Wolford v. Lopez

    Issues

    May Hawaii, consistent with the Second Amendment, make private property that is open to the public presumptively off limits to licensed concealed-carry holders by criminalizing the carrying of a handgun on such property unless the property’s owner has expressly authorized firearms on the premises?

    Oral argument:
    January 20, 2026
    Court below:
    United States Court of Appeals for the Ninth Circuit

    This case asks the Supreme Court to determine whether a state may prohibit licensed concealed carry holders from bringing firearms onto private property that is open to the public without the property owner’s express authorization. Jason Wolford, Alison Wolford, Atom Kasprzycki, and the Hawaii Firearms Coalition contend that Hawaii’s default rule effectively nullifies the public-carry right recognized in New York State Rifle & Pistol Ass’n v. Bruen by turning ordinary, publicly accessible destinations such as stores, restaurants, and parking lots into presumptive no-carry zones. Hawaii Attorney General Anne E. Lopez, meanwhile, argues that the Second Amendment does not confer a right to carry a firearm onto another person’s property without consent, and that the statute simply codifies owners’ longstanding authority to exclude firearms on their private properties. J. Wolford, A. Wolford, Kasprzycki, and the Hawaii Firearms Coalition argue that Bruen requires Hawaii to justify such a broad default ban with a well-established historical analogue, and that the Ninth Circuit’s decision deepens a conflict over how lower courts apply Bruen to modern carry restrictions. Lopez responds that history and tradition support consent-based limits on armed entry, and that the default rule promotes public safety while respecting private property rights. This case touches upon the extent to which the Second Amendment’s public-carry protection applies to everyday life and will influence whether states may adopt similar default rules that either narrow or preserve practical access to lawful carry in public-facing spaces.

    Questions as Framed for the Court by the Parties

    Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.

    Facts

    On June 2, 2023, Hawaii enacted Act 52 in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, changing where permit holders may carry firearms.  Act 52 created a new private property default rule that makes it a misdemeanor for a permit holder to carry a firearm onto private property, unless the property owner or operator gives express authorization. Hawaii allowed authorization to be given verbally, in writing, or by clear and conspicuous signage that is easy to notice and read.

    On June 23, 2023, concealed-carry permit holders Jason Wolford, Alison Wolford, and Atom Kasprzycki, and the Hawaii Firearms Coalition sued Anne E. Lopez in her official capacity as the Attorney General of Hawaii under 42 U.S.C. § 1983 in the United States District Court for the District of Hawaii. J. Wolford, A. Wolford, Kasprzycki, and the Hawaii Firearms Coalition (collectively “Plaintiffs”) sought declaratory and injunctive relief.  The Plaintiffs alleged that the private property default rule, along with other location bans, effectively stripped permit holders of the ability to keep and bear arms in ordinary public life, including on privately owned property held open to the public, such as stores, restaurants, and parking lots. The Plaintiffs emphasized that in Hawaii, especially in Maui County, the new default rule effectively bars permit holders from carrying across much of the island. 

    During the district court case, the Plaintiffs moved for a temporary restraining order and preliminary injunction, arguing that Act 52’s restrictions were unconstitutional. After a July 28, 2023 hearing, the district court granted emergency relief in part on August 8, 2023. The court enjoined several provisions, including parts of Hawaii’s ban on carrying at beaches and parks and the private property default rule as applied to “private properties held open to the public.” Lopez appealed to the United States Court of Appeals for the Ninth Circuit.  

    On September 6, 2024, the Ninth Circuit affirmed in part and reversed in part the preliminary injunctions entered against Hawaii. The Ninth Circuit affirmed preliminary injunctions applying to financial institutions and related parking areas as well as parking lots shared by governmental and non-governmental buildings. However, the Ninth Circuit lifted the injunctions with respect to bars and restaurants that serve alcohol, beaches and parks, adjacent parking lots, and the new default rule barring carry on private property without consent. The circuit court emphasized that owners of private property remain free to forbid firearms on their premises under principles of property law.  

    On April 1, 2025, Plaintiffs petitioned the Supreme Court of the United States for a writ of certiorari. The Court granted certiorari on October 3, 2025, limited to the question of whether Hawaii may presumptively prohibit licensed carry on private property open to the public absent express permission from the owner.

