The Supreme Court heard arguments Tuesday on a controversial Hawaii law that sharply restricts where law-abiding citizens may carry firearms, raising serious questions about whether states are attempting to sidestep the Constitution’s clear protections for the right to bear arms.
At issue is a Hawaii statute that bans firearms from being carried into supermarkets, gas stations, and a wide range of other public-facing businesses unless the property owner has given explicit permission. Instead of a business owner posting a sign prohibiting firearms, the law flips the presumption entirely. Under Hawaii’s approach, carrying a firearm is automatically illegal on private commercial property unless the owner affirmatively allows it.
Critics argue that this framework turns the Second Amendment on its head. While private property owners have always had the right to bar firearms from their premises, the Constitution does not presume that all private property is off-limits to lawful carry. Several justices appeared skeptical of Hawaii’s attempt to redefine that balance.
During the hearing, Justice Samuel Alito warned that Hawaii’s law effectively relegates the Second Amendment to second-class status. The concern echoes the court’s 2022 ruling recognizing that Americans have a constitutional right to carry firearms outside the home for self-defense. Opponents of the Hawaii law say lawmakers are now trying to achieve through regulatory maneuvering what they cannot do directly under that decision.
Hawaii’s restrictions resemble laws already on the books in states like California, Maryland, New York, and New Jersey, where broad categories of locations have been declared off-limits to gun owners. Supporters of gun rights argue these laws function as a backdoor ban on public carry.
One of the more striking moments of the hearing came when Justice Ketanji Brown Jackson raised the topic of the Black Codes, laws enacted after the Civil War that were explicitly designed to disarm newly freed black Americans. Those laws are widely recognized as racist and unconstitutional.
Jackson referenced the Black Codes as part of the historical record, suggesting they could be relevant when evaluating whether Hawaii’s law aligns with the nation’s historical tradition of firearm regulation. That position raised eyebrows, given that the Black Codes were created precisely to deny constitutional rights based on race.
According to SCOTUSBlog, challengers to the Hawaii law argued that the lower court relied on two historical examples that are not comparable. One was a 1771 New Jersey poaching law that barred hunting on private land without permission, which challengers described as a straightforward trespass statute rather than a broad ban on carrying firearms. The other was an 1865 Louisiana law enacted as part of the Black Codes that prohibited carrying guns on private property without consent.
During an exchange with Justice Jackson, U.S. Principal Deputy Solicitor General Sarah Harris pushed back forcefully, arguing that the Black Codes were unconstitutional from the moment they were enacted because they were pretextual laws designed to force freed slaves back into economic dependency. Jackson countered that those laws were not declared unconstitutional at the time and questioned why they should be excluded from historical analysis under the court’s current test.
The exchange grew tense, with Jackson suggesting that if the test looks at what existed at the time, even unconstitutional laws should be considered. Harris responded that a law is unconstitutional from its inception, regardless of when a court formally says so.
Critics say Jackson’s reasoning leads to troubling conclusions, implying that infamous decisions later overturned, such as segregation-era rulings, were valid constitutional law until reversed. They argue that relying on laws rooted in racism and constitutional violations undermines the very purpose of historical analysis in Second Amendment cases.
The case now leaves the justices to decide whether states can broadly declare private property off-limits to firearms by default, or whether such laws violate the Constitution’s guarantee of the right to keep and bear arms.
