily offends the Second Amendment. Such a rule, if adopted, would significantly limit regulators ability to craft future gun restrictions.

Justice Kavanaugh questioned this argument. He pointed out how the Court gives lawmakers great discretion to regulate “right up to the line” set by an Amendment’s protections. If a majority of the Court feels differently, anti-gun regulations nationwide could become vulnerable to challenge under the federal government’s argument.

Answering the open legal questions—whether state-specific history and laws, like Louisiana’s, count under Bruen’s test—could provide guidance as legislators adapt their policies to the Court’s new Second Amendment framework. The Court is expected to rule on Wolford any day now.