Wolford v. Lopez: The (New) Necessity of “No Firearms Permitted” Signage
The Supreme Court's decision, issued on June 25, 2026, in Wolford v. Lopez makes clear that, in Justice Jackson's words, "[t]he Court's objective is protecting guns, not consistently preserving any principle of law." Along ideological lines, the sharply divided Court struck down a critical gun-safety law in Hawaii as a violation of the Second Amendment to the U.S. Constitution.
The Hawaii law at issue, HRS Section 134-9.5, states that a person lawfully carrying a firearm "shall not intentionally, knowingly, or recklessly enter or remain on private property ... unless the person has been given express authorization to carry a firearm on the property by the owner ... of the property." Notably, four other states (California, New Jersey, Maryland, and New York) have adopted laws like Section 134-9.5. In other states, however, the default provides that an individual is permitted to carry a firearm on another's private property, unless the owner of that property explicitly says otherwise (with, for instance, a "no firearms allowed on premises" sign). Hawaii's law operates inversely: individuals may not carry a firearm on another's private property unless the owner expressly permits them to (perhaps with a "firearms permitted on premises" sign).
The Court's decision to strike down Section 134-9.5 places yet another rung on the Court's Second Amendment ladder, which seeks to affirmatively pull the Amendment up from its historical "second class right" status (at least according to Justice Thomas). To understand Wolford thus requires a review of emerging Second Amendment jurisprudence, particularly through the lens of the Court's deeply controversial decision in New York State Rifle and Pistol Association v. Bruen (2022).
In Bruen, the Court utilized a "process of historical analysis" to strike down a restrictive gun-licensing regime, and in doing so, established a test for determining whether a law could pass constitutional scrutiny under the Second Amendment. The Bruen test is two-step. First, a court must determine whether the law conflicts with the "plain text" of the Amendment's language; if so, the law is presumptively unconstitutional. This presumption can be rebutted if the state provides evidence of "historical analogues" that show that the challenged law "did not infringe the historical understanding of the codified right." Importantly, Bruen clarified that these historical analogues need not be a "dead ringer" or "historical twin" of the challenged law—rather the analogues' "how" and "why" must be "close enough" to that of the challenged modern regulation. It is, perhaps, not hard to see an obvious problem with this standard: at what level of generality should a state's proffered analogue be examined? For what it's worth, Wolford only further highlights the unworkability of the Bruen analysis and its inherent generality problem.
In less than a paragraph, Justice Alito, writing for the majority in Wolford, found that step one of the Bruen test was easily met: the "plain text" of the Second Amendment protects the right to carry handguns for self-defense and so Hawaii's law is clearly in conflict with the Amendment's plain language. Having summarily dispatched with the first step, Justice Alito turned to Hawaii's proffered historical analogues.
Among others, the State pointed to a 1721 Pennsylvania law and a 1722 New Jersey law, both of which made it illegal to carry a gun or hunt on another's private property without securing a license or permission from the owner of that land. The "how" factor of Bruen's second step is clearly satisfied—in fact the historical analogues and modern regulation operate identically in function. Unable to dispute this, Justice Alito argues that the "why" factors (that is, the intent behind the proffered analogues and Hawaii's modern regulation) are not sufficiently close and thus fail scrutiny. Justice Alito asserts that the "obvious aim [of the hunting laws] was to prevent the distinctive harms and risks associated with unauthorized hunting" and "principally targeted unauthorized hunting." For Justice Alito, the anti-poaching laws had "little if any impact on the Second Amendment's central objective" (that is, protecting the fundamental right to self-defense) because "they applied to land where game could be found," unlike places frequently used by a city's residents. As such, the Court's majority found the gap "too wide" between Hawaii's modern regulation and its proffered historical analogues. Accordingly, the Court found Section 134-9.5 unconstitutional under the Second Amendment. Justice Alito's opinion was joined by The Chief Justice and Justices Thomas, Gorsuch, Kavanaugh, and Barrett, all of whom constitute the conservative supermajority on the nation's highest court.
The three liberals on the Court dissented. Justice Jackson, joined by Justice Sotomayor, sharply criticized the majority for failing to faithfully apply the Bruen test and for "further binding the hands of modern legislatures attempting to balance and protect their residents' interests." Justice Jackson has repeatedly called Bruen's standard "unworkable" and she continues to believe that Bruen was "wrongly decided." But even utilizing the Bruen analysis, Justice Jackson would have upheld Section 134-9.5.
Whereas Justice Alito summarily dispatched with Bruen's first requirement, Justice Jackson argued that the challenge to Hawaii's law "stumble[d] out of the gate" because "Hawaii's law does not restrict the right to carry a gun at all." At face value, this is a perplexing assertion. Section 134-9.5 clearly regulates "arms-bearing conduct," so how can it not be in tension with the Second Amendment's plain text?
In U.S. v. Rahimi (2024), an (unsuccessful) attempt at clarifying Bruen two years later, the Court reaffirmed that the Second Amendment "codified a pre-existing right, and pre-existing limits on that right are part and parcel of it." Accordingly, at Bruen's first step, a court must determine whether the regulated arms-bearing activity is part of this pre-existing right.
It is undisputed by any party in this case that consent is a precondition to exercising any right to carry on private property. This principle is dispositive in this case, according to Justice Jackson: there is no right to carry a gun onto private property without the permission of the owner, and so the conduct prohibited by Section 134-9.5 can't logically fall within the plain text of the Second Amendment. Under this logic, Justice Jackson's assertion that an individual's rights under the Second Amendment are not burdened by Hawaii's regulation seems less perplexing—perhaps even compelling. As such, the Court need not even address the historical analogues—Hawaii's regulation should have been upheld at step one of the Bruen test.
The majority failed to conduct the rigorous historical analysis necessary to determine the pre-existing limitations on the Second Amendment in step one. Rather than ask whether the Second Amendment protects armed carry onto private property without express consent, the majority effectively asked, "whether a gun owner cannot do what she wants with her firearm." That contortion of step one's inquiry threatens to vastly expand the scope of legislation deemed presumptively unconstitutional.
Justice Jackson's opinion goes further to argue that even if Section 134-9.5 falls within the scope of the Second Amendment, Hawaii's proffered analogues are sufficient to demonstrate a history of similar regulations. Rather than accept Justice Alito's myopic understanding of the hunting laws, Justice Jackson offers a more expansive view: the historical analogues exemplify a history of vindicating property rights and "addressing a range of concerns associated with violations of those rights by armed individuals on private land." To view these statutes at as low a generality level as Justice Alito would effectively require a "historical twin," which is directly contradictory to Bruen's language. Indeed, even Justice Barrett, in her concurrence, stated that "on this much, I agree with [Justice Jackson]" (though even in slightly expanding the level of generality, Justice Barrett found the proffered analogues insufficient).
For the vast majority of Hawaii's population who value public safety and common-sense gun regulation, the decision in Wolford is certainly disappointing. But it need not be, and should not be, paralyzing. Owners of private property open to the public (which includes gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, barber shops, just to name a few) are well within their rights to withhold permission to carry on their property—they just must do so explicitly. If, indeed, Hawaii is committed to preserving the Spirit of Aloha, which "clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities," it would be no surprise to see "No Firearms Permitted" signs plastered on every front door. In Hawaii, the Spirit of Aloha will have to speak for itself—one sign at a time.