Joshua Villanueva is JURIST’s Washington, DC Correspondent and an LL.M. candidate in National Security and U.S. Foreign Relations Law at The George Washington University Law School.
The Supreme Court heard oral argument in Wolford v. Lopez on Tuesday, centering on whether Hawaii may effectively “flip the default” on public carry by licensed gun owners on private property open to the public, or whether that move impermissibly guts the Second Amendment right recognized in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen. The argument often felt more like a history class than a modern gun case; the justices marched through anti-poaching laws, founding-era statutes, and ancient dictionaries as they tried to reconstruct the nation’s “historical tradition,” leaving everyone else in the courtroom enrolled in Bruen 101.
The contrast in advocacy styles was striking. Alan Beck, counsel for petitioners, often spoke in a difficult-to-understand voice and at times appeared to struggle to respond directly to questioning. By contrast, Principal Deputy Solicitor General Sarah Harris, arguing on behalf of the Trump administration in support of the petitioners, adopted a rapid-fire presentation. Neal Katyal, arguing for Hawaii, was calm and spoke clearly, starting with an outline of the main issues and keeping his argument organized and to the point. As a seasoned Supreme Court advocate, Katyal showed best practices in oral advocacy, driving home his theme that “No commentator, no treatise, no court, no one’s ever said you have a right to imply consent of the private property owner.”
Bruen at the Doorstep: The Petitioner’s Broad Second Amendment Claim and the Battle over Implied Consent
Beck presented the case from the beginning as a straightforward challenge to Bruen’s rule about carrying guns in public. He said that Hawaii’s law—which prohibits carrying firearms on private property open to the public absent express permission—violates that constitutional right. He believes Hawaii’s law falls squarely within Bruen’s step one of the test because the ban clearly affects what the Second Amendment says about carrying guns, so the state must show that it is similar to past national rules on gun laws.
Several Justices immediately drilled into the interaction between the Second Amendment and baseline principles of property law. Justice Sotomayor emphasized that there is no free-standing constitutional right to enter private land at all, with or without a firearm. “You can’t enter an owner’s property without their consent, correct, express or implicit?” she asked. Beck conceded: “Correct, because that would be a trespass.” Building on that concession, Sotomayor reframed petitioners’ theory as an attempt to constitutionalize a default “custom” of implied consent: “You want to say that there’s a custom that permits you to go on private property without the owner’s express consent, correct?” Beck agreed that he was relying on national custom.
Justice Sotomayor challenged Beck’s reading of McKee v. Gratz, suggesting that Justice Holmes in that case looked for “evidence ‘that a practice had prevailed in Missouri’ where the suit originated,” not some generalized national usage. She also pointed to early statutes that prohibited hunting or trespassing on private property with a gun, contending that “there was not a uniform national practice.” Beck responded that those laws addressed lands that were closed to the public, whereas petitioners’ challenge concerns private property that’s open to the public.
Justice Jackson pressed even harder on whether the case belongs in Second Amendment doctrine at all, or instead in the heartland of state property law. “Isn’t that historical default that you’re referencing really a default that is rooted in property law and not constitutional law, not in the Second Amendment?” she asked.
In her view, “what’s really going on here is how states treat a private property owner’s consent under circumstances in which everyone agrees that consent is required.” She got Beck to agree twice that a gun owner cannot carry a gun on private property without the owner’s permission, and said that once this is accepted, laws about licenses or about assuming the owner has given permission are all about property law, not the Second Amendment.
Chief Justice Roberts returned repeatedly to the distinction between purely private spaces and commercial premises open to the public, using a gas station as his test case. He asked whether a person has “the right to go on that private property even without an express permission.” Beck answered, “Yes, absolutely,” stressing that the law recognizes at least an “invitation…up to the doorknob” for solicitation and similar activities.
Another big topic in the argument was how to use Bruen’s historical-tradition test, especially after the Court’s recent decision in United States v. Rahimi. Justice Gorsuch asked Beck where his argument that the law “destroys the right to bear arms” fits into the two-step Bruen process. Beck answered that the first step is just about whether carrying guns is involved, and that everything else is handled in the second step, which looks at history. Justice Sotomayor pointed out that Bruen does not allow judges to weigh the pros and cons, and pushed Beck to admit that balancing interests is no longer allowed.
Gorsuch also pointed to an 1865 Louisiana law made right after the Civil War that was meant to take away guns from Black people. A governor during Reconstruction later said this law targeted freed slaves. Gorsuch asked if these “Black Codes” should help the Court decide what the country’s traditions are. Beck said no because a racist law meant to hurt African Americans should not be used to support a modern law that applies to everyone.
The federal government, supporting petitioners, offered a different framing.
No Room for Pretext, No History for Hawaii: The Government’s Line
Principal Deputy Solicitor General Sarah Harris argued that the Bruen case decided states cannot refuse to give out licenses for carrying guns in public, and that Hawaii cannot get around Bruen by banning everyone with a license from carrying guns in stores or other private places open to the public unless the owner clearly says it is allowed. She called Hawaii’s law “novel” and “offend[ing] our history and tradition.”
When Justice Thomas asked for the strongest support that “a pretextual regulation is per se unconstitutional,” Harris turned to Blackstone and the original meaning of “infringed” in the Second Amendment. She mentioned English “game laws” that purported to protect wildlife but were really meant to keep ordinary people from hunting, and pointed out that writers like St. George Tucker and Justice Story saw such rules as clear violations.
