How Wolford v. Lopez Refines Second Amendment Doctrine
Court's rejection of the Vampire Rule has broad implications
The Supreme Court's June decision in Wolford v. Lopez prevented the obliteration of the right to bear arms in five States, holding that governments may not make carrying a licensed handgun presumptively illegal almost everywhere. 609 U.S. 185 (2026). Important as the result is, perhaps of even greater significance is how Wolford clarified Second Amendment doctrine. According to Wolford:
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Determining whether a challenged law falls within the "plain text" of the Amendment is much simpler than some lower courts and gun control advocates have claimed.
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Modern gun control laws do not always have to be justified by analogies from past practices, but analogies cannot be based on oddities and outliers.
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Racist gun control laws from the past, which were long ago repudiated by constitutional amendment, are not valid precedents for infringing the rights of modern Americans.
This essay will also discuss the Hawaii Attorney General's argument that only a weak version of the Second Amendment should apply in the Aloha State. And the argument that Hawaii's "Vampire Rule" to prohibit licensed carry throughout the State did not even implicate the Second Amendment.
The "plain text" of the Second Amendment
In a constitutional case, the court must decide if the challenged government action involves a constitutional provision. Often the issue is simple; for example, a public meeting about a political controversy is an example of "the right . . . to assemble."
In edge cases, judges may have to decide how literally to read the text. For example, the First Amendment protects "the freedom of speech," and while Justice Hugo Black was often absolutist in his protection of literal "speech" (saying words out loud), he disagreed with Supreme Court majorities that gave "freedom of speech" protection to conduct. E.g., Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Black, J., concurring in part and dissenting in part) ("Picketing, though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment.").
For the Second Amendment, the textual inquiry is, "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." New York State Rifle & Pistol Assoc. v. Bruen, 597 U.S. 1, 24 (2022).
Unfortunately, some lower courts did not take the "plain text" language seriously, and began importing all sorts of rules into the plain text determination. For example, the "plain text" of "the right of the people" was said to require proof that the individuals were "law-abiding" and "responsible." The plain text of "Arms" was said to require proof that the arms in question were frequently "used" (such as gun being fired, or a knife being used to cut) for self-defense. I described some of the misapplications of "plain text" in a 2024 post, How Some Courts are Evading Bruen by Changing its Rules: Lower Courts evading the "plain text" of the Second Amendment.
The Wolford Court showed that the plain text inquiry is not nearly so complicated as some of the lower courts had claimed. In fact, there are just three simple questions:
- "First, does the law apply to 'the people'—which is to say, to 'all members of the political community'?"
- "Second, does it concern any form of 'Arms,' i.e., any weapon customarily used for offensive or defensive purposes?"
- "Third, does the law place any restrictions on either the 'keep[ing]' (i.e., possession) or the 'bear[ing]' (i.e., carrying) of arms?"
Question 1: Because the Second Amendment guarantees "the right of the people," the court must ask if the law applies to "the people"— that is, to members of the American political community. The Court here contradicts the notion of some lower courts that "the people" excludes various subsets of the American people — such as persons under 21 years old, or persons who have been convicted of a crime. While some of the American people can be restricted in their Second Amendment rights, all Americans start with the right, and it is up to government to justify the deprivation. The justification, however, comes later in a case, and is not part of the plain text inquiry.
Question 2: The class of "Arms" covered by the plain text is very broad: "any weapon customarily used for offensive or defensive purposes." Again, this is the plain-text step only. Just as some members of "the people" may lawfully be disarmed, some weapons (e.g., machine guns) may be found not to be protected by the Second Amendment right. Any determination that particular persons or arms fall outside the Amendment's protection comes later in the case, not in the plain-text inquiry.
The Wolford Court's rule implicitly rebukes some lower courts that had ruled that "Arms" in the Second Amendment's plain excludes all arms related to military arms. Or that "Arms" includes only weapons that the challengers prove to be frequently used for self-defense against criminal attacks in progress.
The term "customarily" does not mean "most often." For example, the number of times that handgun triggers are pressed for target shooting competitions vastly exceeds the number of times that handguns are fired at criminal attackers.
Question 3: As for "any restrictions" on "possession" or "carrying" of arms, some lower courts may continue their current very narrow readings, holding that laws such as bans on gun stores do not implicate the Second Amendment's plain text at all — even though acquiring arms is a prerequisite to possession and carry.
The Wolford majority found that Hawaii's Vampire Rule easily passed all three questions. The law affected American citizens with Hawaii carry permits, and those Hawaiians are among "the people." The law applied to carrying handguns, which are customarily used for defense. And the law made it pervasively illegal to carry licensed handguns in public.
