The Second Amendment consistently produces significant tension across a range of personal and societal relationships. Debate persists over whether firearm regulations should be tightened or loosened, and which approach can best achieve an appropriate balance between competing interests. However, this tension does not only exist at this most innate level. It also arises between states seeking to exercise their police powers to protect their citizens and differing interpretations of the Second Amendment. This dispute has recently come back into focus in Wolford v. Lopez.
In 2023, Hawaii passed Act 52 (“the Act”) as a response to the U.S. Supreme Court’s decision in N.Y. State Rifle & Pistol Ass’n v. Bruen in which a New York firearm regulation was deemed unconstitutional because it limited the right to bear arms outside the home.[i] In response, the Act established a presumption that carrying a firearm onto private property, even those accessible to the public such as a restaurant or store, is prohibited unless the property owner has explicitly granted permission.[ii]
The Court in Bruen explained that the only proper method for determining “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” is to first determine whether the law implicates the Second Amendment.[iii] If it does, the state “must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation”[iv] by pointing to relevantly similar prior laws in its own legislative history that functions as an “analogue” to the current regulation.[v] Alternatively, the state may use prior regulations from other states to show a historical parallel to their regulation.[vi]
Hawaii’s Act has now been challenged by a Hawaiian resident, Wolford, who asserts that the regulation has no basis in any history or tradition of the nation.[vii] He argues that the law conflicts with Bruen[viii] Specifically, Wolford grounds his argument in the Court’s holding that the Second Amendment safeguards an individual’s right to carry a firearm in public.[ix] In explaining the scope of the Second Amendment, the Court in Bruen noted:“[n]othing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms” and further emphasized that the right to bear arms “naturally encompasses public carry,” reasoning that although confrontation can occur inside the home, it most notably takes place outside it, where the need for self-defense may be even greater.[x]
Hawaii argues that the Act is not a firearm regulation in itself, but rather a mechanism that allows private property owners to give affirmative consent before firearms may be brought onto their premises, thus enforcing the property rights of owners who want to exclude those with firearms.[xi] According to this view, the Second Amendment is not implicated because the law is designed to protect a property owner’s rights by reversing the default assumption that individuals have an implied license to carry firearms into privately owned locations that are open to the public.[xii] Therefore, under Hawaii’s view, property rights of private owners’ trumps those carrying guns without their explicit consent because the Second Amendment does not create an “implied consent to bring those arms onto another’s property.”[xiii]
An injunction was granted for Wolford in Hawaii’s District Court where the court said the “Second Amendment guarantees a right to carry a firearm in public, which includes private properties held open to the public….”[xiv] However, the Ninth Circuit of Appeals reversed the injunction, noting that although the test is history and traditions, it is not so rigid such as the evolution of what is considered a sensitive place for firearm regulation. [xv]
The U.S. Supreme Court has recently heard oral arguments and there is a noticeable oscillation with how to apply Bruen to these circumstances. For Bruen to apply, the law must regulate one’s conduct with the firearm. However, if one adheres to the Hawaiian state government’s analysis, there is no gun regulation, only an enforcement of property law. Thus “there is still a substantial argument that a mere default presumption against carrying firearms does not constitute a government infringement of Second Amendment rights” because “[t]he no-carry default is, at its core, a rule of interpretation that determines the default scope of implied licenses.”[xvi]
Another question the Court grapples with is whether the Bruen test still applies and which body of laws should be examined to determine if a historical analogue is sufficiently similar to the present regulation.[xvii] The Court appears divided over what sources may properly inform the inquiry into history and tradition.[xviii] Hawaii, for example, points to Black Codes (laws that sought to curtail the freedoms of African Americans and, in this context, prohibited them from owning firearms) as evidence of a longstanding practice of strict gun regulation.[xix] The debate, however, is whether such laws should factor into this analysis at all, or whether the history and tradition test permits courts to consider only “the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment it was passed.”[xx]
Additionally, the question now becomes whose history and traditions should guide the analysis. Before Hawaii was annexed in 1898, there was no indication based on “tradition or culture [that] creates an expectation that the general public carries guns wherever they go.”[xxi] The issue, then, is whether Hawaii’s own “tradition and history” should have any bearing on the State’s authority to enact this regulation.[xxii] One could argue that a central feature of federalism is the freedom of states to experiment with policy and adopt laws that reflect the preferences of their citizens, especially those that are rooted in the state’s customs and cultures.[xxiii] However, if a law does burden a constitutional right, no amount of history and tradition would seem to save the state’s regulation.