    Analysis

    HISTORICAL TRADITION IN SUPPORT OF HAWAII’S DEFAULT RULE

    Wolford et al. (collectively “Wolford”) argue that Hawaii’s default rule defies the Court’s decision in Bruen which protects the right to carry firearms in public areas for self-defense.  Wolford notes that Court precedent requires the government to justify any modern firearm regulations that defy the “general right to public carry” with historical tradition. Wolford asserts that the two historical statutes upon which the Ninth Circuit relied are not accurate historical analogues to Hawaii’s default rule. Wolford first challenges the Ninth Circuit’s use of a 1865 Louisiana Statute, which prohibited anyone from carrying firearms on private plantations without the permission of the plantation owner. Wolford points out that this statute restricted firearms on private land not open to the public. Wolford additionally asserts that Louisiana enacted this law as part of its Black Codes to deprive newly freed Black citizens of their right to bear arms, rather than to establish neutral property rules. Wolford maintains that laws enacted to enforce racial hierarchies, like Louisiana’s Black Codes, cannot constitute a legitimate analogue for modern firearm regulations. Additionally, Wolford argues that the 1865 statute was passed almost a century after the ratification of the Second Amendment and therefore does not reflect the public meaning of the right to bear arms in the era when the right was established. Wolford then argues that the 1771 New Jersey statute which the Ninth Circuit relied upon did not impose any categorical prohibition on entry into property open to the public, but rather restricted carrying arms on land closed to the public. Wolford contends that the 1771 New Jersey statute’s intent was merely to control hunting on non-public lands, instead of to broadly limit the right to carry arms in public areas; and, therefore, the statute does not justify Hawaii’s modern default rule. Wolford further highlights that Bruen forbids treating a few “outlier” regulations as representative of a national tradition.  

    Meanwhile, Lopez argues that the Ninth Circuit correctly determined that Hawaii identified a relevant historical tradition supporting its default rule. , Lopez highlights that Bruen only requires that a court identify historical analogues that are “relevantly similar” to the regulation in question, not exact matches. Here, Lopez argues that the 1771 New Jersey statute, the 1865 Louisiana statute, and other colonial-era and reconstruction-era statutes restricted bringing arms onto private property without consent, including private property available to the public. Lopez notes that Hawaii’s expert testimony specifically clarifies that the New Jersey statute applied broadly to “all varieties of real property,” including commercial property, in addition to closed private property. Lopez also argues that the statute’s focus on consent, rather than its trespass requirement, makes the statute an appropriate analogue to Hawaii’s modern default rule. Lopez notes that New Jersey passed multiple statutes thereafter in a clear effort to enforce consent to armed entry, which no one found controversial. Further, Lopez argues that the 1865 Louisiana statute remains relevant to historical interpretations of the Second Amendment, despite the Petitioners’ claim that the law was for discriminatory purposes. In fact, Lopez points out, opponents to the 1865 statute acknowledged that armed entry without consent of a landowner did not violate the Second Amendment. Lopez also underscores the 1865 statute’s focus on consent, as the statute barred one from carrying arms on “premises or plantations” without the owner’s consent, to argue for its relevance to Hawaii’s default rule. Overall, Lopez maintains that these statutes are appropriate historical analogues because they prohibited the carrying of firearms onto developed private property, including retail facilities like the ones the petitioners currently challenge, without the owner’s affirmative consent.

    APPLICATION OF THE SECOND AMENDEMENT TO HAWAII’S DEFAULT RULE

    Wolford argues that Hawaii’s default rule impermissibly flips the Second Amendment so that firearm carry is prohibited unless a private property owner consents, rather than allowing firearm carry unless a private property owner prohibits it. Wolford maintains that this type of restriction is too broad. Wolford argues that Hawaii’s default rule violates the holding in Bruen, which recognized the Second Amendment’s “general right to be armed in public for self-defense.” Wolford adds that the government can restrict this general right only under “exceptional circumstances,” which the State has the burden of proving. Wolford emphasizes that while private property owners unquestionably retain the right to exclude firearms, the property owner must exercise that right rather than have the State impose it as a default. Wolford asserts that, under Hawaii’s default rule, a property owner’s silence operates as a prohibition and that this presumption “tramples on the Second Amendment.” Wolford further argues that the practical effect of Hawaii’s default property rule would restrict lawful public carry to streets and sidewalks, since commercial business owners are unlikely to post signage that affirmatively consents to open carry. Additionally, Wolford explains that Bruen’s “sensitive places” exception, allowing the government to restrict the right to carry in certain locations, cannot broadly apply to private property open to the public. Wolford contends that Hawaii’s default rule does not restrict carry based on the type of place but merely based on whether the owner has given permission, meaning the sensitive places exception does not apply. Ultimately, Wolford concludes that Hawaii’s rule makes it almost impossible for someone to exercise their Second Amendment right to keep and bear arms.  

