Wolford and Door-to-Door Solicitation

The Supreme Court has jumped headfirst into the post-Bruen Second Amendment fray by granting certiorari in two cases for the October 2025 term.  One of those cases, Wolford v. Lopez, involves Hawaii’s decision to implement a default rule that bars gun-carrying on private property open to the public unless the property owner gives consent (for more background on Wolford, see our summary post here). 

Wolford is part of a series of civil cases in which gun-rights groups and private plaintiffs have challenged state locational restrictions on concealed carry enacted after the Supreme Court’s 2022 decision in Bruen required states to be more permissive in granting carry licenses.  Wolford implicates nuanced questions under Bruen’s historical framework, including whether colonial and Reconstruction-era laws that limited gun carrying on certain private property are sufficiently analogous to Hawaii’s modern approach.  The case also raises a much broader question of property law: namely, how far can a legislature go in restricting lawful activity on private property?  And as past Supreme Court decisions under the First Amendment demonstrate, the ramifications stretch far beyond gun rights.

The plaintiffs’ cert petition in Wolford argues that,

[g]enerally, the public has implied consent to enter property open to the public, “unless such  consent is conditioned or subsequently revoked by the property owner.” And because “[t]he right to armed self-defense follows the individual everywhere he or she lawfully goes” in public, carrying on property open to the public is permitted unless the property owner “withdraw[s] consent[.]” There is no tradition, either at the Founding or even in the modern era, of requiring prior permission (of any type) from a property owner when entering land that is otherwise held open to the public.

In broad terms, then, the plaintiffs assert that when property is open to the public the property owner’s right to exclude must necessarily yield to a tradition of implied license.  Members of the public have permission to enter such property for lawful purposes and the state may not intervene to require that they first obtain the owner’s consent. 

For this proposition, the petition relies heavily on the district court decision in Koons v. Platkin, which invalidated a New Jersey law identical to the Hawaii statute challenged in Wolford.  In Koons, the court grounded its analysis of the default-swap provision largely in the implied license to enter another’s property.  As the district court explained, in its view “the State’s sweeping revocation of the public’s longstanding limited implied license to enter others’ property without trespass liability solely because of the exercise of a constitutional right” was contrary to historical tradition.  Therefore, the state could not withdraw implied consent for gun-carrying on behalf of individual property owners.

Koons examined the Supreme Court’s 1951 decision in Breard v. Alexandria and, in the process, shed important light on a potentially relevant comparator to the gun-carrying defaults that have been adopted recently in Hawaii and elsewhere: state and local regulations barring door-to-door commercial solicitation absent a property owner’s explicit consent.  In Breard, a Louisiana town enacted a law that barred “the practice of going in and upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers, itinerant merchants, or transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant, or occupants of said private residences for the purpose of soliciting orders for the sale of goods.”  The city council enacted the provision after receiving homeowner complaints from those who “did not desire any uninvited intrusion into the privacy of their home.”  A unanimous Supreme Court sustained the regulation, holding that it did not violate the First Amendment or the Due Process Clause.  Notwithstanding the implied license to enter for lawful purposes under common law, the Court found that the restriction was a valid exercise of the police power and that “[f]reedom of speech or press does not mean that one can talk or distribute where, when and how one chooses.”

Breard is potentially an important case for the Court to consider as it evaluates the claims in Wolford.  As even the court in Koons conceded, “[t]he structure of the rule is admittedly on point.”  In other words, the restriction that was upheld in Breard bears a strong resemblance to the Hawaii law at issue in Wolford.  Alexandria banned solicitors from visiting private residences without consent of the owners; Hawaii has banned gunowners from visiting private property without consent of the owners.  And both laws presumably originate in the police power, citizen complaints, and the legislative prerogative to regulate for public safety.  Is it really possible to distinguish Breard?

The Koons court, interestingly, did so primarily on the basis that Breard engaged in the type of judicial balancing that is now impermissible in the Second Amendment context.  While the Supreme Court in Breard determined that the homeowners’ privacy interests outweighed the free speech interests of the solicitors,[1] that type of balancing is now off the table in the Second Amendment space and thus the court was “forbidden from considering  whether the Default Rule is sufficiently tailored to achieve an asserted governmental interest and, relatedly, balancing the interests of different constituencies in its analysis.”  Moreover, Koons noted, the Breard salesmen had other options (such as mailing their flyers) while “Plaintiffs’ conduct here—carrying for self-defense in public—is implicated everywhere they lawfully go.”

It seems to me that neither avenue of distinguishing Breard is entirely satisfying.  For one, the case remains good law and First Amendment law generally continues to utilize means-end scrutiny.  If courts weighing gun cases are forbidden from following or even consulting Breard’s analysis, this creates an odd universe in which Second Amendment rights are openly elevated over free speech rights—not to mention that there is, at the least, a strong argument that the police power to regulate guns is stronger than the police power to regulate irritating commercial speech.  As to the question of adequate alternatives, the Koons court failed to consider that the plaintiffs in that case did have alternative means to protect themselves: namely, by carrying non-gun weapons that might be (as with mailing in Breard) less effective.

By contrast, it might be possible to distinguish Breard on the grounds that the regulation there governed only entrance to private residences—not to private property that is generally held open to the public such as stores or shopping malls (Hawaii’s gun law also institutes a no-carry default on private residential property, though the Wolford plaintiffs have not challenged that application).  Yet, as Breard itself suggests, the First Amendment doesn’t provide anything close to absolute protection for speech even on private property open to the public.  Rather, the Supreme Court has rejected the idea that private commercial property, such as a shopping mall, is the functional equivalent of a public town square and held that the federal First Amendment has limited application in such spaces.

The Court in Bruen went out of its way to say that its “Second Amendment standard accords with how we protect other constitutional rights.”  But Bruen’s history and tradition test differs in important respects from the scrutiny-based approaches that persist in other areas such as the First Amendment.  As the Court prepares to explicate its evolving Second Amendment jurisprudence, it will be hard-pressed to avoid confronting this issue head-on.  One can hope that, at the least, the Court recognizes this dilemma and attempts to harmonize comparable constitutional challenges rather than constructing a clear hierarchy of constitutional rights.