Estimated read time: 4-5 minutes
- Conservative Supreme Court justices expressed skepticism about Hawaii's handgun restrictions.
- Hawaii law requires property owner consent for handguns on private property open to public.
- The Supreme Court's decision, expected by June, could further expand Second Amendment rights.
WASHINGTON — Conservative Supreme Court justices signaled skepticism on Tuesday toward a Hawaii law that restricts the carrying of handguns on private property open to the public without the owner's permission, appearing ready to expand gun rights again.
The court, which has a 6-3 conservative majority, heard arguments in an appeal by challengers to the law — backed by President Donald Trump's administration — of a judicial ruling that Hawaii's measure likely complies with the U.S. Constitution's Second Amendment right to keep and bear arms.
Hawaii's law requires a property owner's "express authorization" to bring a handgun onto private property open to the public, such as most businesses. Four other U.S. states have similar laws.
Three Hawaii residents with concealed-carry licenses and a Honolulu-based gun-rights advocacy group sued to challenge the law weeks after Democratic Gov. Josh Green signed it in 2023.
Neal Katyal, the lawyer arguing on behalf of Hawaii, faced pushback from conservative justices when he said the law strikes a proper balance between the right to bear arms and the right of property owners to exclude guns from their property.
"The Constitution protects the right to keep and bear arms," Katyal said. "It doesn't create implied consent to bring those arms onto another's property."
Chief Justice John Roberts expressed concern that Hawaii's law treated the Second Amendment as a "disfavored right," while his fellow conservative Justice Samuel Alito said Katyal was "relegating the Second Amendment to second-class status."
Roberts told Katyal the Constitution's First Amendment protections for freedom of speech clearly would permit a candidate for public office to walk up to someone's door and ask for their vote.
"But you say that it's different when it comes to the Second Amendment," Roberts told Katyal, adding: "What exactly is the basis for the distinction?"
In a nation bitterly divided over how to address persistent firearms violence, including frequent mass shootings, the Supreme Court often has taken an expansive view of Second Amendment protections, including in major rulings in 2008, 2010 and 2022.
The court's three liberal justices appeared sympathetic toward Hawaii's law. Justice Sonia Sotomayor pressed Alan Beck, a lawyer arguing for the challengers, on the constitutional basis of his argument.
"You say that there is a constitutional right to carry a gun on private property?" Sotomayor asked Beck.
"Yes, Justice," Beck responded.
"I've never seen that right," Sotomayor said.
A 2022 Supreme Court precedent
The challengers have cited the Supreme Court's 2022 ruling in a case called New York State Rifle & Pistol Association v. Bruen that found that the Second Amendment protects the right of individuals to carry a handgun outside the home for self-defense.
The Bruen decision invalidated New York state's limits on carrying concealed handguns outside the home. In doing so, the court created a test for assessing firearms laws, saying they must be "consistent with this nation's historical tradition of firearm regulation," not simply advance an important government interest.
Justice Department lawyer Sarah Harris, arguing in favor of the challengers, said the Bruen ruling meant states cannot refuse to license the public carrying of firearms.
"Hawaii can't gut Bruen by presumptively banning everyone licensed to carry from doing so at retail establishments or other private property open to the public absent the owners' express consent," Harris said. "That novel law offends our history and tradition."
Conservative Justice Brett Kavanaugh appeared skeptical of historical analogies Katyal mentioned as support for Hawaii's law.
"I just don't see the kind of broad tradition of the regulation here," Kavanaugh said.
The most controversial historical analogy Katyal offered was a so-called "Black code" enacted in 1865 by Louisiana after the U.S. Civil War. The law aimed to deprive previously enslaved Black people of their civil rights, including the right to keep and bear arms. Katyal argued that although the law reflects a shameful part of American history, it nonetheless lends historical support for Hawaii's law.
Conservative Justice Neil Gorsuch appeared incredulous that Black codes were cited by gun-control advocates who might otherwise prefer that these racist laws be forgotten, saying that typically it "would be garlic in front of a vampire."
"But here they like them, they embrace them," Gorsuch told Katyal. "And I'm really interested in why."
Liberal Justice Ketanji Brown Jackson said if the Bruen test demands a survey of history, then "it would seem to me that all of history should be on the table."
"If we start taking pieces off, whether it's because we've moved away from it or we don't agree with it anymore, I think there's going to be a problem with respect to the accuracy of our test," Jackson told Beck.
A federal judge preliminarily blocked Hawaii's restrictions. But the San Francisco-based 9th U.S. Circuit Court of Appeals largely ruled against the law's challengers, prompting their Supreme Court appeal.
The Supreme Court is expected to rule by the end of June.
