By Jason Davis
On June 25, 2026, a divided Supreme Court struck down Hawaii’s so-called “vampire rule,” holding 6–3 that a state may not presume gun owners are unwelcome on private property open to the public. The decision in Wolford v. Lopez is the Court’s latest application of the history-and-tradition framework it announced in New York State Rifle & Pistol Ass’n v. Bruen (2022), and it reveals a Court that agrees on the result but remains fractured over how that framework is supposed to work.
The question the Court agreed to decide was narrow: may a state make it a crime for a licensed concealed-carry permit holder to bring a handgun onto private property that is open to the public — a store, a gas station, a restaurant — unless the owner has affirmatively given permission? Put differently, when an owner has said nothing, should the law assume guns are welcome (the traditional common-law default) or assume they are not (Hawaii’s new default)?
Underneath that narrow question sat a larger one that has divided lower courts since Bruen: how should judges decide whether a modern gun regulation is “consistent with the Nation’s historical tradition of firearm regulation,” and what counts as a good enough historical analogue?
For most of its history, Hawaii made it nearly impossible to carry a firearm in public; from 2000 to 2018, the state issued only four carry licenses. After Bruen invalidated licensing regimes like Hawaii’s, the state responded in 2023 with Act 52. The law created a permitting process but layered on tight restrictions about where permit holders could go. One of those restrictions, codified at Haw. Rev. Stat. § 134-9.5, is the rule at issue: a permit holder commits a crime by carrying a firearm onto “private property of another” unless the owner, lessee, operator, or manager has given “express authorization” — through conspicuous signage, or written or verbal consent.
Because the common law had always treated property open to the public as carrying an implied license to enter, the new rule flipped the default. Critics dubbed it the “vampire rule,” after the folklore that a vampire cannot cross a threshold without an invitation.
Three Maui County residents who hold carry permits — Jason Wolford, Alison Wolford, and Atom Kasprzycki — along with the Hawaii Firearms Coalition, sued Hawaii Attorney General Anne Lopez. A federal district court enjoined the rule as applied to property open to the public, but the Ninth Circuit reversed, relying in part on an 1865 Louisiana statute and colonial-era hunting laws. The full Ninth Circuit declined to rehear the case over a pointed dissent from Judge VanDyke. The Supreme Court granted review limited to the private-property question, heard argument on January 20, 2026, and decided the case roughly five months later.
Justice Alito wrote for a six-justice majority that included Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court held that Hawaii’s rule violates the Second and Fourteenth Amendments.
Applying Bruen‘s two-step test, the majority found step one easily satisfied: the petitioners are among “the people,” and they seek to “bear” “arms” — so the plain text of the Second Amendment covers what they want to do. The Court stressed that flipping the common-law default imposes a real and significant burden. Even an owner who has no objection to armed customers, the Court reasoned, may decline to post a welcoming sign for fear of alienating others, leaving permit holders to hunt down someone with authority to consent before they can lawfully step inside.
To dramatize the point, the majority walked through the day of a hypothetical young woman — modeled on Jaime Caetano, who was prosecuted for using a stun gun against an abusive ex — who must navigate gas station, drugstore, restaurant, dry cleaner, and supermarket while armed. By the end of an ordinary day, the Court observed, she “could be a criminal at least six times over.”
At step two, the majority rejected each of Hawaii’s historical analogues. It dismissed the state’s appeal to its own distinctive history and culture, declaring that the Second Amendment cannot bend to “the spirit of Aloha” any more than it could yield to the spirit of the Big Apple in Bruen or the Windy City in McDonald. It found the colonial and founding-era laws Hawaii cited — a cluster of 1720s–1771 statutes from Pennsylvania, New Jersey, Maryland, and New York — to be anti-poaching measures aimed at hunting on land where game could be found, not at retail establishments people visit in daily life. The “gap,” the Court said, was “just too wide.” An 1893 Oregon law came too late and was too ambiguous to matter.
