Supreme Court hears Hawaii gun law requiring property owner consent

The Supreme Court’s conservative majority fielded tough questions Tuesday about a state law that requires express permission from the property owner before legal gun owners can bring their firearms into private businesses generally open to the public, such as shopping malls.

During heated oral arguments in the courtroom, the question arose of whether property rights trumped gun rights and how those rights interact.

At issue is a challenge to Hawaii’s law, which, similar to four other states, requires those with concealed carry licenses to obtain express consent, either verbally or through a clearly displayed sign, before bringing a gun into public spaces such as stores, hotels and gas stations.

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A group of gun owners on Maui is challenging these default rules, arguing that the law makes it a crime to improperly carry a gun even in cases where the owner of public property simply remains silent. They call these laws “vampire rules,” a reference to the legend of Dracula, who could not enter a room without being invited.

But Hawaii officials told the high court that the restrictions strike a balance between gun and property rights, citing a long tradition in the Aloha State of restricting all types of dangerous weapons.

The government has said that a gun-free environment should be the default assumption for businesses in Hawaii and that there is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun.

These conflicting positions on “implied consent” in retail establishments led to strong comments from the board.

“You are relegating the Second Amendment to second-class status,” Justice Samuel Alito said. “I don’t see how you can get away with this.”

But Justice Sonia Sotomayor disagreed: “Is there a constitutional right to enter private property with a gun without the express or implied consent of the owner? The answer must be absolutely no.”

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Aerial view of Kahului, Maui, Hawaii, USA. (Universal Images Group via Andre Seale/VW PICS/Getty Images)

Those who violate Hawaii’s law face up to a year in prison if convicted. But the restrictions do not extend to public property such as parks and government buildings, which are subject to different rules.

This law was passed by the state legislature on the heels of a 2022 Supreme Court ruling that gun regulations must be consistent with the nation’s historic regulatory tradition to be constitutional.

This decision expanded the Second Amendment right to bear arms outside the home for self-protection.

In the current dispute, the justices chose not to examine separate state regulations regarding guns in other so-called “sensitive places,” such as parks, beaches and restaurants that serve alcohol.

California, Maryland, New Jersey and New York have similar property owner consent regulations.

Hawaii has the strictest gun control laws in the country. Legal briefs filed by the state showed that less than one percent of the population has a permit to carry a concealed handgun, or about 2,200 permits since 2022.

The Trump administration strongly supports gun owners, arguing that the law treats one class of people (gun owners) differently from others.

In arguments, many justices explored assumptions about the limits of such regulations.

Judge Ketanji Brown Jackson argued that property interests should prevail when confronted with gun possession rights.

“While we’re in that world, what Second Amendment right is being violated when the property owner says no or the government says the property owner’s consent must be expressed?”

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Light illuminates part of the Supreme Court building on Capitol Hill in Washington at dusk on November 16, 2022. (AP Photo/Patrick Semansky, File)

“There have been a lot of church shootings lately,” Sotomayor said. “Does the state or federal government prohibit saying that you cannot enter a church with a gun without the permission of the church owner? Is that illegal?”

But Chief Justice Josh Roberts questioned how the Second Amendment should be treated when First Amendment speech rights are involved.

“For example, if I, as a candidate, come to your door on private property and knock on your door and say, you know, give me your vote, this is exercising your First Amendment right, that’s a very clear constitutional right under the First Amendment. But when it comes to the Second Amendment, you’re saying it’s different when the candidate wants out.” [and talk] and carries a gun; What exactly is the basis for this distinction?”

Gun rights have become a major focus of the Supreme Court this term. In March, the justices will hear arguments on challenges to federal limits on illegal drug users owning firearms.

The former president’s son, Hunter Biden, was convicted under this law but was later pardoned by his father.

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There are several separate appeals pending over federal bans on gun ownership by convicted nonviolent felons and state bans on semiautomatic weapons such as high-capacity magazines and AR-15s.

The Hawaii petition is Wolford v. Lopez (HI AG) (24-1046). A decision is expected in early summer.