Hawaii Gun Limits Draw Critique From Conservative Justices (1)

The US Supreme Court’s conservative wing appeared skeptical of a Hawaii law prohibiting gun carry in private places that are open to the public unless the property owner gives explicit permission.

Justice Samuel Alito said the law’s defenders were “relegating the Second Amendment to second-class status,” and Justice Neil Gorsuch rejected the suggestion that the case was more about property rights than gun rights.

The law in question involves consent to enter “only with regard to firearms,” Gorsuch said at oral arguments Tuesday. “Not knives, not solicitation, not politicking, not anything else.”

The lengthy arguments touched on topics from Hawaii’s pre-statehood treatment of gun rights to 19th Century laws aimed at disarming formerly enslaved people.

Hawaii’s law, sometimes colloquially known as the “vampire” rule, requires gun owners to get a property owner’s consent to bring their firearms into a private space that is open to the public—for example, retail stores or gas stations.

A group of concealed-carry license holders and a local gun-rights group brought a challenge to the ban, which was part of a package of gun regulations the state passed in the wake of the Supreme Court’s 2022 decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, overturning limits on who could carry a handgun in public.

The US Court of Appeals for the Ninth Circuit upheld the Hawaii rule, finding it had appropriate historical analogues under a Bruen analysis.

Attorney Alan Beck, arguing for the concealed-carry holders, said the evidence of similar regulations in the nation’s historical tradition is slim to nonexistent. While property owners have the right to deny people permission to enter their property while carrying, “Hawaii has flipped that historical default,” he said.

Principal Deputy Solicitor General Sarah Harris, representing the Trump administration, said Hawaii’s long pre-statehood tradition of strict gun rules doesn’t justify its modern law.

“You can’t use local customs to say each state gets its own Second Amendment,” she said.

Arguing for Hawaii, attorney Neal Katyal of Milbank LLP said the “only question is whether there’s a Second Amendment right to assume the owner wants guns on his property when he’s been silent. There is not.”

Liberal justices Ketanji Brown Jackson and Sonia Sotomayor appeared amenable to the argument that the statute is properly understood as a matter of property law and trespassing rather than as a gun regulation.

“Is there a constitutional right to enter private property with a gun without an owner’s express or implicit consent? The answer has to be simply no,” Sotomayor said.

Historic Regulations

As evidence of historical support for barring carry in private spaces, Katyal pointed in part to Reconstruction-era “Black codes” intended to disarm Black people, while Beck urged justices not to rely on “a racist, discriminatory law.”

But if the Bruen analysis allows for some historical laws to be disregarded, that might signal a flaw in the test, Jackson said: Just because the laws have since been deemed unconstitutional doesn’t mean they didn’t exist.

“To the extent we have a test that relates to historical regulation, but all the history of regulation is not taken to account, I think there might be something wrong with the test,” she said. “To the extent the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table.”

Gorsuch expressed dismay that people who in other circumstances would condemn laws like the Black codes would turn to them when it comes to arguing for gun restrictions.

“Otherwise they would be garlic in front of a vampire in front of them,” he said. “But here, they like them, they embrace them.”

Katyal said those laws were “undoubtedly a shameful part of our history” but that parts of the statutes were race-neutral, and even opponents at the time understood “that you have no right to carry a firearm onto someone’s property absent their consent.”

Everytown for Gun Safety, which advocates gun-safety measures and filed an amicus brief in the case, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Wolford v. Lopez, U.S., No. 24-1046, oral arguments 1/20/26.