Wolford v. Lopez: Reframing the Second Amendment Doctrine

The Supreme Court’s June ruling in Wolford v. Lopez halted the erasure of the right to keep and bear arms in five states, holding that governments cannot render carrying a licensed handgun presumptively illegal in nearly all settings. 609 U.S. 185 (2026). While the decision in itself is pivotal, an even deeper significance lies in how Wolford reframes Second Amendment doctrine. The Court in Wolford affirmed three key points about constitutional interpretation:

Determining whether a challenged law falls within the “plain text” of the Amendment is markedly simpler than many lower courts and gun-control advocates have claimed.
Contemporary gun-control measures do not always need to rest on analogies to historical practices, but those analogies cannot be built on peculiarities or fringe cases.
Racist gun-control rules from the past, which were repudiated long ago by constitutional amendments, do not serve as valid precedents for restricting the rights of today’s Americans.

This essay will also address the Hawaii Attorney General’s argument that only a weaker version of the Second Amendment should govern in Hawaii. It will also discuss the claim that Hawaii’s so-called “Vampire Rule”—prohibiting licensed carry across the state—did not engage the Second Amendment at all.

The “plain text” of the Second Amendment

When a constitutional matter is involved, the court must decide whether the challenged government action implicates a constitutional provision. Often the question is straightforward; for example, a public gathering on a political dispute can be framed as protecting the right to assemble.

In edge cases, judges must determine how literally to interpret the wording. For instance, the First Amendment protects “the freedom of speech,” and while Justice Hugo Black was frequently an absolutist in protecting literal speech (spoken words), he disagreed with Supreme Court majorities that assigned the protection of “freedom of speech” to actions. E.g., Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Black, J., concurring in part and dissenting in part) (“Picketing, though it may convey ideas, is not speech, and therefore is not, by itself, protected by the First Amendment.”).

For the Second Amendment, the textual inquiry asks: when the plain text covers an individual’s conduct, does the Constitution presumptively protect that conduct? New York State Rifle & Pistol Assoc. v. Bruen, 597 U.S. 1, 24 (2022).

Regrettably, some lower courts did not treat the “plain text” language with seriousness and began importing various constraints into the plain-text assessment. For example, the “plain text” of “the right of the people” was said to require evidence that individuals were “law-abiding” and “responsible.” The plain text of “Arms” was said to require evidence that the arms in question were commonly “used” (e.g., fired in self-defense) for defense. I discussed some misapplications of the “plain text” concept in a 2024 post, How Some Courts are Evading Bruen by Changing its Rules: Lower Courts evading the “plain text” of the Second Amendment.

The Wolford Court demonstrated that the plain-text inquiry is far less tangled than many courts claimed. In fact, three simple questions suffice:

“First, does the law apply to the people—i.e., to all members of the political community?”
“Second, does it regulate any form of ‘Arms,’ meaning any weapon typically used for offensive or defensive ends?”
“Third, does the law impose limits on either the ‘keep[ing]’ (possession) or the ‘bear[ing]’ (carrying) of arms?”

Question 1: Since the Second Amendment guarantees “the right of the people,” the court must determine whether the law extends to everyone within the American political community. The Court rejects the notion held by some lower courts that “the people” excludes certain groups—such as those under twenty-one or individuals convicted of crimes. While some individuals may be legitimately restricted from exercising Second Amendment rights, all Americans begin with the right, and it is up to the government to justify any deprivation. The justification, however, belongs to later stages of the case, not to the plain-text inquiry itself.

Question 2: The class of “Arms” covered by the plain text is broad: “any weapon ordinarily used for offense or defense.” This step remains strictly a plain-text assessment. Just as some members of “the people” may be disarmed lawfully, certain weapons (e.g., machine guns) may fall outside the protection of the Second Amendment. Any later determination that particular people or arms fall outside the Amendment’s shelter belongs to subsequent stages of the case, not the plain-text step.

The Wolford Court’s rule implicitly rejects lower court views that narrowed the plain-text scope of “Arms” to weapons tied to military use or to items frequently employed to fend off criminal attacks in an ongoing incident.

The term “customarily” does not equate to “most often.” For instance, the frequency of handgun triggers being pressed for target-shooting contests vastly exceeds the number of times handguns are discharged in defense against crime.