Guidance on analogues
According to Wolford:
"If a challenged law falls within the plain text of the Second Amendment, it is presumptively unconstitutional—which means that it may violate the preexisting right that the Amendment codified. But because that right was not in every way coterminous with the Amendment's literal language, further analysis may be needed. Specifically, the relevant government—federal, state, or local—may be able to show that its challenged law did not infringe the historical understanding of the codified right."
"A variety of sources, including scholarship, may aid this inquiry. But often, the best evidence may be what Bruen called historical analogues. These are old legal rules from which a court may draw a strong inference that the modern law at issue is consistent with the codified right. A party defending against a Second Amendment claim may rely on a single analogue or a group of analogues." (citations omitted).
Building on and clarifying Bruen's discussion of historical analogues, the Wolford Court explained that Bruen had "identified three important inquiries that courts should undertake in evaluating proffered analogues."
"The first is the number of jurisdictions in which they were adopted. . . . When we assess whether a challenged law is consistent with the right the Second Amendment codified, we seek the general understanding of that codified right at the relevant point in time. An outlier legal rule adopted in a few locales is not enough."
"The second is the extent to which they were well-accepted. This acceptance may be express, as when judicial decisions explicitly acknowledged the rule's legality. Or the acceptance may be tacit, as when a restriction on the keeping or carrying of arms was 'open, widespread, and unchallenged.'" (Quoting Bruen).
Inquiries one and two add some specificity to the Bruen rule of "a well-established and representative historical" analogue.
"The third is whether any analogue or collection of analogues is 'relevantly similar' to the modern law."
Determining whether an analogue is "relevantly similar" requires consideration of "how" it restricted the keeping or bearing of arms. "And a court must also consider 'why' the analogue restricted the keeping or bearing of arms—that is, whether its rationale was similar to that of the new law."
As seen in other cases, the "how" and "why" inquiries often involve "who." For example, some 18th- and 19th-century surety laws required an individual to post bond for peaceable behavior if the individual had been found by a court to be potentially dangerous. In United States v. Rahimi, the Court's majority found surety laws to be relevant analogues for modern laws disarming persons who have been issued a domestic violence restraining order based on an individualized judicial finding of danger to a past or present domestic partner. 602 U.S. 680 (2024). In Bruen, however, the surety laws were not relevant analogues for state laws preventing almost everyone from carrying firearms.
A standard argument in favor of originalism is that while it does not conclusively resolve every issue, it constrains judicial decisions more than do alternative methods. In Wolford's words, "Making this determination is far more disciplined than the 'interest-balancing,' 'judge-empowering' standard that Heller emphatically rejected, but it is not mechanical." The Court added, "It undeniably necessitates an exercise of judgment."
In Wolford's words, "Making this determination is far more disciplined than the 'interest-balancing,' 'judge-empowering' standard that Heller emphatically rejected, but it is not mechanical." "It undeniably necessitates an exercise of judgment," the Court added,
For example, in the three cases where the Court has applied Bruen and examined analogies, the Court was unanimous in one, and divided in two others: United States v. Hemani, 146 S.Ct. 1677 (2026) (9-0) (historical vagrancy, civil-commitment, and surety laws concerning habitual drunkards who had lost the capacity for self-control were inadequate analogues for prosecuting a gun owner based on his regular marijuana use); United States v. Rahimi (8-1) (historic laws, such as sureties, against persons proven to be dangerous are sufficient analogues for modern laws that go even further, such as by felonizing firearms possession in the home); Wolford v. Lopez (6-3) (as described below, laws against poachers or Black people are not analogues for preventing everyone from carrying firearms).
Applying Wolford's rules for analogues to the Vampire Rule
The Supreme Court's Bruen decision had directly applied to three States where licensed carry was almost completely prohibited (Hawaii, Maryland, New Jersey) and to three where it was prohibited by some local jurisdictions and allowed in others (California, New York, Massachusetts). After Bruen, all of the above states, except Massachusetts, enacted a law that had been proposed by University of Alabama law professor Fredrick Vars and Yale law professor Ian Ayres; as they frankly stated, the purpose of the law was to make licensed carry extremely inconvenient, and thereby discourage people with carry licenses from using those licenses.
