The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Government Urges S. Ct. to Take Second Amendment Case
The question presented in Wolford v. Lopez is:
Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner's express authorization.
And here's the Introduction from the government's brief:
From the earliest days of the republic, individuals have been free to carry firearms on private property unless the property owner directs otherwise. And in NYSRPA v. Bruen (2022), this Court confirmed that restrictions on carrying firearms for lawful purposes such as self-defense violate the Second Amendment unless they fit within a discernible historical tradition.
Yet, after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns. Violations constitute misdemeanors punishable by up to a year in prison. Because most property owners do not post signs either allowing or forbidding guns, Hawaii's default rule functions as a near-complete ban on public carry. A person carrying a handgun for self-defense commits a crime by entering a mall, a gas station, a convenience store, a supermarket, a restaurant, a coffee shop, or even a parking lot. Yet, in the decision below, the Ninth Circuit upheld that rule against a Second Amendment challenge.
That decision warrants this Court's review. Hawaii's novel default rule defies—indeed, effectively nullifies—the "general right to publicly carry arms" that Bruen recognized. Someone carrying a firearm for self-defense cannot run errands without fear of criminal sanction. In practice, only "those who aimlessly wander the streets" may exercise their right to bear arms [citing Judge VanDyke's dissent from the decision below -EV].
That is no accident. The structure and operation of Hawaii's law reveal that the law serves no legitimate purpose and instead seeks only to inhibit the exercise of the right to bear arms. Hawaii's default rule applies only to firearms—not to anything else that a person might bring with him into a privately owned area that is open to the public. The rule also requires owners who want to allow guns on their premises to satisfy a special standard of clarity that does not apply when they consent to other conduct.
And the rule contains exemptions—including for off-duty police officers, retired police officers, and state employees going to and from work—that would make no sense if Hawaii were trying to protect private property rights. Those exceptions only make sense if Hawaii were trying to limit arms-bearing to select, favored groups and to exclude everyone else.
Certiorari is manifestly warranted. The Ninth Circuit's decision conflicts with Bruen's recognition that the Nation does not have "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The Ninth Circuit also acknowledged that its decision conflicts with the Second Circuit's decision in Antonyuk v. James (2d Cir. 2024), that a similar New York default rule violated the Second Amendment. Eight judges dissented from the Ninth Circuit's refusal to hear this case en banc, correctly recognizing that Hawaii's law "largely vitiate[s]" the right to carry arms in public, and "practically accomplish[es] close to the same thing rejected in Bruen."
Five States embracing more than a fifth of the Nation's population have already adopted that type of Bruen-nullifying rule, and the decision below invites other jurisdictions in the Nation's largest circuit to do likewise. This Court should grant the petition for a writ of certiorari and reverse.
Such arguments from the federal government asking the Court to hear a case are generally seen as substantially increasing the likelihood that the Court will indeed agree to hear it. Still, it's no guarantee; we'll know soon enough whether the Court does grant review. You can read the opinions below in the Appendices to the petition for certiorari.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
IMHO, the enactment of this law without any other widespread "property owner protection" laws which forbid other activities without express permission evinces a clear hostility to Second Amendment rights.
Property owners are free to ban carry from their property, but there is no historical tradition which permits the state to enact this default rule which runs contrary to every other use of another's property.
I wouldn't even go that far. I believe that, in a vacuum, private property owners should be free to ban carry, but the sole remedy should be asking the person to leave, and if they don't, it's trespass.
The state should not criminalize the property owner's preference, as it doesn't do so in any other instance.
Let's look at a different second amendment case.
Non-citizens in the United States on non-resident visas (or illegally present) have no second amendment rights. They are expressly forbidden from possessing any firearm, outside very limited exceptions.
How is this possibly legal, given the Second Amendment which guarantees the right of the people to keep and bear arms? Do individuals in the united states who aren't citizens and aren't on resident visa not count as "the people"?
Are illegal aliens, whatever words you choose to use, something you'd normally consider as potential members of a militia?
The "militia" really doesn't matter for the Second Amendment, and even if it did, plenty of non-US citizens have served in the armed forces.
