Hard Questions in Wolford

This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.

Last week, the Supreme Court heard oral argument in Wolford v. Lopez, a Second Amendment case concerning the state’s ability to change the default rule for carrying guns on private property open to the public from one that presumed permission to one that requires affirmative consent. One problem that came up during the arguments in the case, as I see it, is that both sides have arguments with undeniable intuitive appeal. Bruen’s test makes resolving that tension more difficult, but it is there nonetheless.

For the challengers, the intuitive argument analogizes to state action in the context of other constitutional rights and the fear of the slippery slope. It cannot be the case that the government can just change default rules to require affirmative permission for all manner of otherwise constitutionally protected activity on private property and thereby escape constitutional scrutiny. No prayer on private property unless the owner affirmatively grants permission? No discussing politics without consent? No women, or Black people, or Jews allowed unless a landowner posts a sign inviting them? Surely the line must stop at some point before these hypotheticals.

Chief Justice Roberts, Justice Gorsuch, and Justice Barrett channeled these concerns during oral argument, raising First Amendment, Takings Clause, and race hypotheticals respectively. Roberts’ questioning came in response to the suggestion the Constitution didn’t really come into play because these are just property law concepts. “A gas station on the side of the highway is private property,” he retorted. But surely “you assume that you have the right to go on that private property even without an express permission.” So, too, for a house next to the highway, right? “Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets?” Yes, the challenger heartily agreed. The point he was making was that, in the First Amendment context, the Court has recognized an implied right to go to door-to-door, that’s seemingly protected from too much state interference. Indeed, as Justice Stevens stated in a 2002 case, “For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering.”

Take two examples. In 1943, in Martin v. Struthers, the Supreme Court invalidated a municipal ordinance outlawing door-to-door literature distribution on First Amendment grounds. (Unlike Hawaii’s law, that ordinance was a flat prohibition rather than a default rule subject to the property owner’s override.) Sixty years later, in Watchtower Bible & Tract Society of New York v. Village of Stratton, the Court invalidated a local ordinance that required door-to-door canvassers to first obtain a permit from the city. The majority concluded there was not “an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve.” Writing for the Court, Justice Stevens underscored that “a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.” Both cases had spirited dissents. Justice Reed wrote in Martin that door-to-door canvasing has long been common, but that doesn’t immunize it from regulation—echoing many of the themes in Wolford. Rather,

[T]he practice has persisted because the householder was acquiescent. It can hardly be thought, however, that long indulgence of a practice which many or all citizens have welcomed or tolerated creates a constitutional right to its continuance. Changing conditions have begotten modification by law of many practices once deemed a part of the individual’s liberty.

But Justice Reed was in dissent.

Justice Gorsuch drew a parallel with the Takings Clause, invoking the Court’s recent decision in Tyler v. Hennepin County. There, the Court held that Minnesota could not keep the surplus from the sale of property to satisfy a tax debt simply by a state law that purported to eliminate the debtor’s property interest in that surplus. To determine which “property” the Takings Clause requires compensation for, the Court held that state law cannot be the sole basis; instead the Court “also look[s] to ‘traditional property law principles,’ plus historical practice and this Court’s precedents.” Yet...in the Sveen v. Melin case that I highlighted on the blog last week, the Court construed the Constitution’s Contract Clause to give the states substantial leeway to reconfigure default rules governing contractual obligations.

Finally, at oral argument, Justice Barrett pressed the limits of the principle for which Hawaii contended. “[L]et’s say that a state, in the absence of public accommodation laws, decides to flip the default and say, unless the owner affirmatively consents, black people cannot enter your home.” Is that okay because it’s just a property law issue? Hawaii’s counsel replied that sort of law would violate the Equal Protection Clause—and the Second Amendment, in contrast, has “no antidiscrimination component.”