Under the Hawaiian statute, a person with a concealed handgun carry permit "shall not . . . enter or remain on private property of another person . . ." while carrying a loaded or unloaded firearm "unless the person has been given express authorization" by the owner, lessee, operator, manager, or other person authorized under the statute. The "express authorization" must be "Unambiguous written or verbal authorization" or "clear and conspicuous signage at the entrance." Private property meant all property other than the permit holder's own property, or government property. Hawaii Revised Statutes § 134-9.5.
Separately, and not at issue in Wolford, the Hawaiian legislature's Bruen response law had outlawed licensed carry on most government property and vast swaths of private property by labeling them "sensitive places."
The Wolford plaintiffs challenged the Hawaii "express authorization" statute as it applied to business premises that are open to the public. As of the time that the Court was considering Wolford, similar laws were held unconstitutional by the Second, Third, and Fourth Circuits. Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024); Koons v. Attorney General of New Jersey, 156 F.4th 210 (3d Cir. 2025); Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026). But the Ninth Circuit had come to an opposite result. Wolford v. Lopez, 116 F.4th 959 (2024). The Supreme Court granted certiorari, perhaps influenced by a U.S. Solicitor General amicus brief in support of the petition.
Critics of the express authorization rule call it the "Vampire Rule," because in some stories, vampires can only enter certain buildings when invited. The history of the Vampire Rule in literature was detailed in my amicus brief, which I coauthored on behalf of the National Rifle Association and the Independence Institute. While vampires are malignant and dangerous, Hawaii's Vampire Rule "applies only to beings who are exceptionally not dangerous: law-abiding citizens who have passed a background check, completed safety training, and have been licensed by the government to carry concealed handguns." The brief provided empirical evidence of the extremely low rate of gun misuse by persons with carry permits, compared to the general population. The brief also described the legality, in the Founding Era, of carrying on private property that was open to the public. That part of the brief was cited by the United States and by petitioners' counsel during oral argument (pages 50, 125).
Most of the analogues proffered by the Hawaii Attorney General in support of the Vampire Rule were colonial and Founding Era anti-poaching laws that forbade armed trespassers from entering other persons' enclosed farms or pastures without consent. Justice Alito's majority opinion found the purported analogy preposterous:
"To test whether these analogues are 'relevantly similar' to the challenged Hawaii law, we may ask the question set out earlier: 'Because it was accepted that prohibiting unauthorized hunting on private land was consistent with the Second Amendment right, can we infer that it is also consistent with that right to ban a person who is lawfully carrying a concealed handgun for self-defense from entering a gas station, coffee shop, grocery store, or other private property open to the public without express and unambiguous consent?' The question answers itself. The gap between the State's anti-poaching analogues and its new rule is just too wide."
Justice Barrett joined the majority opinion, and also wrote a concurrence. In her analysis:
"So the problem with Hawaii's default rule is not that it targets a regulatory problem besides poaching. It is that the rule does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns. In other words, Hawaii is responding to the general danger associated with the presence of firearms, not to any specific, heightened risk of their misuse."
"Mere disapproval of protected conduct is not a valid reason to severely restrict it."
The Hawaii Attorney General pointed to an 1893 Oregon statute against carrying arms on enclosed premises or lands without the consent of the owner. While the Hawaii Attorney General claimed that the statute applied to business premises, there was no indication that such an interpretation had ever been used in Oregon.
"But even if this provision is read as Hawaii would have it, a lone statute adopted nearly a century after the adoption of the Second Amendment and well after the adoption of the Fourteenth Amendment sheds little if any light on the meaning of the Second Amendment right," wrote the Wolford Court.
Racist analogues are no good
The Wolford Court's disparaging treatment of far-fetched (poaching) or isolated and very late (Oregon 1893) analogues did not break new ground. What does significantly affect Second Amendment doctrine is the Court's treatment of the 1865 Louisiana Black Code. Ever since Bruen was decided, anti-gun advocates and some lower court judges have been pointing to laws against enslaved people or against free people of color as supposed justifications for modern laws aimed at other groups of people, or at the public in general.
After the Civil War ended with Confederate surrender in April 1865, everyone could see that abolition was coming, and the former slave States would soon have large populations of newly free Black people. The 1865 Louisiana legislature enacted a statute that really did match the scope of Hawaii's Vampire Rule. As the Wolford Court explained:
"Finally, we come to the State's most remarkable analogue, an 1865 Louisiana statute that made it unlawful 'for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.' 1865 La. Acts No. 10, § 1, p. 14. Regardless of this provision's pedigree, it has no probative value for present purposes. As we have said, in considering the probative value of a historical analogue, we must consider whether it was widespread, well-known, and widely accepted. See Bruen, 597 U.S. at 35. Because this statute was neither widespread nor widely accepted, it carries no weight."
