We will hear argument first this morning in Case 24-1046, Wolford versus Lopez. Mr. Beck. ORAL ARGUMENT OF ALAN A. BECK ON BEHALF OF THE PETITIONERS
“This is a purely procedural, administrative statement announcing the case and calling counsel to the podium. There is no emotional valence or evaluative content whatsoever.”
Mr. Chief Justice, and may it please the Court: Bruen holds the Second Amendment protects the right to publicly carry firearms. By banning people from carrying firearms on private property that is open to the public unless they first obtain affirmative permission, Hawaii has run roughshod over that constitutional right. The presumptive ban clearly implicates the Second Amendment's plain text because it regulates arms-bearing conduct. As such, the burden is on Hawaii to justify the presumptive ban with relevantly similar historical analogs reflecting a national historical tradition of firearms regulation. Hawaii comes nowhere close to carrying the burden. Its presumptive ban defies a 1 national tradition allowing people to carry onto private property open to the public unless the owner objects. Hawaii's threshold position that this Court should adopt a state-by-state community standard lacks support in this Court's precedent, and Hawaii's argument the laws of the Kingdom of Hawaii should determine Petitioners' Second Amendment rights is completely without merit. The presumptive ban is inconsistent with our national historical tradition of firearms regulation. Hawaii attempts to show a national tradition by relying on black codes expressly passed to discriminate against African Americans in antipoaching laws. These types of laws are nowhere near relevantly similar. Because nothing in our nation's historical tradition begins to support Hawaii's effort to thwart the exercise of a fundamental right, Hawaii's law cannot stand. I welcome this Court's questions.
You argue that this law prevents access to about 97 percent of public areas. How do you arrive at that?
“The Justice is questioning how the 97% figure was calculated, which could reflect genuine curiosity about methodology (clarifying) or skepticism about the accuracy of the statistic. The phrasing 'How do you arrive at that?' suggests the Justice wants to probe the basis for this claim, sitting at the intersection of clarifying and skeptical intent.”
We're not arguing that this 1 specific law is banning 97 percent, Your Honor. The overall package of laws passed by Act 52 bans -- presumptively bans carry on 96.4 percent, and we arrived at that figure by having a architecture firm do a -- go through the public records of the County of Maui to determine which areas were regulated by this package of laws, Your Honor.
So that 94 -- I think it was 94 or 97 per --
“The Justice appears to be recalling or referencing a specific statistic (94 or 97 percent), which reads as a neutral, procedural statement mid-thought, likely seeking to clarify or confirm a factual figure relevant to the argument.”
Ninety-six point four, Your Honor -- Justice. Justice.
That includes all the areas the law bans, correct?
“The question seeks confirmation of the scope of the law, asking counsel to verify a factual characterization. This is a straightforward clarifying question to establish or confirm the breadth of the legal ban before proceeding further.”
I understood that much of Hawaii is state parks and state property, correct?
“The Justice is seeking confirmation of a factual premise about Hawaii's land composition, using 'I understood' to verify their understanding. This is a straightforward clarifying question establishing factual context for further questioning, with slight engagement as it may be building toward a broader legal point.”
A portion of it, yes, Justice.
Okay. A pretty sizable portion. So that 94 is over-inclusive of private property, correct?
“The Justice is pressing the counsel to confirm a logical implication of their own data—that the 94% figure is over-inclusive—which carries a skeptical edge while also functioning as a clarifying move to pin down the argument's weakness.”
That -- it's -- it includes parks and beaches, yes, Justice.
All right. Now -- and there are other areas, sensitive government areas, et cetera, correct?
“The Justice appears to be summarizing or confirming points made in the argument, seeking acknowledgment that other sensitive government areas exist beyond what was discussed. The 'correct?' tag is a typical clarifying confirmation-seeking move, indicating the Justice is mapping out the landscape of the argument rather than challenging it.”
That is correct, Justice.
All right. So you say that there is a constitutional right to carry a gun on private property?
“The 'So you say that...' framing is a classic skeptical restatement, often used to highlight what the Justice sees as an overreach or problematic implication of counsel's argument. While it also has a clarifying function (confirming the position), the tone suggests the Justice is probing the breadth and potential consequences of petitioner's constitutional claim.”
I've never seen that right. I mean, I understand that there is a right to carry a gun on private property with an owner's consent, express or implicit, correct?
“The Justice expresses doubt ('I've never seen that right') suggesting skepticism toward the petitioner's claimed right, while simultaneously seeking clarification about what right actually exists. The rhetorical 'correct?' at the end suggests the Justice is probing the boundaries of the argument and testing a counter-framing.”
My question is very simple. Is there a constitutional right to enter private property with a gun without an owner's express or implicit consent? The answer has to be simply no. You can't own -- enter an owner's property without their consent, correct, express or implicit?
“The Justice frames the question as 'very simple' and essentially argues the answer themselves ('The answer has to be simply no'), strongly suggesting skepticism toward the petitioner's position while pushing the counsel toward a concession. The rhetorical framing and leading nature of the question carry elements of hostility and skepticism, though it also seeks explicit confirmation from counsel.”
Correct, because that would be a trespass, Your Honor.
All right. So, if we start from there, then I start from the 1 simple proposition, you want to say that there's a custom that permits you to go on private property without the owner's express consent, correct?
“The Justice is reformulating and pinning down the petitioner's argument to a 'simple proposition,' which signals both skeptical probing (reducing the argument to a potentially vulnerable premise) and clarifying intent (confirming their understanding before pressing further). The 'All right. So...' construction suggests the Justice is building toward a challenge.”
All right. So Justice Scalia said that every statesman at the founding knew that you could not enter private property without permission. It's a trespass, correct?
“The justice is referencing a prior statement by Justice Scalia and seeking confirmation of a foundational legal premise about trespass and private property. The 'correct?' at the end suggests the justice is either building toward a more challenging follow-up question (skepticism) or genuinely clarifying the premise before applying it further (clarifying/engagement), but the tone appears to be setting up a logical chain rather than expressing strong emotion.”
It is -- it is -- you're not allowed to come onto private property that -- where you don't have permission to go to.
All right. So, if we're looking at a custom, I thought, under McKee, Justice Holmes looked for evidence "that a practice had prevailed in Missouri," where the suit originated. Whether you could collect shells in Missouri depended on whether there was a custom in that jurisdiction, correct?
“The justice is referencing a specific precedent (McKee) and testing whether the counsel's interpretation aligns with how Justice Holmes analyzed custom in that case. While there is some probing of the argument's logic, the primary tone is clarifying—seeking to establish the correct legal framework by pinning down whether jurisdictional custom is the operative standard.”
The custom of the nation is what McKee holds, Your Honor.
It didn't. It looked at the custom of Missouri, where the 1 suit originated.
“The Justice appears to be correcting or pushing back on a factual claim made by counsel, noting that the court looked at Missouri's custom rather than something else. This has a mildly skeptical tone as it challenges counsel's characterization, while also serving a clarifying function by specifying what actually occurred.”
McKee specifically talks about the laws of the nation as being what's dispositive.
McKee -- Justice Scalia did in Jardines, but in McKee, Justice Holmes wasn't talking about the tradition of the nation. He was looking at whether the tradition of Missouri permitted people to go onto land to collect seashells.
“The Justice is pushing back on what appears to be counsel's reliance on McKee as precedent, pointing out a distinction between Justice Holmes's analysis in McKee (looking at Missouri's tradition specifically) and Justice Scalia's analysis in Jardines (looking at national tradition). This is a skeptical challenge to counsel's use of precedent, questioning whether McKee actually supports their argument.”
I'll have to disagree with the words. "Nation" appears in that. It looks at --
All right. Well, I'll look at it more closely. But, at the time of the founding or about the time, '71 -- 1721, 1722, up until the founding, there were at least three states who prohibited hunting, as you called it, or trespassing on private property with a gun, correct? So there was not a uniform national practice.
“The Justice is challenging the petitioner's historical argument by pointing to counter-evidence of colonial-era laws restricting gun use, suggesting the claim of a uniform historical practice is flawed. The phrasing 'correct?' and 'there was not a uniform national practice' reflects skeptical probing of the argument's historical foundation, though it also carries some engagement as the Justice is actively working through the historical record.”
There was, Your Honor, of carrying on private property that's open to the public. Every case that you're -- every law that you're citing to deals with prohibitions 1 on enclosed lands, and enclosed lands, there was a -- those laws deal with -- the enclosed lands were closed to the public. You couldn't --
Not necessarily. Look at -- look at Mount Vernon, where George Washington lived. There was a county shop there.
“The Justice is pushing back on counsel's argument with a historical counterexample (Mount Vernon/George Washington), suggesting skepticism about the claim being made. However, the tone seems intellectually engaged rather than hostile, using historical evidence to probe or challenge the argument rather than dismissing it outright.”
By definition, if I reference --
Enclosed lands, I -- I'd reference the amicus brief of the United States. They reference a law review article by Sigmon, and it goes into express detail that enclosed lands are -- were closed to the public.
Counsel, do you agree, picking up on that, that Hawaii could pass a law that prohibited the carry without the express consent of the owner on lands that were closed to the public, on private residences?
“The Justice is building on a prior exchange to probe whether the petitioner agrees with a specific legal proposition about Hawaii's regulatory authority over private lands, testing the boundaries of the petitioner's position. The hypothetical is exploratory and intellectually engaged, though the 'do you agree' framing introduces mild skepticism to see if counsel will concede or resist the point.”
Really? Like, so I couldn't -- Hawaii can't have that law about, you know, my house or Justice Gorsuch's house?
