California ‘on notice’ after feds strike down Hawaii gun carry law

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Saying to find otherwise would "hobble" Second Amendment rights, the U.S. Supreme Court has struck down a Hawaii state law that bans people from carrying guns in the vast majority of public and private spaces.

The impact of the decision, however, could be far-reaching, affecting both gun control rules and laws in states like California, and their attempts to use controversial laws from the nation's past to constitutionally justify their gun control regimes today.

Second Amendment rights advocates said the law will almost certainty prevent California Democrats from attempting to resurrect restrictions on the carry of firearms similar to those ruled unconstitutional in Hawaii.

The Supreme Court issued its 6-3 ruling on June 25, overturning a ruling from the San Francisco-based U.S. Ninth Circuit Court of Appeals.

The majority decision was authored by Justice Samuel Alito. He was joined by the other members of the court's conservative majority, including Chief Justice John Roberts and justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The court's liberal trio of justices Kentanji Brown Jackson, Sonia Sotomayor and Elena Kagan dissented.

In the majority opinion, Alito notes that the state of Hawaii has long sought to impose severe restrictions on the ability of its residents to own and carry firearms. The state's antipathy to gun ownership and carry rights predates its entry into the Union, Alito noted, arising out of edicts from the former king of Hawaii forbidding the ownership of "deadly weapons."

After the U.S. Supreme Court explicitly declared the Second Amendment grants Americans the right to own and carry guns for self-defense and other legal purposes, Hawaii still sought to end-run that ruling by joining with other Democrat-dominated states, like California, to enact new state laws that sought to restrict carry rights without explicitly outlawing concealed carry.

The laws enacted by Hawaii, California and New York, among others, were passed in 2023 in the wake of the U.S. Supreme Court's decision known as New York State Pistol and Rifle Association v. Bruen.

The Bruen decision barred states from banning gun ownership or restricting carry rights, unless the states can demonstrate their restrictions are in keeping with America's history and tradition, particularly from the time surrounding the ratification of the Second Amendment in 1791.

Democratic state lawmakers in California, Hawaii and elsewhere then enacted so-called Bruen response laws to attempt to continue to impose restrictions on carry rights, in the name of promoting public safety.

In California and Hawaii, among other states, lawmakers specifically sought to impose carry restrictions by enacting laws that reverse the so-called "default rule." Under this longstanding rule, state laws have presumed concealed carry to be legal in public and private spaces, unless private property owners specifically prohibited it, such as with signs hung at entrances declaring guns are not allowed on the premises.

However, under Hawaii and California's regimes, that "default" presumption would be flipped:

Gun owners would be prohibited by law from carrying guns into private spaces, even if they are places into which the public is typically invited, such as stores and restaurants, unless property owners specifically grant permission for concealed carry.

Violators of the law could be subject to criminal penalties.

The laws also created a long list of "sensitive" public spaces at which concealed carry would be outright prohibited, including schools, courthouses, banks, hospitals, parks, stadiums, museums, amusement parks, public transit stations, trains and buses, and many other places.

Gun owners and Second Amendment rights advocates swiftly challenged the Hawaii and California laws, arguing the laws would all but outlaw concealed carry, despite the Supreme Court's rulings to the contrary.

After lower court judges sided with gun owners, the Ninth Circuit became the only federal appeals court in the country to allow some form of the "default rule" to stand. The appeals court blocked California's version, saying it went too far. But the Ninth Circuit still allowed Hawaii's law to stand.

The Second Amendment rights supporters then appealed to the Supreme Court. Their petition drew support from the U.S. Justice Department under President Donald Trump, among others, who agreed the law, if allowed to stand, would succeed in creating a pathway for Hawaii and other Democrat-dominated states to outlaw concealed carry.

In the majority decision, Alito and his fellow justices agreed private property owners remain free to ban guns from being carried on their properties.

But they said the Constitution doesn't allow states to use clever laws, like Hawaii's and its attempted counterpart in California, to sidestep the Second Amendment by turning that proposition inside out.

"The effect of this new rule is to impose severe restrictions on the daily activities of residents who have satisfied the State’s rigorous requirements for the issuance of a carry permit," Alito wrote. "When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, 'big box' stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats.

"This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives," Alito wrote.

In the ruling, Alito and the majority specifically rejected attempts by Hawaii to argue its own historical tradition of opposing gun rights should somehow work to counter the Second Amendment protections afforded elsewhere in the country.