Question 3: Regarding “any restrictions” on the “possession” or “bearing” of arms, some lower courts may retain narrow readings that exclude laws like bans on gun shops from implicating the plain text of the Second Amendment, despite the fact that obtaining arms is a prerequisite to possession and bearing.

The Wolford majority held that Hawaii’s Vampire Rule satisfied all three questions. The measure affected American citizens with Hawaii carry permits, placing them among “the people.” It regulated bearing handguns, which are typically used for defense, and it rendered it broadly illegal to carry licensed handguns in public.

Guidance on analogues

According to Wolford:

“If a challenged law falls within the plain text of the Second Amendment, it is presumptively unconstitutional—meaning it may infringe the preexisting right the Amendment codified. But because this right is not entirely coterminous with the Amendment’s literal language, further analysis may be necessary. Specifically, the relevant government—federal, state, or local—may be able to show that its challenged law did not infringe the historical understanding of the codified right.”

“A range of sources, including scholarship, may assist this inquiry. Yet the strongest evidence often comes from historical analogues. These are old legal rules from which a court may infer that the modern law is consistent with the codified right. A party defending against a Second Amendment claim may rely on a single analogue or a cluster of analogues.” (citations omitted).

Expanding on and clarifying Bruen’s treatment of historical analogues, the Wolford Court explained that Bruen had “identified three important inquiries that courts should undertake when evaluating proposed analogues.”

“The first is the number of jurisdictions where they were adopted. . . . When we assess whether a challenged law aligns with the right the Second Amendment codified, we seek the general understanding of that codified right at the relevant moment in time. An outlier rule adopted in only a few places is not enough.”

“The second is the extent to which they were well-accepted. This acceptance may be explicit, such as judicial decisions that openly acknowledged the rule’s legality, or implicit, as when a restriction on keeping or carrying arms was broadly observed, unchallenged, and accepted.”

Questions one and two sharpen Bruen’s standard of “a well-established and representative historical analogue.”

“The third is whether any analogue or collection of analogues bears ‘relevantly similar‘ characteristics to the modern law.”

Determining relevance involves examining “how” the analogue constrained keeping or bearing arms, and considering “why” the analogue imposed those limits—i.e., whether its rationale resembled that of the new law.

As in other cases, the “how” and “why” inquiries often hinge on “who.” For example, certain 18th- and 19th-century surety statutes required an individual deemed potentially dangerous to post bond to ensure peaceful conduct. In United States v. Rahimi, the Court’s majority found surety laws to be relevant analogues for modern measures disarming people who have received domestic-violence restraining orders based on individualized danger findings. 602 U.S. 680 (2024). In Bruen, however, the surety laws were not considered relevant analogues for state laws preventing nearly everyone from carrying firearms.

A common argument in favor of originalism is that, while it may not settle every issue, it applies more constraint than other approaches. In Wolford‘s words, “This determination is far more disciplined than the ‘interest-balancing,’ ‘judge-empowering’ standard that Heller rejected, yet it is not mechanical.” The Court added, “It unquestionably requires the exercise of judgment.”

In Wolford’s phrasing, “This determination is far more disciplined than the ‘interest-balancing,’ ‘judge-empowering’ standard that Heller emphatically rejected, but it is not mechanical.” “It undeniably necessitates an exercise of judgment,” the Court further explained.

For instance, in the three cases where the Court has applied Bruen and scrutinized analogues, the Court was unanimous in one and split in the other two: United States v. Hemani, 146 S.Ct. 1677 (2026) (9-0) (historic vagrancy, civil-commitment, and surety laws relating to habitual drunkenness and impaired self-control were inadequate analogues for prosecuting a gun owner based on his regular marijuana use); United States v. Rahimi (8-1) (historic laws such as sureties against dangerous persons can be adequate analogues for more expansive modern restrictions, such as criminalizing home firearm possession); Wolford v. Lopez (6-3) (as described below, anti-poaching laws or racist restrictions are not apt analogues for preventing everyone from carrying firearms).

Applying Wolford‘s rules for analogues to the Vampire Rule

The Supreme Court’s Bruen decision had directly applied to three States where licensed carry was almost entirely banned (Hawaii, Maryland, New Jersey) and to three where it was forbidden in some jurisdictions and allowed in others (California, New York, Massachusetts). Following Bruen, all the above states—except Massachusetts— enacted a measure advanced by University of Alabama law professor Fredrick Vars and Yale law professor Ian Ayres; they stated plainly that the goal was to render licensed carry extremely burdensome so as to deter holders from using their licenses.