“The 'Really?' opener signals strong skepticism and disbelief at the petitioner's argument. The justice uses a concrete personal hypothetical (their own house, Justice Gorsuch's house) to probe the logical implications of the petitioner's position, suggesting the argument leads to an unacceptable or implausible conclusion.”
Step -- step one of the plain text would be implicated because we're talking about Perry. And then Hawaii would need to justify that with a national tradition. And even assuming the three laws, I don't think three laws is sufficient to demonstrate a national tradition. So, based on --
But do you agree that all of the business owners and -- and maybe also private property owners in Hawaii could get together and say we don't want this, and they could not give consent -- let's say the law is -- is flipped, says it's -- it's illegal to enter if you have been denied permission to carry a gun on the property. You agree that all property owners could get together and say: We're denying permission and they could put such, you know, placards up in their window and then you would still not be able to carry a gun on 97 percent of the property in Hawaii?
“The Justice is probing the logical implications of the petitioner's position by constructing a hypothetical where property owners collectively opt out, suggesting skepticism that the petitioner's framework would meaningfully expand gun-carrying rights. The question tests whether the argument leads to the same practical outcome (97% restriction) even under the petitioner's preferred legal structure, revealing doubt about the argument's real-world significance.”
Yes, Justice. Everyone -- 1 every private property owner has the right to affirmatively put up a sign or otherwise not give permission for people to enter a property with a firearm. The crux of our argument is that Hawaii has flipped that historical default from them having to affirmatively say guns are not allowed here to the current law.
But I guess my question is, isn't that historical default that you're referencing really a default that is rooted in property law and not constitutional law, not in the Second Amendment? I mean, the argument that some have put forward is that this is really a property case, not a Second Amendment case. Yes, it is about guns, but, the argument goes, what's really going on here is how states treat a private property owner's consent under circumstances in which everyone agrees that consent is required. You just agreed that consent is required. And so, fine, there are many states and perhaps even most states that say we're going to imply that a property owner who opens 1 his property to the public is giving consent for people to carry a gun. Hawaii has said no. What we're going to do is we're going to say, even if you've opened your property up to the public, you still have to have express consent. We are not going to make our own -- our property owners put up signs or be the one that has to affirmatively express. The person who comes on has to have consent, as everybody agreed, and in Hawaii, that consent is express. Why isn't that and -- that and all the cases that speak to it in the historical record really about the property interests and property rights and not about the Second Amendment?
“The Justice is actively challenging the petitioner's framing by suggesting their Second Amendment argument is really a property law question, probing a potential weakness in the petitioner's constitutional theory. The lengthy hypothetical construction and rhetorical question 'Why isn't that really about property rights?' signals skepticism toward the petitioner's Second Amendment framing, while also showing intellectual engagement with the alternative framework.”
Because, here, the law at issue implicates arms-bearing conduct, Your Honor, and --
But that doesn't mean it implicates. I -- what I'm -- what I'm suggesting is that it might affect, right, and -- and the United States was here just last term talking -- or sitting, talking about how you could have rights and regulations that 1 affect someone's interests, but they actually don't implicate their constitutional rights. And so, here, I'm saying, yes, gun owners are going to be affected because the property owner says no, I don't want you to bring your gun on unless you come to me and I give you express consent. But that doesn't mean it implicates their Second Amendment rights for the purpose of Bruen.
“The Justice is actively pushing back on the petitioner's framing by drawing a distinction between 'affecting' and 'implicating' Second Amendment rights, referencing prior term precedent to challenge the argument's legal foundation. This probing of the argument's logic and use of the affect/implicate distinction signals skepticism, though the tone remains intellectually engaged rather than hostile.”
Well, in Bruen, the Court said that there's a general right to carry. I don't -- in --
A general right to carry on public property.
“This brief utterance appears to be a clarifying restatement or reformulation of the petitioner's argument, likely seeking confirmation that the Justice has correctly understood the scope of the claimed right. There is mild skepticism embedded in the framing, as restating an argument in broad terms can subtly probe its limits.”
Justice Barrett just explored with you the fact that you don't have a general right to carry on private property.
“The justice is referencing a prior line of questioning to build upon or reinforce a point already established, suggesting an attempt to synthesize or press further on a concession made by counsel. This carries mild skepticism as it reminds counsel of a limitation already acknowledged, while also functioning partly as a clarifying/engagement move to continue exploring the argument's boundaries.”
It -- it's a right to carry in public, Your Honor, not a right to --
-- carry on public property, and --
But -- but -- but -- but you do agree that there is no right to 1 carry on private property without someone's -- without the owner's consent, right?
“The repeated 'but' interruptions and the pointed rhetorical structure suggest the Justice is pressing counsel to concede a key limiting principle, probing the boundaries of their argument. The question seeks confirmation of a concession that may undermine or constrain the petitioner's broader position, combining skeptical pressure with some clarifying intent.”
The -- here, the Second Amendment is implicated, especially when you carry -- anywhere you carry in public, and, here, this lawsuit deals with private property that is open to the public.
I understand, but what -- what I'm suggesting is that let's -- let's -- suppose this lawsuit dealt with someone's house and it's not open to the public. Do you concede that there is no Second Amendment right to carry a gun into someone else's house?
“The Justice is constructing a hypothetical (private home not open to the public) to test the logical limits of the petitioner's Second Amendment argument, which is characteristic of intellectual engagement. The 'do you concede' framing introduces mild skepticism by pushing counsel toward an admission that could undermine their broader argument.”
I do not, Your Honor, because --
I do not. You -- you still would be dealing with carry. If someone gives me an invitation, a general invitation, to enter into their home and there's a historical presumption that you're allowed to carry a firearm with you, then, if the government passes a law that says -- that flips that historical presumption to something --
Right. But you're -- but -- but I'm just suggesting that the historical presumption is about the consent, not about your rights. We agreed at the beginning, I thought -- I thought there was a general consensus that your right to carry is limited to the permission of the owner when you're talking about private property. Like, you've -- you've already agreed that the Second Amendment right is -- is, I would say, subordinate, but, you know, in the -- in the panoply of rights, the right to exclude is superior because the owner can say, no, you can't bring this gun in here. And so, once you've done that, these laws that are about licensing or, you know, implying that the owner has consented are all in the realm of property law, I think, and not in the realm of the Second Amendment anymore.
“The Justice is actively developing a legal framework suggesting that the petitioner's Second Amendment claims may be displaced by property law principles, essentially pushing back on the framing of the case while intellectually engaging with the underlying doctrine. The tone is exploratory but carries implicit skepticism by reframing the issue in a way that undermines the petitioner's argument.”
Counsel, do you 1 agree that the state as property owner could exclude someone, not -- not this implied consent law, but let's say that the state as property owner -- put aside the fact that the sensitive places here include state-owned property. Assume that that's not so. Could the state as a property owner say that you can't carry a gun onto state-owned property as a matter of consent under property law?
“The Justice is constructing a careful hypothetical to explore the theoretical limits of the state's power as a property owner, deliberately stripping away complicating factors ('put aside the fact that...', 'assume that's not so') to test a specific legal principle. This is classic intellectual engagement, probing the boundaries of the argument without apparent hostility or strong skepticism.”
No, Your Honor. I think that's a different analysis because --
-- now we're dealing with direct state action.
And the state doesn't have the right as a property owner to limit who carries a gun, say, into the government -- governor's mansion?
“The Justice is probing the logical limits of petitioner's argument by presenting an extreme hypothetical (the governor's mansion) that suggests the position may lead to an untenable result. The rhetorical framing 'And the state doesn't have the right...' implies skepticism about how broadly the petitioner's argument extends.”
I -- I think that there are certain locations that -- where the --
So it's all a matter of sensitive places?
“The phrase 'So it's all a matter of...' has a reductive, probing quality that suggests the Justice is challenging whether the petitioner's argument can be boiled down to a single factor, implying skepticism about the sufficiency or completeness of that framework. It also has a clarifying dimension as the Justice may be summarizing to confirm their understanding.”
Counsel, you make an 1 argument that Hawaii effectively destroys the right to bear arms. You discussed that a little bit with Justice Thomas and with Justice Sotomayor. And I'm wondering where you fit -- think that -- that that analysis fits into the two-step Bruen framework the Court announced?
“The justice is genuinely seeking to understand how the petitioner's argument fits within the Bruen two-step framework, referencing prior exchanges with other justices. The question is primarily clarifying and intellectually engaged, asking counsel to map their argument onto the established analytical framework rather than challenging or approving it.”
In this case, step one merely deals with the fact that the state -- State of Hawaii -- that carry is implicated here. And once we go to -- past -- once we accept that carry is -- bearing a arm is at issue here, everything else is dealt with under step two, the historical analysis portion of this analysis, Your Honor.
So it really doesn't matter whether it was actually 96 percent, which we know it's not, because you're dealing with the law as a whole. There's no means-end scrutiny permitted by Bruen, correct?
“The Justice appears to be confirming and reinforcing a legal point about Bruen's prohibition on means-end scrutiny, with mild skepticism toward the relevance of the 96 percent figure while seeking confirmation of the legal framework. The 'correct?' at the end signals the Justice is testing or reinforcing a particular interpretation rather than simply seeking clarification.”
The interest balancing has been abrogated by -- yes.
So there's no 1 interest bearing. So, if, in fact -- if Hawaii has a right to regulate a custom as opposed to a constitutional right to bear an arm on private property, then -- then tough luck, correct?
