The Supreme Court on Thursday struck down Hawaii’s law limiting where gun owners could carry their weapons on private property, as the justices warned states — and lower courts — to stop carving out exceptions to the Second Amendment.
Hawaii’s law had said even gun owners who’d gone through a strict permitting process still needed explicit permission from a property owner before carrying weapons on that property, even if the land was generally open to the public, such as a gas station, restaurant or hardware store.
Justice Samuel A. Alito Jr., writing for the 6-3 majority, said that placed too much of a burden on gun owners, who would have to check with every business they want to enter before carrying their gun with them. The alternative, he said, was to give up their right to self-defense.
“This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. We hold that the law is unconstitutional,” he wrote, joined by the court’s other GOP appointees.
Justice Ketanji Brown Jackson, though, saw the case less as a gun rights matter and more as an issue of property rights.
She said property owners should have the right to exclude guns if they wish, and Hawaii’s law enforces that.
And even if it were a Second Amendment matter, Justice Jackson said, the law would still survive constitutional scrutiny. She said the court was turning gun rights “into a free-for-all that lets the Judiciary thwart the will of legislatures by privileging access to firearms above all else.”
“Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently
preserving any principle of law,” she wrote in an opinion joined by Justice Sonia Sotomayor.
The case is the latest to test the boundaries of Second Amendment rights, following a string of rulings that have vastly expanded the understanding of the right but have recognized some limits.
That began in 2008 with the Heller ruling that found the Second Amendment included a personal right to self-defense. The 2010 McDonald ruling applied Heller nationwide.
After lower courts carved out too many exceptions, the justices in 2022 delivered their Bruen decision that found only gun laws that aligned with the country’s history and tradition of firearms restrictions could survive constitutional scrutiny.
Justice Alito recounted that history in Thursday’s ruling as he chided judges for laboring to find exceptions to the Second Amendment.
Hawaii had argued it was different.
The state said it had roughly two centuries of gun restrictions, dating back well before it was a U.S. territory and later a state, and that Hawaii’s “Aloha spirit” was anathema to the idea that someone could carry a gun around in daily life.
Justice Alito, though, said the Second Amendment is a universal guarantee that applies everywhere — including Hawaii, the 50th state, where 8% of adults possess guns, and Alaska, the 49th state, where 59% of adults have firearms.
“Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees,” he wrote.
Hawaii had also argued that its law matched gun restrictions the founders would have recognized.
The state — and Justice Jackson — pointed to colonial-era laws restricting carrying guns on property without the permission of the owner. Justice Alito said those were restrictions on hunting, rather than on self-defense — the issue at the heart of the Second Amendment.
Hawaii had also cited an 1865 Louisiana law, part of the so-called Black Codes, that forbade carrying guns on plantations without the explicit consent of the owner. Historians said it was enforced chiefly against Black people as a way to deny them the gun rights enjoyed by White people.
Justice Amy Coney Barrett, in a concurring opinion Thursday, was appalled that Hawaii would cite that as justification.
“It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction,” she said.
But Justice Jackson, one of two Black members of the high court, said her colleagues were too hasty to reject Black Codes laws as historical precedents.
She said that, given the way the majority has established a history test for gun laws, even Black Codes might be valid analogs for modern-day restrictions.
“Confronting the origins of these laws is certainly uncomfortable. The Black Codes were ugly. And racist. And deplorable,” she wrote. “But the characteristics that make the Black Codes detestable do not automatically render these laws irrelevant to a fair assessment of the right to carry firearms, especially given how the court assesses that right.”
That appeared to be too far for Justice Elena Kagan, an Obama appointee.
She wrote her own dissent, saying she saw historical precedents for Hawaii’s law even without having to look to the Black Codes.
Gun control groups denounced Thursday’s ruling.
“I will not mince words: This deeply dangerous majority opinion privileges guns over everything and all people in society,” said Kris Brown, president of Brady: United Against Gun Violence.
But gun-rights advocates said the ruling sends a signal to states that continue to push for harsh restrictions on guns.
“These laws were always a blatant attempt by authoritarian states to nullify Bruen and redline the right to bear arms out of existence. We are glad to see this issue put in the ground where it belongs,” said Brandon Combs, president of the Firearms Policy Coalition.
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