The U.S. Supreme Court is poised to hear a pivotal case, Jason Wolford v. Anne Lopez, Attorney General of Hawaii, which challenges Hawaii’s stringent firearm laws. The case, brought before the Court on a writ of certiorari to the Ninth Circuit, questions whether the Second Amendment permits a state to prohibit concealed-carry license-holders from carrying firearms on private property open to the public without the property owner’s express authorization.
The United States Department of Justice (DOJ) has now filed an amicus curiae brief in support of the petitioners, arguing that Hawaii’s law infringes on Americans’ constitutionally protected right to keep and bear arms.
The dispute stems from an Act of the Hawaiian Legislature passed in June 2023, which amended Hawaii Revised Statutes § 134-9.5. This law prohibits concealed-carry license holders from carrying firearms on private property open to the public unless the property owner explicitly permits the gun owner to carry. The petitioners, led by Jason Wolford, contend that this restriction violates their Second Amendment rights, a position echoed by the U.S. Department of Justice in its brief. The case builds on recent Supreme Court precedents, notably New York State Rifle & Pistol Association, Inc. v. Bruen and United States v. Rahimi, which have shaped the modern interpretation of the right to bear arms.
The Ninth Circuit’s initial ruling, which upheld Hawaii’s law, was vacated following the Supreme Court’s decision to review the case. The Supreme Court’s reversal shows an ongoing tension between state regulatory powers and individual constitutionally protected gun rights, a debate reignited by Bruen’s emphasis on historical analogues for firearm regulations.
The DOJ’s brief asserts that Hawaii’s restriction serves an improper purpose and effectively negates the Second Amendment protection of the right to bear arms. It argues that firearm restrictions must advance a valid purpose and cannot unduly burden an American’s fundamental right. The brief criticizes Hawaii’s law for being designed to achieve an invalid goal, effectively preventing public carry of arms by leveraging private property rules. The brief highlights that the law’s broad application leaves few practical locations where concealed carry is permissible, undermining the right’s core intent.
Historically, the DOJ points out that traditional property law allowed armed individuals to enter public spaces unless the owner explicitly restricted such entry. The Justice Department’s lawyers argue that Hawaii’s requirement for express authorization lacks a sufficient historical analogue. It argues that the provided analogues do not apply because the common-law traditions in which property owners could regulate entry did not universally prohibit firearms. The brief states that the absence of precedent weakens the state’s legal footing, as Bruen mandates that modern regulations align with historical practices.
Additionally, the brief challenges Hawaii’s reliance on the First Amendment doctrine, which the state uses to justify its property-based restrictions. The DOJ’s lawyers argue that the free speech precedents Hawaii cites, such as those governing public forums, are inapplicable to the Second Amendment. The right to bear arms, rooted in self-defense, differs fundamentally from expressive rights, rendering this analogy misplaced.
The Wolford v. Lopez case could have far-reaching implications for how states regulate firearms on private property. If the Supreme Court rules in favor of the petitioners, it may limit states’ ability to impose broad firearm carry restrictions, reinforcing the Bruen decision’s focus on historical consistency. Conversely, upholding Hawaii’s law could expand state authority to delegate firearm regulation to private property owners, potentially creating a patchwork of local rules that complicate concealed-carry rights.
The DOJ’s brief cites early American cases like State v. Reid and Nunn v. State, which affirm the individual right to bear arms, alongside modern scholarship such as William Baude and Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF’s) Chief Legal Counsel Robert Leider’s The General-Law Right to Bear Arms. The DOJ cited sources that underscore that the Second Amendment’s protection extends beyond public spaces to areas where the public is invited, challenging the Hawaiian restrictive firearm law.
Hawaii defends its law by arguing that it balances public safety with property rights, aligning with the state’s authority to regulate firearms under its police powers. The state contends that requiring express authorization protects property owners from liability and ensures a consistent safety standard. Hawaii asserts that property owners have a constitutional right to exclude individuals, including those carrying firearms, but the petitioners do not contest property owners’ rights to ban firearms on their private property. The petitioners are challenging the creation of de facto “gun-free zones” by requiring property owners to give explicit permission to someone before they can carry a firearm on their property.
The Justice Department counters that Hawaii’s interpretation overextends property rights, effectively nullifying the Second Amendment. The brief notes that historical property rules, such as those in the 1844 case of Commonwealth v. Power, did not impose blanket prohibitions on armed entry, suggesting Hawaii’s law is an outlier. The brief relies on District of Columbia v. Heller and McDonald v. City of Chicago to reinforce that the Second Amendment is a fundamental right applicable to the states, not subject to erosion through indirect means.
As the Supreme Court deliberates on Wolford v. Lopez, the decision will likely clarify the scope of Second Amendment rights on private property open to the public. With oral arguments pending, stakeholders await a ruling that may set a precedent for decades to come.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