Under Hawaii’s statute, a person with a concealed-carry permit “shall not . . . enter or remain on private property of another” while carrying a loaded or unloaded firearm “unless the person has been given express authorization” by the owner, lessee, operator, manager, or another person permitted by statute. The “express authorization” must be an “Unambiguous written or verbal authorization” or “clear and conspicuous signage at the entrance.” Private property is everything aside from the permit holder’s own property or government property. Hawaii Revised Statutes § 134-9.5.

Separately, and not at issue in Wolford, the Legislature’s Bruen-response law in Hawaii had barred licensed carry on most government property and large swaths of private property by labeling them “sensitive places.”

The Wolford plaintiffs challenged the Hawaii “express authorization” rule as it applied to public-facing business premises. At the time the Court was weighing Wolford, several circuits had deemed similar rules unconstitutional. Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024); Koons v. Attorney General of New Jersey, 156 F.4th 210 (3d Cir. 2025); Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026). The Ninth Circuit, by contrast, had reached the opposite conclusion in Wolford v. Lopez, 116 F.4th 959 (2024). The Supreme Court granted certiorari, possibly influenced by a supporting amicus brief from the U.S. Solicitor General.

Critics of the express-authorization rule call it the “Vampire Rule” because, in some stories, vampires may enter only if invited. The history of the Vampire Rule in literature is laid out in the author’s amicus brief, which was coauthored on behalf of the National Rifle Association and the Independence Institute. While vampires are malignant, Hawaii’s Vampire Rule restricts even non-dangerous individuals—law-abiding citizens who have passed background checks, completed safety training, and obtained government licenses to carry concealed weapons. The brief provided empirical data showing the very low rate of gun misuse among permit holders compared with the general population. It also described the Founding Era’s permissibility of carrying on private property that was open to the public. That portion of the brief was cited by the United States and by the petitioners’ counsel during oral argument (pages 50, 125).

Most of the analogues offered by Hawaii’s Attorney General in support of the Vampire Rule relied on colonial and Founding Era anti-poaching laws that barred armed trespassers from entering fenced farms or pastures without consent. Justice Alito’s majority opinion found these analogies lacking:

“To test whether these analogues are ‘relevantly similar’ to Hawaii’s challenged law, we may revisit the earlier question: since it was accepted that prohibiting unauthorized hunting on private land aligned with the Second Amendment, can we infer that it also supports prohibiting a lawfully carrying concealed handgun holder from entering a gas station, coffee shop, grocery store, or other private property open to the public without express and unambiguous consent? The answer is obvious. The gulf between anti-poaching analogues and the new rule is far too wide.”

Justice Barrett joined the majority and wrote a concurring opinion as well. In her analysis:

“The problem with Hawaii’s default rule is not merely that it targets a separate regulatory issue beyond poaching. It is that the rule does not target any particular misuse of firearms. Rather than addressing a concrete threat to public safety, Hawaii admitted that it enacted the rule because a large segment of its residents oppose public gun carry. In short, Hawaii is responding to the general danger associated with firearms, not to any specific heightened risk of their misuse.”

“Mere disapproval of protected conduct is not a legitimate basis to sharply restrict it.”

The Hawaii Attorney General pointed to an 1893 Oregon statute that barred carrying arms on enclosed premises or lands without the owner’s consent. Although Hawaii argued that the statute applied to businesses, there was no indication such an interpretation had ever been applied in Oregon.

“But even if this provision were read as Hawaii would have it, a statute adopted nearly a century after the Second Amendment—and well after the Fourteenth Amendment’s adoption—sheds little if any light on the meaning of the Second Amendment right,” wrote the Wolford Court.

Racist analogues are no good

The Wolford Court’s rejection of far-fetched (poaching) or late (Oregon 1893) analogues was not a novel move. What truly shapes Second Amendment doctrine is the Court’s handling of the 1865 Louisiana Black Code. Since Bruen, opponents of gun rights and some lower courts have cited laws targeting enslaved people or free people of color as supposed precursors for modern restrictions aimed at other groups or at the public at large.