You posted this less than a day ago.
https://reason.com/volokh/2025/04/30/cato-fire-amicus-brief-against-speech-based-deportations-of-foreign-students/?comments=true#comment-11027618
You got quite a few responses. None you responded to.
Your "response" didn't warrant being responded to.
You got quite a few responses. None you responded to.
Very straightforward. Of course they don’t count as”the people.” You might as well be outraged by how the constitution can permit abortion. Just as only persons have the rights of persons, only members of the people have the rights of the people. And a non-citizens on non-resident visas are no more members of the people than a fetus is a person.
The term “the people,” including the fact that non-citizens on non-resident visas are not part of it, is discussed in detail in United States v. Verdigo-Irquidez.
Here’s a fun tidbit, though. The Second Amendment is incorporated against the states via the 14th Amendment’s Due Process Clause. As many people have pointed out on other threads re the deportation cases, the Due Process Clauses apply to all persons, not just citizens.
But substantive due process, even if you agree with it, is a legal fiction used simply because the Court gutted the Privileges or Immunities clause. Like all legal fictions, it only goes as far as it is useful and we don't run it into the ground for a measure of linguistic consistency.
Surely we can imagine SOME rights that are not given automatically to someone who stumbles onto our soil despite being based on substantive due process. To take it to an absurd result, we could not shoot at an invading army because those soldiers are people entitled to due process before they forfeit their lives.
Well, despite what the Obama Administration might have thought, soldiers on a battlefield don’t ever have due-process rights. They might have certain protections under the laws of war, but that’s not covered by the Due Process Clause.
And I agree that the P or I Clause is the correct incorporation mechanism. But that’s not what the Supreme Court uses. They use the Due Process Clause. And that clause, by its clear terms, applies to all people, not just citizens.
And by its own terms, it does not exclude soldiers on a battlefield. Congress knew how to write "except soldiers on a battlefield" if it wanted.
BTW, I agree with you. I am just pointing out how the idea that as the DP clause does not only apply to citizens and nominally applies to everyone doesn't mean that it literally applies to everyone, especially in the fictive area of substantive due process. To hold otherwise you would have to say that illegal aliens have a right to keep and carry arms. They can be deported, but have the right to keep and carry arms throughout the process.
Can the state ban concealed carry at all houses of worship? I would say no for the same reason as this case.
No. A house of worship is not a sensitive place. This case is not enough. SCOTUS needs to actually opine on what a sensitive case is. We've had years of litigation, and the lower courts are still exercising outward hostility to the right.
They will always exercise hostility to the right to keep and bear arms. It’s the classic mentality of the rich and privileged. They are allowed armed guards and protected communities. The plebs can be at the mercy of thugs and criminals.
You must oppose bans on carry in courthouses and government buildings and party political conventions, it seems.
What are you on about?
If they don't have metal detectors and other forms of security, then yes, I do.
Bruen never articulated why courthouses and government buildings are sensitive places. Is it because people can get shot? That's the same danger as at Wal-Mart. Bruen was not a very good opinion and its application is even worse.
It's because Bruen was decided by judges, and judges work in courthouses, I assume.
Sorry, Bruen said that polling places and legislative assemblies were sensitive places but did not articulate the reason. Are schools and courthouses sufficiently similar? What factors about all of these places is a judge to look to in order to answer that question?
And one can't say "Well, if there is a metal detector installed" because that doesn't fit the history or tradition test at all.
How about subways or zoos?
You're asking for a rationale, I'm supplying a motive.
You can absolutely say a metal detector installed makes a distinction, because it separates a good faith rationale and pretext.
So because a government department makes the choice to become more of a security and police state, installing metal detectors in more places that never previously had them, that acts as a justification to further restrict your Second Amendment rights as well?
That's astounding. It also does not comport with the test laid out in Bruen whereby you analyze a gun restriction based on history and tradition, not a modern day choice to place certain technology.
At least three members of the Court share that overt hostility, and a solid majority of the remainder are decidedly uncomfortable with it, and would rather not be cornered into upholding it.
I think that's right. I've long thought that Congress should force SCOTUS to take cases if a certain number of state attorneys general request it. This doesn't stop them from ruling against it, but it at least forces them to say where they stand, and let the chips fall as they may.
