Last October, the U.S. Supreme Court accepted Wolford v. Lopez, a challenge to Hawaii’s gun-carry restrictions in which the high court will answer: “Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner’s express authorization.”
Now, the U.S. Department of Justice (DOJ) has submitted an amicus brief (otherwise known as a “friend-of-the-court” brief) to the Supreme Court that pointedly argues that, citing the Bruen (2022) decision, the “government cannot enact licensing regimes that effectively eliminate the right to public carry.”
“Hawaii’s law plainly violates the Second Amendment,” said Attorney General Pam Bondi.
After stating that the “United States has a substantial interest in the preservation of the right to keep and bear arms …” the DOJ’s brief points out that the “‘right to carry a handgun for self-defense outside the home’ ranks among the Second Amendment’s most basic guarantees. Bruen thus held that the government cannot enact licensing regimes that effectively eliminate the right to public carry. Nor, more broadly, may the government restrict firearms without showing that the restriction fits within a discernible tradition of firearm regulation.”
The DOJ explains that Bruen invalidated Hawaii’s prior firearm-licensing regime, “under which Hawaiians could virtually never obtain public-carry licenses. Hawaii responded by loosening its licensing restrictions, yet it simultaneously enacted a new restriction that effectively nullifies those licenses and prevents public carry. Specifically, Hawaii made it a crime for licensees to carry firearms on private property open to the public—the very places where licensees would go in their daily lives—unless those establishments provide ‘[u]nambiguous written or verbal authorization’ or post ‘clear and conspicuous signage’ allowing firearms.”
At about the same time, a handful of other states whose public-carry laws were also invalidated by Bruen—California, Maryland, New Jersey and New York—also enacted similar restrictions on law-abiding citizens’ right to bear arms.
To give real-world context, the DOJ’s brief states that, in Hawaii, “public-carry licensees who stop for gas with a pistol in the glove compartment risk a year in prison if they fail to obtain the gas-station owner’s un-ambiguous consent. The same goes for licensees who run errands at grocery stores, dine at restaurants, or stop to buy coffee. A mere nod from the property owner—or an insufficiently conspicuous sign—puts license holders at risk of prosecution even if the owner welcomes firearms but failed to express his approbation clearly enough. Meanwhile, Hawaii exempts non-licensees from this restriction—so hunters, target shooters, and out-of-state police officers can publicly carry firearms on the same property without the owner’s affirmative consent.”
The DOJ then calls Hawaii’s restriction “blatantly unconstitutional” and says, “States cannot evade Bruen by banning public carry through indirect means. History establishes that firearms regulations are per se unconstitutional if they are designed to thwart the right to publicly carry arms, or if they effectively negate the right.”
Clearly, New York and a few other states—including Hawaii—responded to the Supreme Court’s decision in Bruen by thumbing their figurative noses at the high court. Some state officials even said as much.
New York Governor Kathy Hochul (D), for example, called the Bruen decision “reckless” and “reprehensible” and, within weeks of this Supreme Court decision, she signed a sweeping legislative package—the Concealed Carry Improvement Act—to replace the struck-down law. That new law removed the “proper-cause” requirement, but it imposed many new restrictions, including training requirements, checks on citizens’ social-media accounts and bans on carrying in “sensitive locations” that are so expansive they include almost every place an armed citizen might go.
Hawaii similarly created a new regime to effectively ban the right of law-abiding citizens to carry concealed.
“Hawaii designed its novel affirmative-consent rule to inhibit the exercise of the right to bear arms,” says the DOJ’s brief. “Hawaii’s restriction singles out the carrying of firearms for discriminatory treatment; requires owners who have opened their property to the public to satisfy a special clear-statement rule for firearms; and contains exemptions that make sense only if Hawaii were trying to limit arms-bearing to favored groups and to exclude everyone else. Further, Hawaii’s law is so broad that it effectively nullifies licenses to carry arms in public.”
According to the Court’s docket, oral arguments for Wolford v. Lopez are scheduled for January 20, 2026. We’ll keep you posted on developments.
