During this week's oral arguments in Wolford v. Lopez, Justice Ketanji Brown Jackson repeatedly argued that the Hawaii law banning concealed carry by default on all private property open to the public has nothing to do with the Second Amendment. Properly understood, she insisted, the law is really just about private property rights, not the right to keep and bear arms.
While Jackson didn't find much support for that proposition from even her progressive colleagues, Yale law professor Akhil Amar and his brother Vikram, who is dean of the University of Illinois College of Law have come out in support of Jackson's take, arguing at SCOTUSblog that "Hawaii’s law is ultimately best understood not as a gun law but a property law."
So how did they come to that conclusion?
First, they argue that the Second Amendment is inherently different from other rights like the freedom of speech and association.
[T]he mere fact that, say, the First Amendment has been read expansively is not an automatic argument for equal treatment for the Second. For example, violent felons, even while in prison and especially after their release, obviously have a First Amendment right to print their opinions in newspapers. Yet such felons have never had a Second Amendment right to own guns. Even the NRA accepts this double standard. But what underlies it? The obvious . . . idea that sticks and stones and guns in the hands of dangerous felons can indeed hurt others in ways that their words cannot.
Yet felons are allowed to possess sticks and stones. In fact, there's no federal prohibition on felons possessing machetes, Bowie knives, nunchucks, or any other number of bearable arms. And there are ongoing legal challenges to the presumption that all felons and those convicted of crimes punishable by more than a year in prison can be prohibited from possessing firearms as well, so I'd say it's still an open question as to whether that practice is allowed under the Second Amendment.
Further, while felons can exercise their right to have their writings published, even behind bars, felons can't exercise their right to publicly assemble when they're incarcerated, and they may lose some of their Fourth Amendment protections after they're released but are being supervised on probation or parole. It's a cute answer by the Amar brothers, but the examples they point out doesn't mean that the Second Amendment is any less important or expansive than the First Amendment.
Next, the pair bring up the questions about whether Hawaii has comparable laws regulating other items brought into privately-owned but publicly accessible places without the affirmative consent of the proprietor. Hawaii pointed to a couple of statutes regulating trash and cars on private property, but the Amar brothers would take that even further.
Surely a state could pass laws requiring express proprietor approval for bringing, say, marijuana or hard liquor into various restaurants or shopping malls. This pot-and-booze answer, we submit, might well appeal to a law-and-order traditionalist such as Justice Samuel Alito, who first raised this question at oral argument.
Of course, Alito could respond to us that the Constitution explicitly mentions “arms” but not pot. And we admit that the Constitution likewise does not mention cars or trash. But in our view, Hawaii’s law is ultimately best understood not as a gun law but a property law. Thus, Hawaii should be allowed to treat guns on private property not just the same way that the state has already treated cars and trash on private property, but also the way that Hawaii could tomorrow treat pot or booze on private property.
But that still ignores the fact that arms are, in fact, explicitly protected (not just "mentioned") by the Constitution. And if Hawaii is allowed to treat guns on private property the same way it treats cars and trash, then it could presumably prohibit the wearing of religious symbols by default, along with particular books or expressions of political support for one party or another. That is the appropriate analogy, and it's completely ridiculous to believe that a state has the power to enact and enforce such a regulation.
The Amar brothers then take issue with the description of the 1865 Louisiana law that prohibited bearing arms on plantations without the express permission of the plantation owners as part of the state's infamous Black Codes.
This 1865 law was not really a Black Code law. What made a law a typical Black Code law was that it regulated Blacks as such. But this 1865 law was emphatically race neutral. Read it! It said “any person or persons.” It nowhere used the word “Black” or anything like it. And that law protected all property “owners” and “proprietors” from unwanted guns, including Black property owners. Also, this law stayed on the books in Louisiana throughout the ensuing decade and beyond, and indeed did so at a time (1868-1877) when Louisiana had a higher percentage of Black government officials than just about any other state in the Union. Plus, the very Reconstruction Congress that backed the Fourteenth Amendment and its gun-rights promises in 1866-68 in fact expressly approved the Louisiana government on June 25, 1868, in the process of readmitting Louisiana to the Union. And as Vik has emphasized in landmark scholarship, Congress in that very same era threw Georgia back out the union for adopting laws that DID violate the Reconstruction Amendments, as Congress understood these Amendments. But Congress did NOT do this for Louisiana or for this Louisiana law. Rarely does one have such powerful evidence from the very Congress that enacted a given amendment.
Again, this is a simplistic reading of history. Many of the Jim Crow laws established in the South after Reconstruction ended were racially neutral on their face, but were applied and enforced primarily against freed slaves and their descendants. The same appears to be true of this statute.
What about the fact that it remained in place at a time when the state had a relatively high percentage of "Black government officials"? Even during Reconstruction former Confederates and the displaced power structure were fighting both physically and politically to maintain control of the state. I'd argue that embattled Republicans in Louisiana during that time period had bigger issues than repealing this law. But even assuming that this statute wasn't enforced along racial lines, it's still an outlier in U.S. history. Hawaii could only point to a handful of similar laws, none of which were as expansive as the law in question in Wolford.
Even today there are only a handful of states that adopted a version of the "vampire rule," and virtually all of them did so in response to the Court's decision in Heller. But the Amar brothers say that some states may want to adopt such laws in the future, and the Court should consider that when deciding whether Hawaii's law is unconstitutional.
If judges may properly strike down highly unusual state . . . laws that intrude on a lived experience of liberty, there is a risk that governmental innovation and experimentation might be unduly stifled. Trigger-happy judges might kill the first glimmerings of legal reform whenever new issues arise and new approaches begin to win popular support. But this risk can be minimized if the judges proceed with caution and humility, with close attention to the danger of what might be called “judicial lock-in.”
The danger is that once a particular government practice has been invalidated by judges, the practice will wither away and remain forever off-limits, even if a broad swath of Americans would like to see the practice revived at some later point. Such a judicially induced lock-in would turn proper unenumerated-rights jurisprudence on its head. Doubtful laws should be judicially invalidated because they are unusual, not unusual simply because they have been judicially invalidated … If many states were to enact new laws similar to a law previously struck down—new laws with delayed start dates so as to allow for anticipatory judicial review—such enactments themselves would be new data [for judges] to ponder.
The Court's Bruen test explicitly rejects such an approach to gun laws, instead finding that they must be rooted in a national tradition of gun ownership, particularly at the time the Second Amendment was ratified in 1791. But even leaving that aside, the fact remains that most Democrat-controlled states did not and have not adopted a "vampire rule" in the wake of the Bruen decision, though they've now had at least three legislative sessions to do so. I'm not aware of a single anti-gun Democrat in Congress who's proposed such a rule either.
Hawaii's "vampire rule" will be struck down because it is unusual, and lies outside the scope of the national tradition of gun ownership. To decide otherwise because some states might hypothetically want to enact similar restrictions in the future is nonsensical, but I'm confident that a majority of justices will disregard the deranged take of the Amar brothers, despite their legal pedigrees.
