In a major defeat for gun control activists, the Supreme Court has ruled that Hawaii’s law prohibiting concealed carry by default on all private property open to the public is a violation of the Second Amendment’s right to bear arms.
The 6-3 ruling, with Justice Samuel Alito writing for the majority, wasn’t exactly unanticipated, and not just because a majority of the Court appeared skeptical of the argument presented by Hawaii’s attorney Neal Katyal during oral arguments back in January. No other “vampire rule,” (as Firearms Policy Coalition’s Rob Romano nicknamed the law) has withstood lower court scrutiny, with similar bans being struck down in Maryland, New York, and California.
Like those lower courts, the majority opinion determined that while some places may be deemed so sensitive that concealed carry can be prohibited, there is no national tradition of banning lawful carry as broadly as Hawaii did.
The State’s colonial and early state law analogues consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property. 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.
The majority also took issue with Hawaii’s contention that the “spirit of Aloha” and its “particular customs and laws” were enough to keep the ban in place:
The Second Amendment cannot give way to “the spirit of Aloha” in Hawaii any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.
Hawaii also pointed to an 1865 Louisiana law that prohibited carrying on plantation property without the express consent of the owner; a law that was adopted as part of the infamous “Black Codes” put in place to disarm freed slaves and freemen in the immediate aftermath of the Civil War.
As the Court laid out in McDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. This was well-understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. Against this history, 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.
Many Second Amendment supporters, including me, were hopeful that the Court’s ruling would be instructive in other legal challenges to specific “sensitive places.” Alito’s opinion doesn’t really do that, though he and Justice Amy Coney Barrett, who wrote a concurrence, note that Hawaii not only adopted a “vampire rule” but put in place extensive prohibitions on a broad category of “sensitive places.”
Hawaii imposes two additional restrictions on carrying firearms. The first bans the possession of a firearm in significant categories of places: “[a]ny [state-owned] building” or “adjacent grounds and parking areas”; “[a]ny public or private hospital” or “other place at which medical or health services are customarily provided”; any “restaurant serving alcohol”; any “stadium, movie theater, or concert hall”; any “public library property”; “any public or private” college or university; “any public school, charter school,” or private school; any “beach, playground,” or park; “any bank or financial institution”; any “amusement park, aquarium, carnival, circus, fair, museum, water park, or zoo”; and any “public gathering, public assembly, or special event conducted on property open to the public.”
Some of these places are owned by the State, but many of the categories include privately owned property. So even if the owner of such a place wanted to admit individuals who are carrying a gun for self-defense, the owner could not do so.
The second restriction—the one at issue in this case—generally prohibits licensed individuals from carrying a firearm, even if unloaded or inoperable, “on private property of another.” §134–9.5(a). Certain categories of individuals, such as police officers, are exempt, but the ban otherwise applies unless “express authorization” has been given “by the owner, lessee, operator, or manager of the property,” Such authorization must take one of two forms: “clear and conspicuous signage” that confers such consent or “[u]nambiguous written or verbal authorization” to carry a firearm on the premises from “the owner, lessee, operator, or manager of the property” or an agent of such a person.
The fact that Alito and the majority seem to call into question the State’s ability to prohibit concealed carry in these privately-owned establishments is a positive sign, even if Wolford doesn’t strike them down outright.
The dissenting opinions, authored by Justice Elena Kagan and Justice Ketanji Brown Jackson (and joined by Justice Sonia Sotomayor), largely treat the Second Amendment as if it is a second-class right, echoing arguments by law professors Akil and Vikram Amar that the right to keep and bear arms has always been more limited than, say, the freedom of speech.
Jackson and Sotomayor argue that this case is really about property rights, not the right to keep and bear arms, but Alito says their argument fails “because States may not adopt property-law rules that violate constitutional rights.”
Kagan, in a short dissent, argues that the “vampire rule” should have been upheld, because “it is a modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent.” I think Alito’s majority opinion demolishes Kagan’s argument, though, because the laws Hawaii cited were meant to curb poaching, not carrying a firearm in self-defense.
Practically speaking, today’s decision will have little direct impact outside the state of Hawaii, where lawmakers will undoubtably try to come up with a slightly less restrictive law that still makes it incredibly difficult to exercise the right to carry. And the Court made it clear that private property owners do have the right to prohibit firearms on their premises if they choose, even though that’s not really in dispute. The question was whether the government could impose its own ban and force property owners to opt out, and SCOTUS made the right call in rejecting that premise.
Now the fight will be over specific locations; how broadly states can analogize to 18th and 19th century regulations, and whether or not those regulations actually represent a national tradition. Anti-gun states have, in some cases, pointed to just a handful of state and territorial laws from the latter part of the 1800s to prohibit lawful carry in locations as varied as museums and libraries to restaurants where alcohol is served. They’ve argued that several bans on carrying in urban park settings in the 1800s renders all parks “sensitive places,” even state parks located in remote areas with no real security measures at all.
There are multiple carry cases making their way to the Supreme Court, and hopefully we’ll hear more on the right to carry from the justices in coming terms. In the meantime, we can and should celebrate the demise of Hawaii’s “vampire rule.” Today’s decision might be narrower than most of us would like, but it still beats a ruling that would have kept the rule in place… and kept gun owners out of many publicly accessible places. Congratulations to attorney Alan Beck for the victory, and for advancing the cause of liberty in the Aloha State and beyond.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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