“The phrase 'tough luck, correct?' signals skepticism toward the petitioner's position, pressing counsel to acknowledge an unfavorable consequence of their argument — that if Hawaii's regulatory power over customs is upheld, the petitioner has no recourse. There is also some concern about the implications of this legal framework for individual rights.”
We have established in our briefing, Your Honor, that --
Counsel, there's no means-ends, so, if they over-regulate or under-regulate, that's irrelevant. Is there a right to carry a gun?
“The Justice is pressing counsel on the core constitutional question — whether there is a right to carry a gun — while also challenging the framing of the means-ends analysis as irrelevant. This combines skeptical probing of the legal framework with a clarifying question that cuts to the heart of the petitioner's argument.”
As -- as we know from Rahimi, there's a general principle that dictates that you have a general right to carry. When a -- the government violates that right, then, because it violates that principle, then the Second --
But that -- that's the interesting part. There certainly was a principle of the states regulating hunting on private enclosed property. There was a history of, in at least New York in 1763, just before the founding, that prohibited trespassing and hunting on other people's lands because trampling on the land was destroying it. 1 So you don't need under Rahimi an exact duplicate historically. You just need an analogous principle. If the states could regulate there, why can't they regulate here?
“The Justice is actively challenging the petitioner's historical argument by presenting counter-evidence (New York 1763 statute) and invoking the Rahimi 'analogous principle' standard, suggesting skepticism toward the petitioner's position. However, the intellectual exploration of historical analogues also reflects genuine engagement with the legal question.”
Well, very simply, those laws deal with just -- are not anywhere close to the law at issue here. The state has pointed to a number of antipoaching laws on property that was not open to the public, whereas, here, they're regulating a specific type of carry for self-defense on private property open to the public. I mean, the -- these laws are just plain not --
But what's open to the public and the license that you have to use that arm -- that land is subject to custom.
“The Justice appears to be probing the petitioner's argument by raising the concept of custom as a limiting principle on public access, suggesting skepticism about the breadth of the claim while also seeking clarification about how customary use affects the license to use public land.”
It's subject to a national tradition that we have at the -- at the time of the founding, Your Honor. It's not, you know, a specific custom that exists right now.
If means and ends is not a part of our equation, I don't understand what pertinence that has.
“The Justice is expressing confusion or doubt about the relevance of an argument being made, signaling skepticism about its logical pertinence while also genuinely seeking clarification on how it fits into the legal framework being discussed.”
Because, in order to do the Bruen analysis, we look to see whether a law is 1 implicated by the Second Amendment right. Then we look to see what the historical tradition was in this country.
I'm sorry. I'm sorry. If you could regulate to not trespass, trample the ground, if you could regulate not to hunt, if it's not means and ends, why can't you regulate simply to switch a presumption that gives the owner the right it has to give you express consent to say yea or nay to carrying a gun?
“The Justice is pressing the petitioner with a pointed rhetorical question challenging the logic of their argument — if other regulations on private property are permissible, why not this one? The repeated 'I'm sorry' signals mild frustration or insistence, and the rapid-fire hypothetical comparisons suggest skeptical probing of the argument's internal consistency, with some intellectual engagement in exploring the analogy.”
Well, for two reasons, because that violates our nation's historical tradition of firearms carry and, two, it violates a principle that people have --
But we didn't have --
“This appears to be an interruption mid-sentence, which CourtCast research associates with hostility signals. The partial phrase 'But we didn't have --' suggests the Justice is cutting off counsel to introduce a counter-point or correction, though the extreme brevity makes definitive classification difficult, hence significant neutral weight.”
Counsel, I -- I --
“The stuttering interruption 'I -- I --' suggests the Justice is attempting to interject mid-argument, which research associates with hostility or at minimum an urgent need to intervene. However, with so little content, the utterance is largely ambiguous and procedural, warranting a predominantly neutral classification with elevated hostility probability due to the interruption pattern.”
-- see that your red light is on.
“This is a purely procedural statement indicating that the counsel's allotted time has expired, with no emotional valence or substantive legal content whatsoever.”
We've been talking about private property and public property. A gas station on the side of the highway is private property. It's owned by the gas company or whatever. A -- is -- is -- do you assume that you have the right to go on that private property even without an express permission?
“The Justice is drawing an analogy between public and private property to probe the limits of the petitioner's argument about implied permission or access rights. The hypothetical about a gas station tests whether the petitioner's reasoning is consistent, blending intellectual engagement with underlying skepticism about the argument's logical boundaries.”
Even though it's private property?
“The short, pointed question challenges the counsel's argument by highlighting a potential tension with private property rights, suggesting the Justice finds the position somewhat difficult to reconcile. It carries skeptical undertones while also seeking clarification about how the argument holds despite this complicating factor.”
Yes, absolutely, Your Honor.
Is it a different analysis or the same analysis when you're talking about a dwelling along the side of the --
“The Justice is asking whether the legal analysis changes when a dwelling is involved, which is a genuine clarifying question seeking to understand the scope of the argument. The question appears intellectually exploratory, testing how the framework applies to a specific scenario.”
-- of -- of a road?
“This appears to be a mid-sentence fragment, likely a Justice completing or clarifying a phrase about 'a road,' suggesting a clarifying or procedural interjection with no strong emotional valence.”
That's a different analysis, Your Honor. You have to see whether there's some sort of invitation to come in there.
Is there, under our law, an invitation, for example, for people solicitating, for people who want to drop off pamphlets about a particular --
“The Justice is exploring a hypothetical scenario about solicitation and pamphlet distribution, suggesting intellectual curiosity about how the legal framework applies to analogous situations. The question appears to be mid-sentence, indicating exploratory engagement rather than pointed skepticism or hostility.”
Yes, Your Honor, up until -- up to the doorknob or -- yeah, there is.
Even though it's private property?
“The short, pointed question challenges the counsel's argument by highlighting a potential tension with private property rights, suggesting the Justice finds the position somewhat difficult to reconcile. It carries skeptical undertones while also seeking clarification about how the argument holds despite this complicating factor.”
A stranger can walk off the sidewalk and go up to the door?
“The question probes the outer limits of the petitioner's argument by presenting a seemingly extreme scenario (a complete stranger approaching a door), suggesting skepticism about the breadth of the claimed right. It also carries concern about the practical implications of allowing unrestricted access to the curtilage of a home.”
Yes, up to the door, Your Honor.
Thank you. Justice Thomas? Justice Alito?
“This is a purely procedural utterance passing the floor to other justices for questions, with no emotional valence or substantive content whatsoever.”
Under Hawaii law, are there any other objects besides guns that a person may not possess when that person enters private property that is open to the public?
“The Justice is genuinely seeking to understand the scope of Hawaii law by exploring whether firearms are uniquely restricted or part of a broader category of prohibited items on private property open to the public. This comparative inquiry suggests intellectual curiosity and a desire to contextualize the gun restriction, blending clarifying and engagement sentiments.”
Not to my knowledge, Your Honor.
In Hawaii, for 200 years, there's been no custom of carrying weapons, correct, up until Bruen and Heller?
“The Justice is probing the petitioner's argument by pointing to Hawaii's historical lack of a weapons-carrying custom, suggesting skepticism toward an expansive Second Amendment right in that context. The framing as a rhetorical confirmation ('correct?') implies the Justice may be building toward challenging the petitioner's position, though it also has elements of seeking clarification on historical facts.”
Up until Bruen, you could not get a license to carry a firearm, Your Honor.
So 78 percent of Hawaii residents and 64 percent of Hawaii gun owners do not think that loaded concealed weapons should be allowed into businesses at all, correct?
“The Justice is citing public opinion data to challenge the petitioner's position, implying that even gun owners in Hawaii oppose the concealed carry policy being argued for. This use of statistics to probe the argument's legitimacy reflects skepticism, with some concern about the social implications of overriding strong public sentiment.”
I -- I'm unaware of that statistic, Your Honor.
I wasn't aware of your 97 -- 96 point -- percent number either. Nothing about Hawaii's customs, tradition, or culture creates an expectation that the general public carries guns wherever they go, correct?
“The Justice appears to be seeking confirmation of a factual/legal point about Hawaii's customs while subtly probing the petitioner's argument. The phrasing 'correct?' at the end suggests the Justice may be building toward a skeptical point, but the tone remains largely clarifying and exploratory rather than overtly hostile.”
Hawaii is part of the United States, and as part of the United States, our national tradition is that people are allowed to carry on private property that is open to the public.
This law is not banning you from doing that. It's just requiring you get -- to get the owner's permission, correct?
“The Justice appears to be reframing or correcting the petitioner's characterization of the law — suggesting it's not a ban but merely a permission requirement — which carries a skeptical undertone toward petitioner's argument while also seeking confirmation ('correct?'), giving it both a clarifying and skeptical quality.”
And, here, the law has always been that you had an implied right to enter onto a property.
As -- Hawaii is part of the United States, Your Honor, and as the --
But, if it's a local custom that controls --
“The 'But, if...' construction signals the Justice is probing a potential tension or weakness in the argument about local custom controlling the outcome. The conditional framing suggests skepticism about the implications of that position, though it could also be an exploratory hypothetical seeking clarification.”
It is not a local custom that controls.
Where else in the law have we permitted local custom to create a constitutionally protected right?
“The rhetorical 'where else in the law' framing strongly signals skepticism by implying the answer is 'nowhere,' challenging the petitioner's argument that local custom can create constitutional rights. The question probes a logical inconsistency in the argument without rising to overt hostility.”
Bruen was very clear here that we're dealing with our national tradition, Your Honor. It is not local custom that controls in this area of law.