That left the 1865 Louisiana statute, which the majority called the state’s “most remarkable analogue.” The Court rejected it on two grounds: it was neither widespread nor widely accepted, and it was part of Louisiana’s Black Codes, enacted to disarm freed Black citizens and leave them defenseless. Invoking McDonald, the majority emphasized that the right to keep and bear arms was understood to be vital for vulnerable Black Americans precisely during the era that produced the Fourteenth Amendment. A “tainted artifact” from a Black Code, the Court said, could not seriously be said to illuminate the original understanding of the right.
The judgment was reversed and the case remanded.
Justice Barrett joined the majority opinion in full, so her concurrence is not a disagreement about the outcome. It is a disagreement about method — and a revealing one.
Her first point concerns where the property-rights argument belongs in the Bruen framework. Hawaii and the dissenters insisted the case was really about property law: a state may set the default rules for entry onto private property, and requiring express consent merely adjusts one of those defaults. Barrett agreed the argument was wrong, but she objected to engaging it at step one. Step one, she wrote, asks only whether the plain text covers the conduct; whether a property-based regulation survives is a step-two question about historical tradition. To make her point she offered a vivid hypothetical: if a state made it a crime to wear a hijab onto private property open to the public without express permission, no one would say that “merely adjusting a property default” exempts the law from First Amendment scrutiny. Property laws, she stressed, are subject to constitutional limits like any other.
Her second and more substantive divergence is on the level of generality in the historical analysis — and here she partly sided with Justice Jackson. Barrett rejected the idea that the colonial laws fail simply because they targeted poaching rather than self-defense; to insist on that, she agreed, would be to demand a “historical twin,” which Bruen forbids. The real defect, in her view, is different: those laws targeted a specific, identifiable abuse (the harms of unauthorized hunting) and were confined to places where that abuse occurred, whereas Hawaii’s rule targets no particular misuse of firearms at all. It rests, she wrote, on generalized disapproval of public carry — and “[m]ere disapproval of protected conduct is not a valid reason to severely restrict it.”
In Part II-B of her concurrence, which Justices Thomas and Gorsuch joined, Barrett went deep on the Black Codes. She traced how Louisiana’s 1865 law was designed to control Black labor and disarm freedmen, and concluded that even if the “how” of the old law resembled Hawaii’s, the “why” did not. Hawaii, she dryly noted, surely does not claim its law shares the Black Codes’ purpose — and “[m]ost would take that as a compliment.”
Several passages are likely to be quoted long after the holding is routine:
Justice Kagan dissented alone, and briefly — barely two pages. Her opinion is notable for what it declines to say. She would uphold Hawaii’s law on a single, narrow ground: that it is a modern analogue of colonial and founding-era laws requiring consent before carrying firearms onto private property, as set out in Part III of Justice Jackson’s dissent. The “how,” she wrote, is identical — a default rule the owner can reverse — and the “why” is close enough, because both old and new laws respond to the dangers a person with a gun can pose on someone else’s land. That the old laws were concerned with poaching does not matter, she argued, because Bruen and Rahimi ask whether a law is “consistent with the principles that underpin our regulatory tradition,” not whether it has a historical twin.
Crucially, Kagan declined to join the broader fight. She expressly did not reach Bruen‘s step one, and she did not rely on the Louisiana Black Code statute. Her dissent is a study in minimalism: she found one sufficient reason to uphold the law and stopped there.
Justice Jackson, joined by Justice Sotomayor, wrote the principal and far longer dissent, and her disagreement is fundamental. Her thesis: “This case is about property rights, not gun rights.”
Jackson argued the case should end at Bruen‘s step one. Everyone — including the petitioners and the United States — concedes that there is no right to enter private property without consent, let alone armed. The only question, then, is how an owner communicates a decision to admit or exclude armed visitors, and whether the state may set the background default. The Second Amendment, she contended, says nothing about that. She accused the majority of “reconceptualiz[ing] Bruen” by asking, at the threshold, whether a gun owner can do what she wants with her firearm — a move that, in Jackson’s view, drains step one of its screening function and lets courts treat nearly any gun-adjacent regulation as presumptively unconstitutional.