"Gun free zone" signs have always been ridiculed by 2A advocates as stupidly inviting mass shooters onto properties where they can kill people knowing no one has a gun to shoot back. Now their argument is that such signs are required.
No, just that they're required if somebody is stupid enough to want to create one.
It's a basic constitutional right, that it be permitted HAS to be the default.
I started to engage with this, but ultimately I think it's just a red herring. In either case, the sign is required to advise members of the public of an area where the default rules do not govern. The dispute is not over signs at all, but what the default rule is that the signs override.
Crud, I can't help myself: under Hawaii's default rule, mass shooters know they're free and clear anywhere UNLESS they see a sign. Do you really see that as better?
Unless every private property has a metal detector entrance -- along with a "gun free zone" sign -- someone with a gun can walk in and do all the shooting he wants. That was the point of the widespread ridicule here over the "gun free zone" sign solution to school shootings.
One of many examples:
https://volokh.com/2013/01/09/how-to-stop-school-shootings-right-now-abolish-pretend-gun-free-zones/
wherein David Kopel says, "Unless they're backed up with metal detector entrances, gun free zone signs are magnets for mass killers."
So you would allow guns at Trump rallies?? Because Crooks was a bitter clinger MAGA Republican.
Yes, that just goes to establish that it's stupid to create 'guns held by the law abiding' free zones, and doubly stupid to make no further effort to secure them against 'guns held by criminals'.
That double stupidity doesn't become less stupid if you expand the zones until they merge and leave little non-stupid zones.
What we're discussing here is an effort to make 'guns held by the law abiding' free zones the default. And as I said above, that CAN'T be the default, because it's a damned constitutional right, and you can't make a default rule that constitutional rights can't be exercised!
To paraphrase from another famous Supreme court ruling, what the Constitution barely permits at all can't be the default.
See my reply above. The state has no business criminalizing a property owner's preferences anyway. There is no other instance where disobeying a property owner's request turns a lawful act into an unlawful one, unless of course, you are told to leave and don't.
But that is illegal whether you disobeyed a request or not.
Mass shooters want guns to be around because they are suicidal…that’s why the most recent mass shooter drove into a huge police presence on Bourbon Street. Btw, EVs are high performance vehicles and really the reason he killed so many people was because he was driving a huge truck that was silent and performs like a Ferrari. Who needs a truck that performs like that especially when it can’t haul things very far??
The 2nd amendment is bolstered by the 1st, as a free speech argument. Since free speech has been expanded into free expression and so forth, 2A is an extension of 1A, as is every other amendment an extension too. Progression is to a freer society, not to a freer extension of government to naturally hinder freedom. Missing in this argument is the pinnacle element, responsibility.
The gun issue is from not holding responsibility of self as the highest element to attain. Freedom comes after responsibility, not before. Responsibility is more difficult to obtain, but it must be achieved.
I don't know why he limited the question presented to concealed carry, given that the prohibition applies to Open Carry as well (page 206a of the cert petition).
More proof that the Heller case is a sham: that gun crazies on this nation, led by the bloodthirsty current chief executive, have no intention of ever finding a "reasonable" restriction on 2nd amendment fanaticism. Gun nuts, the blood of thousands of your fellow Americans is on your hands.
There are no "reasonable" restrictions of a natural right guaranteed by the phrase "shall not be infringed".
You want 'gun control', amend the US Constitution.
When it comes to fundamental rights, "reasonable" is not enough.
"Reasonable" gun regulation is rather like separate but "equal"; In practice you never see it, because people who want "separate" don't WANT "equal", and people who want gun regulation don't want "reasonable".
Gun controllers aren't trying to make gun ownership relatively safe. They're trying to abolish it.
There are already thousands of laws on the books throughout the United States that regulate guns. Some are reasonable, and some are not.
But your side can not name a single restriction that would be unreasonable. Hell, when Heller's complete ban on ownership, and Bruen's complete ban on carry, were overturned, you had a collective hissy fit.
If those restrictions were not unreasonable, what are?
