What’s at Stake in Wolford? Supreme Court Grants Cert to Review Hawaii’s Sensitive Places Law
On Friday, October 3, the Supreme Court granted certiorari to review Wolford v. Lopez, a 9th Circuit panel decision on California’s and Hawaii’s sensitive places laws. The Court will review the panel’s decision to uphold a provision of the Hawaii law that requires gun owners to receive permission from private property owners before carrying guns onto their property. While the Justices are still considering a handful of other notable Second Amendment cases, Wolford will mark the Court’s second Second Amendment case since Bruen and raises some interesting questions about locational restrictions on the right to keep and bear arms.
After Bruen held that the Second Amendment includes the right to public carry, several states enacted or amended “sensitive-place” laws prohibiting firearms in varying sensitive locations. Justice Scalia blessed at least some form of these laws in Heller when he wrote that “nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.” Restated in both McDonald and in Justice Kavanaugh’s concurrence (joined by Chief Justice Roberts) in Bruen, this passage strongly suggests that a majority of the Justices believe that some sensitive places laws are consistent with the Second Amendment.
However, several states reached beyond “schools or government buildings,” prohibiting guns in places ranging from stadiums to zoos. To date, three circuits have applied the Bruen test to these sensitive places laws: the Second Circuit examined New York’s law in Antonyuk v. Chiumento (which we covered here), the Ninth Circuit passed over California and Hawaii’s laws in Wolford (covered here), and just a few weeks ago, the Third Circuit largely upheld New Jersey’s law in Koons v. Attorney General New Jersey.
These cases have been relatively consistent with each other (including in terms of length: 261, 84, and 236 pages respectively). But while they have disagreed on various points, the Supreme Court granted cert on only one key point of contention: whether a state 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.”
This question addresses “presumption flipping” or “default switching” provisions, which have been present in each of the four sensitive places laws enacted and reviewed post-Bruen. These provisions flip the default rule on whether gun owners must get permission to bring guns onto private property. A quick review of the background will clarify what exactly these presumption flipping provisions change.
Property owners generally have the right to exclude firearms from their property (but see parking lot laws). No court has ever held that the Second Amendment includes the right to bring a firearm onto private property over the private property owner’s objection. And it is extremely unlikely the Court would go this far, especially given that the same justices in the Bruen majority recently emphasized private property owners’ “right to exclude” in Cedar Point Rapids v. Hassid (a Takings case).
However, the default rule in most states is that gun owners can carry firearms onto private property until they have been told otherwise. So, if a person is legally allowed to carry a firearm, they can carry it on any private property not covered by a sensitive place restriction, at least until they’re asked not to (e.g., by a sign posted in the doorway declaring no guns allowed). New York, New Jersey, Hawaii, and California flipped this default rule, so that gun owners in those states must get permission before they carry onto any private property, whether it be a friend’s house, their place of work, or the grocery store.
Advocates for this default switch argue it aligns the default rule with public opinion. One study found that only 32% of respondents supported a default right to carry into your friends’ and families’ homes, just 25% supported a default right of employees to bring guns to work, and 44% supported a default right for customers to carry into retail establishments. In other words, majorities supported the default rule that these states recently switched to. Law professors Ian Ayres and Frederick Vars also advocated for the switch in their book Weapon of Choice, arguing that it empowers individuals, giving those with sufficient information and incentives “the liberty to reduce the risk of gun violence.”
Critics argue the switch is “no[] more than a pretext to deprive people of the[] right of public carry” recognized in Bruen. The federal government agrees, and asserted in its amicus brief in Wolford that these laws “def[y]—indeed, effectively nullif[y]—the ‘general right to publicly carry arms’ that Bruen recognized.” And of course, challengers argue that these provisions simply fail Bruen’s history and tradition test.
All the panels to consider these provisions agreed that states could establish a presumption against carrying on private property not held open to the public (e.g., your friend’s house). Such a rule is relatively uncontroversial; indeed, similar provisions exist in two states not known for onerous gun regulation: Louisiana and Alaska. However, a circuit split has emerged over the provisions as applied to private property held open to the public (e.g., a mall or grocery store).
The Second and Third Circuit found that such a rule fails Bruen’s test. The Second Circuit panel first found that “to the extent the restricted location provision applies to private property open to the public, the regulated conduct falls within the Second Amendment right to carry firearms in self-defense outside the home.” The panel then held New York had failed to carry its burden of showing a history and tradition of relevantly analogous restrictions, as its cited laws showed only a tradition of default bans on private property closed to the general public. Likewise, the Third Circuit panel quickly found the law implicated the Second Amendment’s plain text and then held the state could not show a history and tradition justifying the law because New Jersey failed to offer analogous laws that covered private property held open to the public.
