Aloha to Hawaii’s Vampire Rule on private property open to the public.
On June 25, the Supreme Court issued a 6-3 ruling in Wolford v. Lopez, holding that Hawaii cannot ban licensed concealed-carry permit holders from bringing handguns onto private property that is accessible to the public unless the owner provides explicit permission. Justice Alito authored the Court’s opinion, with Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett joining in the majority. Justice Kagan wrote a dissent, a position joined by Justice Jackson, who was accompanied by Justice Sotomayor.
The Court takes aim at lower courts and states that have resisted its Second Amendment jurisprudence. In the roughly dozen years separating McDonald and Bruen, many lower courts dismissed nearly all Second Amendment challenges by leaning on reasoning reminiscent of Justice Breyer’s Heller dissent. Following Bruen, Hawaii and four of the other five States singled out by the Court adopted a fresh approach to curbing law-abiding citizens’ self-defense rights by reversing the default rule for private property that is open to the public. They introduced what has become known as the “Vampire Rule,” which prohibits guns on such property unless an explicit sign indicating “Guns Welcome” is displayed or some other affirmative consent is obtained. Regarding such signage: “Some owners who do not oppose entry by permit holders may hesitate to post a welcoming sign for fear of alienating other customers.”
Those same states also enacted “sensitive place” prohibitions in public parks, at gatherings, and in certain establishments. As Wolford notes with respect to Hawaii, “On a substantial portion of land within the State’s borders, firearm possession is now categorically prohibited.” While these absolute bans have been challenged, the Court’s remarks do not bode well for their future if they reach the Court. (For commentary challenging the Second Circuit’s historical narrative in Antonyuk upholding New York’s place bans, see my analysis here.)
To demonstrate the sweeping consequences of Hawaii’s Vampire Rule, the Court enumerates everyday venues where people commonly go and cannot be armed, including gas stations, convenience stores, eateries, coffee shops, drugstores, grocery stores, “big box” retailers, home improvement outlets, barber shops or hair salons, dry cleaners, and laundries. A hypothetical day for Ms. Caetano (drawn from Justice Alito’s concurrence in Caetano) is outlined to highlight the impracticality of seeking actual consent to enter one stop after another while armed—by the time a person reaches the parking lot or searches for a person with authority to grant permission, they are already in violation.
From a jurisprudential standpoint, Wolford makes clear the text-first, history-second approach, which is frequently inverted to justify infringements. When evaluating whether a law conflicts with the plain text, three questions must be asked:
First, does the law apply to “the people”—that is, to all members of the political community? … Second, does it address any form of “Arms,” i.e., any weapon ordinarily used for offensive or defensive purposes? … Third, does the law impose limits on either the “keep[ing]” (possession) or the bear[ing] (carrying) of arms?
With regard to “the people,” the Court’s recent Hemani decision described the right of “all Americans” to keep and bear firearms for self-defense. Notably, Wolford’s summary of prior precedents omits Hemani. Some have argued that Hemani tested purported historical analogues as applied to prohibitions on firearm possession by pot users without introducing new doctrines. It is also suggested that Wolford was finalized before Hemani but issued after it.
“Arms” that are “customarily used” for offense or defense refers to implements employed for those ends, such as handguns which, quoting Heller, are “overwhelmingly chosen by American society” for personal protection. It remains possible that in the next Term the Court will grant certiorari in a case that confirms how the American public traditionally and overwhelmingly favors semiautomatic rifles for self-defense.
Because Hawaii prohibited conduct that squarely falls within the text—“the people” bearing arms—the burden falls on the state to justify the restriction through historical tradition. This requires weighing how many jurisdictions adopted similar laws, how widely accepted those analogues were (for example, whether they were upheld in courts or were broadly and unchallenged), and whether the analogues bear meaningful similarity to the modern statute. The crucial consideration is how and why the analogue limited the right.
In presenting its analogous laws, Hawaii recounts a long history of hostility toward private firearm possession. It cites one of the earliest written laws of the Hawaiian Kingdom, dating to 1833 and issued by King Kamehameha III, which barred possession of all deadly weapons. The Court dismissed this argument, maintaining that the Second Amendment has a uniform meaning across the United States and cannot yield to Hawaii’s “spirit of Aloha” any more than it can yield to Bruen’s New York or McDonald’s Chicago (citing State v. Wilson (Haw. 2024)).
However, most of Hawaii’s analogues were colonial or early American statutes that prohibited unauthorized deer or small-game hunting on someone else’s private land. These failed both the “how” and “why” tests and are not “relevantly similar” to Hawaii’s law because outlawing hunting on private land bears little relation to banning the carrying of a handgun for self-defense at a gas station or other private property open to the public without express consent.
Yet Hawaii’s most notable analogue is the 1865 Louisiana statute that made it unlawful for anyone to carry firearms on another citizen’s premises or plantations without the owner’s consent. Not only was the rule neither widespread nor broadly accepted, it formed part of Louisiana’s Black Codes, which served as a mechanism to disarm Black individuals and render them defenseless. “If we are to take history at face value,” the Court noted, Hawaii’s claim that this tainted artifact informs the original understanding of the right to keep and bear arms cannot be taken seriously. (For more context, see my amicus brief for the National African American Gun Association.)
Justice Barrett, joined in part by Justices Thomas and Gorsuch, underscored the discrepancy between the proposed analogues and Hawaii’s law, observing that the statute does not target any specific firearm misuse. Instead, it reflects the state’s own admission that the rule was enacted because many residents oppose public gun carry. Yet, “mere disapproval of protected conduct is not a valid reason to restrict it so severely.”
Justice Kagan’s brief dissent argues that the historical laws cited by Hawaii are adequate analogues, which for her suffices to resolve the case without engaging Bruen’s Step One inquiry or applying Step Two to Louisiana’s Black Code. In her view, that approach would sidestep two of the case’s key points.
Finally, Justice Jackson, with Justice Sotomayor concurring, dissents by suggesting that Bruen was wrongly decided. She concedes that Louisiana’s 1865 statute and the Black Codes violated the anti-discrimination provisions of the Fourteenth Amendment (though she notes that the dissent does not expressly quote “equal protection”), but she maintains that they did not infringe the Second Amendment.
In supporting this view, Justice Jackson cites General Sickles’ 1866 order when repealing South Carolina’s Black Codes, which stated that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” She adds that, in Sickles’ view, no person—regardless of race—had the right to carry a firearm onto private property without consent. Yet, Sickles’ language actually indicated that the right to bear arms did not authorize anyone to enter another’s premises with arms against the owner’s consent. This reiterates the traditional common-law principle Wolford upholds: private property open to the public implies a license to enter, unless otherwise notified.
