Supreme Court appears sympathetic to gun owners' challenge to Hawaii law

https://www.scotusblog.com/2026/01/supreme-court-appears-sympathetic-to-
gun-owners-challenge-to-hawaii-law/

The Supreme Court on Tuesday appeared to side with a group of Maui gun 
owners in their challenge to a Hawaii law restricting their ability to 
bring their guns onto private property that is open to the public. After 
approximately two hours of oral argument in Wolford v. Lopez, virtually 
all of the court’s six Republican appointees seemed to agree with the 
challengers that the law, which requires the gun owners to obtain express 
permission from the property owner, violates the Second Amendment’s right 
to bear arms.

Chief Justice John Roberts suggested that recent cases show that the 
Second Amendment has unfairly been a “disfavored right,” while Justice 
Samuel Alito told a lawyer for Hawaii that the state was “relegating the 
Second Amendment to second-class status.” Hawaii passed the law in 2023 in 
response to the Supreme Court’s decision in New York State Rifle & Pistol 
Association v. Bruen, in which the court struck down a New York handgun-
licensing law that required New Yorkers who wanted to carry a handgun in 
public to show a special need to defend themselves. In Bruen, Justice 
Clarence Thomas explained in his majority opinion that courts should only 
uphold gun restrictions that are “consistent with the Nation’s historical 
tradition of firearm regulation.”

The Hawaii law bars anyone with a concealed-carry permit from bringing a 
gun on private property that is open to the public without explicit 
permission from the property owner. A violation of the law is a 
misdemeanor, punishable by up to a year in prison.

The lower courts upheld the law. The U.S. Court of Appeals for the 9th 
Circuit concluded that “a national tradition likely exists of prohibiting 
the carrying of firearms of private property without the owner’s oral or 
written consent.”

Representing the gun owners, lawyer Alan Beck told the justices that “[b]y 
banning people from carrying firearms on private property that is open to 
the public unless they first obtain affirmative permission, Hawaii has run 
roughshod over that constitutional right.” Hawaii’s “ban,” Beck continued, 
“is inconsistent with our national historical tradition of firearms 
regulation.”

Neal Katyal, who represented Hawaii, countered that “[t]here is no 
constitutional right to assume that every invitation to enter private 
property includes an invitation to bring a gun.” In some states, he 
continued, “an invitation to shop is not an invitation to bring your 
Glock.”

Justice Ketanji Brown Jackson suggested that the Hawaii law did not 
implicate the Second Amendment as much as it did issues of property 
rights. The real question at the center of the case, she told Beck, is how 
states treat property owners’ consent.

Beck resisted that characterization, telling Jackson that the law 
implicates “arms-bearing conduct” and therefore the Second Amendment.

But Jackson remained unconvinced. Laws can affect someone’s interest, she 
contended, without implicating constitutional rights. “The Second 
Amendment,” she argued later, “yields to the property interests of a 
private property owner,” and the law regulates the “form” of the “property 
owner’s consent.”

Justice Neil Gorsuch, however, was more sympathetic to Beck’s argument. 
“[W]e don’t allow,” he said, “governments to redefine property rights in 
other contexts that would infringe other constitutional rights.” For 
example, he noted, the court rejected that theory in Tyler v. Hennepin 
County, in which it held that a Minnesota county violated the Constitution 
when it foreclosed on a home and kept the additional proceeds beyond the 
owner’s tax debt – a case in which Katyal had represented the county.

Principal Deputy Solicitor General Sarah Harris, arguing on behalf of the 
Trump administration in support of the challengers, told the justices that 
viewing this case through the lens of property rights, as one that is 
“just tweaking how you consent,” would open the door to countless gun 
regulations. For example, she suggested, states could ban tenants from 
owning guns without their landlords’ consent.

If the Second Amendment does apply to the Hawaii law, then the justices 
would next have to determine whether the law fit within a historical 
tradition of regulating guns within the United States. In Justice Elena 
Kagan’s view, Hawaii had done so. The laws that Hawaii had cited as 
historical analogs, she told Beck, “flip a default rule as to how explicit 
consent has to be.” “[W]hy isn’t that pretty good evidence,” she 
continued, “that this is something that states historically have done?”

