As I always say to my students, you may or may not like a Supreme Court decision as a matter of policy, but you need to understand it. It is impossible to effectively argue for or against anything without that crucial first step. Accordingly, the key to truly comprehending the Supreme Court’s big Second Amendment decision this week is reading Justice Amy Coney Barrett’s concurrence.
This week the Court voted 6-3 in Wolford v. Lopez to strike down a Hawaii law that placed new limits on concealed-carry permit holders. Simply put, the law required that gun owners seek permission from private property owners before exercising their Second Amendment right to bear arms in places like hotels and restaurants. With Justice Samuel Alito’s majority opinion, the four other states that similar laws will now also see theirs’ fall.
Given the Court’s recent rulings on gun control measures, Hawaii’s law was almost certainly doomed
Given the Court’s recent rulings on gun control measures, Hawaii’s law was almost certainly doomed. Four years ago in New York v. Bruen the Court held that there is a Constitutional right to bear arms in public for self-defense. It also created a new, more stringent, standard for evaluating gun control measures. Justice Clarence Thomas’ majority opinion ruled that gun control laws will only be upheld if they are “consistent with the Nation’s historical tradition of firearm regulation.” This is a much more difficult test for the government to satisfy than the previous standard, which balanced public safety needs against the right to bear arms.
In the wake of that decision, Hawaii sought a way to reduce the number of guns carried in public that fit within the new legal landscape. The resulting law turned the default rule in most states on its head. In most cases, people who have concealed-carry permits can enter private property open to the public unless they are specifically prohibited from doing so.
Hawaii argued that this was a case primarily about the rights of property owners, not the Second Amendment. Justice Ketanji Brown Jackson, in her dissent, argued that “Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.” This argument has initial appeal.
But Barrett’s concurrence lays bare the legal problems with Jackson’s argument. Barrett notes private property owners are free to prohibit gun owners from carrying guns onto their property. But this case doesn’t address the ability of a hotel owner to kick a gun owner off his property, it deals with a state action, bringing it squarely under the second amendment’s purview.
As Barrett also pointed out, states can’t be the one prohibiting people from exercising their constitutional rights on private property, even if it’s open to the public. Barrett rhetorically asked: “What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny?” The answer has to be “no,” as this hypothetical law would raise serious First Amendment problems.
The point is not that guns and religious clothing are the same. The point is that a state cannot avoid constitutional scrutiny simply by routing a burden on a constitutional right through property law.
Because the Bruen test now asks whether a gun control measure is “analogous enough” to “historical precursors,” Hawaii also had to search for a “historical analogue” for its new law. This put Hawaii in the suboptimal position of relying, in part, on an 1865 Louisiana law that was part of the so-called, “Black Codes” for support. That law prohibited people from carrying “fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor…” (In its brief, Hawaii was forced to concede that “most of the 19th century laws were understood not to address the carry of guns in general but to curtail the freedom of blacks in particular.”)
The point is that a state cannot avoid constitutional scrutiny simply by routing a burden on a constitutional right through property law.
States cannot go on a historical scavenger hunt, find a law motivated by discrimination and say “this is close enough.” Beyond being part of an ugly history, the law Hawaii selected had a different purpose than the one it was defending in court. Accordingly, Barrett wrote that “it is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”
In the end, this decision doesn’t cleanly tell us what the justices think about gun control as a policy matter. Barrett acknowledges that “the right to bear arms is misused in other ways that were unknown to our forebears but pose an equivalent risk to persons or property.” In providing a concurring opinion, though, she does two things. First, she makes clear that the Court isn’t going to make Second Amendment rights second class rights. And second, it shows the narrow path forward that states have to regulate guns. States wishing to impose gun control regulations must now focus on laws aimed at specific places where firearms present specific risks.
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