    On the other hand, Lopez responds that Hawaii’s default rule does not limit the rights provided by the Second Amendment but instead protects property owners’ right to exclude. Lopez emphasizes that nothing in the Second Amendment forces a private property owner, including owners who open their property to the public, to allow armed individuals to enter, meaning that the right recognized in Bruen coexists with property owners’ exclusion rights. Specifically, Lopez asserts that there is no “implied license” allowing patrons to carry arms simply because the property is open to the public, as that defies property owners’ reasonable expectations. According to Lopez, the Second Amendment merely codified the pre-existing right to bear arms, which does not override the fundamental right to exclude others from one’s property. Lopez also argues that requiring consent hardly poses any burden because individuals who want to bring a gun onto private property can easily ask the property owner or their agent for oral consent, who could then immediately give or deny verbal permission. Additionally, Lopez denies that traditional practice in Hawaii supports the existence of implied consent to enter private property armed, pointing to laws both before and after Hawaii became a state which restricted open carry. Specifically, Lopez argues that Hawaiian tradition and popular support for the modern default rule show that it is not customary in Hawaii to assume implied consent to enter private property armed. Lastly, Lopez argues that courts cannot treat private property open to the public as public property for Second Amendment purposes, as that would constitute an impermissible government taking. According to Lopez, private property does not lose its private nature simply because it is open to the public, so Hawaii’s rule does not restrict anyone’s right to bear arms in public spaces.  

    Discussion

    SELF-DEFENSE AND PERSONAL SAFETY IN EVERYDAY SPACES

    In support of Wolford, the Foundation for Moral Law argues that natural rights tie the right to keep and bear arms to the natural right of self-protection, and it characterizes the Second Amendment as protecting the means to defend life.  The Claremont Institute’s Center for Constitutional Jurisprudence (“CCJ”), in support of Wolford, argues that Hawaii’s default rule prevents people from exercising their right to self-defense in most places open to the public.  CCJ emphasizes that in Maui County, private owners hold 96.4 percent of land, so treating private property as off-limits unless an owner affirmatively opts in effectively makes carrying a firearm prohibited in over ninety percent of the county. The National African American Gun Association (“NAAGA”) adds that requiring express authorization before carrying on property open to the public echoes historical restrictions that demanded written authorization for freedmen to possess arms, and it argues that this history should matter when evaluating a default rule that conditions ordinary self-protection on affirmative private approval.  

    In support of Lopez, the Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence (collectively “Brady Center”) contend that Hawaii’s default rule protects the right to self-defense held by property owners who prefer that visitors not carry firearms onto their land.  The Brady Center argues that a default rule requiring consent better reflects the expectations of private property owners and frames the statute as a way to reduce guns in shared commercial environments to advance safety. Additionally, Global Action on Gun Violence (“GAGV”), in support of Lopez, argues that Hawaii’s default rule allows owners of private property open to the public to protect themselves and visitors from gun violence.  GAGV points out that gun violence occurs frequently in private businesses open to the public, such as nightclubs, grocery stores, and malls.

    RIGHTS OF PROPERTY OWNERS

    In support of Wolford, the Firearms Policy Coalition argues that Hawaii’s default rule is not actually meant to protect the rights of property owners, pointing to areas of the law that restrict firearm carry on private property even if the property owner wants to allow it. The National Association for Gun Rights (“NAGR”), in support of Wolford, argues that Hawaii’s default rule infringes on the First Amendment rights of property owners. NAGR explains that requiring a property owner to acknowledge their support of the right to bears arms on their property is impermissible compelled speech, especially where some property owners may not want to publicly express their support for a controversial issue.

    On the other hand, a group of property law professors, in support of Lopez, emphasize that states routinely codify existing rights of property owners through default rules, including rules that reinforce the right to exclude from private property.  Property law professors also warn that recognizing a constitutional entitlement to armed entry violates property owners’ right to exclude by allowing armed entry onto private property until the property owner discovers and removes the armed visitor. GAGV goes further by arguing that property rights and public safety interests predate the Second Amendment and should not be subordinated to it, framing the right to exclude as a core incident of ownership rooted in longstanding tradition and foundational principles of ordered liberty, and warning that a contrary rule would effectively force property owners to accept armed entry as the default.

    Conclusion

    Authors

    Written by:    Jeff Feng and Raj Walia             

    Edited by:      Kehan Rattani

    Additional Resources