Legal Docket: Second-class status

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MARY REICHARD, HOST: Okay campers, rise and shine. It’s The World and Everything in It for this 2nd day of February, 2026. Groundhog Day! We’re so glad you’ve joined us. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

Today, we will think about warmer climes: Hawaii!

Our dispute before the U.S. Supreme Court is a case from the Aloha State. It shows just how much has shifted since the Court’s landmark ruling on gun rights four years ago.

The Second Amendment is on much firmer ground after the 2022 case, The New York State Rifle & Pistol Association versus Bruen. The Court has said it plainly protects a right to carry firearms in public for self-defense—and that states can only justify gun regulations by pointing to the nation’s historical tradition.

REICHARD: Several justices made clear last month they intend to continue to treat the Second Amendment like every other constitutional right.

As Justice Samuel Alito put it—to do otherwise will not pass muster with this court.

ALITO: You're just relegating the Second Amendment to second-class status. I don't see how you can get away from that.

But Hawaii says it can get away from it by elevating property rights: arguing that when businesses and other spaces open their doors to the public, they get to decide whether gun owners may bring a firearm in … and the default presumption is they may not.

To defend that rule, the state leans on its history—but focuses most of its argument on property law and consent.

EICHER: Three gun owners and a gun-rights group say Hawaii gives property owners a right that directly conflicts with the Bruen ruling.

They say the state turns most public life in Hawaii into a patchwork of gun-free zones by default.

Here’s how their lawyer, Alan Beck, framed the argument:

BECK: By banning people from carrying firearms on private property that is open to the public unless they first obtain affirmative permission, Hawaii has run roughshod over that constitutional right.

Both sides agree there’s no right to carry a gun onto private property against the wishes of the owner.

The dispute is about what happens when a business opens up the public—who has to speak first? The gun owner or the property owner?

REICHARD: After Bruen, Hawaii rewrote its gun laws by expanding its list of so-called “sensitive places” where guns are banned. And it required licensed gun owners first to get permission from the owner to enter … punishable for up to a year in prison if you don’t.

That is tough to navigate. Sarah Harris represented the federal government in support of the challengers:

HARRIS:  As a practical matter, in order to run your errands, you have to run the table of knowing you're not trespassing on private property to, like, pick up your dry cleaning and catch a cup of coffee. And if you run out of gas and you're trying to find a gas station, you can't get gas unless, you know, you're in your car, you have -you have your gun in your purse, and you're not actually committing a crime by stepping on the gas station property.

Historically, she argued, since America’s founding, Americans have always carried firearms into inns, taverns, shops, and markets unless the owner objected.

EICHER: Under Bruen, courts have a two-step inquiry to follow. First, does the text of the Second Amendment cover this conduct? In this case, the law regulates guns, so clearly it does. Second, can the government show the regulation is consistent with the nation’s historical tradition?

REICHARD: The challengers say Hawaii loses on both counts, and the state tries to get around it by relabeling locations as “sensitive.”

Hawaii’s lawyer Neil Katyal frames it differently:

KAYTAL: The only question is whether there's a Second Amendment right to assume the owner wants guns on his property when he’s been silent. There is not. There is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun. The Constitution protects the right to keep and bear arms. It doesn’t create implied consent to bring those arms onto another’s property.

EICHER: That’s the reading the liberal justices favored. Here is Justice Ketanji Brown Jackson:

JACKSON: Yes, it is about guns, but, the argument goes, what's really going on here is how states treat a private property owner's consent under circumstances in which everyone agrees that consent is required.

Consent is required, but the question is what is the default assumption? That the gun owner needs explicit permission? Or that the private land owner must affirmatively exclude?

Justice Jackson went round and round with the challenger’s lawyer Beck:

BECK: You have a constitutional right to carry your firearm onto that specific gas station.

JACKSON: You do? Where is that?

Justice Jackson’s through-line is that implied consent is part of property law, and if states want to require express consent instead, that’s okay.

REICHARD: Justice Alito said that is completely unworkable with the First Amendment, and he duked it out in this rather long exchange with Katyal, who defended Hawaii’s law:

ALITO: If someone owns a store -- or let's say it's a little restaurant, and this person has very strong political opinions and does not want anybody in that restaurant who is wearing attire that is expressing approval of a particular political candidate. The owner of that restaurant has the right to say you can't come in, right?

KATYAL: Yes.

ALITO: All right. Now could Hawaii enact a statute that says that if you are wearing attire expressing approval of a particular political candidate, you can't come in unless you get express consent from the owner of the restaurant?

KATYAL: Again, that's viewpoint discrimination and prohibited by -

ALITO: It's a violation of the First Amendment. We have a violation of the First Amendment …. and a violation of the right that the Court held is protected by the Second Amendment in Bruen, which is the right of law-abiding citizens to carry a firearm for purposes --outside of the home, for purposes of self-defense.

EICHER: Alito took that idea further with Beck for the challengers:

ALITO: Under Hawaii law, are there any other objects besides guns that a person may not possess when that person enters private property that is open to the public?

BECK: Not to my knowledge, Your Honor.

ALITO: Thank you. 

The conservative justices saw that as selectively placing a burden on a constitutional right.

Justice Brett Kavanaugh saw the entire case as a fairly simple one, mentioning both Bruen and another gun-rights case, which held the Second Amendment means what it plainly says.

KAVANAUGH: Why are we making it complicated? The text of the Second Amendment covers arms….Heller says it means what it says, says what it means. Part 3 of Heller says there are certain exceptions to that or contours on that which are rooted, but they have to be rooted in history. Here, there's no sufficient history supporting the regulation. End of case.

REICHARD: One interesting piece of history Hawaii relied upon was a post-Civil War law that required permission to carry firearms on private property. Known as the Black Codes, they were passed to disarm newly freed slaves.

Sarah Harris for the government pounced on that after Justice Gorsuch mentioned the other side called those Black Codes “dead ringers” for Hawaii’s law:

HARRIS: It is 2026 and it is somewhat astonishing that Black Codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The Black Codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.

Justice Alito magnified that:

ALITO: So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?

EICHER: Justice Sonia Sotomayor focused less on U.S. history and more on local custom and expectation about consent. Here she is in an exchange with the U.S. government lawyer:

SOTOMAYOR: …most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.

HARRIS: … there is no Second Amendment for every single state in the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a veto for the Second Amendment national tradition.

REICHARD: Given the oral argument, I counted at least five leaning hard against Hawaii. I just don’t see how the law survives on these facts in the Bruen era.

And that’s this week’s Legal Docket!

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