Ultimately, the Court must determine whether Hawaii’s regulation is merely an exercise in enforcing private property rights or whether it meaningfully burdens the right to carry a firearm. If it does impose such a burden, the Court will then need to decide which historical laws are relevant in assessing the constitutionality of the statute. If this law is struck down, it will be interesting to see how Hawaii responds. They may pass an “affirmative-choice law,” requiring businesses to explicitly indicate if they allow concealed carry onto their property in order to receive their license.[xxiv] The Court’s decision in Wolford v. Lopez will not only determine the fate of Hawaii’s Act 52, but also clarify the extent to which states may rely on their own traditions and property law frameworks when navigating the constitutional boundaries set by Bruen and the Second Amendment.
[i] S.B. 1230 S.D.2 H.D.1 C.D.1, 2023, 32nd State Leg. (Haw. 2023).
[ii] Ninth Circuit Court of Appeals Upholds Crucial Laws Regulating Concealed Carry of Firearms, Governor of Hawaii News Room (2024) https://governor.hawaii.gov/newsroom/2024-38-ninth-circuit-court-of-appeals-upholds-crucial-laws-regulating-concealed-carry-of-firearms/ [https://perma.cc/5KM9-C4AU] (“Act 52 instituted a default rule that firearms are prohibited on another’s private property unless they received express authorization from the private-property owner, and instituted specific ‘sensitive places’ where firearms generally cannot be carried.”).
[iii] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022)
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with the Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.
[iv] See id. at 24.
[v] See id. at 28–30.
[vi] See id.
[vii] Petition for Writ of Certiorari at 16, Wolford v. Lopez, 146 S. Ct. 79 (2025) (No. 24-1046) (arguing Hawaii’s reliance on Black Codes is misplaced, because those laws are not analogous to Hawaii’s current gun regulations, and there are no other sufficiently similar historical laws that would allow the regulation to satisfy the history-and-tradition test).
[viii] Id. at 11.
[ix] Id. at 58 (“The Supreme Court held that the Second Amendment’s text covers carrying firearms publicly outside the home, so carrying onto properties held open to the public is conduct that likely falls within the plain text of the Second Amendment.”).
[x] See Bruen, 597 U.S at 32–33.
[xi] Transcript of Oral argument at 76–77, Wolford v. Lopez, 146 S. Ct. 79 (2026) (No. 24-1046).
[xii] Amy Howe, Supreme Court Appears Sympathetic to Gun Owners’ Challenge to Hawaii Law, SCOTUS Blog (Jan. 20, 2026), https://www.scotusblog.com/2026/01/supreme-court-appears-sympathetic-to-gun-owners-challenge-to-hawaii-law/ [https://perma.cc/CE9X-WH9M] (“Justice Ketanji Brown Jackson suggested that the Hawaii law did not implicate the Second Amendment as much as it did issues of property rights. The real question at the center of the case, she told Beck, is how states treat property owners’ consent.”).
[xiii] Transcript of Oral argument, supra note xi, at 77.
[xiv] Wolford v. Lopez, 686 F. Supp. 3d 1034, 1071 (D. Haw. 2023).
[xv] Wolford v. Lopez, 116 F.4th 959, 981 (9th Cir. 2024).
[xvi] Ian Ayres & Fredrick E. Vars, Tell Me What You Want: An Affirmative-choice Answer to the Constitutional Concern About Concealed-carry on Private Property, 17 J. of Legal Analysis 105, 110–11 (2025).
[xvii] Chantel Febus et al., When Property Rules Shape Gun Rights: The Supreme Court Considers Wolford v. Lopez, Dykema (Feb. 25, 2026), https://www.lastmonthatthesupremecourt.com/2026/02/when-property-rules-shape-gun-rights-the-supreme-court-considers-wolford-v-lopez/ [https://perma.cc/6SJ2-KERB] (noting that one of the questions presented before the Court was how to apply “Bruen’s historical-analogue test to modern regulations.”).
[xviii] See id. (“The discussion returned repeatedly to Bruen and the difficulty of identifying appropriate historical analogues…. Several Justices questioned whether laws enacted in discriminatory contexts provide reliable guidance for modern constitutional analysis.”).
[xix] Transcript of Oral argument, supra note xi, at 29–30.
[xx] Id. at 98.
[xxi] Id. at 24.
[xxii] Id. at 23–25.
[xxiii] See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).
[xxiv] Ayres & Vars, supra note xvi, at 106–07.
