SCOTUS Hears Arguments in Wolford v. Lopez

Yesterday,  the U.S. Supreme Court heard arguments in Wolfold v. Lopez.  The issue in the case is whether Hawaii's law, which prohibits concealed carry on private property open to the public by default, requiring owners to give express permission (often via signs) for guns to be allowed.  The Plaintiff in the case (Jason Wolford) and pro-rights advocates say this effectively bans guns in most places, turning public spaces into "no-carry zones" and infringing on rights established in New York State Rifle & Pistol Ass'n v. Bruen. Hawaii's AG, Anne E. Lopez, argues the Second Amendment doesn't grant a right to carry on others' property without consent and that the law upholds property owners' rights. 

VSSA Life Member Stephe Halbrook has a piece over at The Volokh Conspiracy explaining what came up several time in the arguments.

One issue that was alluded to several times in the argument is the scope of the so-called "sensitive places" limitation on the Second Amendment's protections. Wolford is not really a "sensitive places" case—it is actually about the handful of places Hawaii did not separately declare "sensitive," since the no-carry-default rule applies only to places that the state has not made no-carry-no-matter-what. Nevertheless, it is quite probable that in dealing with the issue the Court will touch on, and possibly explain, its previous statements on the issue.

The Court's "sensitive places" dicta have been the source of some significant confusion for courts and litigants alike. In District of Columbia v. Heller, as it struck down D.C.'s handgun ban, the Court cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on … the carrying of firearms in sensitive places such as schools and government buildings." Later, in NYSRPA v. Bruen, the Court explained its statement in part as a way of demonstrating its historical method, writing that "although the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions." But Bruen cautioned, "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."

This list of locations (which Bruen got from the article by David B. Kopel and Joseph Greenlee, The "Sensitive Places" Doctrine, Charleston L. Rev. 2018) -- legislatures, polling places, and courts -- has led to significant disagreement among judges and litigants, even litigants on the same side of the issue. What restrictions do those three places have in common?

In his article Dangerous, but Not Unusual, Georgetown JL&PP 2024, Mark W. Smith surveyed the variety of historical "principles" that were being advanced to unite these historical laws and to analogize to modern statutes. He catalogued and criticized arguments that defined "sensitive places" as (1) places where "core government functions" are carried out, (2) places that meet a "collateral damage test" because misuse of a firearm would seem to be particularly problematic there, (3) places where "vulnerable people" congregate (more an issue for the schools that Heller mentioned than the legislative assemblies mentioned in Bruen), and (4) places where people exercise other constitutional rights. Professor Smith rejected each of these principles with good reasons -- who is not "vulnerable" to the misuse of a firearm? and why should we make those targets softer? Instead, he suggests a fifth principle that fits the evidence better: the presence of comprehensive government security in those locations. 

The case could set a precedent for similar laws in other states (like California, Maryland, New Jersey, and New York) and determine if states can default to a "no-carry" rule on private property, or if they must justify such bans historically, notes SCOTUSblog. 

Initial reports from the hearing indicated that the conservative majority appeared skeptical of Hawaii's law, questioning whether it imposes an undue burden on the right to public carry established in earlier precedents. A final decision is expected by the summer of 2026.