Wolford v Lopez is Heard by SCOTUS

SCOPE wrote about the U.S. Supreme Court (SCOTUS) accepting a lawsuit, Wolford v. Lopez, which is a challenge to Hawaii’s gun carry restrictions.  The high court must answer: “Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner’s express authorization.”

On Tuesday, SCOTUS heard oral arguments in this case.

The gun owners lawyer told the justices that “[b]y banning people from carrying firearms on private property that is open to the public unless they first obtain affirmative permission, Hawaii has run roughshod over that constitutional right.” Hawaii’s ban is inconsistent with our national historical tradition of firearms regulation.”

Justice Ketanji Brown Jackson, (who has never let the United States Constitution come before her personal politics), cited ‘Black Codes’ which were enacted after the Civil War to restrict the rights of formerly enslaved people as an appropriate historical precedent.  Jackson said, “The fact that the Black Codes were at some later point determined themselves to be unconstitutional doesn’t seem to me to be relevant to the assessment that Bruen is asking us to make.”

Sane justices disagreed with Justice Jackson.  Justice Gorsuch questioned whether the court should consider the Black Codes’ law at all, calling it an “outlier.”  Justice Alito pointed out that the law was designed to prevent formerly enslaved people from defending themselves against members of the Ku Klux Klan and “racist law enforcement officers.”

Hawaii’s lawyer agreed that the Black Codes “are undoubtedly a shameful part of our history,” but should still be used!  According to Hawaii’s lawyer and Justice Jackson, an unconstitutional law is evidence to support making another law constitutional.

Justice Alito noted, and Hawaii’s lawyer agreed, that it would violate the First Amendment for the state to ban particular political attire in a restaurant without “express consent from the owner of the restaurant.”

Hawaii’s lawyer emphasized that “the Second Amendment … is not a second-class right.” But then he argued that there are key differences between the First and Second Amendments, which effectively makes the Second Amendment less of a right than the First Amendment. 

Justice Jackson also advocated a property rights approach in an effort to save Hawaii’s law but it appeared to be unsuccessful.

Virtually all of the court’s six Republican appointees seemed to agree with the challengers that Hawaii’s law violates the Second Amendment’s right to bear arms.  This would impact New York’s misnamed ‘Concealed Carry Improvement Act’ which contains a section that parallels Hawaii’s law.