Mr. Beck, the various 1 statutes that Hawaii has cited as going to the Bruen step two question, you say they're not close enough, and I guess I want to know why. I mean, I was struck by the fact that there are quite a number of statutes that do exactly what this law does. They flip a default rule as to how explicit consent has to be. You know, they recognize that you don't have a right to go in without consent. You do have a right to go in with consent. And then the question is how do we determine consent and what default rule do we start with. And I guess what struck me about these statutes and about how close they are is that that's exactly what each of these statutes did. So why isn't that pretty good evidence under Bruen's step two that this is something that states historically have done?
“The Justice is actively challenging the petitioner's argument that historical statutes aren't analogous enough, expressing that they were 'struck by' the similarity of the cited statutes and pressing counsel to explain why they don't satisfy Bruen step two. This constitutes skepticism toward the petitioner's position, combined with intellectual engagement as the Justice works through the historical analogy framework.”
The state has not cited to a single case that is relevantly similar to the one at issue here. We've got basically two sets of laws. One were the antipoaching laws that dealt with private property that was not open to the public, one, and part of that also is there 1 were exemptions for people to be able to carry firearms onto those lands that -- for purposes of self-defense. So land that's not open to the public where you still have a self-defense right isn't relevantly similar to the -- to the law at issue here. And the other sets of laws that have been cited to are black codes, and those can't be relevantly similar. As Justice Kavanaugh said in Rahimi, you know, we've moved away from that history. And, in addition, it dealt with a very -- you know, discriminated against a very small subsection of society rather than pro- -- prohibitions on the general right to carry. So --
Yeah. So, I mean, go back to the first thing, the idea that these are antipoaching laws. I mean, okay, Hawaii's is not an antipoaching law. But I suppose I'm sort of stuck on the fact that that doesn't seem to me to be the relevant similarity. In Rahimi, we said, you know, you can go up a level of generality. You don't have to have a historical twin. There can be differences. In Rahimi, the essential 1 similarity that we thought controlled was just that the guns were being used to protect against people who would be violent with their guns. And, you know, that's a pretty general principle. And, here, the general principle is -- is sort of similar. We think that there's a danger of various injuries occurring when you go onto private property with a gun. It might have been, in the old days, poaching. It might be something else now. But, because that that's so, we -- we are going to use a default rule that -- that -- that -- that -- that says to the property owner, if you want this, okay, but you have to say you want it. That's -- you know, it seems to me the same. It's a different injury. It's not poaching anymore. But it seems to me the same state mechanism, the same kind of state regulation.
“The Justice is actively developing and articulating a legal framework that supports the respondent's position, drawing on Rahimi to argue that historical analogues don't need to be twins but can share a general regulatory mechanism. The tone is intellectually engaged and largely favorable to the idea that historical antipoaching laws share the same state regulatory principle as the challenged law, suggesting approval and engaged exploration rather than skepticism or hostility toward this argument.”
Yes, Your Honor, but one dealt with private property that was not open to the public, whereas this law is dealing with private property that's open to the public. And, in addition to that, the antipoaching laws 1 also gave you a right to be able to carry a firearm for self-defense. So I just simply don't see how -- the level of generality there would simply swallow the rule if this Court were to accept those antipoaching laws as being relevantly similar here, Your Honor.
Your friends on the other side in the Ninth Circuit relied on two statutes in particular. One was the 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left unmentioned was an 1865 Louisiana statute that was adopted immediately after the Civil War as part of an effort, it appears, to disarm black people. A Reconstruction governor later explained that this law, of course, was aimed at the freedmen. Do you think the black codes, as they're called, should inform this Court's decision-making when trying to discern what is this nation's traditions?
“The Justice is probing the validity of the historical sources the opposing side relied upon, raising serious doubts about whether racially discriminatory Black Codes should count as evidence of this nation's traditions. The question is both skeptical of the opposing side's historical methodology and expressive of concern about the implications of relying on such statutes.”
Well, your friend on the other side says it should and that the 1865 statute is a "dead ringer" for this statute.
“The Justice is presenting the opposing counsel's argument (using the 'dead ringer' characterization) to the petitioner, implicitly challenging them to rebut it. This is a classic skeptical technique of pressing a party with the strongest counterargument, while also carrying some engagement in exploring the statutory comparison.”
The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don't see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.
Justice Kavanaugh? Justice Barrett?
Do you agree with everything in the government's brief?
“This question is primarily clarifying in nature, seeking to understand the extent of alignment between petitioner's position and the government's brief. There is mild skepticism embedded, as the question implies there may be discrepancies worth probing, but the core intent appears to be establishing the scope of agreement before further questioning.”
No, I do not, Your Honor.
The United States Government, yeah.
“This brief affirmative statement appears to be a straightforward confirmation or acknowledgment, likely restating or confirming a point made by counsel. The casual 'yeah' suggests informal agreement without strong emotional valence, making it largely neutral with minor clarifying and approval elements.”
The government that's on your same side.
“This brief statement appears to be a clarifying interjection, pointing out that the government is on the petitioner's side — likely to redirect the counsel's argument or correct a mischaracterization. There is mild skepticism in the implicit challenge, but the primary function seems to be clarification.”
Yes, I understand. (Laughter.)
I'm not asking you to throw your case away. (Laughter.)
“This is a lighthearted, humorous remark likely made after pressing counsel on a difficult concession, reassuring them while provoking laughter. The tone is collegial and good-natured, signaling engagement and a relaxed courtroom dynamic rather than hostility or deep skepticism.”
I fully endorse the United States' brief, Your Honor.
Okay. And then I just have one clarifying question. When Justice Kagan was pressing you on the analogies between the antipoaching laws and Hawaii's law, one of the things that you used to distinguish it was that the antipoaching laws applied to private property and these apply to property that's open to the public albeit private. But I thought you had initially told me that Hawaii couldn't do this with respect to property that was like a dwelling, a private residence either, that was not open to the public.
“The justice is primarily seeking clarification on an apparent inconsistency in the counsel's argument—specifically reconciling the distinction made about antipoaching laws (private property) with an earlier concession about private residences not open to the public. There is moderate skepticism as the justice is pointing out a potential contradiction in the argument, but the framing is largely clarifying in tone.”
Well, what I'm saying is that that was simply -- that's a different historical analysis. And if they were to muster enough historical analysis to justify the law, that might be true. I just don't 1 think that they have developed enough history on this record to be able to justify that law, Your Honor.
The Chief Justice asked you about a gas station on the side of the highway, which is private property. It's open to the public. And you said that we presume that a person can go in under those circumstances. Is that right?
“The Justice is recapping a prior exchange with the Chief Justice to confirm their understanding of the petitioner's position before potentially building on or challenging it. The 'Is that right?' phrasing is a classic clarifying move to ensure accurate characterization of the argument before proceeding.”
That's correct, Your Honor.
All right. I guess what I'm positing is that the reason we presume that a person can go in is not because they have a constitutional right to go in under the Second Amendment or anything else. The reason we presume they can go in is because property law implies that a gas station owner who has private gas station and opens it to the public has consented for people to come in. So it really is a function of property law and the extent to which the consent is being implied or, you know, expressed and the 1 state law governing that, right? I mean, it's not -- you don't have a right to go into private property. You're only there because the owner has either -- either implicitly or expressly consented.
“The Justice is actively working through a legal framework, positing a property-law-based rationale rather than a constitutional one to explain access to private businesses open to the public. This is intellectual engagement and clarification, as the Justice is constructing and testing a theoretical grounding ('I guess what I'm positing is...'), inviting the counsel to confirm or engage with this framework rather than challenging their argument with hostility or deep skepticism.”
You have a constitutional right to carry your firearm onto that specific gas station.
You do? Where is that? I thought --
“The utterance 'You do? Where is that? I thought --' indicates the Justice is seeking clarification about a specific claim or citation, with mild skepticism implied by the interrupted thought suggesting the Justice had a different understanding. The primary intent appears to be genuinely seeking to locate or verify the referenced material.”
-- the reason why this was all here in -- in -- is because you had an implied license. I thought the historical tradition required you to have a license because you don't have a right to go onto private property, and the tradition was we're going to imply that you have a license under these circumstances.
“The Justice is probing the petitioner's argument by referencing the historical tradition of implied licenses on private property, suggesting they may be challenging or testing the petitioner's legal framework. The 'I thought' phrasing indicates the Justice is pressing back on or clarifying the basis of the argument, carrying both skeptical and clarifying tones.”
The basis of this lawsuit is that we're only discussing private property where you have a right to enter onto that is open to the public, and we're saying that once that property is open to the public, we have a right to carry a firearm onto it --
-- unless the government --
Okay. I think I understand. Let me just ask you about the black codes. Justice Gorsuch raised it. And I guess what I'm wondering -- your -- your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruen test, that to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I -- I think there might be something wrong with the test. So can you speak to that?
“The Justice is expressing concern and skepticism about the Bruen test itself, signaling that excluding certain historical regulations (black codes) from the analysis may reveal a fundamental flaw in the test. The phrase 'I think there might be something wrong with the test' directly challenges the framework being applied, combining concern about implications with skepticism toward the underlying legal standard.”
There's nothing wrong with the Bruen test, Your Honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small --
No, I understand why you're saying they can't be used, but it's because we've moved away from that history, not because that history didn't exist. And so, to the extent that the test 1 today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And 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 -- there's going to be a problem with respect to the accuracy of our test.
“The Justice is pushing back on counsel's attempt to exclude certain historical examples, expressing both skepticism about the selective use of history and concern about the methodological integrity of a historically-grounded test. The phrase 'there's going to be a problem' signals worry about the consequences of cherry-picking historical evidence.”
