National and Local Traditions for the Second Amendment

The Second Amendment does not have a geography clause.

On Tuesday, the Supreme Court heard argument in Wolford v. Lopez. Most Second Amendment cases focus on who can carry arms or what kind of arms they can carry. But Wolford focuses on where people can carry. Heller and its progeny held that carry can be prohibited in certain "sensitive places." But Wolford goes beyond that rubric. Hawaii law provides that for businesses that are generally open to the public, affirmative permission must be granted to carry a firearm. This permission can be granted through a posted sign or oral consent.

One fascinating aspect of the argument focused on tradition. Is it the tradition of the nation? Or is it the tradition in Hawaii? The history of Hawaii, which was admitted to the Union in 1959, makes it somewhat unique. Until Bruen, there was no custom of carrying weapons in Hawaii.

During several colloquies, Justice Sotomayor insisted that the Court should focus on the local tradition in Hawaii. She favorably cited Justice Holmes's opinion in McKee v. Gratz (1922). If your best authority is a Holmes opinion from 1922, you are probably on a shaky footing.

Sotomayor pushed the point about Hawaiian tradition:

JUSTICE SOTOMAYOR: Nothing about Hawaii's customs, tradition, or culture creates an expectation that the general public carries guns wherever they go, correct?

Alan Beck, counsel for the plaintiffs, responded that the local customs do not matter.

MR. BECK: Hawaii is part of the United States, and as part of the United States, our national tradition is that people are allowed to carry on private property that is open to the public.

Then there was some cross-talk, without any clear resolution.

MR. BECK: As --Hawaii is part of the United States, Your Honor, and as the -

JUSTICE SOTOMAYOR: But, if it's a local custom that controls -

MR. BECK: It is not a local custom that controls.

JUSTICE SOTOMAYOR: I --I -

MR. BECK: It is the custom -

JUSTICE SOTOMAYOR: Where else in the law have we permitted local custom to create a constitutionally protected right?

MR. BECK: Bruen was very clear here that we're dealing with our national tradition, Your Honor. It is not local custom that controls in this area of law.

I think Beck is right. Perhaps this question can be understood in terms of the equal footing doctrine. When territories enter the republic as states, they enter on equal footing to the original thirteen colonies. But with that great power comes a great responsibility. Those new states are now subject to the same national traditions that bind all of the prior states. This approach may be inconsistent with modern conceptions of multiculturalism, but out of many states comes one republic.

Sarah Harris, the Principal Deputy SG, offered a similar response to Justice Sotomayor.

JUSTICE SOTOMAYOR: Just as here, where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.

MS. HARRIS: So two points on that, one with respect to the presumption of the Hawaiian people. As Petitioner notes, there is no Second Amendment for every single state in the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a --a veto for the Second Amendment national tradition.

Perhaps we could push the localism question a bit further. Why should the tradition be confined to the state? Why shouldn't an urban area like Manhattan have a different custom than rural areas in upstate New York?

In one of my first law review articles, The Constitutionality of Social Cost, I asked whether the Second Amendment has a "geography clause"--a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.

Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis's laboratories of experimentation thesis and Justice Harlan II's never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens's two‐track approach to incorporation, he leaves open the door for localities to devise solutions to social problems that "suit local needs and values" according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.

I thought Bruen emphatically rejected this argument that the meaning of the Second Amendment can very in different parts of the country. But apparently this issue is still up for debate.

Finally, I was amused by a comment from Chief Justice Roberts. He noted that Hawaii also has a very different tradition with respect to property rights.

CHIEF JUSTICE ROBERTS: Right. But let me just switch gears a little bit. You talked about the tradition in --in Hawaii. Hawaii, given its obvious origins and its --its admission to --to the United States fairly recently, has a totally different, in some areas, tradition and practice. The law of property in particular in Hawaii, I mean, for the longest time, maybe it's still the case, is that you don't own property, you get it on long-term lease as if you were, you know, a bank in a skyscraper in New York. That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United States. And do we isolate, do we have different traditions in different states when it comes to applying Bruen?

Perhaps the Chief was thinking of Hawaii Housing Authority v. Midkiff (1984), which was decided three years after he clerked. If the Court is ever interested in overruling some more precedents, Midkiff, along with Berman v. Parker and Kelo v. City of New London, should make the list.