I agree with Hawaii’s counsel that the Second Amendment does not have—and should not be read to have—any “improper motive” or antidiscrimination overlay. (Thankfully, none of the justices seemed interested in the federal government’s argument that the Court should principally focus on whether a gun regulation is “pretextual.”). So that’s an easy contrast with the Equal Protection Clause. At first blush, I find the First Amendment and Takings Clause examples harder to distinguish. I can’t imagine the Court blessing—or anyone wanting the Court to bless—laws that require affirmative consent before prayer or political speech could occur on private property held open to the public. To the extent these examples are distinguishable, I think the answer has to lie where Hawaii’s counsel argued it does: in substantive free-speech and free-exercise doctrine, and perhaps in substantive Takings Clause jurisprudence. First Amendment rights are generally treated as voiding laws that turn on speech’s content or viewpoint or that treat religious actors worse than secular ones. That seems right to me, but the tension remains. (To be clear, the Court still adjudicates First Amendment rights using some form of means-end scrutiny that Bruen called an illegitimate method of constitutional law and rejected for the Second Amendment, so tension with that case law is inevitable in this environment.)

So those are the intuitive arguments I see on the challengers’ side.

For the state, however, the arguments seem equally strong. It’s exceedingly hard to swallow that the Second Amendment requires the perpetual preservation of a property rule that presumes one is permitted to carry guns on private property—forever and for all the time. As the state argued, everyone agrees the Second Amendment permits a general right to carry. And everyone agrees private property owners can forbid guns on their property. “The only question,” Hawaii’s counsel stressed in his arguments, “is whether there’s a Second Amendment right to assume the owner wants guns on his property when he’s been silent.” Can it really be the case that the state must keep in place the presumption of permission just because that’s the rule that prevailed in the past? The Constitution guarantees the right to a particular preexisting default rule? Surely the state isn’t stuck with the property law status quo forever—especially in a place like Hawaii where there has essentially been no default rule because publicly carrying firearms basically did not exist before the Bruen decision in 2022.

In my view, oral arguments did not provide knock-down answers for either side. The state could only say that First Amendment hypotheticals, for example, raise different concerns. The challengers could only insist, awkwardly, that the Second Amendment does in fact give you a right to the same default rule for the rest of time. Part of the challengers’ argument relies on the (in my view, absurd) notion that Bruen makes essentially any law implicating guns presumptively unconstitutional, forcing the government to adduce positive law historical support to keep its law. That was why—even in the face of Justice Barrett’s apparent shock—the challengers insisted that the plain text guarantees a right to carry a gun into someone else’s private home! Bruen also reduced these hard questions to a series of arguments over whether old anti-poaching laws could be considered precursors to Hawaii’s default switch. (Property law scholar extraordinaire Molly Brady recently posted a phenomenal article on these analogies, uncovering many more ways that states historically structured default and notice rules for private property, and specifying more precisely the property law concepts that the challengers butchered.)

Plus, as I spotlighted in Sveen blog post last week, the Supreme Court has seemingly countenanced the broad authority states have to change default rules for private interactions, even when dealing with constitutional rights. That’s one thing that sets Wolford and Sveen apart from Tyler; both of the former deal with mere default rules designed to effectuate owners’ intent; Tyler, on the other hand, was a substantive rule of law redefining property interests only when the government did the taking. With hard questions for both sides, one option is to give the tie to democratic decisionmakers. But outside the arena of rights this Court dislikes, that doesn’t seem an option the conservative justices much consider. Instead, it seems likely they will strike down Hawaii’s law and constitutionalize the current default rule, making the status quo the baseline that determines which state actions are suspect. That gives a ton of weight to existing allowances. As Cass Sunstein argued long ago in an influential critique of the Lochner Court, its error was not so much in recognizing the wrong rights, but rather in cementing the status quo:

One might understand the Lochner era as, above all, a warning about constitutional doctrine that defines neutrality in terms of the perpetuation of current practice, and that treats government conduct tending to sustain it as “inaction” invariably escaping legal sanction, and government conduct proposing change as “action” tending to raise legal doubts.

In Wolford, the Court could heed this warning and follow its praise for letting democracy work in cases like Dobbs, or it could continue holding state power hostage to historical baselines.