On Point

SCOTUS issues another Second Amendment decision invalidating Hawaii’s restriction on carrying of arms

Wolford v. Lopez, USSC No. 24-1046, 6/25/2026, reversing a decision of the 9th Circuit, Scotusblog page (with links to briefs and commentary)

In another contentious 2nd Amendment case, SCOTUS provides more information for litigators seeking to apply the newer test for evaluating challenged firearm regulations.

Hawaii, which has a unique culture described by many commentators as clearly opposed to firearms, adopted a law which broadly restricted the ability of persons to carry firearms within the State. “Rather than allowing all to enter private property open to the public unless specifically prohibited, these new laws provided that no one carrying a firearm may enter without express authorization.” (p.10). Essentially, those who want to carry a firearm on their person are forbidden from doing so unless the person whose property they enter has given them permission to do so. SCOTUS invalidates the law because “[t]his regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.”  (p.2). SCOTUS considers the plight of a hypothetical gun owner, who wishes to carry their weapon with them as they run errands. Because that gun owner will need to seek affirmative consent at each business she enters, she will face not only significant inconvenience but will repeatedly expose herself to the threat of criminal liability. “In short, Hawaii’s law severely hampers the ability of a law-abiding citizen to exercise the right Bruen recognized.” (p.16).

Applying the Bruen test, the Court once again clarifies the applicable steps a court must engage with. “First, a court must determine whether the law before it clashes with the “plain text” of the Amendment’s language.” (p.7). This actually involves three “subsidiary questions.”

• First, does the law apply to “the people”—which is to say, to “all members of the political community”?
• Second, does it concern any form of “Arms,” i.e., any weapon customarily used for offensive or defensive purposes?
• Third, does the law place any restrictions on either the “keep[ing]” (i.e., possession) or the “bear[ing]” (i.e., carrying) of arms?

(Id.). If a challenged law satisfies these requirements, it is presumptively unconstitutional and it is the burden of the relevant government actor “to show that its challenged law did not infringe the historical understanding of the codified right.” (Id.). Often, this will involve the use of historical analogues, which should be evaluated in light of three more considerations:

• The number of jurisdictions in which the historical analogue was adopted;
• The extent to which the analogue or analogues were “well-accepted.”
• Whether the analogue is “relevantly similar” to the contemporary regulation at issue. This requires an analysis of the “how” and the “why” of the regulation at issue.

(Id.). SCOTUS rejects the argument that this is a “mechanical” exercise; instead, “it undeniably necessitates an exercise of judgment.” (p.8).

In applying this historical test, SCOTUS first rejects Hawaii’s reliance on its unique history, as “[m]erely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.” (p.18). SCOTUS then rejects reliance on anti-poaching as insufficiently similar. (p.21). Likewise, an Oregon statute involving armed trespassers is deemed insufficient, as well. (p.22). Finally, SCOTUS refuses to consider racially discriminatory laws passed following the Civil War as having “no probative value for the present purpose.” (p.23).