The Right to Carry and the Meaning of "Tradition"

When Jason Wolford applied for his carry permit on Maui, he thought it meant he could lawfully protect himself in public. It did not. Under Hawaii’s 2023 firearm law, Act 52, it is a crime to carry a gun onto any private property open to the public, including restaurants, grocery stores, and parking lots, unless the owner has explicitly granted permission. There are no “no guns” signs because the default assumption is that guns are banned everywhere.

That rule now sits before the Supreme Court in Wolford v. Lopez a test of how far states can go in restricting gun rights after the Supreme Court’s landmark 2022 decision in New York State Rifle & Pistol Association v. Bruen.

In Bruen, the Court ruled that the Second Amendment protects the right of ordinary Americans to carry handguns in public for self-defense, except in “sensitive places” such as schools, courthouses, and government buildings. The justices warned that defining sensitive locations too broadly would “in effect exempt cities from the Second Amendment and eviscerate the general right to publicly carry arms for self-defense.”

Since then, several states have expanded those definitions to cover vast areas of public life. Hawaii’s Act 52 goes further. It does not only label parks and government buildings as sensitive; it extends the ban to private property open to the public unless the owner explicitly gives permission. Petitioners say the rule effectively covers 96 percent of the publicly accessible land in Maui County.

Critics call it a backdoor ban. Supporters say it respects property rights and the freedom of business owners to decide what enters their premises.

Back Door Ban

After the Court in Bruen struck down New York’s “may issue” licensing regime, states rewrote their laws to comply on paper while narrowing carry rights in practice. Hawaii’s Act 52 is among the most sweeping.

The law bans guns in fifteen categories of sensitive places, including bars, parks, and government buildings, and then adds a default rule: all private property open to the public is off limits unless the owner says otherwise. To gun owners, that transforms a constitutional right into a privilege that depends on a store clerk’s approval. The Ninth Circuit disagreed permitting the default rule. The gun-owner has appealed, arguing in sum that “The right to bear arms can’t require an invitation.”

Ninth Circuit Points to Racist Laws as American “Tradition”
Under the Supreme Court’s decision in Bruen, governments must justify gun regulations by showing they align with the nation’s historical tradition of firearm regulation. So, to uphold Hawaii’s default rule, the Ninth Circuit had to identify historical examples demonstrating that American law has traditionally allowed gun bans on private property.

The panel cited an eighteenth-century New Jersey law banning armed trespass to prevent poaching and an 1865 Louisiana statute that prohibited carrying firearms onto plantations without the owner’s consent. But that Louisiana statute came from a darker place. Passed amid the post–Civil War Black Codes, it was used to disarm freedmen and preserve white control over plantations.

Southern legislatures and their political supporters during Reconstruction made efforts “to deprive colored citizens of the right to bear arms ... and to reduce the colored people to a condition closely akin to that of slavery.” H. Journal, 42nd Cong., 2d Sess. 716 (1872) (statement of President Grant). Louisiana’s 1865 law is part of that invidious tradition and, far from being indicative of the Constitution’s meaning, is “probative of what the Constitution does not mean.” Rahimi, 602 U.S. at 720 (Kavanaugh, J., concurring).

Wolford v. Lopez, 125 F.4th 1230, 1239-40 (9th Cir. 2025)(dissenting opinion)

Dissenting Judges VanDyke and Collins found these laws incomparable, focusing on their underlying purpose. Those early regulations addressed narrow concerns such as trespass and hunting; they were not designed to disarm the public. The judges also noted that the Reconstruction-era Black Codes were enacted to oppress freedmen and cannot be treated as part of the nation’s legitimate tradition. Hawaii’s defense effectively asks the Court to bless a practice rooted in racial subjugation and to use that legacy to justify banning guns on nearly all private property open to the public.

The Circuit Split

The controversy reached Washington because another appeals court went the other way. The Second Circuit, in Antonyuk v. James, struck down New York’s nearly identical law, ruling there is no historical tradition of banning carry on private property open to the public. The Third Circuit in Koons v. Attorney General of New Jersey reached the same conclusion.

With the circuits divided, Wolford became the ideal vehicle for Supreme Court review.

What the Court Will Decide

In practice, a licensee can be lawful on the sidewalk but needs express permission to carry inside a shop or its premises, including posted authorization at the entrance or elsewhere on the property. Violations of the default property rule are punishable as a misdemeanor.

Supporters defend the law as a matter of property rights. They point to the right to exclude as a core attribute of ownership, a principle the Supreme Court has repeatedly recognized.

The Supreme Court must decide whether states may make “no guns on private property” the default rule, or if the Second Amendment protects carrying there unless owners opt out. Petitioners argue the law reverses the constitutional presumption and lacks historical support. Hawaii says property law allows such a rule. The decision will define post-Bruen gun rights for the entire country, determining whether public carry depends on individual consent or constitutional protection.