Justice Samuel Alito used oral arguments Tuesday in Wolford v. Lopez to warn that Hawaiis sweeping gun restrictions effectively demote the Second Amendment to second-class status."
According to Breitbart, SCOTUSBLOG reported that Alito pressed a Hawaii attorney with the charge that the state was relegating the Second Amendment to second-class status, underscoring a concern long voiced by constitutional originalists.
Roll Call likewise observed that Chief Justice John Roberts described the Second Amendment as being treated as a disfavored right, while Justice Brett Kavanaugh emphasized the absence of any meaningful historical foundation for Hawaiis approach, stating, Here there is no sufficient history supporting the regulation, end of case.
The regulation at issue bars even licensed concealed carriers from bearing arms on private property open to the public unless they first secure explicit permission from the property owner. For gun-rights advocates, this kind of sweeping default prohibition flips the presumption of lawful carry on its head and hands government yet another tool to chill a fundamental liberty.
Breitbart News further noted that Justice Ketanji Brown Jackson attempted to justify Hawaiis position by invoking the postCivil War Black Codes as historical precedent, even though she conceded those measures were unconstitutional. That move drew sharp criticism from the Courts conservative wing, which has consistently rejected the use of discredited, rights-stripping statutes as a basis for modern gun control.
Roll Call explained that Justices Neil M. Gorsuch and Samel A. Alito Jr. objected to Hawaii relying on the 1865 law, part of the Black Codes meant to disenfranchise newly freed former slaves. Alito went further, calling it the height of irony to rely on a law meant to disarm freed slaves and make them vulnerable to the Ku Klux Klan in order to defend a contemporary restriction on lawful gun owners.
The case, Wolford v. Lopez, No. 23-16164 in the U.S. Court of Appeals for the Ninth Circuit, comes as lower courts wrestle with the Supreme Courts Bruen standard, which demands genuine historical analogues for modern firearms regulations.
On the same day as the Wolford arguments, the U.S. Court of Appeals for the Fourth Circuit struck down a similar Maryland law, signaling growing judicial resistance to blue-state efforts to nullify Bruen through backdoor sensitive place and property-based bans.
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