Your Honor, it's not just because we don't agree with it anymore. It's that the 1865 law is not relevantly similar because it dealt with a very small segment of society, those being discriminated against, whereas, here, the law is a law of general applicability. So the two --
To -- to people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them?
“The Justice appears skeptical of the petitioner's proposed test, questioning whether it improperly excludes certain members of society from consideration. The rhetorical framing ('I guess you're saying') signals doubt about the argument's scope, while the underlying worry about excluded groups also reflects genuine concern about the test's implications.”
No. What I'm saying is that the -- the black codes dealt with a very -- it wasn't a law of general applicability. It was designed to discriminate 1 against -- it was a racist law designed to discriminate against African Americans, whereas, here, the law at issue here is a law that applies to everyone. We can't use a racist, discriminatory law to justify a modern-day law that applies to the general public, Your Honor.
Thank you, Chief Justice.
Ms. Harris. ORAL ARGUMENT OF SARAH M. HARRIS, FOR THE UNITED STATES AS AMICUS CURIAE, SUPPORTING PETITIONERS
“This is purely a procedural announcement introducing the next counsel for oral argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Mr. Chief Justice, and may it please the Court: Bruen held that states can't refuse to license public carry. 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 owner's express consent. That novel law offends our history and tradition. 1 First, pretextual restrictions are, by definition, unconstitutional in why they regulate. Here, the law's text belies Hawaii's claim to protect property rights. Hawaii subjects just one right, the Second Amendment, and one class of people, the people of Hawaii who had a license to carry after Bruen, to its presumptive ban. Hawaii lets everyone else, including target shooters and hunters, bring firearms, machetes, and other things absent the owner's objection. Second, pretext aside, Hawaii can show no tradition behind its law. Its best analog is an unconstitutional black code. That's because, from the founding, the tradition has been that opening property to the public authorizes carrying. I welcome the Court's questions.
What's your best support for what appears to be your argument that a pretextual regulation is per se unconstitutional?
“The phrase 'what appears to be your argument' signals mild skepticism about the framing of the petitioner's position, while 'best support' challenges counsel to justify a potentially strong claim. The question probes the legal foundation of what sounds like a broad constitutional rule, suggesting the Justice is testing the argument's validity rather than purely seeking clarification.”
I would start historically with Blackstone and the meaning of the word "infringed" in the text of the Second 1 Amendment. If you look to Blackstone, which is one of the main sources underpinning what the preexisting Second Amendment right meant, the canonical example of a law that burdened impermissibly the right -- right to bear arms was the English game laws, which, under the pretext of trying to preserve game, were designed to prevent commoners from hunting. And we know that was one of the animating premises of the Second Amendment from people like St. George Tucker, from Justice Story. And, again, the very meaning of the word "infringed" in the Second Amendment shows this is part of the history and tradition underlining -- lying the --
The analysis that you're suggesting, Ms. Harris, is this part of the Bruen test, or is it something separate from the Bruen test?
“The Justice is genuinely seeking to understand how counsel's proposed analytical framework fits within or outside the established Bruen test. This is primarily a clarifying question aimed at categorizing the argument's doctrinal placement, with some engagement as the Justice probes the structure of the legal framework.”
It is part and parcel of the Bruen test. It goes to why the law is regulating the way it does, in Bruen's words. Or, in -- in the word of Rahimi, it goes to whether there is a permissible reason. It helps you tell whether the analog is really an 1 analog.
So you're -- you're on step two of the Bruen test. You -- you -- you think about pretext. Is -- is that what you're saying?
“The Justice is checking their understanding of which step of the Bruen test the counsel is arguing from, and whether pretext is the relevant consideration. The repeated 'you -- you' stuttering pattern and the closing 'Is that what you're saying?' are classic clarification markers, indicating the Justice is seeking to pin down the precise argument being made rather than challenging it.”
I think that's fair because step one is are you regulating arms-bearing conduct. And so one of the parts of whether you tell is this part of the history and tradition and are the potential analogs really analogs is you say: Why is this modern law regulating the way it is? And if it's pretextual, by definition, you're not going to have analogs because there is not a history and tradition of pretextual laws that negate the right.
Why do we need --
“The truncated phrase 'Why do we need --' suggests a challenge or pushback against the petitioner's argument, leaning toward skepticism about necessity. The incomplete nature makes full classification difficult, but the 'why do we need' framing typically signals doubt or challenge rather than genuine curiosity.”
-- to make it -- well, go ahead.
“This is a procedural utterance where the Justice appears to have started a thought and then yielded the floor to counsel. The 'go ahead' is a standard courtroom directive with no emotional valence, making it predominantly neutral.”
Mostly, in our constitutional law, I mean, there are exceptions here and there, but mostly, in our constitutional law, we've steered clear from trying to evaluate motive, purpose, directly. 1 You know, we -- we -- we create rules that maybe are meant to ferret out bad motive, but we kind of think it's -- it's a bad road to go down if we're going to ask about every state's -- whether the state has acted pretextually in doing one thing or another. And I'm just wondering why we would have a different thought with respect to this right?
“The Justice is challenging the petitioner's apparent reliance on motive/purpose analysis by pointing out that constitutional law generally avoids direct motive inquiries, suggesting skepticism toward the argument. The 'I'm just wondering why we would have a different thought' framing is a rhetorical probe that doubles as both skepticism and intellectual engagement about the doctrinal consistency of the approach.”
Because, respectfully, that's not our position. We're not saying think about what's on people's minds; if you have a bad motive, it's a bad law. What we're saying is look at the text and see if there is a fundamental mismatch. If the law is gerrymandered textually, which is the case here, in such a way that belies the asserted motive, that is familiar --
So that -- that -- that -- that seems fair. But then it seems as though that's classic means-ends scrutiny. You know, look at over-inclusion, look at under-inclusion. Is the state really regulating what its interests would suggest ought to be regulated? 1 So that's means-ends scrutiny, which I thought Bruen was supposed to get us away from.
“The Justice initially concedes a point ('that seems fair') but then pivots to probe a tension in the argument — suggesting that the petitioner's framework smuggles in means-ends scrutiny that Bruen was meant to eliminate. This is skeptical probing of a logical inconsistency, with some intellectual engagement as the Justice works through the doctrinal implications.”
So two points on this. Respectfully, no, we don't think so. We think just as Church of the Lukumi in the First Amendment context is a case about pretext and not sort of means-ends, it's about how do you tell from the text of the law is it gerrymandered in an impermissible way. That's what we're asking for here. And the Second Amendment of all places, in terms of history and tradition, is where this test would apply because, again, the original meaning of the word "infringed" in 1791 -- and I would point you to the Daniel Slate article on this, "infringed," what -- included the Blackstonian concept that if you are regulating for a pretextual purpose that is belied by the design of the law, that is a classic means of infringement and was what --
Why -- why are we -- I'm sorry.
“This utterance is an incomplete, self-interrupted question followed by an apology, indicating the Justice began to speak and then stopped themselves. It is predominantly neutral/procedural with no discernible emotional valence or argumentative intent.”
Why are we making it complicated? The text of the Second 1 Amendment covers arms. Part 3 of Heller says that means what it -- Heller says it means what it says, says what it means. Part 3 of Heller says there are certain exceptions to that or contours on that which are rooted, but they have to be rooted in history. Here, there's no sufficient history supporting the regulation, end of case. Isn't that kind of the straightforward way rather than getting into this whole new elaborate pretext analysis, which, as Justice Kagan says, sounds like what we moved away from?
“The Justice is expressing approval of a simpler textual/historical approach (aligning with petitioner's likely position) while also engaging intellectually by proposing a streamlined framework. The rhetorical question 'Why are we making it complicated?' and 'Isn't that the straightforward way' signals the Justice favors the petitioner's argument and is pushing back against a more complex pretext analysis, showing both approval and engaged exploration of the cleaner doctrinal path.”
So absolutely, the case -- the case could rise and fall on the lack of history and tradition. I think the one --
It's pretty simple, right? Your position is there are no -- there are no sufficient analogs. Usually, when -- as Heller says in Part 3, when you're looking for a historical tradition that justifies an exception to the textually expressed right, it's got to be a deeply rooted tradition broadly consistent over time and 1 broad among a lot of states. And you don't have anything like that here. So it's just kind of, from your perspective, you know, pretty simple.
“The Justice is summarizing the petitioner's argument in a way that appears to probe its logical simplicity, suggesting potential skepticism about whether the argument is too reductive or oversimplified. The phrase 'pretty simple' and the rhetorical framing indicate the Justice is testing the strength of the 'no sufficient analogs' position, with some intellectual engagement in working through the Heller framework.”
From our perspective, it's an overdetermined case. I think the reason you might want to go and put --
Why -- why not just -- I mean, why didn't you lead with that? I don't understand why you led with the other argument, and -- and it may be neither here nor there in the end -- at the end of the day, but I -- I was trying to figure out why.
“The Justice is genuinely puzzled about the strategic ordering of arguments, seeking to understand counsel's reasoning rather than attacking it. The phrase 'it may be neither here nor there' softens any implicit criticism, suggesting authentic curiosity about litigation strategy rather than skepticism or hostility.”
I think two reasons. One is because it would be a shame, I think, if the Bruen inquiry discounts the idea that -- or just doesn't account for pretextual laws given how rooted the -- how antithetical they are to the history and tradition.
