Gun rights on private property debated at Supreme Court

The Supreme Court’s conservative majority raised tough questions Tuesday over a state law that requires a property owner’s explicit permission before lawful gun owners can bring their firearms into private businesses generally open to the public, like shopping malls.

In spirited courtroom oral arguments, the question came down to whether property rights trumped gun rights, and how those rights interact.

At issue is a challenge to a Hawaii statute — similar to four other states — that requires those with a concealed-carry license get express approval — verbally or through an openly displayed sign — before bringing a gun into public spaces like stores, hotels, and gas stations.

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A group of gun owners in Maui are challenging those default rules, arguing the law improperly makes it a crime to bear arms even where the owner of property accessible to the public is merely silent. They refer to these laws as “vampire rules,” a nod to the Dracula legend, who could not enter a room without being invited.

But Hawaii officials told the high court the restrictions balance gun and property rights, citing a long tradition in the Aloha State of limiting all kinds of dangerous weapons, dating back to when it was a monarchy.

The government said a gun-free environment should be the default presumption for Hawaii businesses, and no constitutional right exists to assume every invitation to enter private property includes an invitation to bring a gun.

Those conflicting positions on “implied consent” in retail establishments brought strong comments from the bench.

“You’re just relegating the Second Amendment to second-class status,” said Justice Samuel Alito. “I don’t see how you can get away from that.”

But Justice Sonia Sotomayor countered, “Is there a constitutional right to enter private property with a gun without an owner’s express or implicit consent? The answer has to be simply no.”

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Those in violation of the Hawaii law would face a year in prison, if convicted. But the restrictions do not include public property like parks and government buildings, which are subject to different rules.

It was passed by the state legislature just after a landmark 2022 Supreme Court decision that to be constitutional, gun regulations must be consistent with the nation’s historical regulatory tradition.

That decision expanded Second Amendment rights to bear arms outside the home for self-protection.

In the current dispute, the justices chose not to review separate state regulations on guns in other so-called “sensitive places” like parks, beaches, and restaurants that serve alcohol.

California, Maryland, New Jersey, and New York have similar property owner consent regulations.

Hawaii has among the strictest gun control laws in the country. Legal briefs filed by the state showed less than one-percent of the population have concealed-carry handgun permits, or about 2,200 licenses since 2022.

The Trump administration is strongly supporting the gun owners, arguing the law treats one class of people — gun owners — different from the rest.         

In arguments, several justices explored hypotheticals on the limits of such regulations.

Justice Ketanji Brown Jackson suggested property interests should prevail when confronted with gun possession rights.

“When we’re in that world, what Second Amendment right is being infringed when the property owner says no or when the state says the property owner’s consent has to be expressed.”

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“There’s been a number of church shootings recently,” said Sotomayor. “Does the state — or the federal government, does it bar from saying you can’t go into a church with a gun without the church owner’s permission? Is that illegal?”

But Chief Justice Josh Roberts questioned how the Second Amendment should be treated when First Amendment rights of speech are also involved.

“It is a very clear constitutional right under the First Amendment if I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, you know, give me your vote, that’s exercising a First Amendment right. But you say that it’s different when it comes to the Second Amendment, that you when the candidate wants to walk up [and talk] and he’s carrying a gun — what exactly is the basis for the distinction?”

Gun rights have become a major focus at the Supreme Court this term. The justices in March will hear arguments in a challenge to federal limits on illegal drug users possessing firearms.

Hunter Biden, the former president’s son, had been convicted under that law, but was later pardoned by his father.     

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And there are several separate pending appeals over federal bans on convicted non-violent felons owning guns, and state bans on high-capacity magazines and semi-automatic weapons like AR-15s.

The Hawaii petition is Wolford v. Lopez (HI AG) (24-1046). A ruling is expected by early summer.