I point that out occasionally myself. The jig was up for "reasonable" gun laws, the moment Heller landed, and the reasonable gun controllers went berserk. They can't expect us to forget what that told us they think "reasonable" means: "Absolutely anything we can pass.".
Yes. Even if you assume the rational basis test should apply, which of course I don't, many of the gun laws on the books are not even rational, unless the government interest is just bothering gun owners.
"Rational basis" would be better called "Not chewing the furniture insane basis". They don't require the basis to actually be rational, or even to have been the basis upon which the law was actually enacted. It just requires the judge to be able/willing to imagine some basis on which the law COULD have been enacted that didn't literally require you to be insane to take seriously. Objective falsity doesn't even count.
Laws never fail rational basis analysis unless the judge personally finds them objectionable.
And under that test, what law wouldn't pass rational basis? I mean you had a majority of two houses of a legislature and the governor who signed it who thought it was a good idea. Should a court hold that they just lost their collective minds along with the people who elected such lunatics?
"And under that test, what law wouldn't pass rational basis?"
A law the judge really didn't like, I said.
If it were really rational basis, finding that the supposed basis of the law was factually false would be fatal. It's really just, "Judge doesn't like the law enough to rationalize it making sense" basis.
"privately owned area that is open to the public"
The list includes "a mall, a gas station, a convenience store, a supermarket, a restaurant, a coffee shop, or even a parking lot."
A mall is a semi-private area at best which is akin to a public shopping district. Other "privately owned areas" can be regulated, including under the Commerce Clause. They are not purely private.
Applying Heller, involving the right to own a firearm in the home, to a large supermarket is somewhat silly. But, that's where we are these days.
In the absence of laws to the contrary, supermarket proprietors are free to ask armed persons to leave, even if they are Secret Service agents without a warrant.
"Applying Heller, involving the right to own a firearm in the home, to a large supermarket is somewhat silly. But, that's where we are these days."
Heller held that the Second Amendment was not simply applicable to militia members but to individuals for self defense. It noted that possession and carry in the home (which is what was at issue in that case) was most acute where one lives.
It would be a perverse and illogical reading of that case to say that one can ONLY carry in the home or that there is ZERO need for self defense outside the home.
"It would be a perverse and illogical reading of that case to say that one can ONLY carry in the home or that there is ZERO need for self defense outside the home."
That's nice. I talked about a specific thing -- guns in Shop & Stops and the like. Not anything outside of the home.
Are violent ghettoes even a thing in Hawaii?
From the Introduction from the government's brief: for "... five States, including Hawaii, ... Violations constitute misdemeanors punishable by up to a year in prison."
In Hawaii, misdemeanors are punishable by prison terms of no more than one year in county jail (HRS 701–107, 706–640), not in prison. That's the difference where you end up confined for felonies compared with misdemeanors, here in CA, and, I think, in most other states as well.
While the law IS nominally a misdemeanor, it carries with it a revocation of, and ban on future issuance, of your carry permit.
But carrying a gun is part of the constitutional right, carry permits are only allowed by the Court on the (dubious!) theory that issuance is nearly automatic, and the permits are only being used to deny carry to people who have forfeited their 2nd amendment rights, or not yet come into them.
So we're talking about a 'misdemeanor' whose violation results in the revocation of a basic constitutional right of citizens. At least in THEORY, the Court should treat it instead as a felony that just happens to carry a short prison sentence, because, traditionally, the dividing line between misdemeanors and felonies was whether or not you could lose a civil right as a result of conviction.
There's *some* Supreme court precedent that misdemeanors can result in loss of 2nd amendment rights, (In connection with the Lautenberg amendment.) but it dates back to before the Court was willing to admit that the 2nd amendment guaranteed an actual right, and it had been treated as revocation of a privilege, instead. Since Heller that should not be good law anymore.
But after Rahimi, I have no confidence at all that the majority on the Court would feel bound to actually treat the 2nd amendment as a real constitutional right in that respect.
In theory, I don't have an issue with disarming people who have so little control over their tempers that they beat their family members.
In practice, I don't trust the courts to fairly adjudicate these cases, especially given that a pushing match between a man and a woman almost always results in charges for the man.
And that's leaving aside that many people pleaded guilty to misdemeanor DV charges prior to the Lautenberg Amendment. At the very least, that should never have had retroactive application.