Justice Kagan and Justice Kavanaugh both said they were uncomfortable with bringing a clear test for hidden reasons into Bruen. Kagan pointed out that in most of our constitutional law, we have avoided judging motive or purpose directly and warned that asking about every state’s hidden reasons sounds like the kind of review that Bruen said should not be used. Kavanaugh suggested the case could be decided more simply by saying there is not enough history to support the rule, and that would be the end of it, without resorting to a whole new, complicated test for hidden reasons. Harris finally agreed that the case could be decided on the grounds that there is insufficient history and tradition, called it an obvious case, and said the Court did not have to rely on her theory to rule for the petitioners.
On the main historical issue, Harris agreed with the petitioners that both anti-poaching laws and racist Black Codes are not good comparisons. Harris said the poaching laws actually show the opposite of what Hawaii is trying to prove because they only applied to private property that owners had fenced off for their own use, while public property had the opposite rule. If property was open to the public, it was basically an open invitation to carry.
Harris said it was surprising in 2026 to see Black Codes, which are unconstitutional, used as examples of what our tradition of legal gun rules looks like, and said that unconstitutional laws should not be used to show a valid tradition because Bruen and Rahimi require courts to “throw out outliers.”
Hawaii’s Argument: “An Invitation To Shop Is Not An Invitation To Bring Your Glock”
On the other side of the case, Hawaii’s counsel Neal Katyal sought to re-center the dispute on property owners’ right to exclude and on the modesty, in his telling, of the state’s task: defining consent where everyone agrees consent is necessary.
He opened by characterizing Wolford as a case “about two fundamental rights, the right to bear arms and the property right to exclude.” He said, “everyone agrees there’s a right to carry on private property if the owner wants guns on his property,” and “everyone also agrees there’s also no such right if the owner doesn’t want guns. The only question is “whether there’s a Second Amendment right to assume the owner wants guns on his property when he’s been silent. There is not,” he said, adding: “An invitation to shop is not an invitation to bring your Glock.”
Katyal argued that petitioners had “zero support” for a constitutional right to assume consent, “zero support from the founding or for the next 200 years, no treatise, no commentator, no court.” He referred to both Federalist No. 45 and Justice Holmes’s opinion in McKee to argue that “states have used law and custom to clarify the rules around consent,” so it has always made sense for some places to treat an invitation as including guns and for others to require clear permission.
Chief Justice Roberts expressed concern that Hawaii’s approach risks treating the Second Amendment as a “second-level right.” He contrasted the clear First Amendment protection for a candidate “walk[ing] up to your door on private property” to ask for a vote with the restrictions Hawaii imposes when that same candidate “walk[s] up and he’s carrying a gun.” Katyal insisted the Second Amendment “has no disfavored right” but stressed that Bruen’s text-and-history methodology differs from the First Amendment’s doctrinal structure, which tolerates burden-based tests. He argued that Hawaii’s law “traces back to the founding,” citing New Jersey law in 1771 “to flip the default rules” for bringing guns onto property, including property open to the public.
Justice Alito posed a related hypothetical from the speech side: everyone agreed it would violate the First Amendment for a restaurant owner to single out particular political attire unless the patron expressly consented, yet here, he suggested, the State is effectively burdening “the right … protected by the Second Amendment in Bruen, which is the right of law-abiding citizens to carry a firearm … outside of the home for purposes of self-defense.”
Justice Roberts also pressed Katyal on whether Hawaii’s unique land-tenure history could support a distinct Second Amendment analysis. Katyal rejected any state-by-state reading of the Amendment, asserting that “the Second Amendment means the exact same thing in every state: No Second Amendment right to enter private property without an owner’s consent.” What varies, he said, is “the definition of consent…from state to state,” which local law and custom help inform.
Justice Barrett, looking beyond guns, tested Hawaii’s theory in the context of equal-protection doctrine. She asked what would happen if a state “decides to flip the default and say, unless the owner affirmatively consents, Black people cannot enter your home.”
Katyal conceded that such a regime would be “unconstitutional…because it would violate the Equal Protection Clause” even if it reflected longstanding local custom, acknowledging that when the state “adjust[s] its property defaults” it engages in state action subject to constitutional constraints. He sought to distinguish Tuesday’s case on the ground that “there is no antidiscrimination component in the Second Amendment the way there is with the Equal Protection Clause,” reframing the case as one where “there’s no underlying right” to enter property without consent and the state is merely “fill[ing] in the conditions of that consent.”
Returning to the Black Codes question raised earlier in the argument, Justice Gorsuch pressed Katyal on Hawaii’s reliance on the 1865 Louisiana statute, calling it an “outlier” and suggesting that those who now cite such laws to justify gun restrictions are relying on measures that would otherwise be “garlic in front of a vampire” for them. Justice Alito followed the same line, emphasizing that this particular law was designed to stop formerly enslaved people from defending themselves against the Ku Klux Klan and “racist law enforcement officers.”
Katyal agreed the Black Codes are “undoubtedly a shameful part of our history,” but argued that this does not automatically strip the Louisiana statute of relevance to Second Amendment analysis. Justice Jackson, by contrast, suggested that ignoring such laws would expose a deeper flaw in Bruen’s history-and-tradition framework: if courts are told to look to “all of the history of regulation,” she argued, then they cannot cherry-pick which historical gun laws count.
The Court’s decision will not just clarify Bruen’s history-and-tradition test. It will also show how state property rules could shape the debate about how to balance public safety with the right to carry guns and where people can do so.
