The Supreme Court’s Republican majority spent much of Tuesday morning trying to figure out how two mutually exclusive principles can both be true at the same time. One principle is that all Second Amendment cases must be judged using a bespoke legal rule that only applies to the Second Amendment. The other principle is that the right to bear arms must not be treated differently than other constitutional rights.
Four years ago, in New York State Rifle & Pistol Association v. Bruen (2022), the Republican justices struck down a century-old New York law that required anyone who wishes to carry a handgun in public to demonstrate “proper cause” before they could obtain a license allowing them to do so. On Tuesday, the Court heard Wolford v. Lopez, a challenge to a Hawaii state law that appears to have been designed intentionally to sabotage Bruen.
While the law at issue in Bruen directly banned most people from carrying a gun in public, Hawaii’s law tries to achieve this same goal indirectly by requiring gun owners to obtain explicit permission from a business’s owner or manager before they can bring a gun into that business. Because few businesses are likely to grant such permission — and few gun owners are likely to go into a business unarmed, ask the manager for permission, and then return with their weapon — Hawaii’s law is likely to operate as an effective ban on firearms in most public spaces.
But Bruen also announced a bizarre legal rule that applies only in Second Amendment cases. Under Bruen, a gun regulation is constitutional only if the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Thus, government lawyers must prove that consistency by comparing the modern-day law to “analogous regulations” from the time when the Constitution was framed. If the courts deem the old laws to be sufficiently similar to the new law, then the new law does not violate Bruen.
This bespoke rule for Second Amendment cases is so vague and ill-defined that judges from across the political spectrum have complained that it is impossible to apply. But, in Wolford, Hawaii’s lawyers made a very strong argument that their law should survive Bruen. Their brief names an array of old laws that are very similar to the Hawaii law at issue in Wolford.
A 1771 New Jersey law, for example, barred people from bringing “any gun on any Lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he has license or permission in writing from the owner.” A similar 1763 New York law made it unlawful to carry a gun on “inclosed Land” without “License in Writing first had and obtained for that Purpose from such Owner, Proprietor, or Possessor.” And these are just two examples of the kinds of laws that existed in the 1700s that resemble Hawaii’s law.
But it turns out that none of this history actually matters, as all six of the Court’s Republicans — including Justice Amy Coney Barrett, who did have some tough questions for lawyers on both sides of the case — signaled Tuesday that they are likely to strike the law down.
The Republican justices want to apply a double standard in Second Amendment cases
One of the Republican justices’ primary arguments against the Hawaii law was that the law would be unconstitutional if, instead of applying Bruen’s historical test, the Court were to apply a more normal approach to constitutional interpretation.
Chief Justice John Roberts, for example, suggested that the First Amendment does not permit a state to forbid people from knocking on a private property owner’s door and asking for their vote. So why should the Second Amendment be read to allow states to bar this person from carrying a gun? As Roberts argued, one of the “motivating concerns” behind decisions like Bruen is that the right to bear arms has historically been treated as a “disfavored right.” And thus there shouldn’t be disparities between how the Court treats the First Amendment and how it treats the Second Amendment.
Similarly, Justice Samuel Alito accused Neal Katyal, the lawyer for Hawaii, of “just relegating the Second Amendment to second-class status.”
But if Roberts and Alito don’t like the fact that Second Amendment cases are treated differently than First Amendment cases, they have no one but themselves to blame. Again, Bruen announced a bespoke legal test, which fetishizes history, and which applies to no other constitutional right. So a court that fairly applies the Bruen test will sometimes reach different results than they would if they applied the legal rules that apply in First Amendment cases.
If Roberts and Alito don’t like this reality, the obvious solution is to overrule Bruen.
The Republican justices, in other words, appear to want a double standard to apply in gun cases. When a modern-day gun law is not similar to gun laws from the 1790s, the Republican justices can apply Bruen and strike down the modern-day law under Bruen’s good-for-the-Second-Amendment-only legal standard. But when a modern-day gun law is similar to gun laws from the 1790s, then they can complain that the government’s lawyers are treating the Second Amendment differently than other constitutional rights — and strike down the law.
One other sign that the Hawaii law is in trouble is that several of the Republican justices tried to embarrass Katyal, because one of the many examples of old laws cited in his brief was probably enacted for nefarious reasons. One of the old laws Katyal cites in his brief is a post-Reconstruction law, enacted by Louisiana, which allegedly was enacted in order to disarm Black people on private land.
Of course, laws that target people because of their race are unconstitutional, but not under the Second Amendment. They violate the 14th Amendment’s guarantee that no one may be denied the equal protection of the laws.
In any event, if Louisiana were the only state to require gun owners to obtain a property owner’s permission before bringing a gun onto their land, then that historical example would undercut Hawaii’s legal argument significantly. But this allegedly racist law is but one example of an historical law similar to Hawaii’s. And the fact that Louisiana may have enacted one racist gun law does not invalidate all of the other examples of similar laws in Katyal’s brief.
The bottom line is that several states historically enacted laws similar to Hawaii’s law, and all but one of those laws appear to have been enacted for benign reasons. If Bruen were applied honestly, this web of old laws seems to require courts to uphold Hawaii’s law.
But the Court’s Republican majority does not appear interested in applying Bruen when they do not like the outcome it produces. Again, when Bruen’s unique test cuts against a gun law, they can strike that law down under Bruen. And when Bruen’s historical test cuts in the other direction, the Republican justices appear to believe that they cannot apply Bruen, because that would mean treating the Second Amendment differently than other constitutional rights.