A major point of contention was Hawaii’s reliance on an 1865 Louisiana 
law, enacted as part of that state’s Black Codes to restrict the rights of 
formerly enslaved people, that prohibited the carrying of guns on premises 
or plantations – that is, private property – without the property owner’s 
consent. Gorsuch questioned whether the court should consider the law at 
all, calling it an “outlier.” He posited that for the “people [who] like 
to cite the Black Codes” to support gun restrictions, those laws 
“otherwise … would be garlic in front of a vampire.”

Alito echoed Gorusch’s sentiment, telling Katyal that the law was designed 
to prevent formerly enslaved people from defending themselves against 
members of the Ku Klux Klan and “racist law enforcement officers.”

Katyal agreed that the Black Codes “are undoubtedly a shameful part of our 
history.” However, he said, “that doesn’t at all mean that this particular 
law is irrelevant to Second Amendment analysis.”

But Jackson suggested that a failure to consider the Black Codes would 
signal a problem with the Bruen test itself. It would mean, she stressed, 
that courts were not “tak[ing] into account” “all of the history of 
regulation.” When “we have a test that asks us to look at the history and 
tradition,” she said later in the argument, courts should consider those 
laws.

Roberts saw a different problem: in his view, “one of the motivating 
concerns … in our decisions under the Second Amendment, is that it is a 
disfavored right.” How can it be, he asked Katyal, that “it is a very 
clear constitutional right under the First Amendment” for a candidate for 
office to go up to the front door of a private home and knock on it to 
campaign, but the candidate can’t do the same thing with a gun? “[W]hat 
exactly,” Roberts queried, “is the basis for the distinction?”

Alito asked a similar question. He noted, and Katyal agreed, that it would 
violate the First Amendment for a restaurant owner to ban particular 
political attire without “express consent from the owner of the 
restaurant.” Here, he suggested, there is “a violation of the right that 
the Court held is protected by the Second Amendment in Bruen, which is the 
right of law-abiding citizens to carry a firearm … outside of the home for 
purposes of self-defense.”

Katyal emphasized that “the Second Amendment … is not a second-class 
right.” But at the same time, he said, there are key differences between 
the First Amendment and the Second Amendment. Moreover, he added, a ruling 
in favor of the challengers, “for the first time would be saying there is 
some sort of right here which no commentators recognize, no treatises 
recognize, no court has ever recognized.”

At the same time, the justices did not appear persuaded by the Trump 
administration’s argument that the Hawaii law violates the Second 
Amendment simply because it is “pretextual” – that is, Harris argued, it 
“subjects just one right, the Second Amendment, and one class of people, 
the people of Hawaii who had a license to carry after Bruen, to its 
presumptive ban.”

In Justice Brett Kavanaugh’s view, the court did not need to address this 
issue. “Why,” he asked Harris, “are we making it complicated?” If “[t]he 
text of the Second Amendment covers arms,” and “there’s no sufficient 
history supporting the regulation,” it would be the “end of case” as far 
as he was concerned.

The only Republican appointee who seemed even remotely sympathetic to the 
state was Justice Amy Coney Barrett. She asked Beck, for example, whether 
Hawaii could pass a law that prohibited gun owners from bringing firearms 
onto property that is not open to the public – such as a private home. 
When Beck suggested that the state could not, she expressed surprise, 
saying “Really? … Hawaii can’t have that law about … my house or Justice 
Gorsuch’s house?”

Barrett later reiterated a point that she has made in earlier gun rights 
cases. When Harris told Barrett (in response to questioning) that the 
state could not enact a law banning guns at gas stations without 
affirmative consent to address a rash of robberies at those stations, 
Harris cited the lack of “relevantly similar analogues” to such 
restrictions. Barrett pushed back, telling Harris that the absence of a 
law regulating a particular issue does not mean that there was no 
historical tradition of such restrictions.

Posted in Court News, Featured, Merits Cases

Cases: New York State Rifle & Pistol Association Inc. v. Bruen, Wolford v. 
Lopez

Recommended Citation: Amy Howe, Supreme Court appears sympathetic to gun 
owners’ challenge to Hawaii law, SCOTUSblog (Jan. 20, 2026, 4:34 PM), 
https://www.scotusblog.com/2026/01/supreme-court-appears-sympathetic-to-
gun-owners-challenge-to-hawaii-law/


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/ Biden / Harris fiascos, President Trump.

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