Hawaii's law, enacted in the wake of the Supreme Court's Bruen decision, presumes that a licensed carrier may not bring a firearm onto privately owned but publicly accessible property — stores, gas stations, laundromats — unless the owner has given express consent. Petitioners, led by Jason Wolford, argue that the law inverts a national historical tradition under which opening property to the public carried an implied license to enter armed, and that Hawaii has no adequate historical analog to justify the restriction. Hawaii Attorney General Anne Lopez, represented by Neal Katyal, counters that the Second Amendment creates no right to assume an owner's consent, and that states have always been free to define the conditions under which consent is implied.
Alan Beck, arguing for the petitioners, told the Court that the overall package of laws enacted by Act 52 presumptively bans carry on 96.4 percent of publicly accessible land in Maui County, a figure derived from an architecture firm's review of public records. He argued that Hawaii's burden is to justify the ban with relevantly similar historical analogs reflecting a national tradition of firearms regulation, and that its two main candidates — antipoaching laws and an 1865 Louisiana statute — fall short. The antipoaching laws, he said, applied to enclosed lands not open to the public and preserved a self-defense carve-out; the Louisiana law was a black code expressly designed to discriminate against newly freed African Americans and cannot serve as a valid analog for a law of general applicability.
Sarah Harris, Principal Deputy Solicitor General, argued as amicus supporting petitioners. She contended that Bruen held states cannot refuse to license public carry, and that Hawaii cannot gut that holding by presumptively banning licensed carriers from retail establishments absent express owner consent. She also advanced a pretext argument — that Hawaii's law singles out only Second Amendment rights and only licensed carriers, while leaving hunters, target shooters, and others free to bring firearms absent an owner's objection — and analogized the structure to the First Amendment case Church of the Lukumi. Justice Kavanaugh pushed back, suggesting the case could simply rise or fall on whether Hawaii has sufficient historical analogs, without the need for a new pretext framework. Harris agreed the case was, in her description, overdetermined, and that every way one looks at it there is no history and tradition supporting Hawaii's law.
Katyal, for Hawaii, argued that the only question is whether the Second Amendment creates a right to assume an owner's consent when the owner has been silent, and that no commentator, treatise, or court has ever recognized such a right. He pointed to founding-era statutes from New Jersey, New York, and Pennsylvania that required affirmative consent to carry on improved or enclosed lands, and argued that the 1865 Louisiana law, while part of a shameful period, was race-neutral on its face and was implicitly accepted when the Reconstruction Congress admitted Louisiana to the union in 1868. He also noted that Hawaii issued 2,207 concealed carry permits in the most recent year and denied only 119 applications, the majority of those because applicants did not fill out the application in full or submitted it out of time.
The argument's sharpest fault line ran between Justices Jackson and Gorsuch. Justice Jackson pressed repeatedly that the Second Amendment right is already subordinate to a property owner's consent, making the real dispute one of property law — specifically, whether consent must be express or may be implied — rather than a constitutional question at all. Justice Gorsuch countered that governments cannot redefine property rights to circumvent other constitutional protections, and that the 1865 Louisiana statute is an outlier that Bruen's framework instructs courts to disregard. Justice Kavanaugh noted that in Ramos the Court rejected non-unanimous jury precedents rooted in racial prejudice as inadmissible historical support, and asked what distinguished the Louisiana black code here.
Chief Justice Roberts drew a pointed comparison to First Amendment doctrine, noting that a candidate has a recognized right to walk up to a door on private property and knock without a posted sign of permission, and asking what principled basis exists for treating the Second Amendment differently. Katyal responded that the First Amendment analysis turns on the government placing a thumb on the scale of particular speech, not on a neutral default rule, and that Hawaii's law is consistent with similar default-consent statutes the state applies to vehicles, shopping carts, and placards.