In a 6-3 decision, the United States Supreme Court in Wolford v. Lopez,[1] concluded that a Hawaii law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second Amendment. In reaching its conclusion, the Court noted that other states including California had passed similar laws after recent Supreme Court Second Amendment decisions setting forth the framework for analyzing Second Amendment cases.
Background
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In Hawaii, carrying a handgun for self-defense requires a special license, and obtaining that license is a rigorous process. Haw. Rev. Stat. section 134-9. Hawaii issued firearms carry licenses only in “exceptional case[s],”[2] apparently issuing only four such licenses from 2000 to 2018.
In 2022, however, the United States Supreme Court held in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense. Under Bruen, the historical analysis required in a Second Amendment case involves two steps. First, a court must determine whether the law before it clashes with the “plain text” of the Amendment’s language. Id. at 24. If a challenged law falls within the plain text of the Second Amendment, it is presumptively unconstitutional, id. at 24. At the second step, the inquiry required explores the historical understanding of the scope of the right the Constitution codified.
After Bruen, Hawaii (and four other states including California) responded with new laws prohibiting firearms on private property without the express and affirmative consent of the property owner. Haw. Rev. Stat. section 134-9.5(a) (2023). Hawaii’s new law, among other things, generally prohibits licensed individuals from carrying a firearm, even if unloaded or inoperable, “on private property of another.” Section 134-9.5(a). Certain categories of individuals, such as police officers, are exempt, Sections 134-9.5(d), 134-11(a), but the ban otherwise applies unless “express authorization” has been given “by the owner, lessee, operator, or manager of the property,” Section 134-9.5(a). Such authorization must take one of two forms: “clear and conspicuous signage” that confers such consent or “[u]nambiguous written or verbal authorization” to carry a firearm on the premises from “the owner, lessee, operator, or manager of the property” or an agent of such a person. Section 134-9.5(b). Four other states, including California, passed similar laws after Bruen. (For comparison with the Hawaii’s provision, see California Penal Code section 26230(a)(26).[3])
Plaintiffs—three residents of Maui County who possess concealed-carry permits and an organizational plaintiff with members who have such permits—filed suit in federal court seeking temporary and permanent injunctive relief, arguing that the Hawaii law at issue violates their constitutional rights. The District Court enjoined enforcement of the law as applied to private property open to the public. However, the Ninth Circuit reversed that injunction[4] and the full Ninth Circuit denied rehearing en banc. The United States Supreme Court granted certiorari to decide whether Hawaii may prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission.
Discussion
The Supreme Court noted that at common law, opening up private property to the general public implies a license to all persons to enter, meaning that no person is a trespasser by merely entering therein unless the property owner has given due notice that such a person is banned. The Court stated that Hawaii (and other states who responded to Bruen with new laws like Hawaii’s Section 13409.5) “flipped this default rule. Rather than allowing all to enter private property open to the public unless specifically prohibited, these new laws provided that no one carrying a firearm may enter without express authorization.”[5]
Applying the Bruen two-part test, the Supreme Court first concluded that the restrictions imposed by Hawaii’s Section 134-9.5(a) fell within the plain text of the Second Amendment, so the law was presumptively unconstitutional. The Court explained that it was undisputed that the plaintiffs were among “the people” protected by the Second Amendment or that they sought to “bear” “Arms.” Thus, “the plain text of the Second Amendment protects” what plaintiffs wanted to do: carry handguns for self-defense. Bruen, 597 U. S., at 32. The Court considered the example of proprietors who do not object to entry by carry-permit holders but may be reluctant to post welcoming signs for fear of alienating customers; permit holders might have to somehow discreetly obtain such proprietors’ permission to carry a firearm on the property before stepping foot on it. The Court thus found that Hawaii’s provision imposed a new and significant burden on the exercise of the right recognized in Bruen.
The Court then turned to Bruen’s second step, exploring the historical understanding of the scope of the right the Second Amendment codified. It was undisputed that the owner of private property is generally free to exclude anyone from entering without consent, and Hawaii acknowledged that an owner’s consent need not always be express and that there are circumstances in which consent may be inferred. Hawaii noted the State’s long history of antipathy to the private possession of firearms and contended that the new law continued a Hawaiian tradition and demonstrated that Hawaiians disfavor the carrying of guns in their midst. Accordingly, the State argued, its new default rule simply expressed the circumstances under which implied consent may be reasonably inferred in Hawaii. The Supreme Court disagreed, explaining that the Second Amendment has the same meaning in all parts of the United States. See McDonald v. Chicago, 561 U. S. 742, 784-785 (2010). The Court stated that “[m]erely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.”
Hawaii’s second and main argument was that that analogous colonial and early state laws supported the constitutionality of the State’s new law. However, the Supreme Court found these old laws were vastly different from Hawaii’s new default rule. The old laws had little if any impact on the Second Amendment’s central objective of protecting the fundamental right to self-defense. The Court found Hawaii’s other proposed historical analogues also did not support the constitutionality of Section 134-9.5(a).
The Supreme Court concluded that the Hawaii law prohibiting licensed concealed-carry permit holders from carrying firearms on private property open to the public without the property owner’s express authorization violated the Second Amendment. Accordingly, the Supreme Court reversed the judgment of the Ninth Circuit, and remanded for further proceedings.
Justice Kagan dissented, arguing that Hawaii’s law is an analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent. Justice Jackson, joined by Justice Sotomayor, also dissented. This dissent maintained that Hawaii’s law fairly applied a first principle of property law—the right to exclude—and did no harm to the Second Amendment. Justice Jackson argued that Hawaii’s law did not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.
HOW THIS AFFECTS YOUR AGENCY
Agencies may observe that the Supreme Court expressed that California Penal Code section 26230(a)(26), like the Hawaii law found unconstitutional here, also provides that no one carrying a firearm may enter private property open to the public without express authorization. This decision certainly calls into question the constitutionality of Section 26230(a)(26) in California.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] Wolford v. Lopez, No. 24-1046, 2026 U.S. LEXIS 2720 (U.S., June 25, 2026).
[2] Haw. Rev. Stat. sections 134-2 (Cum. Supp. 2018), 134-9(a) (2011).
[3] California Penal Code section 26230(a)(26) generally prohibits licensed individuals from carrying a concealable firearm on or into”[a]ny…privately owned commercial establishment that is open to the public, unless the operator of the establishment clearly and conspicuously posts a sign at the entrance of the building or on the premises indicating that licenseholders are permitted to carry firearms on the property.”
[4] We addressed the Ninth Circuit decision in Client Alert Vol. 39, No. 15, available at https://jones-mayer.com.
[5] The Supreme Court specified these “flipp[ing]” provisions, including California Penal Code section 26230(a)(26).