What -- what do you mean by "pretext"? Because a government often will look at one of our precedents and say, well, we don't agree with that precedent, but we want to regulate right up to the line of that precedent. There might be some gray area 1 there. I mean, that -- we don't call that pretext every time when a state government does that in the First Amendment context.
“The Justice is both genuinely seeking clarification on what counsel means by 'pretext' and pushing back skeptically by pointing out that governments routinely regulate up to the line of precedents without that being called pretext, challenging the strength of petitioner's argument.”
No, and I understand. I don't want to fight this too hard because I think we are in agreement that this is an easy case at the end of the day, and every single way you look at it, there's no history and tradition.
Ms. Harris, on -- on that, moving to that, there's been some suggestion that this is just, oh, redefining property rights and it has nothing to do with the Second Amendment. And, of course, we don't allow governments to redefine property rights in other contexts that would infringe other constitutional rights. I'm thinking here of the Takings Clause in Tyler versus Hennepin County, but I'd like you to respond to that argument.
“The Justice appears to be sympathetically framing the petitioner's argument by drawing an analogy to Tyler v. Hennepin County and the Takings Clause, effectively pushing back against the opposing argument that this is 'just redefining property rights.' The phrasing 'of course, we don't allow governments to redefine property rights in other contexts' signals approval of the petitioner's general legal theory while inviting elaboration, blending engagement and subtle approval.”
That is exactly correct. 1 In no other context could you say that there's an exemption to constitutional restrictions just because you're trying to redefine the laws of trespass. The state cannot -- and the First Amendment's another example beyond the Takings Clause. I think Lamont, for instance, is on all fours. You could have very easily said in that case no big deal, federal statute is just flipping the presumption. Normally, the default rule is recipients of mail get the mail unless they say no. Just flipping the presumption, now you don't get your mail if it's on a certain topic unless you affirmatively consent and send in a very easy-to-send postcard. The Court absolutely rejected that reasoning in the First Amendment.
But, Ms. Harris, can we just be a little bit more specific about the Second Amendment right that you say is being infringed here? This is -- the -- the point that I guess I'm still stuck on is whether or not, in a world in which we all concede -- and I think the United States is on board with this -- that the Second Amendment yields to the property interests of a private property owner 1 such that the private property owner gets to consent as to whether or not you can carry a gun on his property, when we're in that world, what Second Amendment right is being infringed when the property owner says no or when the state says the property owner's consent has to be expressed?
“The Justice is probing a core weakness in petitioner's argument by pointing out that if Second Amendment rights already yield to private property owners' consent, it's unclear what right is being infringed. The 'stuck on' language signals genuine skepticism about the argument's logical foundation, while the detailed hypothetical framing also reflects intellectual engagement with the issue.”
So let me unpack that both in terms of the methodology and the ultimate answer. I think, when you collapse the whole inquiry into a specific question of what happens vis-à-vis property rights, you're backing away from the Bruen framework. The two steps are, one --
No, I am backing away because the Bruen framework only applies where the Second Amendment is implicated. And what I'm suggesting is that the Second Amendment right is not being implicated when the regulation is about the property owner's consent, the form of it. Can it be implicit or must it be express in a world in which we've said that consent already takes precedent over the Second Amendment right?
“The Justice is actively pushing back on the petitioner's reliance on the Bruen framework by suggesting it doesn't apply in this context, which signals skepticism toward that argument. However, the Justice is also intellectually engaging by constructing a nuanced doctrinal distinction—arguing that consent-based regulations may fall outside Second Amendment scrutiny altogether—making this partially exploratory engagement as well.”
So what we're answering 1 here is what is the scope of the right to publicly carry under the Second Amendment. And I don't think states can get out of constitutional scrutiny by -- by -- by trivializing what they're doing if they're getting --
But hadn't you already agreed that the Second Amendment right yields to the property owner's consent?
“The 'But hadn't you already agreed...' phrasing signals skepticism by holding counsel to a prior concession, probing internal consistency of the argument. It has a mild clarifying element as it seeks to confirm what was previously established, but the 'But' construction and rhetorical framing suggest the Justice is using the concession to challenge the petitioner's current position.”
Of course, we're not saying that you override what property owners are saying. But what we're saying is, when a restriction parts ways, when it redefines the concept of trespass to essentially say, for this one category of people, people licensed to carry, you are no longer presumptively allowed to carry at gas stations or laundromats, et cetera --
But you're only presumptively allowed because the presumption goes to the consent, not to your right.
“The Justice is directly challenging and correcting the counsel's framing of their argument, drawing a distinction that undermines counsel's position — that the presumption relates to consent, not to an independent right. This is characteristic of skeptical probing that exposes a weakness in the argument, with a slight clarifying element as the Justice articulates a precise legal distinction.”
You're presumptively allowed because we're presuming that, in this situation, the owner is consenting.
“The Justice is articulating the legal principle underlying the presumption of consent, likely to clarify or restate the doctrine at issue. The phrasing 'we're presuming' suggests the Justice is either explaining the framework to test the counsel's argument or seeking to establish common ground, with elements of both clarification and intellectual engagement.”
And this goes back to the colloquy with Justice Gorsuch, which is, when states are trying to redefine property concepts, that doesn't take them out of constitutional scrutiny. Quite the contrary. In both the First Amendment context and the Takings Clause context, the rule is, when the states are departing from the default in a way that implicates other constitutional rights, they can't do that. The Takings Clause may be an outer limit in sort of what exactly states can do, but we -- I mean, just the floodgates would open if the position were all that's going on here is just tweaking how you consent. Just think about in -- I think, in the First Amendment context, you would say no big deal, you are now going from a world where candidates can go door to door and -- for a campaign speech, but now you have to have a big sign in your yard that says political speech welcome for someone to go in. Or, in the Second Amendment context, Hawaii's same reasoning would lead to a rule that it's fine to ban tenants from owning guns in self-defense unless the landlord in the contract expressly 1 consents to doing so. And I really think the concept that this is just tweaking consent elides the burden that Hawaii is imposing here of presumptively banning open carry, banning --
Thank you, counsel. Justice Thomas, anything further? Justice Alito?
“This is a purely procedural statement used to manage the flow of oral argument, thanking counsel and checking with other justices for additional questions. It carries no emotional valence whatsoever.”
Would you explain why the antipoaching laws that Justice Kagan was talked about are not in your view an appropriate analog?
“The justice is asking the counsel to explain their reasoning about antipoaching laws as analogs, which is a genuine request for clarification and elaboration on a point raised earlier by Justice Kagan. The phrasing 'Would you explain' is a classic clarifying question seeking to understand the petitioner's position rather than challenge it outright.”
Absolutely. Those poaching laws, as the Sigmon article and other sources and the -- the text of the laws themselves exemplify, show the opposite of the tradition Hawaii is trying to show. They show that for property closed to the public, that people have taken steps to enclose for improvements, to protect the fields from being trampled by hunters, for that special category, there was -- were laws that said you have to 1 affirm -- get affirmative consent, sort of like Justice Barrett's questions about you do need affirmative consent to go into dwellings. The rule for other property, property open to the public, open fields, was the exact opposite. There was a conscious decision at the founding because hunting was an incredibly important issue that if you did not enclose your lands, it was an open invitation to carry. And that's consistent with the tradition at the founding of public carry that the NRA amicus, for instance, details. The idea that Hawaii's law is a relevant analog would just abstract -- just take away the -- take the level of generality to justify the opposite of the tradition. It would have been profoundly disturbing to the founding generation to hear that in order to travel to inns or taverns or anywhere else people commonly carried arms that they had to, like, get the affirmative consent of each sort of tavern and hope that they weren't trespassing if they were traveling and -- and their carriage had to stop somewhere.
And in order to 1 determine whether an analog is adequate for Bruen purposes, is it possible to disregard -- how do you choose the level of -- of generality? What is the principle that tells you what is the -- the relevant level of generality?
“The Justice is probing a fundamental methodological weakness in the Bruen framework by challenging the petitioner to articulate a principled basis for choosing the level of generality when identifying historical analogs. This reflects skepticism about whether a coherent, workable standard exists, while also genuinely seeking clarification on what principle governs that determination.”
I think, here, the relevant level of generality does revert to some -- the -- the property law concepts. If you're talking about property open to the public, the relevant comparator is property open to the public because there is a relevant common law tradition of certain permissions that go there. And when the state is essentially presumptively banning or switching the tradition, I think that is -- that is an issue. So I think that's relevant. And to disregard the clear text of these statutes, which are focused both on property -- that distinction between property closed to the public and open to the public and the specific question of hunting, would allow you to abstract out everything. It's the same thing the Court rejected in Bruen, that just because 1 some places, for instance, might be sensitive places, every place could be a sensitive place on the same reasoning at too high of a level of generality.
What do you think is the purpose of the Second Amendment right?
“This open-ended question about the purpose of the Second Amendment reflects intellectual curiosity and engagement rather than challenge or skepticism. The justice appears to be exploring foundational principles to frame the discussion, which is characteristic of engaged inquiry rather than adversarial probing.”
The purpose of the Second Amendment right is to allow citizens -- to allow citizens to bear arms for self-defense and other lawful purposes.
And other lawful purposes?
Not just self-defense. Did Heller say that?
“The Justice is challenging the counsel's characterization of Heller by questioning whether the case actually said what counsel claims, suggesting skepticism about the argument. The short, pointed question also has a clarifying element as the Justice seeks to pin down exactly what Heller held.”
