In a flip of logic reminiscent of Lewis Carroll’s Alice in Wonderland, the attorney for the state of Hawaii kept arguing straight-faced before the U.S. Supreme Court that the law can be turned upside down. A state, maintained Neal Kumar Katyal, who served as President Barack Obama’s U.S. Acting Solicitor General, can constitutionally enact a law mandating that all private property that is open to the public is presumptively closed to those bearing arms.
This case is known as Wolford v. Lopez. It is a challenge to Hawaii’s law banning citizens with permits to carry handguns from going armed on any private property in the state unless the property owner has given express permission to do so. This applies even where the property is otherwise open to the general public, such as a gas station, convenience store or drive-through. Hawaii’s law inverts the normal practice of requiring affirmative notice from individual landowners of the conditions, if any, for entering or remaining on their premises.
By June, the Supreme Court will answer: “Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed-carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.”
According to Katyal, “Nothing can be further from the truth that the state of Hawaii is out to get guns … . We fundamentally disagree that this burdens firearms [owners].”
Of course, Hawaii is only one of a small handful of anti-gun states to have enacted this law and only since the Supreme Court’s 2022 affirmation of a general right to carry handguns in public for self-defense. Every other such state law has been invalidated by the federal appellate court in its respective jurisdiction, including those of California, Maryland, New Jersey and New York..
Despite all this, Katyal also had the nerve to claim: “We agree that the Second Amendment is not a disfavored right.”
When pushed to cite similar restrictions on other constitutionally protected rights, such as the First Amendment’s protections for speech, Katyal stumbled and drew back into semantic interpretations of particular historical cases.
Katyal also pointed to a lack of historic gun ownership in Hawaii—it was not a U.S. state until 1959—to insinuate that Hawaii’s historic antagonism toward gun ownership, once characterized by its state supreme court as representing the “spirit of aloha,” gives them the right to nullify citizens’ Second Amendment rights under the pretext of upholding a community standard via property law. Yet, when pressed, he had to admit the right to keep and bear arms applies equally in all 50 states.
After saying that “there have been no guns in Hawaii for 200 years,” Katyal did admit that “Bruen is a real game changer,” as Hawaii’s law was clearly a response to the protections for carry outside of the home reemphasized in the NRA-backed case New York State Rifle & Pistol Association v. Bruen (2022).
Still, all of those perplexing Alice in Wonderland arguments were almost asides to an even more spurious claim, one that Justice Neil Gorsuch called “astonishing.”
The subject of “Black Codes,” which were restrictions used by some southern states in the post-Civil War era to disarm and keep servile freed slaves, came up repeatedly. Indeed, the state of Hawaii’s brief to the high court cited a Louisiana Black Code measure as an historical analogue showing that Hawaii’s restrictions on carry today are a part of America’s tradition.
Sarah M. Harris, principal deputy solicitor general, who argued on behalf of the United States in its appearance in support of the petitioners’ challenge to the law, repeatedly brought up the absurdity of Hawaii’s attempt to use old racist and unconstitutional laws to restrict a constitutionally protected right.
Also, in a seemingly desperate attempt to allow Hawaii to flip the law on its head, Katyal attempted to use anti-poaching laws to justify this Second Amendment infringement. It is a massive stretch, however, to use anti-poaching laws as an historical analogue for making publicly accessible private property off limits to those practicing a constitutionally protected right—unless, of course, they get express permission to carry at the gas station, shopping center and so on.
A lot more was said in this two-hour hearing. At one point, Alan A. Beck, the lead counsel representing the petitioners challenging Hawaii’s gun-carry restrictions, even interrupted Justice Sonya Sotomayor as she emphasized that gun ownership and carry were not historically common in Hawaii, to point out that “Hawaii is a part of the United States your honor … . Bruen is clear that it is not local custom that controls” the application of this right.
A decision from the Supreme Court is expected by the end of the Court’s term in June.
