It’s not just about guns

Over the last few years, many states have grappled with the right approach to firearms policy. In particular, states that had historically been skeptical toward, even hostile to, firearms ownership or carrying have had to grapple with the Supreme Court’s more rigorous enforcement of the Second Amendment’s protection for the right to keep and bear arms.

Hawaii tried a novel approach: playing with the background rules of property law in order to make it harder to carry firearms. In June, the Supreme Court said that it had gone too far, and the judgment came in the case Wolford v. Lopez. Cases involving the Second Amendment tend to get headlines for their connection with firearms policy. But the Supreme Court’s decision here has larger implications for the protection of any constitutionally protected right, not just the Second Amendment.

The story starts with Hawaii’s update to its concealed carry laws. For many years, Hawaii was reluctant to permit its citizens to carry firearms. Hawaii granted concealed-carry permits only in an “exceptional case.” To get such permits, Hawaii citizens had to show that they had a particular reason to fear injury to person or property. Maybe this shouldn’t have been too surprising, since Hawaii’s tradition with firearms has been rather different from that in many of the continental United States. Nonetheless, the Constitution applies in Hawaii the same as it does in any other state. So, when the Supreme Court began to decide cases protecting the individual right to keep and bear arms, Hawaii had to change some of its ways.

In 2022, the Supreme Court considered New York laws that—like those in Hawaii—let the state deny firearm carry permits except in unusual or exceptional circumstances. In New York State Rifle & Pistol Association v. Bruen, the Court held that this restrictive approach violated individual rights under the Second Amendment.

Hawaii knew that its firearm carry laws would also fall afoul of the Supreme Court’s standard. To fix this litigation risk, Hawaii passed legislation that permitted its citizens to obtain concealed-carry permits after filing an application, passing a background check, and undergoing specified training. But Hawaii’s legislature thought that it had found a workaround that would take away with the left hand much of what it had given with the right. More Hawaiians would be able to obtain concealed-carry licenses, but the legislature would change the rules of property law in such a way that those carrying firearms would rarely be able to exercise their rights.

The new law changed the background rules about when one carrying a firearm needs to get permission to go onto the property of another.

Previously, the standard assumption was that a private citizen wasn’t trespassing if he legally carryied a firearm onto the land of another in Hawaii, no more than he would be if he happened to be wearing a T-shirt rather than a suit. Of course, individual landowners could set conditions on when and how others could come onto their property. A formal restaurant might set a dress code requiring collared shirts and jackets so that if I barged in with a T-shirt, I would be a trespasser. Similarly, there is no right to carry a firearm onto the private property of another if that person says, “You can’t come in with your gun.” A store that posts a sign saying “No Guns” makes anyone carrying a gun onto the property a trespasser.

What Hawaii did, though, was to change the baseline. No more assuming that someone could come onto the property unless they were told, “No guns.” Hawaii reset the rule so that anyone who carried a firearm onto the private property of another was a trespasser unless he or she had explicitly obtained permission to carry the gun onto that property.

Hawaii’s argument was that the Second Amendment had nothing to say about this change in the property law. People still had Second Amendment rights, and the state was just making a modest tweak to property law.

At the Supreme Court, the majority rejected Hawaii’s argument. Writing for a six-justice majority, Justice Alito pointed out that Hawaii’s theory would lead to very strange and implausible results. Could it really be the case that if a state made a rule that no one could come onto your private property wearing “religious headgear” (think hijab or yarmulke) without explicit consent, that this would raise no issues under the First Amendment’s protection of the free exercise of religion? Of course not. The state would be using its property law default settings in order to penalize or burden religious exercise.

In like manner, Hawaii’s change of the defaults around firearms was a modification that burdened gun ownership, raising Second Amendment problems.

Justices Kagan, Sotomayor, and Jackson dissented. Justice Kagan declined to defend Hawaii’s claim that this was simply a change in property law. She focused on the historical debates in the litigation. Hawaii had argued that there was historical precedent for firearm regulation through changes in property law. But Hawaii’s historical precedents had significant flaws, as the majority pointed out and as Justice Barrett explained at greater length in a concurring opinion. One set of old statutes limited the carrying of firearms for the purpose of hunting or poaching on property not one’s own. Another set of historical precedents came from the South in the immediate aftermath of the Civil War, as Southern states sought to take away civil rights from black Americans.

Neither of these analogies ultimately helped the state of Hawaii. Limiting the carrying of firearms for the purpose of poaching is a much narrower and more targeted regulation than generally flipping the property law defaults about when one may carry firearms. Moreover, post-Civil War regulations adopted by Southern states to discriminate against black Americans are hardly a legitimate basis for saying that America has a history and tradition of regulating firearms.

Zoom out from the historical debate, though, and the broader importance of this case should not be difficult to see. If states can simply play with the basic rules of property or contract in order to disadvantage the exercise of certain constitutional rights, that is problematic not only for the Second Amendment. It is bad for the exercise of any constitutional right. Amid all the debates about firearm regulation, this larger principle is essential to keep in view.