Indeed, I have no problem with making domestic violence a felony, which carries the appropriate penalty once you're convicted.
But the Lautenberg amendment DID retroactively apply to people who had merely plead guilty on account of the only penalty being a fine that was cheaper than hiring a lawyer to defend against the charge. And that was justified on the basis that revocation of a privilege wasn't a "penalty".
Reasoning that evaporated the day Heller was decided.
Why cant these people be banned from marrying?
Why can't the cops just search their home on a whim?
Why are they allowed to have attorneys?
Shouldn't we revoke all their rights?
But doesn't the felony/misdemeanor distinction just give the government the power to slap a label on an infraction and bar more people from owning guns? Could the legislature make speeding or overtime parking a felony and along with it a lifetime gun ownership ban?
Because your domestic violence as a felony is not that far behind. Remember shoves or unwanted touchings are a battery. To make that a felony is extreme to say the least.
Agreed. I don't like the felony/misdemeanor distinction. It's more about whether the state has a compelling interest in reducing violence by disarming these particular people. Very few crimes, in my view, should categorically be considered this way without individual analysis.
"And that's leaving aside that many people pleaded guilty to misdemeanor DV charges prior to the Lautenberg Amendment. At the very least, that should never have had retroactive application."
What do you do with people who for two decades pled domestic battery charges down to simple battery so they could keep their gun rights only to find that the FBI now has a policy where they look behind the name of the crime at issue and read who the battery victim was. And if the victim is a household member, then no guns. That has some serious constitutional issues.
I've never understood the distinction. The husband cheats on the wife and she momentarily loses her temper. I don't think she's as dangerous as the guy who punches the third stranger who walks around the corner.
If it were up to me, I wouldn't disarm anyone who is too violent to own a gun. I'd rather keep them locked up. In the world we unfortunately have, I wouldn't have anything have retroactive application. If you didn't lose your gun rights on the day you pled guilty or were found guilty, you shouldn't be able to lose them later based on the same conviction.
Our country has collectively lost its mind. A large portion of you demand that you be allowed your gun fetish to exist everywhere and anywhere, no matter what. To you, the Constitution is a suicide pact. You favor bans on things like drugs to reduce drug use and crime. But god forbid anyone touch your precious guns. That's when bans don't work. You are all a bunch of hypocrites willing to just shrug off hundreds of dead children and pretend we can't do anything about it.
I'm sure we could reduce crime if we randomly searched homes for evidence. Would you support that or do you have a privacy fetish?
What is this obsession with rights?
What about our right to be safe?
What about our right to peace and order?
So many people are simping for violent illegals because of concern for their rights.
You don't have a right to be safe.
Listen, idiot: I'm 66, I was born in a country where schools had rifle clubs, airlines treated guns as normal carry on baggage, anti-materiel rifles were sold mail order through ads in the backs of magazines, ordinary people could buy brand new machine guns.
And everything was fine!
So don't give me this garbage about upholding the 2nd amendment being suicidal. We're not trying to bring about some novel circumstance, we're just trying to get 2nd amendment rights restored to what they were before our idiot legislators set out to take them away from us.
They just want to end the violence in the ghetto!
No, these lawmakers do not.
They publicly embraced the narrative of police habitually hunting down and gunning down unarmed Black men, embraced the narrative of the criminal justice system being systemically racist.
And now they enact these laws to be enforced by these very same police in this very same system?
I deduce it is a culture war issue with them, and they are motivated by animus against the White male conservative.
It's partially culture war, and partially an awareness that they want to do a lot of things that would royally piss off a lot of people, and they really, REALLY hate the fact that they have to refrain from doing them out of fear of provoking a violent response from the public.
They're not concerned about the criminal class, because the criminal class aren't any sort of personal threat to them. In fact, crime is useful as an excuse to disarm the law abiding.
That's correct. They impose these gun laws solely because they know white male conservatives don't like those laws. It's the same reason they try to force men into women's sports. It's not that they actually care about transgenders or their supposed "rights." They want to piss off middle class white conservatives.
In that particular case, they underestimated how much others would oppose that too.