The Volokh Conspiracy
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Second Amendment Roundup: Four Points on the Wolford Argument
Comments by Akhil and Vikram Amar in Scotusblog.com are off base.
In a recent article in Scotusblog.com, Akhil and Vikram Amar attempt to answer four concerns raised in the Justices' questioning in oral argument in Wolford v. Lopez. However, at each turn in their defense of the Hawaii law, their answers fall flat.
First, the Amars address the concern that Hawaii treats the Second Amendment as a second-class right. The Justices probed Neal Katyal's position, questioning whether the government could presumptively ban speech on private property without the property owner's express approval. The Amars respond that the First and Second Amendments are simply different. They state that violent felons may be stripped of Second Amendment rights, but they retain their First Amendment rights. But this answer ignores the fact that after Bruen, any difference between the First and Second Amendments must be rooted in history. While disarming violent felons may have that pedigree, Hawaii's law does not.
Furthermore, there are examples of people losing all their rights, both to free speech and to bear arms, based on a determination of physical danger. Violent felons have both their speech and firearm rights curtailed while in prison, for example, and probation conditions may limit their freedom of association with certain people, such as gang members. So that example, if anything, proves that Hawaii treats the Second Amendment as a second-class right.
The Amars' claim also makes a faulty assumption that the mere carrying of a firearm is dangerous, while speaking can never be. Speech that incites a riot or other violence certainly is. They state that "obviously, an activist sporting a campaign button while seated at a restaurant table – or while standing on a homeowner's front porch, for that matter – is utterly different from an activist toting a gun in these very same privately owned spaces."
But Hawaii only presumptively bans carrying by a concealed carry permit holder. These are people that the state has already determined to be peaceful, law-abiding citizens who should be able to carry a concealed firearm. There is nothing inherently dangerous about carrying a firearm, and as John Lott has demonstrated, concealed carry permit holders are extremely law-abiding, being convicted of violent crimes even less frequently than off-duty police officers. And it beggars belief to think that the violent criminals who are dangerous with firearms will be affected at all by Hawaii's law. They surely are not going to be asking property owners for permission before carrying guns anywhere, regardless of the rules. It is worth recalling the words of Cesare Beccaria, who so influenced the Founders, in Crimes and Punishments (1764):
The laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary [laws], which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty … and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
Finally, while comparisons are being made between First and Second Amendment rights, it is worth recalling Chief Justice Robert's statement during the Heller oral argument: "I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?"
Second, the Amars respond to the justices' questions about whether Hawaii flips the default rule for any other activity. They argue that surely the state could require affirmative consent to bring liquor, marijuana, or trash onto private property open to the public. They contend that it is irrelevant that the Constitution mentions firearms, because Hawaii's law is best understood as a property law. This answer ignores the fact that drinking, pot smoking, and throwing away trash are not fundamental rights, but keeping and bearing arms is.
Nor is it an answer to say that this is a property law. Hawaii singles out firearms for special treatment, criminalizing "arms-bearing conduct" protected by the Second Amendment. What is more, the claim that Hawaii is simply trying to empower property owners is belied by the fact that there are several types of private property where Hawaii bans the carrying of guns by permit holders altogether, regardless of the property owners' wishes, such as beaches, parks, medical facilities, and entertainment venues. Thus, if an owner of any location designed by Hawaii as a "government-mandated gun free zone" desired to permit firearms on his property, he would be denied the option to do so. So much for Hawaii's protection of a property's "right to choose" whether to allow firearms on his property.
Claiming that Hawaii's law is merely a property regulation also fails to answer the Chief Justice's hypothetical about politicians soliciting votes. It would be a clear violation of the First Amendment to presumptively prohibit candidates from walking up to someone's door to ask them for their vote. That law would not be saved because it incidentally implicates property law considerations. Similarly, the state cannot presumptively prohibit the exercise of the constitutional right to bear arms on private property. To make such a distinction between the First and Second Amendments would make the Second Amendment a second-class right.
Third, the Amars resist the conclusion that the 1865 Louisiana law that Hawaii and the Ninth Circuit rely on was part of the Black Codes. They assert that because the Reconstruction Congress permitted Louisiana back into the Union with that law on the books, it was clearly racially neutral. And while it is true that the text of the Louisiana law is race-neutral, it was invidiously discriminatory in its purpose and application. As the National African American Gun Association and the Firearms Policy Coalition point out in their respective amici briefs, the law, while formally race-neutral, sought to restrict the ability of freedmen from carrying firearms for self-defense and to hunt so that they would be forced to resort to sharecropping. Until the Civil War, persons could hunt, fish, and forage on private land so long as it was not enclosed or improved.
In 1865, Louisiana ended this regime because plantations relied on cheap, Black labor, to maintain their property in a post-slavery world. If freedmen could carry guns for self-protection, they could protect themselves from unlawful force. If freedmen could hunt or fish for their sustenance on undeveloped private property, that would eliminate any need for those people to work as sharecroppers for the former slave owners. While this law was race-neutral on its face, racial animus motivated it. Hence why a Reconstruction-era congressional report on The Condition of the South criticized the law for "depriving the great mass of the colored laborers of the State of the right to keep and bear arms, always zealously prized and guarded by his white employers."
It's also worth mentioning that the correct time period for assessing historical regulations that delimit the Second Amendment right is the Founding era around 1791, and not the post-Civil War Reconstruction era when the 1865 law was enacted.
Fourth and finally, the Amars respond to a question from Justice Kavanaugh about how many other states have similar laws. The Amars assume that Justice Kavanaugh will vote to strike down any gun law he deems to be a current outlier, and thus state that the Court should not look at how many states have this law now, but rather prognosticate as to how many states might have this law should the Supreme Court uphold it.
But whether a modern-day law is currently an outlier is irrelevant. What matters is that Hawaii's law fails Bruen's history and tradition test. Even if 30 more states implemented the exact same law, it would be just as unconstitutional. As the Chief Justice noted in Espinoza v. Montana Department of Revenue (2019), 30 states passing similar laws in the late 19th century does not provide a gloss on the meaning of the First Amendment. Surely then, a smattering of states passing laws in the 21st century similarly have no relevance to the original public meaning of the Second Amendment. The lawful authority of states to be laboratories of democracy stops where the Bill of Rights starts.
