The best part of subscribing to Slate is Mark Joseph Stern’s legal commentary. In this post, he explains the tortured and wholly inadequate logic behind the decision to strike down a Hawaii law that allowed owners of private property to prohibit people from bringing guns into their establishments. Property rights vs. gun rights. The six rightwing members of the U.S. Supreme Court chose gun rights over property rights and pretended that it was a traditional, well-established practice throughout American history. In the preface, Stern described Justice Alito’s opinion as “deranged.” Surely it is deranged to be so indifferent to human life, especially hypocritical from the six who banned abortion because of their devotion to a “right to life.”
I suppose the resolution is that fetuses have a right to life but human beings, once born, do not have a right to live. Thus, no place is protected from guns except courthouses, schools, and the Halls of Congress. How long will it be until it’s okay to carry guns in schools? The justices will never allow guns in their courthouses.
The Supreme Court’s 6–3 decision in Wolford v. Lopez on Thursday confirms our worst fears about the supermajority’s Second Amendment jurisprudence: It is a freewheeling policy project utterly unmoored from history that allows the Republican-appointed justices to implement their preferred gun laws under the thin guise of judicial review. These justices struck down Hawaiʻi’s law restricting guns on private property not because the Constitution required them; to the contrary, the state proved beyond doubt that its statute was deeply rooted in history and tradition. Rather, the supermajority killed the law because it was offended that Hawaiʻi would dare try to mitigate the violence that SCOTUS has unleashed through its radical, incoherent gun rights jurisprudence. Justice Samuel Alito’s opinion for the court bristles with annoyance toward the state government’s attempts to protect people on private property from getting shot to death. Constitutional law has given way to six justices’ ad hoc nullification of any law that favors human life over the paranoid obsessions of gun enthusiasts.
Wolford involves a Hawaiʻi law that prohibits individuals from carrying guns on private property unless the owner affirmatively consents. (California, Maryland, New Jersey, and New York have enacted similar statutes—all now likely invalid.) The state intended this rule to respect property rights by creating a default rule that nobody takes a firearm onto someone’s land without their permission. Gun advocates promptly challenged it under Bruen, the Supreme Court’s 2022 decision holding that a burden on the right to bear arms is unconstitutional unless it has enough “historical analogues” from the distant past. They claimed that Hawaiʻi could not identify a sufficient number of these “analogues” to justify its law.
There are key problems with this argument, as Justice Ketanji Brown Jackson explained in dissent. First, Bruen ostensibly compels courts to figure out what conduct the Second Amendment protected when ratified; if a contemporary law infringes on that conduct, it is presumptively unconstitutional. But, Jackson wrote, “there is no right to carry a gun onto private property without the permission of the owner.” The majority did not even contest this point, because it is uncontestable. Instead, Alito ratcheted up Bruen’s level of generality: Rather than asking if Hawaiʻi’s law actually burdens a concrete, well-defined right, he merely asked if it “hampers” an individual’s ability to take their gun anywhere they want. Because it does, he concluded, it must be supported by appropriate “historical analogues.”
Then, having defined the right to bear arms as broadly as possible, Alito demanded granular specificity from older statutes that echo Hawaiʻi’s. The state offered many; its list included 18th-century laws in Pennsylvania, Maryland, New Jersey, and New York that required permission from a property owner before carrying a gun on his land, as well as 19th-century laws in Florida, Louisiana, and Texas that restricted the unapproved carrying of guns on “the premises or plantations of any citizen.” Even under Bruen’s stringent standard, aren’t these statutes enough to shore up Hawaiʻi’s modern version?
No, Alito wrote, because each is “distinguishable” from Hawaiʻi’s. The state’s true goal, he asserted, is to enshrine “local attitudes” and “a Hawaiian tradition” that “disfavor the carrying of guns” in public to prevent violence. By contrast, the 1700s laws were mere “anti-poaching” rules meant to mitigate “harms and risks associated with unauthorized hunting.” So, under Bruen, they are not “relevantly similar” to Hawaiʻi’s in terms of “how and why” they were enacted. Meanwhile, the 1860s laws were post–Civil War “Black codes” meant to oppress former slaves. So Alito dismissed them as a “tainted artifact” that did not qualify as Bruen “analogues.”
Each of these moves infuriated Jackson. To start, she bemoaned the majority’s “boundless” Second Amendment that “presumptively protects” the right “to carry anywhere and everywhere.” Alito’s “newfound understanding of the first step of Bruen,” Jackson wrote, “obliterates any need for reference back to original meaning.” After Wolford, “judges are now free to insert any meaning they desire into the text of the Second Amendment and then demand the government provide analogues to fit that interpretation.”
As to those analogues: Jackson ridiculed Alito’s refusal to acknowledge that they show how “states routinely required affirmative consent for armed carry onto private property” at the founding. The 1700s statutes were not, in fact, limited to poaching, but were also meant to prevent “armed trespass, property theft or damage, and gun violence, whether intentional or accidental.” Lawmakers helpfully wrote down these aims, which Alito ignored. The purpose of these laws, Jackson wrote, was to “vindicate property rights” by mitigating “concerns associated with violations of those rights by armed individuals on private land.” That, of course, is precisely what Hawaiʻi seeks to do today.
And what about the Southern laws from the post–Civil War era that protected private property from armed trespassers? Jackson acknowledged that “confronting the origins of these laws is certainly uncomfortable. The Black Codes were ugly. And racist. And deplorable.” But that does not “automatically render these laws irrelevant to a fair assessment of the right to carry firearms.” If the majority chooses to “tether its Second Amendment analysis to facts about America’s past, it must contend with our nation’s entire history, warts and all.” Excluding laws that appear “ugly” to modern eyes empowers the court “to cavalierly pick and choose which parts of the historical record count,” giving it “discretion to cull the history” in “service of a single goal: preventing the government from responding to issues arising from the possession of firearms.”
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