Private Property vs Gun Control

Can a state regulate guns on private property?

Does the state have the power to presumptively ban firearms on private property?
Can states tell the people who has implied consent?
How far can a state go to regulate the right to bear arms?
Can a state override a person’s property rights?
Can Hawaii proactively prohibit lawful gun owners from carrying on private property without the owners’ prior consent?

That is the question in the Supreme Court case Wolford v. Lopez.

Presumptuous State

Lord Acton once said, “Power tends to corrupt and absolute power corrupts absolutely.” So when I see a state presumptuously use its power to corrupt people’s property rights, it gets my attention. The question of property rights is the first of the two questions presented in this case, and that will be the focus of this piece.

The questions presented are:

Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?
Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?

Wolford v. Lopez – Petition for Certiorari

Can a state tell private property owners that carrying a firearm on their property is presumed to be prohibited? Or does the right to bear arms mean a presumption of permission unless the property owner says otherwise?

Let’s get to the arguments.

ALAN A. BECK, on behalf of the Petitioners

As always, arguments begin with the attorney for the petitioners, Alan Beck.

MR. BECK: Mr. Chief Justice, and may it please the Court:

Bruen holds the Second Amendment protects the right to publicly carry firearms. By banning people from carrying firearms on private property that is open to the public unless they first obtain affirmative permission, Hawaii has run roughshod over that constitutional right. The presumptive ban clearly implicates the Second Amendment’s plain text because it regulates arms-bearing conduct. As such, the burden is on Hawaii to justify the presumptive ban with relevantly similar historical analogs reflecting a national historical tradition of firearms regulation.

Hawaii comes nowhere close to carrying the burden. Its presumptive ban defies a national tradition allowing people to carry onto private property open to the public unless the owner objects. Hawaii’s threshold position that this Court should adopt a state-by-state community standard lacks support in this Court’s precedent, and Hawaii’s argument the laws of the Kingdom of Hawaii should determine Petitioners’ Second Amendment rights is completely without merit.

Mr. Beck’s argument focuses on the Bruen decision and the presumption of constitutionality included in that decision. While that is important information, it is not the focus of this article.

NEAL K. KATYAL, on behalf of the Respondent

We go on to the arguments for the respondent, Mr. Lopez the Attorney General of Hawaii. The arguments are presented by Mr. Katyal.

MR. KATYAL: Thank you, Mr. Chief Justice, and may it please the Court:

This case is about two fundamental rights, the right to bear arms and the property right to exclude. And there’s lots of agreement among how — among the parties about how those rights interact. Everyone agrees there’s a right to carry on private property if the owner wants guns on his property. That was elicited by Justice Sotomayor to my friends. And everyone also agrees there’s also no such right if the owner doesn’t want guns.

The only question is whether there’s a Second Amendment right to assume the owner wants guns on his property when he’s been — when he’s been silent. There is not. There is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun.

The Constitution protects the right to keep and bear arms. It doesn’t create implied consent to bring those arms onto another’s property. At bottom, that is Petitioners’ theory, and yet they have zero support for this, zero support from the founding or for the next 200 years, no treatise, no commentator, no court.

Sounds like a solid argument. However, there are plenty of holes in it when you start digging into the details.

Rights in Conflict

This case clearly revolves around two rights in conflict, the right to bear arms and private property rights. What happens when these two rights are in conflict?

JUSTICE SOTOMAYOR: All right. So you say that there is a constitutional right to carry a gun on private property?

MR. BECK: Yes, Justice.

JUSTICE SOTOMAYOR: I’ve never seen that right. I mean, I understand that there is a right to carry a gun on private property with an owner’s consent, express or implicit, correct?

MR. BECK: The Second Amendment —

JUSTICE SOTOMAYOR: My question is very simple. Is there a constitutional right to enter private property with a gun without an owner’s express or implicit consent? The answer has to be simply no. You can’t own — enter an owner’s property without their consent, correct, express or implicit?

MR. BECK: Correct, because that would be a trespass, Your Honor.

I don’t know if she realized it, but Justice Sotomayor just opened a crack in Hawaii’s case. You cannot enter private property without the owner’s consent. The real question of this case is, can Hawaii determine implied consent?

There is an implied consent that people can enter private property for legitimate purposes. Without that implied consent you could not receive deliveries at your door, Girl Scouts could not sell you cookies, and your neighbor could not come to ask to borrow a cup of sugar. This implied consent is expanded when someone opens their private property for public access; think of a retail store, a museum, or a church. Of course this implied consent can be terminated by the property owner.

Conclusion

It seems rather obvious, based on this and other laws, that the lawmakers in Hawaii really do not like the Second Amendment. Since those lawmakers were elected by the people of Hawaii, I can only surmise that they don’t like the Second Amendment much either. Justices Thomas and Alito made this point during questioning of Mr. Beck.

Ninety six point four percent of the public areas of the State of Hawaii prevent access to anyone, any civilian, who carries a firearm. Remember law enforcement is not prohibited from carrying firearms in these locations, only civilians. So it appears the Hawaii just has it out for the Second Amendment, and Justice Alito nailed that point.

This seems to be a clear case of attempting to demote the Second Amendment from its rightful place as the supreme law of the land. It also seems to be an example of Hawaii trampling property rights. If someone doesn’t want hunters, solicitors, or trespassers of any kind on their property, all they have to do is post a sign. Why should the rights to keep and bear arms be any different?

About the Author

Paul Engel founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school,” he proves that anyone can be a constitutional scholar. You can find his books on Amazon and Apple Books. You can also find his books, classes and other products at the Constitution Study website. You can reach him at paul@constitutionstudy.com.