The Supreme Court will hear at least one Second Amendment case this term. On Friday, the Court granted cert to Wolford v. Lopez, which is a challenge to the state of Hawaii’s prohibition on lawful concealed carry on all private property unless the property owner gives explicit permission to gun carriers.
The cert petition, filed by attorneys Alan Beck and Kevin O’Grady on behalf of several individual plaintiffs and the Hawaii Firearms Coalition, raised two questions for the Court’s consideration:
1. Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?
2. Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?
In its order, the Court said the granting of certiorari is limited solely to the first question presented, though I hope the justices will at least provide some guidance about the extent of relying on post-Reconstruction laws to establish whether a particular gun control law is part of a “national tradition of gun ownership.” As Beck and O’Grady point out in their cert petition, the Ninth Circuit panel that upheld the “vampire rule” didn’t cite a single statute from around the time of the Second Amendment’s ratification. Other courts are using the same methodology to uphold other “sensitive places” despite a lack of similar statutes at the time of the Founding.
The Ninth Circuit in this case repeated the same error [as the Second Circuit],concluding, ipse dixit, that “the reasoning of Antonyuk is consistent with the Supreme Court’s decision in Rahimi and therefore retains its persuasive worth.” That conclusion is impossible to reconcile with Rahimi’s instruction that the courts are to “faithfully” apply “the balance struck by the founding generation to modern circumstances.” See also Bruen, 142 S.Ct. at 2163 (Barrett, J., concurring) (the Court’s decision “should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights”), Rahimi, 6602 U.S. at 695 (Barrett,J., concurring) (“scattered cases or regulations pulled from history may have little bearing on the meaning of the text”), citing Samia v. United States, (Barrett, J., concurring in part and concurring in judgment).
… The panel’s reliance on Reconstruction and post-Reconstruction Era laws was decisive. Take, for example, Hawaii’s carry prohibitions in bars and restaurants that serve alcohol. HRS § 134-9.1(a)(4). As Judge VanDyke’s dissent from the denial of rehearing notes, “[b]ecause the panel could point to no laws from that [Founding] era outlawing the carrying of firearms in those locations, the panel’s analysis should have stopped there.” Instead, the panel relied upon “four localized mid-to-late-19th-century ordinances and territorial laws” to uphold the ban.
The panel used the same misguided methodology to uphold Hawaii’s ban in parks and on beaches. As Judge VanDyke’s dissent notes, “[d]espite the undeniable presence of recreational-use parks at the Founding, the panel—and California and Hawaii—fail to provide any Founding-era laws prohibiting firearms in those places.” Instead, “the panel looked to precedent from the mid-to-late-19th century” to uphold Hawaii’s ban on the carry of handguns in parks and beaches. In short, the historical era question is determinative.
As you can imagine, the gun control lobby is already flipping out over the Court’s decision to grant cert, calling Hawaii’s law “common sense”, even though it’s an anomaly in the history of our right to keep and bear arms.
The “vampire rule” was adopted by multiple Democrat-controlled states after Bruen as a way to curtail the right to carry, but as Beck and O’Grady note, multiple appellate courts have found that the law violates the Second Amendment. This will be the first time that SCOTUS has taken up the issue of “sensitive places” since handing down the Bruen decision, and though the justices will only explicitly be looking at this particular statute, its decision in Wolford will hopefully have a positive impact on the ongoing challenges to other “sensitive places” as well.
The Court hasn’t yet set a date for oral arguments, but the first round of briefing is due in mid-November, so we’re likely looking at oral arguments early in 2026 and a decision handed down sometime before the justices end the 2026 term in late June or early July. There are a number of additional 2A cases awaiting the Court’s consideration in conference this year, so Wolford may just be the first of several cases dealing with our right to keep and bear arms that the justices take up in the coming months.
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