In his majority opinion, Alito referenced the Hawaii Supreme Court's attempt to rule that the state's traditional "Spirit of Aloha" should reign over the Second Amendment.

"... The Second Amendment has the same meaning in all parts of the United States," Alito wrote. "It cannot give way to the 'spirit of Aloha' in Hawaii any more than it can yield to the spirit of the Big Apple or the Windy City.

"... Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment."

And Alito and his colleagues in the majority also rejected attempts by Hawaii and other states to argue that certain historical laws can be used to support a new "default" rule.

These included an obscure an 18th Century law banning poaching, unless landowners explicitly allow it, and odious laws, known as "Black Codes" enacted by former Confederate states following the Civil War to effectively disarm black people who had been recently freed from slavery.

The majority said it is not enough to find laws that might, on the surface, appear to back modern gun bans. Rather, the majority said courts must examine how and why such laws were enacted at the time.

The attempt by Hawaii and gun control supporters to use blatantly racist laws to defend their new laws drew particular scorn from Alito and in a concurring opinion authored by Justice Barrett.

Alito said Hawaii's particular citation to such "tainted" laws "cannot be taken seriously."

And Barrett was even more forthright in chiding the use of such laws to advance new gun ban laws.

"It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction," Barrett wrote.

Hawaii "seems to think Bruen is a matching game: Southern States enacted broad default rules, Hawaii reasons, so it can do the same today.

"But even if Hawaii is right that the how is analogous, it also must identify an analogous why. The Black Codes were enacted to subordinate newly freed slaves. Hawaii obviously does not contend that its law promotes an analogous interest. So its law and the default rules in the Black Codes are not 'relevantly similar.’

"Most would take that as a compliment," Barrett said.

In dissent, Justice Jackson and her liberal colleagues agreed with Hawaii and their allies that the law should be considered constitutional, because it supports private property rights.

They said the Second Amendment should be read to allow people to own guns, but not to be allowed to carry them anywhere without specific permission from property owners.

That view was backed particularly in a brief filed by a group of Democratic state attorneys general, led by Illinois Attorney General Kwame Raoul and District of Columbia Attorney General Brian L. Schwalb. California Attorney General Rob Bonta also signed onto that brief.

Alito and the majority, however, said that argument falls apart when attempting to apply it to any other constitutional right. They noted private property rights can't be used to forbid free speech or religious liberties.

Barrett, for instance, said she doubted her liberal colleagues would agree that states could pass laws outlawing Muslim women from wearing their religious head scarves known as hijab on private property, unless property owners specifically allowed it.

So, the majority said, the same constitutional protections should extend to rights guaranteed under the Second Amendment.

Plaintiff Jason Wolford and others challenging the state law were represented by attorneys Alan A. Beck, of San Diego; Mark W. Pennak, of Maryland Shall Issue, of Baltimore, Maryland; and Kevin O’Grady, of Honolulu.

Hawaii was represented by state Attorney General Anne E. Lopez.

Second Amendment rights supporters hailed the ruling as an important vindication of Second Amendment rights in America.

John Commerford, executive director of the National Rifle Association Institute for Legislative Action, released a statement, saying: "Building on the NRA’s historic (Bruen) decision, the Court struck down Hawaii’s unconstitutional restriction that treated concealed-carry permit holders as second-class citizens on publicly accessible private property. Law-abiding gun owners will no longer be forced to beg for special permission simply to exercise their constitutional right to bear arms in public places."

And gun owners' rights organization, the Second Amendment Foundation, pledged to use the new Supreme Court decision to sue any other states that may impose any similar firearms carry restrictions.

“If a business does not want you to carry a firearm on the premises, the burden should be on the proprietor, not the private citizen, which would be in line with the ‘no soliciting’ or ‘no shoes, no shirt, no service’ signs we’re all familiar with," said Second Amendment Foundation Executive Director Adam Kraut. "Today the Supreme Court told Hawaii that such transparent attempts at banning constitutionally protected conduct will not be tolerated.”

Hawaii's "law was nothing more than a thinly veiled attempt to disarm peaceable citizens, and we’re grateful the Supreme Court saw through the ruse," added SAF Executive Vice President Alan M. Gottlieb. "With this precedent-setting ruling in hand, other states that have similar laws in place should be on notice."