After the Civil War, as abolition loomed and freed Black populations grew in former slave states, the Louisiana legislature enacted a statute mirroring Hawaii’s Vampire Rule in scope. The Wolford Court explained:

“Finally, we reach the state’s most notable analogue, a 1865 Louisiana statute that made it unlawful ‘for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the owner’s consent, except when performing a lawful civil or military duty.’ 1865 La. Acts No. 10, § 1, p. 14. Regardless of this provision’s history, it has no probative value for present purposes. As noted, when assessing the probative value of a historical analogue, we must consider whether it was widespread, well-known, and broadly accepted. See Bruen, 597 U.S. at 35. Since this statute was neither widespread nor widely accepted, it carries no weight.”

In another paragraph, the Court added:

“We could stop there, but there is another reason to reject Hawaii’s reliance on this statute. It was enacted by the Louisiana Legislature between the end of the Civil War and the start of Reconstruction. When the war concluded, the defeated Confederate states quickly passed Black Codes aimed at preserving Black subjugation. The statute cited by Hawaii was part of Louisiana’s Black Code and provided a means to disarm Blacks, leaving them vulnerable to attacks. See 125 F.4th at 1239 (VanDyke, J., dissenting from denial of reh’g en banc).”

As the Court noted, this history is far from novel. In McDonald v. Chicago, the right to keep and bear arms was shown to be essential for vulnerable Black communities during that era. The Republican platforms of 1856 and 1860 likewise called for robust protection of the right to defend oneself. Unless history is disregarded, Hawaii’s claim that this tainted artifact sheds light on the original understanding cannot be taken seriously.

In a concurrence, Justice Barrett added that the state’s approach suggests Bruen is a matching game: Southern states enacted broad default rules, Hawaii argues, so it can do the same today. But even if the how is analogous, the state must identify an analogous why. The Black Codes were designed to keep newly freed slaves under control. Hawaii does not contend that its law serves a similar interest. Consequently, the Hawaii law and the Black Codes were not relevantly similar.

In dissent, Justice Jackson described the majority’s doctrinal effect as: “it strips Black Codes from this country’s traditions, categorically and completely.”

And indeed, the majority’s approach aligns with Bruen: tradition is not the rule by itself, but it sheds light on the original meaning. The Fourteenth Amendment’s original intent included constraining Black Codes and the practices they enforced, including hindering the right to bear arms. The majority relied on extensive historical materials, including McDonald’s discussion, to show that the right to keep and bear arms was crucial for vulnerable groups during Reconstruction. The dissent argued that the Louisiana statute’s discriminatory enforcement violated the principle, not the spirit, of the right.

Justice Jackson’s dissent suggested that the Louisiana statute might have appeared constitutionally compliant on its face, but the discriminatory enforcement undermined its legitimacy. The prevailing view, however, held that the Black Codes demonstrate the stakes of recognizing or denying the right to bear arms in the broader arc of American history.

Implications for other gun-control measures grounded in prejudice

Wolford seems to curtail the use of postbellum Black Codes as affirmative historical support for modern gun restrictions. Its reasoning could also undermine reliance on antebellum race-based gun-control laws aimed at enslaved people or free people of color.

Justice Jackson asked what should be done about other forms of prejudice. For example, might statutes discriminating against Catholics be used to justify modern restrictions? See Kanter v. Barr, 919 F.3d 437, 457 (CA7 2019) (Barrett, J., dissenting). The Catholics question can be answered by text alone. The 1689 English Bill of Rights—applied in British North America—protected only Protestants. James Madison drafted the Second Amendment without religious limitations. From independence onward, there is little record of Catholics being disarmed, unlike the extensively documented race-based disarmament.

Even before 1776, Catholics faced few restrictions in the prospective United States. For instance, in 1756, Virginia required a loyalty oath from Catholics; refusal meant arms could be taken for militia use, with exceptions for essential defense of home. The same year, Pennsylvania confiscated “papist” arms for the colonial militia. In 1696, after an attempted assassination of King William III, New York’s royal governor confiscated the firearms of all ten Catholic men in the colony. See Johnson, Kopel, Mocsary, Wallace, & Kilmer, Firearms Law and the Second Amendment 935 (Aspen Pubs. 4th ed. 2026); my Rahimi Amicus brief (representing professors, including VC’s Randy Barnett); my 2023 post, Old gun controls that were constitutionally repealed are not precedents for modern gun control; and my 2015 post, The Second Amendment versus anti-Catholicism.

