Guns, Property Rights, and the Second Amendment

I am one of the few people who believe the Supreme Court was very right in its Second Amendment ruling today, in Wolford v. Lopez, but badly wrong in its ruling allowing abolition of TPS status for Haitian migrants in Mullin v. Doe. Both majority opinions were written by Justice Alito; but he did a way better job in one than in the other. In this post, I assess Wolford. I will try to cover Mullin v. Doe later.

In Wolford, the Court struck down a Hawaii law that barred people carrying guns from entering private property “held open to the public” unless they had specific permission from the owner. In a 6-3 decision divided along ideological lines, the Court held the law violates the Second Amendment right to keep and bear arms. The conclusion is right.

Elsewhere, I have argued that red-state laws requiring property owners to allow guns on their land violate the Takings Clause of the Fifth Amendment (see here and here). Private property owners have every right to exclude people who carry guns from their property, just as they also have a right to exclude people for any number of other reasons. But the Hawaii law goes far beyond merely allowing property owners to exclude bearers of guns. It singles out the exercise of a constitutional right for a legal presumption of exclusion. And here I would emphasize that the Second Amendment protects not only the right to own arms, but also the right to “bear” them. Such bearing is often useful for self-defense, particularly in high-crime areas.

Most people would readily agree such a targeted presumption of exclusion is us unconstitutional when it comes to other constitutional rights. As Justice Amy Coney Barrett points out in her excellent concurring opinion, “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?” We can easily extend the analogy. If the state enacted a law barring people who criticize the president or the state’s governor from private property without specific permission from the owner, that would be a violation of the Free Speech Clause. If the state barred the use of contraception on private property  (e.g. – hotel rooms) without getting specific permission from the owner, that would be a violation of the right to contraception protected by Griswold v. Connecticut (1965). And so on.

As Barrett notes, this point disposes of Justice Ketanji Brown Jackson’s main argument in the principal dissenting opinion (joined by Justice Sotomayor): “that Hawaii’s law does not restrict the right to carry a gun at all. Instead, its law vindicates its resident’s property rights by operating on the scope of the implied license to enter.” The state cannot manipulate those default rules to deliberately disfavor the exercise of a constitutional right. If a state law banned critics of the president or people wearing religious garb from entering private property without specific permission, I doubt Justice Jackson would such a law “does not restrict First Amendment rights at all.”

There is also an extensive debate between the majority and the dissent about whether the Hawaii law meets the “history and tradition” test outlined in the Court’s 2022 ruling in the Bruen case, which held that gun control regulations can be upheld if they are sufficiently analogous to historically prevalent laws. On balance, I think the majority and Justice Barrett are right to emphasize that most of these laws were narrower than the Hawaii law, and had narrower purposes (e.g. – controlling poaching). But I agree with Justice Jackson that this whole exchange demonstrates – yet again- that the “history and tradition” test is badly flawed, and too easily manipulable. While she thinks the manipulation goes only towards invalidating too many regulations, I think it could just as easily go the other way (or would, if the Court had a liberal majority). Indeed, her own arguments in this case demonstrate how that could happen.

As I explained in my post about the recent Hemani case, the best solution to this problem is to junk the history and tradition test, and replace it with one focused on the text, original meaning, and purpose of the Second Amendment. On that approach, a categorical presumption against bringing guns into any private property “open to the public” pretty obviously has to be struck down. Note that the presumption applies regardless of the type of gun, regardless of whether the owner is doing anything dangerous with it, and regardless of the type of property. That makes it a severe imposition on the core constitutional right to bear arms, and not one that can be justified by any kind of narrowly targeted safety concerns. Things might be different if the law were limited to, e.g., situations where the owner brandished the gun in a dangerous manner.

Part of the debate between the majority and dissent focuses on the notorious Black Codes enacted by southern states after the Civil War, for the purpose of oppressing recently freed slaves and other Blacks, which in this case included restrictions on carrying guns, so as to disarm Black people and render them more vulnerable to coercion by whites.  Hawaii and Justice Jackson argue that these laws are appropriate analogues to the current Hawaii law, thereby justifying the latter.

I think it obvious that laws which are themselves unconstitutional (because engaging in blatant racial discrimination) cannot serve as justifying analogues for anything. Indeed Justice Jackson recognizes the Black Codes were unconstitutional, but argues that they might still serve as part of the relevant “history and tradition,” because racial discrimination has a long history and was traditional, and because the unconstitutionality here may have been under the anti-discrimination provisions of the Fourteenth Amendment, not the Second Amendment.

I think a law intended to disarm a racial minority pretty obviously violates the Second Amendment, as well as other constitutional provisions. If the mere fact that many states enacted such laws makes them permissible under the “history and tradition” test, that’s just another strike against that test. But even within the framework of that test, there is every reason to exclude regulations that are unconstitutional under other provisions of the Constitution (and therefore should never have been allowed to become “traditional” in the first place). Ditto for regulations intended to undermine the central purposes of the Second Amendment, by making people more vulnerable to government and private oppression.

A good rule of thumb is that if defending the constitutionality of a law requires arguing that it is similar to the Black Codes, that probably means the law is actually unconstitutional! And if your test for determining constitutionality gives positive (rather than negative) weight to similarity to the Black Codes, you should junk that test and use a different one.