So far, nothing novel. However:
"We could stop there, but there is another reason for rejecting Hawaii's reliance on this statute. It was adopted by the Louisiana Legislature between the end of the Civil War and the beginning of Reconstruction. When the war ended, the legislatures in defeated Confederate States quickly enacted so-called Black Codes that aimed to perpetuate the subjugation of blacks. The statute Hawaii cites was part of Louisiana's Black Code, and it provided a tool for disarming blacks and thus leaving them defenseless against attacks. See 125 F.4th at 1239 (VanDyke, J., dissenting from denial of reh'g en banc)."
"As we laid out in McDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. See 561 U.S. at 757, 771, 776–779; id., at 843–846 (opinion of THOMAS, J.). And this was well-understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. The Republican Party Platforms of 1856 and 1860 called for protection of the right to keep and bear arms for self-defense. Unless we put history entirely out of our minds, Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously."
Concurring, Justice Barrett added, "The State seems to think Bruen is a matching game: Southern States enacted broad default rules, Hawaii reasons, so it can do the same today. But even if Hawaii is right that the how is analogous, it also must identify an analogous why. The Black Codes were enacted to subordinate newly freed slaves. Hawaii obviously does not contend that its law promotes an analogous interest." Therefore, the Hawaii law and the Black Codes were not relevantly similar.
Dissenting, Justice Jackson accurately described the doctrinal effect of the majority opinion: "it cuts Black Codes out of this country's tradition categorically and completely."
Yes, and properly so. As Bruen explained at length, the purpose of the judicial inquiry into "tradition" about the right to arms is not because tradition itself is the rule. Rather, tradition can shed light on original meaning. The original meaning of the Fourteenth Amendment includes how the constitutional right to arms was understood when passed by Congress in 1866 and ratified in 1868. As the Wolford majority pointed out with its citations to the extensive history provided by the majority and by Justice Thomas's concurrence in McDonald v. Chicago, the Fourteenth Amendment was meant to crush the Black Codes and the practices they perpetuated, including the obstruction of the right to arms.
Justice Jackson suggested that the Louisiana statute might have been facially compliant with the Second Amendment, the only problem being the discriminatory enforcement against Blacks. Tradition shows the opposite: not one law in American history before 1865 came close to such an outrageous nullification of the right to bear arms. (In a footnote, she cited the anti-poaching laws, which were not close to the Louisiana statute.)
Surprisingly, Justice Jackson's dissent claimed that the elimination of the Black Codes as precedents to justify modern gun control laws "deepens race-based wounds, by classifying the experiences of those who have been historically excluded as categorically irrelevant."
To the contrary, the Wolford majority follows the path laid down by McDonald: classifying the experiences of persons who were historically excluded as of the highest categorical importance. The Black Codes must never be forgotten or glossed over. The abuses (including extreme gun control) against them are an enduring negative example of what must never again be imposed in the United States.
Implications for other gun control laws based on prejudice
Wolford seems to do away with the precedential value of the post-Civil War Black Codes as affirmative historical support for modern gun restrictions. Its reasoning may also undermine reliance on antebellum race-based gun control laws targeting enslaved persons or free persons of color.
Justice Jackson asked "What do we do about other types of animus? For example, consider the use of statutes that were prejudiced against Catholics. See Kanter v. Barr, 919 F.3d 437, 457 (CA7 2019) (Barrett, J., dissenting). Does it offend history to use those?"
The Catholics question is easy to answer, based on text. The 1689 English Bill of Rights, which applied in British North America, protected only "Protestants." James Madison, however, wrote the Second Amendment without any religious restrictions. From American independence in 1776 onward, there appears to be no record of disarmament of Catholics — unlike the sizeable record of race-based disarmament.
Even before 1776, restrictions on Catholics in the future United States were rare. In 1756, during the French & Indian War, Virginia required Catholics to take a loyalty oath; if the oath were refused, arms would be confiscated for the militia, except for arms "necessary" for "the defence of his house or person." The same year, Pennsylvania confiscated "papist" arms and gave them to the colonial militia. In 1696, after an attempted assassination of King William III in England, the royal governor of New York confiscated the firearms of all ten Catholic men in the colony. For more, see Johnson, Kopel, Mocsary, Wallace, & Kilmer, Firearms Law and the Second Amendment 935 (Aspen Pubs. 4th ed. 2026); my Rahimi Amicus brief (for professors, including VC's Randy Barnett); my 2023 post, Old gun controls that were constitutionally repealed are not precedents for modern gun control; and my 2015 post, The Second Amendment versus anti-Catholicism.
