Second Amendment Roundup: Supreme Court grants cert in Wolford v. Lopez

On October 3, the Supreme Court granted cert in Wolford v. Lopez on the following issue: “Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?”

In response to Bruen‘s holding that citizens may not be denied permits to carry firearm without a special need, several states enacted sweeping bans on where firearms may be carried.  One such provision enacted by Hawaii prohibits the carrying of firearms by a permit holder onto private property open to the public unless the owner affirmatively gives permission by “unambiguous written or verbal authorization” or by the “posting of clear and conspicuous signage.”  The Ninth Circuit upheld this prohibition in Wolford v. Lopez (2024).

That conflicts with the Second Circuit’s decision in Antonyuk v. James (2024), which found violative of the Second Amendment New York’s ban on firearm possession by a permitee onto private property open to the public unless the owner or lessee of the property posts clear and conspicuous signage or otherwise gives express consent to bring the firearm onto the property.  That created an unprecedented default presumption that carriage is banned, instead of the historical presumption that it is banned only if explicitly done so.

To show that Hawaii’s reverse default presumption satisfied Bruen‘s requirement that a restriction find analogues in American historical tradition, Wolford pointed to a 1771 New Jersey law focusing on hunting that prohibited going on the lands of another armed without consent, and an 1865 Louisiana law that prohibited carrying firearms on the premises or plantation of another without consent.  But as Judge Lawrence VanDyke pointed out, dissenting from denial of en banc rehearing, the 1771 New Jersey law was “an antipoaching and antitrespassing ordinance,” while the 1865 Louisiana law was one of the “notorious Black Codes that sought to deprive African Americans of their rights, including the right to keep and bear arms otherwise protected by state law.”

As I noted in a previous post, the United States filed an amicus curiae brief in support of the cert petition in Wolford, explaining that “after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns.”  As the brief explained, the Court’s consideration of the issue “would help lower courts seeking to interpret the Second Amendment, legislatures seeking to comply with the Constitution, and (most important) ordinary Americans seeking to exercise their fundamental right to possess and carry arms for lawful purposes such as self-defense.”

The Wolford cert petition also proposed that the Court resolve a second issue: “Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen‘s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?”  While the Court did not grant cert on that issue, it is sure to covered in the briefing, and the Court may well expand on its prior rulings that focused on Founding-era history and allowed later history only if consistent with Founding-era history.  On that topic, see Mark W. Smith’s article “Attention Originalists: The Second Amendment was adopted in 1791, not 1868.”

Another state that tried to nullify Bruen was New Jersey, which prohibited carrying a firearm on “private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun.”  After the briefing in Wolford was complete, on September 10 the Third Circuit decided Koons v. Attorney General New Jersey, which held this ban likely to be violative of the Second Amendment as applied to carriage on private property open to the public, further buttressing the challengers in Wolford.

The Supreme Court has now decided to resolve an outlier law without precedent in American history until a handful of states sought to push back on the Court’s ruling in Bruen.  Most of the other of the Court’s prior Second Amendment precedents invalidated outlier laws – the handgun bans in the District of Columbia (Heller) and Chicago (McDonald), and the discretionary licensing law in New York (Bruen).  However it decides Wolford is sure to give major guidance as applied to the avalanche of other Second Amendment cases being litigated mostly in the same restrictive states.

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