She grounded the argument in basic property law: the right to exclude is the “sine qua non” of property; entry onto another’s land rests on a license that may be express or implied; and the scope of that license has always been shaped by local custom and alterable by positive law. She illustrated with McKee v. Gratz (Missouri custom permitting entry to gather mussel shells) and a homely modern example — a “No Dogs Allowed” sign — to show that owners and states routinely set and reset entry defaults. In Part III (the portion Kagan joined), she marshaled historical statutes — the 1771 New Jersey law, the 1721 Pennsylvania law, the 1865 Louisiana law, and an 1866 Texas law — to argue that states have long required affirmative consent for armed entry onto private property.
Jackson’s broader argument reached the Black Codes head-on, contending that those laws shared a regulatory “why” with the earlier anti-poaching statutes — a characterization Barrett’s concurrence specifically rejected — and questioning whether the Black Codes are even legitimate evidence of the Second Amendment’s scope at all.
She did not hide her view of the underlying precedent. Bruen, she wrote, “was wrongly decided,” but if it is to be the law, the majority should apply it faithfully. In her closing, she charged that the Court had “manipulated Bruen into a free-for-all” that lets judges override legislatures by “privileging access to firearms above all else,” and concluded that “[t]he Court’s objective is protecting guns, not consistently preserving any principle of law.”
Wolford did not arrive in isolation. Just one week earlier, on June 18, 2026, the Court decided United States v. Hemani, a unanimous (9–0) ruling written by Justice Gorsuch that affirmed the Fifth Circuit. Hemani held that the government cannot automatically strip a person of Second Amendment rights under 18 U.S.C. § 922(g)(3) — the ban on gun possession by an “unlawful user” of a controlled substance — based solely on regular marijuana use, without individualized proof of dangerousness. The Court found the government’s “habitual drunkard” analogues too far afield: those historical laws targeted people so incapacitated they could not manage their affairs, for different reasons and through different procedures. Like Wolford, Hemani was emphatically narrow, leaving open prosecutions backed by individualized proof and saying nothing about felons or the presently intoxicated. Together, the two decisions sketch a Court increasingly willing to police the “how and why” of Bruen‘s analogical method — and increasingly candid that the method yields fact-bound, case-by-case results rather than clean rules. (Notably, both the Wolford majority and Barrett’s concurrence cited Hemani while again declining to resolve whether the relevant historical baseline is 1791 or 1868.)
The next case many are watching is Duncan v. Bonta (No. 25-198), the long-running challenge to California’s ban on magazines holding more than ten rounds. The cert petition — raising both a Second Amendment question and a Fifth Amendment Takings question — has been relisted for conference a remarkable number of times (roughly nineteen as of June 2026), and a circuit split has sharpened with the D.C. Circuit’s decision in Benson v. United States striking down a comparable ban. Whether the Court grants review, holds the case, or issues a grant-vacate-remand, Duncan looms as a potential next major test of Bruen — this time over what counts as a protected “arm” and whether compelled dispossession of lawfully owned property is a taking.
The decision invalidates Hawaii’s default rule for property open to the public, but it leaves untouched the state’s separate “sensitive places” restrictions — schools, government buildings, bars, beaches, parks — which were not before the Court. It also leaves four other states with similar default rules, including California, New Jersey, Maryland, and New York, exposed to the same constitutional defect. And by once again reserving the 1791-versus-1868 question while sharpening the “how and why” inquiry, the Court ensured that the hard work of applying Bruen in the lower courts is far from over.
Congratulations to Alan Beck, counsel for the petitioners, who argued this case before the Supreme Court. Alan has long and earnestly worked to defend the Second Amendment, and this decision reflects years of dedication to that cause. I am grateful for his contributions to the community, and proud to call him a friend.
This article describes a judicial decision and is provided for general informational purposes; it is not legal advice.
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