"Aloha" should mean "goodbye" to Plessy v. Ferguson
Jim Crow jurisdictions justified themselves by reference to local conditions and tradition, which were supposedly accepted by almost everyone there. For example, Louisiana's 1890 Separate Car Act ordered railroads to place Blacks and Whites in separate cars. Upholding the Act, Justice Henry Billings Brown's majority opinion in Plessy v. Ferguson described the Act as compliant with the "the established usages, customs, and traditions of the people." 163 U.S. 537 (1896).
But that wasn't true. The legislature had acted because the railroad companies refused to. The railroads preferred to segregate customers by sex, so that the men smoking cigars wouldn't foul the atmosphere for the women. Had customers preferred cars segregated by race rather than sex, the railroads presumably would have offered what was demanded. See, e.g., David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011).
In Wolford, the Hawaii Attorney General made similar arguments to Justice Brown. Justice Jackson pointed an arms ban imposed in 1833 by King Kamehameha III. In a similar vein, the Hawaii Supreme Court declared that the Hawaii Constitution right to arms, which is worded identically to the U.S. Second Amendment, protects no right at all. The nullification was said to be justified by "the spirit of Aloha." State v. Wilson, 154 Haw. 8, 543 P.3d 440 (2024) ("Hawaiʻi's historical tradition of firearm regulation rule out an individual right to keep and bear arms under the Hawaiʻi Constitution.").
The Wolford majority replied that the Second Amendment, like everything else in the U.S. Constitution, applies equally in every State. "Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment." The Second Amendment is the same in "our 50th State (where about 8% of adults possess guns) and our 49th State [Alaska] (where the figure is roughly 59%)."
The Vampire Rule and property law
The principal dissent, by Justice Jackson and joined by Justice Sotomayor, argued that Wolford had nothing to do with the Second Amendment. It was just a property law case; because nobody has an inherent right to enter the property of another, Hawaii had merely changed a background rule about when consent could be presumed.
In fact, the inventors of the "default rule" (a/k/a Vampire Rule) created it for the express purpose of discouraging firearms carry by making it extremely difficult. See Ian Ayres & Fredrick E. Vars, Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights (2020). They touted the rule in an op-ed published the month after the Bruen decision, pointing out the purpose of "substantially decreasing the places where concealed firearms can be carried." Ian Ayres & Fredrick Vars, "A new no-carry default for the U.S.: A gun law that could really change things," (New York) Daily News, July 20, 2022.
The Wolford majority chose not to blind itself to the law's purpose of massive suppression of the exercise of constitutional rights. To the majority, the dissent's argument that Hawaii had not infringed the Second Amendment:
"fails because States may not adopt property-law rules that violate constitutional rights. For example, a State may not adopt property-law rules that violate the freedom of speech. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 159 (2015) (ordinance regulating signs on private property); City of Ladue v. Gilleo, 512 U.S. 43, 45 (1994) (similar). Nor may a State adopt zoning rules that violate the equal protection of the laws. See, e.g., Buchanan v. Warley, 245 U.S. 60 (1917). Likewise, a State may not "'sidestep the Takings Clause'" by enacting a law purporting to extinguish a property interest. Tyler v. Hennepin County, 598 U.S. 631, 638–639, (2023). The right protected by the Second Amendment is entitled to no less protection than other constitutional rights."
Justice Barrett's concurrence made similar points: "when a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment."
"Consider how Hawaii and the principal dissent's argument would play out in another context. What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny? On Hawaii and the principal dissent's logic, the answer is apparently yes: No one has the right to enter another's property without permission, and the State has merely adjusted the default to require permission to be clear. But that is plainly wrong. Because the law regulates religious and expressive conduct, its enactment is state action that triggers First Amendment scrutiny. Cf. Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (municipal ordinance prohibiting door-to-door solicitation violates the First Amendment)."
"The same goes for a default rule, like Hawaii's, that targets the right to bear arms. Property laws, no less than other laws, are subject to constitutional limits. So when a property law "restrict[s]" the bearing of arms, the State must prove that the law abides by the limits of the Second Amendment." (cross-references omitted).
"If Hawaii and the principal dissent were right that the Second Amendment does not kick in until a property owner gives consent, one wonders: Could a State simply prohibit its citizens from authorizing the carry of firearms onto their property? This would certainly interfere with the liberty of property owners, but it is hard to see how, on Hawaii and the principal dissent's logic, the Second Amendment would come into play."