The Volokh Conspiracy

Hawaii's "default no-carry" rule for private property is being defended with a familiar move in Second Amendment litigation: describing history and any underlying principles at such a high altitude that almost any modern restriction can be made to look "analogous." In his amicus brief in Wolford v. Lopez, Professor Joel Alicea argues that this is nothing less than the fulcrum on which Bruen either stands as a real constraint on government power, or collapses into a Rorschach test where judges can always find a historical "tradition" of firearm regulation by choosing the right level of abstraction.

The brief's core claim is simple: under Bruen, courts must identify whether a modern gun regulation is "relevantly similar" to historical firearm regulations in both how it burdens the right and why it does so. But "how" and "why" are infinitely malleable if courts are free to redescribe historical laws at whatever level of generality they want. If you characterize an old statute with maximal specificity, few modern laws could match. If you characterize it as "regulating arms in the public interest," everything matches. The entire enterprise turns on a threshold question: which features of the historical laws are essential and which are incidental?

Alicea's proposed solution is a return to first principles. The point of Bruen's history-and-tradition test is to illuminate the original contours of the pre-existing right the Second Amendment was codified to protect. So, the relevant "level of generality" is the one the ratifying generation would have understood as bearing on the substance of the right. That requires judgment, and even normative reasoning, but not the free-floating interest-balancing that Bruen rejected. The normative premises are supplied by the ratifiers' worldview, and one key "guiderail" is nonnegotiable: courts cannot define a historical "tradition" in a way that effectively nullifies the constitutional text's protection of the right to "bear Arms."

The appropriate level of generality matters here because Hawaii's law flips the ordinary rule for much of public life. It requires affirmative consent before carrying firearms onto any private property, including private property held open to the public, like grocery stores, restaurants, gas stations, gyms, and banks. The Ninth Circuit upheld the law by pointing to a handful of historical enactments that, in its view, show a tradition of requiring permission to carry on private land.

Alicea argues that those analogies fail once history is described at the right level. The "tradition" the Ninth Circuit invoked is better understood as a narrow anti-poaching regime: laws aimed at preventing trespassing with guns for unauthorized hunting, typically limited to "improved" or "enclosed" lands, private property not generally open to the public. The "why" was anti-poaching; the "how" was restricting armed entry onto lands where hunting trespass would occur. Those limitations are not incidental trivia. They are precisely what kept such laws from destroying the general right to carry arms in public for self-defense. Strip those features away and you manufacture a broader tradition that can be deployed to justify Hawaii's sweeping default rule. But that move, Alicea contends, is exactly what Bruen forbids because it eviscerates the right by redefining historical limits so broadly that the right becomes largely theoretical.

The brief also demonstrates how the two "dead-ringer" statutes that the Ninth Circuit relied on are not relevantly similar to Hawaii's law. New Jersey's 1771 law, Alicea argues, is transparently an anti-poaching measure by its title and structure. It should not be read as a general ban on carrying across all private property for all purposes.  (It bears recalling that, as Blackstone observed, the English game laws had the purpose of "disarming the bulk of the people.")

And Louisiana's 1865 law, which prohibited carrying firearms on another's premises without consent, is part of the post–Civil War Black Codes, an effort to suppress the rights of newly freed Black citizens. In his concurrence in Rahimi, Justice Kavanaugh wrote that lower courts should not rely "on the history that the Constitution left behind" when determining the constitutionality of a modern firearm regulation. A racist law enacted to nullify constitutional rights cannot credibly supply the historical "tradition" that defines those rights and would be better read as an illustration of the sort of evils the Second Amendment is designed to prevent.

The point is not that property owners lack authority to exclude firearms; they plainly can. The point is that government cannot convert private exclusion into a near-universal public disarmament by default, then call it "history." If Hawaii can do this, Alicea warns, Bruen's protection of public carry becomes an empty promise, contingent on a patchwork of affirmative permissions most people will never obtain. The Court, he argues, should reverse.

* * *

A few other reflections come to mind on reading Prof. Alicea's brief.  First, in terms of historical traditions, at a high level of generality, it is understood that in authoritarian regimes, one may not act without first getting permission, while in free societies one is allowed to act unless prohibited.  Hawaii's default law requires permission before acting.  Second, what would happen if Hawaii prohibited a person from wearing a MAGA baseball cap into a store without first getting permission?  Any First Amendment problem there?  And third, if Hawaii is such a champion of "property owners' rights," why did it prohibit mere possession of firearms in bars, financial institutions, and swimming pools, leaving the owners no choice to consent?

For more detail on this issue, see J. Joel Alicea, Bruen Was Right, 174 U. Pa. L. Rev. 13 (2025), which I summarized here.  See also Mark W. Smith, The Third Rails of Second Amendment Jurisprudence, Harvard JLPP (Sept. 2025) (explaining guardrails or "disqualifiers" that signal when a court has derived an underlying principle too broadly); Stephen Halbrook, Text and History or Means-Ends Scrutiny? 24 Fed. Soc. Rev. 54 (2023).