“Aloha” should mean “goodbye” to Plessy v. Ferguson

Instances of Jim Crow law justified themselves with reference to local conditions and traditions, believed by many to be broadly accepted. Louisiana’s 1890 Separate Car Act required separate cars for Blacks and Whites. Plessy v. Ferguson’s majority, by Justice Henry Billings Brown, described the Act as conforming to the “established usages, customs, and traditions of the people.” 163 U.S. 537 (1896).

But that was not accurate. The measure was driven by railroad companies’ preference for segregation by sex, not race; customers would have accepted race-based segregation if demanded. See, e.g., David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011).

In Wolford, Hawaii’s Attorney General advanced a similar argument to Justice Brown. Justice Jackson referred to an 1833 ban on carrying arms imposed by King Kamehameha III. Likewise, the Hawaii Supreme Court had held that the Hawaii Constitution’s right to arms—worded identically to the U.S. Second Amendment—protects no right at all. The justification was that the tradition of “Aloha” suffices to curtail the right. State v. Wilson, 154 Haw. 8, 543 P.3d 440 (2024) (Haw.); Hawaii’s tradition of firearm regulation purportedly negates an individual right under the Hawai‘i Constitution.

The Wolford majority responded that the Second Amendment—like every other provision of the U.S. Constitution—applies equally across all states. “Merely local attitudes cannot shrink or expand the meaning of fundamental rights guaranteed by the Bill of Rights and enforced via the Fourteenth Amendment.” The Second Amendment remains the same in both the nation’s only island state—where roughly 8% of adults own guns—and in the neighboring state with higher ownership, Alaska—where about 59% own guns.

The Vampire Rule and property law

The principal dissent, written by Justice Jackson and joined by Justice Sotomayor, argued that Wolford was essentially a property-law dispute; since no one has an inherent right to trespass on someone else’s property, Hawaii merely altered a background rule about when consent can be presumed.

Yet the origin of the so-called default rule—the Vampire Rule—was crafted to discourage gun carry by making entry into private premises difficult. See Ian Ayres & Fredrick E. Vars, Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights (2020). They publicized the rule in a July 2022 opinion piece, noting that it would substantially shrink the number of places where one could legally carry a concealed weapon. Ian Ayres & Fredrick Vars, “A new no-carry default for the U.S.: A gun law that could really change things,” (New York) Daily News, July 20, 2022.

The Wolford majority refused to ignore the law’s objective of aggressive suppression of constitutional rights. To the majority, the dissent’s claim that Hawaii had not violated the Second Amendment included:

“fails because States may not adopt property-law rules that violate constitutional rights. For example, a State may not adopt property-law rules that violate the freedom of speech. See e.g., Reed v. Town of Gilbert, 576 U.S. 155, 159 (2015) (ordinance regulating signs on private property); City of Ladue v. Gilleo, 512 U.S. 43, 45 (1994) (same). Nor may a State adopt zoning rules that violate equal protection of the laws. See e.g., Buchanan v. Warley, 245 U.S. 60 (1917). Likewise, a State may not “‘sidestep the Takings Clause’” by enacting a law purporting to extinguish a property interest. Tyler v. Hennepin County, 598 U.S. 631, 638–639 (2023). The right protected by the Second Amendment is entitled to no less protection than other constitutional rights.”

Justice Barrett’s concurrence contained similar observations: “When a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment.”

“Consider how Hawaii and the principal dissent’s argument would play out in another setting. What if a State criminalized wearing religious head coverings (say, a hijab) on private property open to the public without express authorization? Could such a statute evade constitutional scrutiny? On Hawaii’s logic, the answer might seem to be yes: No one has a right to enter another’s property without permission, and the State has merely adjusted the default to require that permission be explicit. But that is plainly wrong. Because the law regulates religious and expressive conduct, its enactment triggers First Amendment scrutiny. Cf. Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (municipal ordinance prohibiting door-to-door solicitation violates the First Amendment).”

“The same logic applies to a default rule, like Hawaii’s, that targets the right to bear arms. Property laws, just as much as other laws, are subject to constitutional limits. Thus when a property law ‘restricts’ the bearing of arms, the State must show that the rule complies with the Second Amendment’s boundaries.” (cross-references omitted).

“If Hawaii and the principal dissent were right that the Second Amendment does not activate until consent is granted by a property owner, one might wonder: Could a State simply prohibit its citizens from authorizing firearms to be carried onto private property? This would unduly infringe property rights, yet, on that logic, it is hard to see how the Second Amendment would intervene.”