I don't think Heller excludes it, and I don't think the Court has to decide is it self-defense and other things. But it would be, again, sort of strange to think that you cannot use arms for any other purposes when the founding generation used -- considered arms important not just for self-defense but, for instance, for having -- for making sure that people were proficient in arms to be able to defend the country. So I 1 don't think that there is sort of necessary -- but I don't think the case presents that problem.
Do you think it's possible to ignore the purpose of the Second Amendment in determining the level of generality that's appropriate?
“The question challenges counsel's approach by suggesting that ignoring the Second Amendment's purpose when determining level of generality is problematic, implying skepticism about an argument that might be too narrow or too broad in its framing. The phrasing 'Do you think it's possible to ignore' signals doubt while also genuinely probing the legal methodology.”
I think that it depends on the case. For this particular case, I don't think the Court has to resolve it because the point here is Hawaii is saying its law is supposed to protect private property rights, and it's essentially trying to negate people's right to publicly carry everywhere.
There's been a number of church shootings recently. Does a state or the federal government, does it bar from saying you can't go into a church without a gun -- with a gun without the owner's permission, the church's permission?
“The Justice is using a real-world scenario (church shootings) to explore the practical limits of the petitioner's argument about gun rights, probing whether private property owners or the government can restrict firearms. This is primarily an engaged hypothetical testing the boundaries of the legal position, with some concern about public safety implications.”
-- the answer to that question would go into the sensitive places inquiry, which is different from this case because that is sort of place-specific. So the question would be is there a history and tradition of allowing restrictions on people carrying in churches that we --
I -- I suspect there isn't. So I -- I suspect. I could be wrong. I never read about that. But, if we're not looking at property rights in a government's right to regulate a presumption, then what would give the government the right to think that flipping the presumption in that case is reasonable?
“The Justice is intellectually probing the foundational basis of the government's authority to flip a presumption, expressing uncertainty ('I could be wrong') while simultaneously challenging the logical underpinning of the argument. This blend of self-doubt, genuine inquiry, and pointed questioning reflects both skepticism about the legal framework and engaged exploration of the issue.”
Again, I think it goes --
Just as here, where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.
“The Justice appears to be drawing a parallel or analogy to support a historical practice argument, suggesting some approval of the idea that longstanding customs carry legal weight. There is mild skepticism embedded in testing whether the petitioner's framework applies consistently, with engagement in exploring how historical norms inform the constitutional analysis.”
So two points on that, one with respect to the presumption of the Hawaiian people. As Petitioner notes, there is no Second Amendment for every single state in 1 the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a -- a veto for the Second Amendment national tradition. If you look --
It's not a -- it's not a -- it's not a veto. No one's vetoing an owner's right explicitly or expressly to consent to carrying guns. The owner's the one with the right.
“The Justice is pushing back on the petitioner's characterization of the law as a 'veto,' repeatedly correcting the framing with emphasis. This shows skepticism bordering on hostility toward the petitioner's argument, insisting that property owner rights are being respected rather than vetoed, which directly challenges the petitioner's framing of the issue.”
So, to be clear, what I mean by that is you can't use local customs to say that each state gets its own Second Amendment. The Court has rejected that very type of analysis in the Takings Clause, for instance, in Hennepin County, in Cedar Point, where the Court said, even if California has a kind of unusual way of defining easements or Minnesota has a strange way of defining property interests, that doesn't mean that that sort of individual thing --
But there's nothing unusual about here -- about this. This is simply a presumption.
“The Justice appears to push back on the petitioner's framing by minimizing the significance of the issue ('there's nothing unusual about this'), suggesting skepticism toward the argument that something special or problematic is at stake. The dismissive 'simply a presumption' phrasing challenges counsel's characterization, though it retains some clarifying quality as the Justice may also be reframing the legal concept for examination.”
Respectfully, this is 1 highly unusual, as the Ayers article itself acknowledges. In all 50 states and the District of Columbia, up until Bruen, the universal rule, and this does trace to the founding, is that when you have property open to the public, you are inviting people to go on it with arms unless the owner says otherwise. We think that implicates the Constitution, the Second Amendment for the same reasons it implicates other amendments in other contexts.
Presumption doesn't change that. The presumption lets the owner choose.
“The Justice appears to be pushing back on the petitioner's argument by asserting that the presumption doesn't support their position — rather, it gives the owner a choice. This is a pointed, corrective statement that challenges the counsel's framing, indicating skepticism with some intellectual engagement.”
But the presumption is that you're trespassing. It treats -- just for one class of people, it turns essentially property open to the public like a gas station into the equivalent of someone's house, where you're committing a crime under Hawaii law if you actually go onto it without consent.
Can you imagine, Ms. Harris, any modern analogs of these 1 antipoaching laws? I mean, I guess what I'm asking you to do is to say is there -- are there any modern laws that sort of use this kind of authority over, you know, consent and licensing and so forth but that don't have to do with hunting that would be permissible because they're very much like these antipoaching laws?
“The Justice is intellectually exploring the scope and applicability of the antipoaching law precedent by asking counsel to identify modern analogs, showing genuine curiosity and engagement rather than skepticism or hostility. The question seeks to test and expand understanding of the legal framework being argued.”
So two answers. One is, obviously, these laws themselves have endured throughout, which is why I think maintaining the distinction is important. But, two, you could say it's not that distant, but there is a separate tradition with respect to property closed to the public, like your house. What are the relevant permissions, what's the default for property closed to the public, setting aside hunting? And I -- I think that's consistent with the way these laws work. I mean, Justice Sotomayor mentioned the 1763 New York law, and that's talking about enclosed property like orchards or gardens or other stuff and saying, if you carry arms on that land, that's a trespass. But it's also saying you can't 1 trespass generally in those places. So I think it's getting to the idea of, if you have particular property that's closed to the public, you might not want people with arms on it. That is what these sort of founding-era laws say. You don't want them trampling your cornfield and destroying your improvements because it's closed to the public, similarly to you might be able to say, you know, if I -- and, again, this is a matter of, like, what the history would actually show, so I'm just speculating --
So, if I can -- your objection to the use of these old laws really is just that the Hawaii law applies to all -- although it's private property, it applies to property that is entirely open to the public for -- you know, for all other purposes and with respect to all other activities. And that's your view of why Hawaii is different. And if the Hawaii law was narrower than that or if some some other state's were, then you would have a different question?
“The Justice is primarily seeking to clarify and pin down the precise boundaries of petitioner's argument — restating their position to confirm understanding and probing whether the objection is specific to Hawaii's broad law or broader in principle. There's mild skepticism in testing whether the argument has limits, but the dominant tone is clarifying.”
I think it would present 1 different questions. And, yes, that is our main objection. And the reason is Hawaii is trying to use laws that actually show the opposite tradition, which is laws closed to the public, you might need affirmative consent in order to be able to hunt on them. Property open to the public, though, is the exact opposite rule from the founding on otherwise in order to ensure that people could publicly carry absent objection. And so, yes, I think that that is the most critical point about these laws. The fact that they concern hunting, I think, is a relevant additional factor that goes into what was the point of the presumptions, but the fact that it's hunting and also sort of other forms of trespass, I think, is the bottom line.
There's been the suggestion that this is just flipping a presumption about the implied license and that that's just a matter of property law and not the Second Amendment, but how do we think about 1 that given that it flips the presumption on the longstanding implied license only with respect to firearms, not knives, not solicitation, not politicking, not anything else?
“The Justice is probing the argument that this is merely a property law matter by pointing out the selective application only to firearms, which signals skepticism about the characterization. The question highlights an apparent inconsistency—if it were purely about property law, why would it single out firearms?—suggesting concern about the Second Amendment implications while testing the logic of the petitioner's framing.”
That's exactly right. I think there's two ways to think about it. One is we do think that that makes it much more like the kind of pretextual laws that the founding generation thought were anathema to -- to the Second Amendment because you're singling out a particular right and a particular group who's committing trespass when everyone else isn't. But, two, just going back to this concept, you can't just say, you know, you're tweaking how to give consent and you're out of the Constitution. When a state is saying you're presumptively banned, you're committing a crime unless you get consent, that is a much bigger deal than just sort of tweaking the edges of property law, and in no other context has the Court said no big deal, the Constitution doesn't apply, this doesn't even implicate the relevant constitutional inquiry.
And what are the implications? Hawaii allows oral consent to be sufficient. California had a law requiring a posted sign. The Ninth Circuit struck that down while allowing Hawaii's law, but I'm not sure I understand the distinction between the two. Why couldn't a state require affirmative signs? Why -- why couldn't it perhaps create an irrebuttable presumption against consent?
“The Justice is probing the logical consistency of the Ninth Circuit's rulings by questioning the distinction between oral consent and posted sign requirements, expressing uncertainty about the line-drawing and exploring broader implications such as irrebuttable presumptions. This reflects a mix of skepticism toward the legal framework, concern about inconsistent outcomes, and genuine intellectual engagement with the doctrinal questions.”
I think that is exactly where Hawaii's position leads. I don't think there's any principled distinction between those two things. And, again, it's not just sort of, oh, is it easy to get one person's consent, how hard is it? That's kind of interest balancing at the outset. But, as a practical matter, in order to run your errands, you have to run the table of -- of knowing you're not trespassing on private property to, like, pick up your dry cleaning and catch a cup of coffee. And if you run out of gas and you're 1 trying to find a gas station, you can't get gas unless you know you're in your car, you have -- you have your gun in your purse, and you're not actually committing a crime by stepping on the gas station property. Now Hawaii is trying to say it's a little easier than that, but the text of its law says just entering the property without permission is a crime.
And then, lastly, there's been some discussion about the black codes, and maybe they should be relevant and maybe we really should consider them as significant here. In fact, they're a dead ringer. Thoughts?
