The scorching hot takes about the Wolford decision keep coming, as anti-gunners try to cope with yet another loss at the Supreme Court. Bloomberg opinion columnist and Yale Law professor Stephen Carter has chimed in with his spin on the Court’s decision striking down Hawaii’s “vampire rule” that banned lawful carry by default in all private property open to the public, and as you might expect given who signs his paychecks, Carter isn’t thrilled with the Court’s decision.
Carter claims that “it’s not quite clear what burden, besides the inconvenience, justifies the conclusion that Hawaii’s default rule violates the Second Amendment.” That’s easy enough to debunk just by reading the majority opinion, but most of Carter’s audience will never do that.
In order for Hawaii’s law to be upheld, the state had to show that the “vampire rule” was consistent with our national tradition of gun ownership. They simply failed to do so.
The state primary evidence consisted almost entirely of laws that were meant to stop poaching on someone’s private property. As Justice Alito wrote:
These laws—including a 1721 Pennsylvania law, 1722 New Jersey statute, 1728 Maryland statute, 1763 New York law, and 1771 New Jersey law—targeted unauthorized hunting and applied to land where game could be found, not retail establishments that residents frequent as part of their daily routines. Those laws had little if any impact on the Second Amendment’s central objective of protecting the fundamental right to self-defense, and their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting. The gap between the State’s anti-poaching analogues and its new rule is too wide.Both the “how” and the “why” of those 18th century laws differ dramatically from Hawaii’s default rule. As Alito noted, the scope of the older statutes was far more limited than Hawaii’s law, and the reason for those statutes was nowhere close to Hawaii’s objective of simply limiting the presence of firearms in as many places as possible.
Both the “how” and the “why” of those 18th-century laws differ dramatically from Hawaii’s default rule. As Alito noted, the scope of the older statutes was far more limited than Hawaii’s law, and the reason for those statutes was nowhere close to Hawaii’s objective of simply limiting the presence of firearms in as many places as possible.
Hawaii also pointed to a similar law adopted in Oregon in 1893, as well as a Louisiana law adopted in 1865 that was meant to stop newly-freed slaves from carrying firearms. Again, quoting the majority opinion:
Hawaii’s claim that this tainted artifact from Louisiana’s Black Code illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.And even setting aside this statute’s pedigree, it carries no weight because it was neither widespread nor widely accepted.
So where does Carter get the idea that this case was about convenience and not a constitutional right? From the start of Alito’s opinion, he says, there is “solicitude for lawful gun owners, who, absent judicial intervention, might suffer through anxious days.”
When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, “big box” stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats.
I mean, bummer. All that worry!
Don’t get me wrong. I do think the Second Amendment has teeth, and I’m not about to say that all government regulations of the right to bear arms should be upheld. The puzzling part, however, is that here, in striking down the Hawaii law, the majority seems concerned mostly about how those anxiety-filled days might go.
Well, yes. Because when you deprive someone of the ability to carry a firearm in self-defense, bad things can happen.
Contrary to Carter’s claims, though, I don’t think most of us who carry concealed on a regular basis are filled with anxiety. It seems to me that the anti-gunners are the ones who are worried about running across a gun owner at a grocery store or gas station, at least if you believe the press releases from groups like Giffords and Everytown who are freaked out by a “guns everywhere” agenda on the part of 2A activists.
Carter’s belittlement of a fundamental right isn’t surprising for a Bloomberg columnist, but it’s unbecoming of a law professor. Would Carter see it as a mere inconvenience if Hawaii barred the wearing of religious symbols by default on all private property accessible by the public, or suspended the Fourth Amendment rights of citizens unless private property owners opted in?
I highly doubt it. Carter is treating the Second Amendment as a second-class right, regardless of his claim that he thinks the amendment has teeth. Wolford was never about convenience for gun owners. It was about the state adopting an ahistorical law that was meant to prevent the exercise of a civil right as much as possible.
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