Background
After the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen established that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense, Hawaii replaced its previously restrictive carry-permit regime with new laws designed to achieve similar restrictive ends. One of those laws, Haw. Rev. Stat. § 134-9.5(a), prohibited licensed concealed-carry permit holders from carrying handguns on any private property open to the public unless the property owner gave express, affirmative permission. This flipped the traditional common-law default, under which members of the public have an implied license to enter property held open to them unless the owner specifically excludes them.
Three Maui County residents holding concealed-carry permits, along with an organizational plaintiff whose members held such permits, sued Hawaii’s Attorney General in federal court seeking injunctive relief. The U.S. District Court for the District of Hawaii granted a temporary restraining order enjoining enforcement of the law. The Ninth Circuit reversed, finding the law constitutional. The Supreme Court granted certiorari.
The Court’s Holding
Justice Alito, writing for a six-justice majority (Roberts, C.J., and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ.), reversed the Ninth Circuit and held that Hawaii’s law violates the Second and Fourteenth Amendments. Applying the two-step Bruen framework, the Court first found the law falls within the plain text of the Second Amendment — the permit holders are among “the people,” handguns are “Arms,” and the law burdens the “bearing” of those arms — rendering it presumptively unconstitutional. The Court then rejected every historical analogue Hawaii proffered, finding none sufficiently similar in “how” or “why” it restricted the right to bear arms.
The Court specifically rejected Hawaii’s argument that its unique cultural and legal history justified a different Second Amendment standard, reaffirming that the Amendment “has the same meaning in all parts of the United States” and cannot yield to “the spirit of Aloha” any more than it yielded to the spirit of New York in Bruen or Chicago in McDonald. The majority abrogated the Hawaii Supreme Court’s contrary ruling in State v. Wilson, 154 Haw. 8, 543 P.3d 440. Colonial-era anti-poaching laws, a lone 1893 Oregon armed-trespass statute, and an 1865 Louisiana Black Code provision were each found inapposite or without probative value. The case was reversed and remanded. Justice Kagan and Justice Jackson (joined by Justice Sotomayor) filed separate dissents.
Key Takeaways
- Hawaii’s law requiring property owners to give express permission before licensed carry-permit holders may bring handguns onto public-facing private property is unconstitutional under the Second and Fourteenth Amendments.
- The Second Amendment embodies a uniform national standard; state or local cultural attitudes cannot alter its scope, and outlier historical practices in a single state carry no weight in the Bruen historical-analogue analysis.
- Colonial anti-poaching statutes are not valid analogues for laws restricting armed entry into commercial establishments open to the public, because they targeted different harms and had little bearing on the core Second Amendment right of self-defense.
- Laws tainted by racial oppression — such as Black Code provisions designed to disarm Black Americans — have no probative value in determining the original understanding of the Second Amendment right.
- The decision effectively invalidates similar “express permission” default rules in other states, with the Court’s West Codenotes flagging analogous statutes in New Jersey, California, Maryland, and New York as unconstitutional.
Why It Matters
This decision significantly expands the practical scope of the right to carry recognized in Bruen. By invalidating Hawaii’s express-permission default and restoring the common-law implied-license rule for public-facing private property, the Court ensures that licensed permit holders can carry at gas stations, restaurants, stores, and other everyday destinations without first obtaining affirmative consent from each proprietor. The ruling effectively dismantles a legislative strategy several states adopted post-Bruen to limit public carry through property-law mechanisms rather than outright permit denials.
The decision also sharpens the Bruen historical-analogue methodology, providing clearer guidance on how courts must evaluate the number, acceptance, and similarity of historical comparators — and firmly closing off recourse to racially discriminatory laws or purely local regulatory outliers as historical support for modern firearms restrictions.