Six justices sided with armed strangers over domestic-violence survivors in Wolford v. Lopez. The Supreme Court didn’t just strike down a Hawaii trespass law on Thursday; it rewrote the common law of property to spare gun carriers the ordinary social friction of asking permission.
The strongest version of the Alito opinion runs like this. A Hawaii resident who has lawfully obtained a carry permit — through what the Court calls a “rigorous process” — pulls into a supermarket parking lot after work. Under the literal text of Hawaii’s 2023 law, she is at that moment a criminal, because the law requires “express authorization” to carry onto private property and the supermarket employee gathering carts almost certainly lacks authority to grant it. The Second Amendment, the Court reasoned in Heller, 554 U.S. 570 (2008), protects a practical right, not a theoretical one. Hawaii’s law makes the right impractical. The state could protect private property from firearms by posting signs requiring patrons to disarm, the Court notes — it just cannot make the default “no guns.” Alito’s own hypothetical: “When she arrives, she will violate the literal terms of the Hawaii law merely by pulling into the parking lot.” Wolford v. Lopez (Alito, J., for the Court).
That is the steel-man. It is also where the steel-man elides what the Bruen test actually does. The test, articulated in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 17 (2022), requires the government to demonstrate that a firearm regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Whoever bears the burden of marshalling eighteenth- and nineteenth-century analogues loses by default. That is a structural feature of the test, not an incidental one. Hawaii’s statute could not satisfy that test — not because the historical record unambiguously favors the right Alito identified, but because the test is engineered to make any modern regulation fail.
The Alito opinion’s treatment of the 1728 Maryland statute is the giveaway. “An Act to Encourage the Destroying of Wolves, Crows, and Squirrels” required firearms to be used in particular ways on private property. The opinion dismisses it as a “hunting rule.” But the founding-era Maryland legislature passed it because the property rights of farmers required firearms regulation on private land. The framing of the statute (hunting) does not change what it regulated: firearms on private property. A law that prohibits carrying a gun on private property without permission is a regulation on carrying a gun. The legislature’s motive — protecting livestock from predators — does not change the operative legal mechanism. The Court is treating the framing as if it determined the substance, when the substance is the same. This is the pattern of selective historical deployment that has marked the Roberts Court’s Second Amendment cases since Heller, 554 U.S. 570 (2008), and especially since Bruen. The test is a one-way ratchet, applied to strike down any law that burdens public carry and discarded when the historical tradition would uphold it.
Justice Amy Coney Barrett’s concurrence exposes how manipulable the methodology is. She poses a hypothetical: what if a state made it a crime to wear a religious head covering, say a hijab, onto private property open to the public without express authorization? “No one has the right to enter another’s property without permission,” Barrett observes. “The State has merely adjusted the default to require permission to be clear. But that is plainly wrong.” Wolford v. Lopez (Barrett, J., concurring). Barrett is showing that the majority’s logic applies across constitutional rights — the First Amendment, the Second Amendment, every right that requires access to spaces owned by others. A test that produces the wrong answer in the First Amendment context is not a test that identifies constitutional truth. It is a test engineered to produce a particular outcome in Second Amendment cases. The premise of her question exposes the doctrine’s reach. Religious exercise is the protected act, whereas gun carrying is collateral conduct during the act of entering property; yet the majority’s logic would extend this same “default” scrutiny to any physical attribute or item brought onto private property.
Justice Ketanji Brown Jackson’s dissent, joined by Justice Sonia Sotomayor, argues the law does not implicate the Second Amendment at all. But the dissent misses the doctrinal trap by failing to confront the majority’s manipulation of the historical record on its own terms. Worse, Jackson uses the opinion to argue that Bruen itself should be reversed, seemingly to discredit the precedent by pointing out that the Court is too quick to dismiss post-Civil War Southern laws disarming Black people. It is telling that Justice Elena Kagan declined to join this broadside, issuing her own two-page separate writing to chart a narrower path. The substantive argument is the one the Alito opinion’s own hypothetical exposes. The Court invents a woman with a violent ex-boyfriend to justify striking down the law. The woman wants a gun because of him. But the law the Court invalidated was not designed to disarm that woman; it was designed to protect her — and other retail workers, restaurant patrons, hospital patients, and people on private property where they had a reasonable expectation of safety — from other armed strangers. The Court has used a domestic-violence survivor to validate a rule that abandons her to armed encounters she did not choose. Hawaii’s law did not invert the common law; it applied the ordinary trespass default to a highly lethal instrumentality. The majority elevates a libertarian fiction of public carriage above the property owner’s ordinary right to set the terms of entry.
The majority insists its ruling doesn’t turn Hawaii into the O.K. Corral. They point out that the state bans guns in a long list of places — from beaches, to restaurants serving alcohol, to zoos — and that getting a carry permit remains a “rigorous process.” States don’t have to make it effortless, Alito assures us. But by establishing that the default for firearms must be “allowed unless posted,” the Court has ensured that a property owner’s right to exclude bends whenever a gun is involved. Today, it is the common law of trespass. Tomorrow, it will be the ordinary regulatory authority of schools, hospitals, and private businesses to set the bounds of safe conduct.
The Wall Street Journal’s editorial board, in its Thursday defense of the ruling, treated Justice Jackson’s dissent as missing the point. The board missed its own point. The question was never whether Hawaii’s specific drafting was elegant. The question was whether a state legislature can establish a default rule that requires property owners to opt in to allowing guns, rather than requiring everyone else to opt out, one shopping cart at a time. Six justices said no. Justice Kagan’s separate writing exposed the majority’s flawed logic. The Journal’s editorial board said the dissenters were missing the point. The dissenters were the point.