Justice Ketanji Brown Jackson called out the conservative members of the Supreme Court for a “sudden aversion” to history in striking down a Hawaiian gun control law.
The Supreme Court ruled 6-3 along ideological lines on Wolford v. Lopez Thursday morning. Prior to the ruling, Hawaii state law banned carrying a firearm into private property accessible by the public—like a gas station or supermarket, for example—unless explicitly given permission by the property owner.
Justice Alito wrote the majority opinion. In it, the Court ruled that Hawaii’s law did not pass a test laid out in the 2022 case New York State Rifle & Pistol Assn., Inc. v. Bruen. Bruen is a two-part test for Second Amendment cases. First, it asks whether the law before the Court “applies to ‘the people’ and restricts the ‘keeping’ or ‘bearing’ of ‘Arms.'” Next it must also look at whether the law infringes upon “the historical understanding of the codified right.”
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Hawaii has had prohibitions on firearms since before it became a state. However, when the Court decided Bruen, which repealed a number of state laws prohibiting carrying firearms outside the home, Hawaii passed this version of the law. Under the law, while Hawaiians could carry firearms in public, they were assumed to be barred from most businesses.
“When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, ‘big box’ stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats,” Alito wrote. “This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. We hold that the law is unconstitutional.”
Justice Jackson had harsh words for this line of argument. She wrote that while she disagreed with the original Bruen ruling, she accepts it as precedent—but says the majority got the test wrong, as the law is fundamentally not a Second Amendment case but a property law case.
“To hear the majority tell it, Hawaii’s law is a blatant attempt to end-run our Second Amendment precedents. But the statute at issue does no such thing. Instead, it fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment,” she wrote.
She also points out Hawaii’s historical relationship with gun laws, dating back to pre-colonial rule in 1833. In that year, King Kamehameha III banned weapon ownership generally, including knives, swords and firearms. The king’s law continued even after U.S. annexation in 1898. In 1927, some people in Hawaii were allowed to carry firearms, but it was tightly controlled.
Even after being granted statehood in 1959, Hawaii kept strong regulations on firearms. A 1961 law adjusted the regulations to allow gun ownership if a potential owner could prove an “exceptional case,” Jackson wrote.
“That custom continued until very recently. Prior to this Court’s decision in Bruen, Hawaii issued concealed-carry permits only in ‘exceptional case[s],’ which required ‘an applicant [to] sho[w] reason to fear injury to the applicant’s person or property.’ … The result? Hawaiians have rarely carried (or encountered others carrying) guns,” Jackson wrote.
The conservative wing of the Court claims to follow the “originalist” philosophy of jurisprudence—attempting to not just follow the letter of the law but how it would have been interpreted when originally written. But Jackson poked fun at that side of the court for its “sudden aversion” to this interpretation of the Constitution and the existing Hawaii state laws.
“The Court’s sudden aversion to consulting history to inform the scope of the Second Amendment right at Bruen’s step one is strange, to say the least. Several Members of the majority have elsewhere opined that interpreting the Second Amendment requires understanding the original meaning of its text. Yet the majority’s newfound understanding of the first step of Bruen obliterates any need for reference back to original meaning. All that step one now requires is a 21st-century judge to read the text of the Second Amendment and ask herself what she thinks the words mean,” Jackson wrote.
“Worse, the majority’s new methodology is a one-way ratchet: It inevitably works only to the benefit of armed carry by removing any real burden of proof on gun owners at step one. The majority simply equates the ability to carry a gun with the right to carry anywhere and everywhere. … Because of that, it then assumes that any impediment to carrying qualifies as a burden on the right. … The upshot of the majority’s view of Bruen’s first step is thus that any law that regulates the carrying of firearms is presumptively unconstitutional. But under this Court’s precedents, assessing whether conduct falls within the right protected by the Second Amendment requires more than breezily asserting that the restricted conduct involves carrying a firearm,” she added.
In closing, she calls out the majority for changing the Bruen test, but also stripping property interests from citizens being “protected against unauthorized armed entry.”
“From this day forward, it will be difficult to view Bruen as anything more than a fig leaf,” She wrote. “Of course, the real irony is that the Court’s effort to rein in judicial discretion has resulted in an arbitrary rule that unleashes judges to thwart gun regulation at every turn.”