Three years ago, the Supreme Court’s landmark Second Amendment decision in New York State Rifle & Pistol Association v. Bruen authoritatively declared that “the constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” The Supreme Court now has the opportunity to once again make that clear to states that impose burdensome restrictions on law-abiding citizens’ constitutionally-protected means of self-defense.
The court recently agreed to hear a case challenging a Hawaii law that prohibits carrying firearms on private property that is open to the public unless a permit holder has been “given express authorization to carry a firearm on the property by the owner, lessee, operator or manager of the property.” Thus, the default rule in such states is that carrying a firearm is prohibited in most places open to the public.
In the landmark case of District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to own and possess a firearm for “traditionally lawful purposes” and that a complete prohibition on the use of handguns is unconstitutional. In McDonald v. Chicago, decided a few years later, the court held that the right to keep and bear arms is a fundamental right encompassed within the liberty that the due process clause of the 14th Amendment protects against the actions of state and local governments.
In Bruen, the Court held that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” The court also set forth the constitutional test for determining whether regulations on firearms are consistent with the Second Amendment, explaining: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Although the Supreme Court has, for the most part, largely expanded Second Amendment rights in the 21st Century, it cannot be overstated how much latitude the court has afforded to governments to enact reasonable regulations on firearms.
Right from the beginning in D.C. v. Heller, the court stated: “Like most rights, the right secured by the Second Amendment is not unlimited. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Then, in Bruen, the court stated that “analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”
Justice Brett Kavanaugh emphasized that states “may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”
In the first Supreme Court case on the Second Amendment after the Bruen decision, the Supreme Court in United States v. Rahimi upheld the constitutionality of the federal law which prohibits the possession of firearms by individuals against whom domestic violence restraining orders have been issued. There, the Court held that “an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
But despite this wide latitude in constitutionally-permissible firearm regulations, Hawaii has taken the extraordinary action of establishing a presumption of prohibition on a constitutionally-protected activity. That is inconsistent with a limited government, where citizens are supposed to act under the presumption that they have the liberty to do everything which is not explicitly prohibited. But the default no-carry laws have it completely backwards.
In the wake of Bruen, New York state enacted the Concealed Carry “Improvement” Act, which actually made obtaining a concealed carry license more difficult in many parts of the state than it was before Bruen was decided. One of the provisions was the same as Hawaii’s law and prohibited carrying firearms on private property unless permission was explicitly granted by the owner.
In 2024, the United States Court of Appeals for the Second Circuit in Antonyuk v. James held that New York’s default-prohibition of carrying firearms on private property open to the public violated the Second Amendment because the prohibition was inconsistent with historical restrictions on carrying firearms. But the Court of Appeals for the Ninth Circuit has upheld Hawaii’s law, which now creates a circuit split that the Supreme Court must resolve.
As the Supreme Court noted in Bruen, “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.” Striking down Hawaii’s law would not require allowing firearms on all private property, since individual property owners would still have the right to make that decision for themselves, but it would mean that states cannot make presumptively unlawful something that the Constitution specifically protects.