Constitutional Default Rules: Second Amendment Edition
On Tuesday, the Supreme Court heard oral argument in Wolford v. Lopez. The case involves a 2023 Hawaii law that was aptly described by the Ninth Circuit (which upheld the law in part) as follows: "Whereas the old rule allowed a person with a carry permit to bring firearms onto private property unless the owner prohibited it, the new rule generally prohibits the carry of firearms onto private property unless the owner allows it." As it comes to the Court, the case presents the question whether the law is valid as applied to private property open to the public (such as grocery stores, gas stations, etc.) Under the framework the Court announced in NYS Rifle & Pistol v. Bruen, that implicates a 2-part test: (1) Does the law infringe the Second Amendment right (as incorporated here by the Fourteenth Amendment)? (2) If so, does the law sufficiently fit within the history and tradition of firearms regulation?
The oral argument indicated that the Court will likely divide 6-3 along ideological lines to invalidate the Hawaii law as applied.
Bruen step 1
Both in its brief and during oral argument, the state, represented by attorney Neal Katyal, argued that the Hawaii law doesn't count as an infringement of Second Amendment rights at all, because it is merely a law giving effect to property rights. Justice Sotomayor and, even more so, Justice Jackson, echoed this position during the oral argument. Everyone concedes that a property owner can exercise the right to exclude selectively, including based on whether people come onto the property carrying firearms. Thus, the argument goes, this is simply a law that vindicates what everyone concedes is a valid property right.
The state, Deputy SG Sarah Harris arguing for the Trump administration as an amicus, and various conservative Justices pushed back. The state law flipping the default rule is state action that in many circumstances restricts firearms. Before the law was passed, one could go armed into a coffee shop in Hawaii that had no sign posted regarding firearms. Now one cannot without first obtaining the owner's permission. Just as a law requiring a property owner's prior consent to engage in door-to-door solicitation infringes First Amendment rights, the argument goes, so the Hawaii law likewise infringes Second Amendment rights.
Analogizing Second Amendment rights to First Amendment rights is a common move by the Roberts Court. Although the analogy isn't perfect, I do think that here it illustrates the point that a law changing the default rule for determining a private property owner's consent or lack thereof can infringe other rights. Thus, I did not find the it's-just-about-property line of argument to be persuasive.
Now, that's not to say that a more persuasive argument couldn't have been built on these grounds. Suppose the state had commissioned a reputable researcher to determine opinion regarding the views of property owners, and it determined that a very high percentage of them did not want people coming onto their property armed, even if their property was otherwise open to the public. In that situation, perhaps one could say that flipping the presumption doesn't reflect any adverse treatment of people carrying firearms but merely does a better job of effectuating property owners' preferences when they are silent.
To be sure, one might still think that the Second Amendment places a thumb on the scale. I could imagine the Court saying that a presumption that solicitation is unwelcome violates the First Amendment, even if that presumption corresponds to the views of most or even an overwhelming majority of property owners. And whether actual property owners' preferences get disregarded might be different for First Amendment versus Second Amendment purposes.
The closest the state came to advancing the kind of argument I'm hypothesizing was by pointing to the very long tradition of firearms restrictions in Hawaii--going back to its time as a kingdom. Unfortunately for the state, however, this argument was not received as evidence of property owners' preferences but as an attempt by Hawaii to argue that it has a state-specific history and tradition that satisfies the second step of Bruen. But the plaintiffs, the U.S., and the conservative Justices were not at all receptive to that notion, as they plainly think that the history-and-tradition test is satisfied or not on a national basis. And thus, the Court will reach Bruen step 2.
Bruen step 2
The state pointed to colonial-era laws that forbade armed persons from entering private land without the owner's express consent. Such laws, like the challenged Hawaii law, had a no-armed-entry default. However, the plaintiffs' lawyer, Deputy SG Harris, and conservative Justices pushed back by distinguishing such laws as applying to enclosed private land, which they thought disanalogous to private property to which the public is generally welcome. That appears to be factually mistaken at least with respect to New Jersey (although the Deputy SG contested the state's characterization of New Jersey's law).
I won't try to say who's right about whether the colonial laws are sufficiently similar to the Hawaii law--mostly because I think the inquiry is highly under-determinate. The Court has said that predecessor laws need not be "dead ringers" for the challenged law for the latter to fit within the history and tradition of firearms regulation, but the degree of similarity it requires seems highly manipulable. Affray laws didn't cut it in Bruen; they were cited as analogues when the Court chose to uphold the challenged law in United States v. Rahimi. Sensibly or not, six Justices seemed prepared to disregard the colonial-era laws in Wolford. That would appear to be that.
The state also pointed to some nineteenth-century state laws, including an 1865 Louisiana law that the Ninth Circuit characterized as a "dead ringer." As to these, the pushback took the form of dismissal: the Louisiana and other state laws were part of the Black Codes enacted in the wake of emancipation, and such racist enactments shouldn't count as establishing a legitimate history and tradition. The state's brief countered that even opponents of the Black Codes recognized that there was no right to go armed onto private property, but that issue got submerged during the oral argument.
Perhaps the most interesting discussion of the relevance of the racist pedigree of the Louisiana and similar laws was begun by Justice Jackson, who criticized Bruen's history-and-tradition test in her Rahimi concurrence. If the Court gets to pick and choose which parts of our legal history count based on whether we share the normative premises of past laws, she asked rhetorically, then in what sense is history, rather than contemporary normative views, determining the validity of the challenged laws?
The closest thing to a workable answer that anyone gave to that question was when Deputy SG Harris said that unconstitutional laws don't count. That's not a terrible answer, but it raises as many questions as it answers.
For one thing, the Black Codes weren't unconstitutional when they were enacted. It took the Fourteenth Amendment to make them so. For another thing, although the Black Codes are clearly unconstitutional under current doctrine, it will not always be obvious whether a law cited as analogous for Bruen purposes is constitutional. Thus, Harris's approach would require courts first to decide the constitutionality of the antecedent laws--perhaps even using the kind of means-ends scrutiny that Bruen is supposed to avoid--before determining whether such laws are sufficiently analogous to the challenged law to satisfy the history-and-tradition test. That's a very cumbersome and manipulable procedure. Finally, as the state emphasized in its brief, what made the Black Codes onerous was their racial selectivity, but if they are not being invoked for that purpose, it's hardly clear why they're out of bounds as evidence on other points.
Nonetheless, it's pretty clear that six conservative Justices want to use Wolford as an opportunity to have their cake and eat it too: They will expand Second Amendment rights to presumptively authorize gun carrying in your local coffee shop, grocery store, bar, and movie theater, while at the same time advertising to the world that they are against racism. For the Roberts Court's conservative super-majority, that's win-win. For the rest of us, not so much.