In Wolford, the Ninth Circuit panel examined both California and Hawaii’s default switching provisions. The panel first found that the laws implicated the Second Amendment’s plain text, putting the burden on the state to justify the law with history and tradition, conforming with Antonyuk and Koons. Yet the panel split from those circuits in holding that there was an established tradition of states “arranging the default rules that apply specifically to the carrying of firearms onto private property.” Key to this finding were two laws the panel characterized as “dead ringers”: a 1771 New Jersey law and an 1865 Louisiana law. The former prohibited “carry[ing] any Gun on any Lands not his own, and for which the Owner pays Taxes, or is in his lawful Possession, unless he hath License or Permission in Writing from the Owner or Owners or legal Possessor;” the latter prohibited “carry[ing] fire-arms on the premises or plantation of any citizen, without the consent of the owner or proprietor.” The Wolford panel found both these laws “applied to all private property,” and the New Jersey law had the specific purpose of “prevent[ing] trespass with Guns.”
Accordingly, the panel held “Hawaii’s modern law falls well within the historical tradition,” and Hawaii’s presumption flipping provision was not enjoined. However, the panel distinguished California’s provision and found it failed the Bruen test. Under California’s law, permission could be granted only by posted signs which “must allow all licenseholders to carry and must allow them to carry whatever firearms are permissible under state law.” The panel reasoned this fell outside the historical tradition where “property owner could give on-the-spot, granular permission to a particular person or persons for a specified time.”
It is unclear how broadly a Supreme Court decision in Wolford will sweep. The question presented appears quite narrow—the Justices have agreed only to assess Hawaii’s burden flipping provision, not its sensitive places law as a whole. And it seems that this provision will rise or fall based on no more or less than how the Court interprets and weighs the 1771 New Jersey and 1865 Louisiana laws—unless amici or the parties are able to dig up new laws, which may then pose a different set of questions about admissibility.
Each panel that examined a burden flipping provision cited the New Jersey and Louisiana laws, and each apparently agreed that none of the laws outside of these established an adequate historical tradition. But each analyzed these specific laws differently. The Koons panel cited them but never discussed them individually, and it did not let them stand in the way of the conclusion all the laws cited were limited to land not held open to the public. The district court in Antonyuk explicitly engaged with these laws but dismissed them because “the populations of New Jersey and Louisiana together was 4.2% of the Nation at that time.” And the panel in Antonyuk found that while these laws were not explicitly limited to property not held open to the public, history indicated that the terms used in these laws “would have been understood to refer to private land not open to the public.”
Given the Court will almost certainly examine these two laws, there are several possible ways in which it could use them to clarify the Bruen framework. The Court might explicitly impose a floor on the requisite number of historical analogues. Perhaps it will revisit the language in Bruen that “we doubt that three colonial regulations could suffice,” and will establish a bright line rule that two analogues don’t suffice. Or perhaps it will agree with the district court that laws covering only 4.2% of the nation’s population are outliers free to be disregarded.
In theory, the Court could simply decide whether Antonyuk or Wolford had the better reading of the New Jersey and Louisiana laws. Doing so would give the Justices an opportunity to further clarify how it would like lower courts to go about the business of assessing historical laws. It’s even possible the Court will use this opportunity to exclude some laws from the Bruen test. The petitioners in Wolford stressed in their cert petition that the Louisiana law was part of the “Louisiana Black Codes,” designed to deprive newly freed slaves of their civil rights. They argue laws such as these should not be credited, and the Court could agree and hold some laws are inadmissible to the historical inquiry.
The cert grant did suggest this case won’t settle the debate over which historical eras can be used, given the Court declined to certify the Wolford petitioner’s question of “whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws.” But this declination may signal only the Court’s unwillingness to box itself in, and the Court may still address this question in answering the certified one.
Finally, it’s possible that this case will lead to no new caselaw. In theory, Hawaii could moot the case by repealing the default flipping provision, as New York did in a pre-Bruen case. This would let Hawaii keep most of their law without the risk of the Court using this case to tighten up requirements for sensitive places laws more broadly. Given that sensitive places laws have fared fairly well even post-Bruen and that at least New Jersey described the burden flipping provision as a “minor piece[] of the statute,” this may be a trade Hawaii is willing to make. That could also be a gamble. Justice Alito (joined by Justice Gorsuch and Justice Thomas in relevant part) dissented from the mootness ruling in the New York case and sharply criticized New York’s actions. If Hawaii pulls a similar move, more justices might be inclined to find a way to reach the merits—in which case Hawaii would have done nothing more than irritate the Court.