Supreme Court seems skeptical of Hawaii law limiting guns on private property that's open to the public

Washington — The Supreme Court on Tuesday appeared skeptical of a Hawaii law that bars people with concealed-carry licenses from bringing their handguns onto private property that is open to the public unless they receive permission from the owner.

Several of the conservative justices suggested during oral arguments that Hawaii was treating the Second Amendment differently than other constitutional rights and had enacted a restriction that singles out firearms.

"You're just relegating the Second Amendment to second-class status," Justice Samuel Alito told Neal Katyal, who argued in defense of Hawaii's law in the case known as Wolford v. Lopez. "I don't see how you can get away from that."

Chief Justice John Roberts cited previous Supreme Court decisions that raised concerns that the Second Amendment is a "disfavored right." Roberts pressed Katyal to justify the distinction between the First and Second Amendments as it relates to private property.

"It strikes me that one of the things that your side has to come to grips with is it is a very clear constitutional right," Roberts said of the Second Amendment.

The chief justice argued that under the First Amendment, a candidate for public office can knock on a voter's door without needing express permission from the property owner. But in Hawaii, a person who is armed must first receive authorization to enter private property.

"I'm trying to figure out what exactly the difference is between the First Amendment and the Second Amendment," he said.

At issue in the case is Hawaii's default rule that bars people with concealed-carry licenses from bringing their guns onto private property that is open to the public, like shops or gas stations, unless the owner gives express authorization. Carrying a gun in violation of the law is a misdemeanor that is punishable by up to one year in prison.

Four other states — California, Maryland, New Jersey and New York — have imposed restrictions similar to Hawaii's and limit carry by license-holders on private property. But in the remaining 45 states, licensed handgun owners can generally carry arms onto private property that's open to the public.

Hawaii's default rule is one of 15 location-based restrictions that, according to gun-rights backers, effectively ban public carry in much of the state.

Three Maui County residents and the Hawaii Firearms Coalition, a gun-rights group, sued state officials in 2023, challenging the state's restriction as a violation of their Second Amendment right and seeking a court order blocking its enforcement. As part of their suit, the plaintiffs also challenged measures prohibiting handguns in restaurants, bars, beaches, parks and banks or other financial institutions. Those provisions are not at issue in the case before the Supreme Court.

The restrictions were signed into law by Hawaii Gov. Josh Green, a Democrat, in the wake of the Supreme Court's landmark 2022 decision in the case New York State Rifle and Pistol Association v. Bruen, in which the justices ruled that the Second Amendment guarantees the right to carry handguns in public.

The court's decision established a new framework for evaluating whether firearms restrictions comport with the Second Amendment. Under its new test, the government must justify its regulation by showing that it is consistent with the nation's historical tradition of firearms regulation. 

A U.S. district court sided with the plaintiffs and found that Hawaii's rule likely violates the Second Amendment as applied to property that is open to the public. The state appealed, and the U.S. Court of Appeals for the 9th Circuit reversed the decision and upheld Hawaii's measure.

"Nothing in the text of the Second Amendment or otherwise suggests that a private property owner — even owners who open their private property to the public — must allow persons who bear arms to enter," a 9th Circuit panel of judges found.

The Supreme Court agreed in October to decide whether the Second Amendment allows a state to bar concealed-carry license-holders from carrying firearms on private property open to the public.

Alan Beck, who argued on behalf of the carry-license holders and the Hawaii Firearms Coalition, told the justices that the state's rule "runs roughshod" over the right to bear arms. He argued Hawaii enacted its law to undermine the Second Amendment, and said the state failed to show that it was rooted in the nation's tradition of firearms regulation.

"Our national tradition is that people are allowed to carry on private property that is open to the public," he said.

The Trump administration is backing the plaintiffs in the case. Sarah Harris, a lawyer in the Solicitor General's Office, told the justices that Hawaii's law "offends our history and tradition." She warned that a public-carry licensee running errands with a gun in their purse risks committing a crime merely by stopping to put gas in their vehicle.

In a Supreme Court filing, Solicitor General D. John Sauer argued that the state's default rule is "blatantly unconstitutional" and effectively prevents public carry.

"Because most owners do not post signs either allowing or prohibiting firearms, Hawaii's law effectively means that ordinary citizens licensed to publicly carry may not carry firearms in public at all," Sauer wrote. "That near-total ban defies the 'general right to publicly carry arms.'"

Citing the Supreme Court's history-and-tradition test for evaluating gun restrictions, Justice Brett Kavanaugh indicated that the case should be an easy one because Hawaii fails to satisfy it.

"Here, there's no sufficient history supporting the regulation. End of case," he told Harris. 

But Katyal, who defended the law, argued that while the Constitution protects the right to bear arms, it doesn't create implied consent to bring those arms onto private property.

"In some places, it's reasonable to assume guns are welcome. In others, it's pretty clear an invitation to shop is not an invitation to bring your Glock," he said.

Katyal wrote in a Supreme Court brief that Hawaii's law respects the Second Amendment, but also vindicates citizens' right to "exclude unwanted entry onto private property."

"Hawai'i is free to enact a law clarifying that the public's implied license to enter private property does not include an invitation to bring a gun, particularly because that accords with the well-established custom in Hawai'i," he said.

Gun violence prevention groups urged the Supreme Court to uphold Hawaii's rule, arguing that it promotes public safety. In a friend-of-the-court brief, the Brady Center to Prevent Gun Violence and Giffords Law Center said that private-property owners who want to exercise their own right to self-defense may not want visitors to carry weapons.

"Hawaiʻi's default rule does not bar individuals from exercising their Second Amendment right to carry firearms in public. It does not create gun-free zones. Instead, Hawai'i's default rule allows private property owners to choose whether to permit firearms on their property before any visitors enter with a concealed weapon," lawyers for the groups wrote. 

They argued that Hawaii's law respects the rights of private property and personal security.

The dispute over Hawaii's restriction is one of two cases involving the Second Amendment that the Supreme Court is hearing in its current term. The high court will also decide the constitutionality of a federal law that prohibits unlawful drug users from having firearms, with arguments set for early March.