In less than a month from now, the Supreme Court will hear oral arguments in Wolford v. Lopez, the challenge to Hawaii’s default ban on concealed carry on all private property (also known as the “vampire rule”, thanks to FPC’s Rob Romano) unless property owners specifically allow it. Amicus briefs in support of both the plaintiffs and defendants have now been filed with the Court, and over the next couple of days we’ll be taking a closer look at some of the arguments raised in defense of the gun control law… starting with the amicus brief filed by Everytown for Gun Safety.
What makes this brief noteworthy is the audacity of the gun control group’s arguments, which fly in the face of the Court’s decisions in Heller, McDonald, and Bruen and would essentially turn the Second Amendment into a dead letter if adopted by the justices.
The first argument raised by Everytown is that laws that are specifically designed to frustrate Second Amendment rights are presumptively constitutional, and that an “improper purpose” for a gun control statute is not reason enough for the courts to strike it down.
This Court’s decisions in Bruen and Rahimi set forth the operative analytical framework for Second Amendment challenges. When a contemporary law regulates conduct that falls within the Amendment’s text, this framework points courts to historical evidence to determine whether the law is consistent with tradition. The United States and petitioners now ask the Court to distort that methodology by arguing for per se invalidation of any regulations that “restrict[] firearms simply to frustrate the exercise of Second Amendment rights”—a description they incorrectly ascribe to Hawai‘i’s statutory scheme. And they incorrectly claim that their freefloating improper-purpose test is grounded in the textual and historical understanding of the Second Amendment. Because neither precedent, text, nor history supports that novel test, the Court should reject it.
Now, it’s true that the Supreme Court has said that courts need to look to the text of the Second Amendment as well as the national tradition of gun ownership to determine if a modern gun control law is 2A-compliant, but there’s a good reason why the justices have never explicitly said that laws meant to chill the exercise of our right to keep and bear arms are unconstitutional: it’s self-evident.
Rights exist for a reason, and any laws that are put in place with an eye towards curtailing that right are, by their very nature, constitutionally unsound. And despite Everytown’s claim to the contrary, Hawaii’s “vampire rule” is absolutely meant to stop people from exercising their right to bear arms. If it’s illegal to carry a gun in the vast majority of publicly accessible places, even with a concealed carry permit, then most people aren’t going to bother getting one… and those that do will be unable to carry except in a very limited number of locations.
The “vampire rule” has no real historical analogue. The best the Ninth Circuit could point to were a 1771 statute from New Jersey that prohibited carry on privately-owned improved land and an 1865 law from Louisiana that prohibited carrying on plantations (part of the infamous Black Codes adopted after the end of the Civil War). Neither of those laws banned the carriage of firearms on all private property by default, so they’re not even kissing cousins to Hawaii’s law, but even if they were, two laws adopted nearly 100 years apart is hardly evidence of a “national tradition.”
But Everytown argues that shouldn’t matter either. In fact, according to the anti-gun group, the Supreme Court should not require any threshold number of historical enactments to sustain a gun control law.
At bottom, the goal of a Second Amendmen tanalysis is to “examine . . . ‘historical tradition’ . . . to help delineate the contours of the right,” and to“consider whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” That goal is not reducible to a simple numbers test; it does not require mechanically counting enacted regulations any more than it requires “a ‘dead ringer’ or a ‘historical twin.'”
I doubt that the Court is going to come up with a concrete number of historical analogues that must be cited before a modern gun control law can be upheld, but the justices have made it clear that a handful of laws scattered across 250 years cannot suffice to prove a national tradition. In my non-lawyerly opinion, a national tradition should encompass at least two things: similar statutes adopted by a majority of states, and for a long period of time. Laws that were only on the books for a couple of years shouldn’t be seen as part of a national tradition, nor should laws adopted by only a handful of states.
I don’t know that the Court would be inclined to adopt my test either, but if it signed on to Everytown’s argument then the “historical tradition” test would become virtually meaningless… and so to would our right to keep and bear arms. Anti-gun states could adopt whatever restrictions they like, even if they’re explicitly designed to thwart the exercise of our Second Amendment rights, and could point to a single law or even a line of congressional debate as proof that the law is part of a historic tradition.
The end result of Everytown’s argument would be a right to keep and bear arms that exists on paper, but not in practice. That’s certainly in line with Everytown’s objectives, but it stands in stark contrast to the Court’s statement that the Second Amendment is not a second-class right and should be roundly rejected by the justices when the issue their decision in Wolford next year.
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