The DOJ’s Big Second Amendment Play in Wolford v. Lopez: A Brief That Means Business

By Jason Davis, Second Amendment Attorney

As a lawyer who’s spent years fighting for the right to keep and bear arms, I’ve seen my share of legal twists and turns, but the U.S. Department of Justice’s amicus brief filed on May 1, 2025, in Wolford v. Lopez has me raising an eyebrow—and maybe a cautious smile. It’s a serious move in a serious case, with a dash of historical swagger that Second Amendment fans will appreciate. Let’s unpack the case, the brief, its place in the DOJ’s history of Second Amendment support, and why it matters, all without losing our cool.

Wolford v. Lopez: Hawaii’s Gun Law Head-Scratcher

Imagine you’re in Hawaii with a concealed-carry permit, ready to grab a burger at a local diner. Your permit’s valid, your training’s up to date, but here’s the catch: you can’t carry your firearm into that diner—or any private business open to the public—unless the owner has explicitly said it’s okay, like with a “Guns Welcome” sign. No sign? You’re breaking the law. That’s the gist of Hawaii’s statute at the heart of Wolford v. Lopez. It’s not just restaurants; we’re talking stores, parking lots, gas stations—any private property that serves the public.

The plaintiffs, led by Alan Beck, called foul, arguing that this default ban guts their Second Amendment rights. They sued, claiming the law turns the right to bear arms into a privilege dependent on a property owner’s whim. The Ninth Circuit, in a decision that raised eyebrows, upheld the law, saying it passes constitutional muster. Now, the case is knocking on the Supreme Court’s door, and the DOJ’s amicus brief is waving a big “take this case” flag. “I am grateful that the Solicitor General filed a brief in my case. His brief highlights the fact Hawaii law effectively bans public carry in Hawaii,” said Beck. “I believe Wolford is a good vehicle to decide to what extent the government can restrict public carry.”

The Brief: A Straight-Shooting Argument

The DOJ, led by Solicitor General John Sauer, didn’t mince words in its May 1 filing. The brief argues that Hawaii’s law violates the Second Amendment by banning concealed carry on private property open to the public without a historical tradition to back it up. If you’ve been following Second Amendment law, you know that NYSRPA v. Bruen (2022) set the standard: gun laws must align with the nation’s historical tradition of firearm regulation. The DOJ says Hawaii’s rule—requiring express permission to carry—has no such roots and flips traditional property law on its head, where owners typically have to opt out of allowing guns, not opt in.

The brief pulls no punches, calling the law a “severe burden” on Second Amendment rights. It argues that places like stores or restaurants are functionally public for carry purposes, and banning guns there without historical precedent is a non-starter. The DOJ also takes a swipe at the Ninth Circuit for sidestepping Bruen’s history test and urges the Supreme Court to grant certiorari to set things right. It even hints at a broader problem, noting that some lower courts are struggling to apply Bruen correctly, making Wolford a prime chance to clarify the law.

As a 2A attorney, what strikes me is the clarity of the DOJ’s stance. This isn’t a half-hearted nod to gun rights; it’s a full-bore defense of the petitioners, with no apologies. It’s the kind of brief that makes you sit up and think, “Okay, the feds mean business.”

The DOJ’s Second Amendment Track Record: Not the First Rodeo

Now, is this the first time the DOJ has backed the Second Amendment? Not by a long shot, but Wolford stands out for its boldness. Let’s take a quick look at the DOJ’s history in this arena:

• District of Columbia v. Heller (2008): Under the Bush administration, the DOJ filed an amicus brief supporting Dick Heller’s challenge to D.C.’s handgun ban. They argued that the Second Amendment protects an individual right to keep arms at home for self-defense, and D.C.’s near-total ban was unconstitutional. But they played it safe, asking for a standard of review that left room for some regulations, like background checks. It was a win for the Second Amendment, but with a cautious vibe.
• McDonald v. City of Chicago (2010): The Obama-era DOJ backed the petitioners challenging Chicago’s handgun ban, arguing that the Second Amendment should apply to states via the Fourteenth Amendment. They supported incorporating Heller’s individual right but kept the tone measured, stressing that the right isn’t absolute and states could still regulate. It was more about extending the right than expanding the clarity of it.
• NYSRPA v. Bruen (2022): Things got dicey under Biden. The DOJ defended New York’s “proper cause” requirement for concealed-carry licenses, arguing it fit historical traditions of regulating public carry. The Supreme Court wasn’t buying it, striking down the law in a 6-3 decision that redefined Second Amendment scrutiny. The DOJ was on the wrong side of that one.

Wolford feels different. Unlike Heller and McDonald, which focused on establishing and extending the right to keep arms at home, Wolford tackles the right to bear arms in public-facing private spaces—a frontier opened by Bruen. Unlike Bruen, where the DOJ defended a restriction, here it’s all-in for the petitioners, arguing that Hawaii’s law is a bridge too far. The brief’s directness and its call for the Court to fix lower court missteps give it a sharper edge than its predecessors.

Why It Matters: A Step Toward Clarity

For Second Amendment advocates, Wolford is a big deal. If the Supreme Court takes the case, it could define how far the right to bear arms extends into private spaces like businesses. Right now, the law’s a patchwork—some states are carry-friendly, others make you jump through hoops like a circus poodle. A ruling in Wolford could set a national standard, especially post-Bruen, when courts are still figuring out what “historical tradition” means.

The DOJ’s brief also signals a shift. Under the Trump administration, the DOJ is leaning hard into Second Amendment protections, a stark contrast to its regulatory stance in Bruen. As someone who’s argued 2A cases in courtrooms from coast to coast, I see this as a potential turning point. It’s not just about Hawaii—it’s about sending a message to states and lower courts that the Second Amendment isn’t a suggestion.

A Lighthearted Nod to the Future

I’m not saying we’re all going to be open-carrying at the Waikiki Starbucks tomorrow, but this brief has me cautiously optimistic. It’s like the DOJ showed up to the gun range with a .50 cal and said, “Let’s see what this baby can do.” Whether the Supreme Court bites remains to be seen, but for now, Wolford v. Lopez is a case to watch. And if you’re a gun rights wonk like me, maybe crack open a cold one (non-alcoholic, safety first) and toast to the Constitution.

Jason Davis is a Second Amendment attorney who’s been defending gun rights longer than he’s been trying to convince his wife he needs another safe. When he’s not at court, you can find him chatting it up about the nuances of California’s gun laws.