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.