“The phrase 'dead ringer' suggests the Justice finds the black codes highly relevant and analogous to the matter at hand, indicating some approval of this line of argument. The casual 'Thoughts?' invitation signals intellectual engagement and curiosity, inviting counsel to elaborate on a point the Justice seems to find compelling.”
It is 2026 and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible firearm regulation looks like. Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before 1 their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition. As Bruen and Rahimi themselves say, you're looking for laws that illustrate aren't outliers. They illustrate what the national tradition entails. And so it is no indictment but, frankly, an endorsement of our history and tradition that when you look at the founding-era laws, they are very different from the black codes and that these black codes themselves are complete departures from what the laws in Louisiana and other states were like before, which was to allow people to presumptively go about in public on -- on property open to the public without consent.
For purposes of the textual and historical tradition analysis specified by Heller and elaborated upon by Bruen, Heller's Part 3 on exceptions remains very important, I think, in my view at least. 1 Do you agree with Part 3 of Heller, accept Part 3 of Heller?
“The Justice is intellectually engaging with the Second Amendment framework while also probing whether counsel accepts Heller's Part 3 exceptions, which signals some skepticism about the petitioner's position. The phrasing 'in my view at least' suggests the Justice is signaling their own interpretive stance while testing whether counsel aligns with it.”
Yes. We do -- are not trying to depart from anything that this Court has said with respect to its Second Amendment precedents.
And then, in Part 3 of Heller, the Court said that nothing in our opinion should be taken to cast doubt on laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings. Do you agree with that?
“The Justice is citing Heller's 'sensitive places' language and directly asking whether the petitioner's counsel agrees with it, which suggests probing the limits of their argument — testing whether their position is consistent with established precedent. The 'Do you agree with that?' framing carries mild skeptical undertones, implying the petitioner's position may be in tension with this Heller limitation, while also genuinely seeking clarification on counsel's stance.”
We agree with that. And we -- I think, as -- as elaborated by Bruen, there is -- I think the question is how do you define "relevant sensitive places" at the correct level of generality so that not every place is a sensitive place and so that you are looking to the right historical analogs.
Understood. But you -- you agree with the principle as stated there that I just read?
“The Justice is seeking confirmation of whether counsel agrees with a specific principle, which is primarily a clarifying move to establish common ground. The 'Understood' suggests some approval of a prior point, but the follow-up question probes whether counsel will concede the stated principle, adding a mild element of engagement or subtle skepticism.”
We agree with the principle as stated that there are obviously 1 sensitive places. You determine them with respect to the history of firearm regulation.
Ms. Harris, I'd like to talk about the relevant analog in these antipoaching laws, and one question that I have is along the same lines as Justice Kagan, which is, when you're thinking about these antipoaching laws, you're thinking about a problem that arose at the time. So, at the time, poaching was a problem, and so legislatures enacted this regulation to address the problem. In an agrarian area, an agrarian society, you know, that was it. Let's imagine that Hawaii, rather than just flipping this default categorically, instead is experiencing, say, a rash of gas station robberies and, you know, doesn't want to make the argument that gas stations are sensitive places. That would be a tough one. So instead flips the presumption, like the antipoaching laws, just with respect to gas stations. Is that okay?
“The Justice is intellectually exploring the limits of the antipoaching law analogy through a hypothetical (gas station robberies), testing whether the logic can be extended to modern, narrow contexts. The tone is exploratory and curious rather than hostile, though there is mild skepticism embedded in the question about whether flipping defaults for specific crime-prone locations would be constitutionally permissible.”
Not okay, and it still runs up in the basic distinction that we're seeing, which is, when the history and tradition is for the type of property, property open to the public, to have an implied license to go onto the property, when the state is trying to load the dice, when it's trying to say you generally can't go there, it has to point to relevantly similar analogs that are doing the same for the how and why. And the antipoaching laws, it's not just that they're about hunting; it's about that they are this specific part of land. It's almost like they're the exception to the general rule that on property open to the public, you can generally carry; on property closed to the public, you were --
How do you know that's the relevant distinction? I mean, it could just be that, well, that is an incidental of the problem. I mean, that just happens to be where the problem of poaching arose, which was on enclosed lands because those are the people who were trying to protect themselves from poachers. But, I mean, there might have 1 been poaching on open lands too, and -- and then the legislature might have responded differently. I think this is this problem of just because the legislature didn't address a problem because it didn't exist at the time, why does that mean that the analog ties the legislature's hands now?
“The Justice is actively challenging the petitioner's historical analogy argument, questioning whether the distinction drawn is the 'relevant' one and probing whether the absence of legislation on a topic necessarily constrains modern interpretation. The rhetorical questioning and 'I mean' constructions signal skepticism toward the argument's logical foundation, while the intellectual exploration of counterfactuals adds an element of engagement.”
And I think the answer is that is under -- you look to the broader articles and I think history of what was going on with the antipoaching laws. It's not that, you know, poaching on or hunting on open -- lands open to the public wasn't a problem. It was actually -- at the founding, it was a hugely politically salient and highly debated issue, so important it was in state constitutions, that this was a sort of elemental distinction to the founding generation that's carried in our property law, that property open to the public is not -- you're not trespassing if you're hunting on that land. On property closed to the public, you want to protect the improvements and so you are allowed to restrict it with -- by -- by 1 changing the rules so that you have to affirmatively consent. And I think you know that from the laws themselves actually. I think the laws themselves make that distinction. I would point you to the New York 1763 law. The 1771 New Jersey law is of a piece with that, and the Sigmon article sort of canvasses the history. But, like, I think this is not just, well, it's sort of strange they were focused on this particular type of land. What do you draw from it? It is they were extremely focused on this because it was a huge political topic about --
Okay. But, Ms. Harris, then that -- that -- that raises this question for me. In Footnote 1 of your brief, you say this case does not concern property closed to the public, so the Court need not address state laws that prohibit carrying a firearm into a private residence without the owner's affirmative consent. But both and you Mr. Beck are drawing this distinction in antipoaching laws between property that is open to the public and property that is closed to the public. So I 1 guess I don't understand how, if you win this case -- and we do the history and tradition analysis and you win, how is the Court supposed to distinguish that analog in the way that you're proposing we do without deciding this question you tell us we shouldn't be deciding?
“The Justice is directly probing an internal inconsistency in counsel's brief—noting that Footnote 1 disclaims addressing private property closed to the public, yet the analogical argument about antipoaching laws inherently requires drawing exactly that distinction. This is classic skeptical questioning that highlights a logical tension in the argument, though it also carries a genuine clarifying dimension as the Justice is asking how the Court could possibly navigate this without resolving the very question counsel says it need not address.”
Right. So I think two things are important. One is, when you're deciding whether the analogs are on all fours, it's inescapable and it runs throughout the position that there are different permissions, different common law traditions applicable to property open to the public and property closed to the public. I don't think that is a complete answer. And the reason we're saying it's just not presented, is it's not the question presented, to whether property closed to the public, what the range of permissions is. For instance, if I invite someone to my house, what is -- what is the -- what is the tradition with respect to the --
So maybe the state could flip the presumption in the way Hawaii has done here but just with respect to private 1 residences? Mr. Beck said no to that.
“The Justice is probing whether a narrower version of the Hawaii law (limited to private residences) would be constitutionally permissible, referencing opposing counsel's position to test the petitioner's consistency. This reflects both intellectual engagement with a possible middle-ground solution and mild skepticism about the breadth of petitioner's argument.”
We're leaving that open because it just -- we're thinking of this as, again, different property traditions, and so they would have to show a relevant history and tradition. Again, I think that would be likely easy for -- easier for them because the rules regarding property closed to the public have always been different than property open to the public, and so --
Okay. Last question. On your broader argument, you state the rule pretty broadly. I'm looking at page 11 of your brief. You say: "A law is per se unconstitutional if it broadly prevents ordinary Americans from carrying protected firearms in public." Who is an ordinary American? And why -- kind of throughout your brief, you used that formulation, but, as I recall in Heller, it says ordinary law-abiding Americans. Why not the law-abiding and what is an ordinary American?
“The Justice is probing a specific word choice in the brief, questioning why 'ordinary American' was used instead of the Heller formulation 'ordinary law-abiding Americans.' This reflects both genuine clarification-seeking about the legal standard and skepticism about whether the omission of 'law-abiding' is intentional and what it implies for the argument's scope.”
I don't think we're trying to suggest any difference between 1 ourselves and Heller in our position here. I think we're -- we're, frankly, using it as a shorthand.
So I guess I really don't understand your response to Justice Gorsuch on the black codes. I mean, I thought the black codes were being offered here under the Bruen test to determine the constitutionality of this regulation, and it's because we have a test that asks us to look at the history and tradition. The fact that the black codes were at some later point determined themselves to be unconstitutional doesn't seem to me to be relevant to the assessment that Bruen is asking us to make. So can you say more about that?
“The Justice expresses confusion and dissatisfaction with the counsel's prior response ('I really don't understand'), signaling skepticism about the argument's logic, while also genuinely seeking further explanation ('can you say more about that'). The tone is probing and critical but not overtly hostile, blending skepticism with a clarifying request.”
Absolutely. Black codes were unconstitutional from the moment of their inception because they are pretextual laws that are designed to ensure that newly freed slaves are returned to a condition of sharecropping --
Okay. Let me stop 1 you there. They were not deemed unconstitutional at the time that they were enacted. They were part of the history and tradition of the country. And when we have a test now that's asking us to look at what people were doing back then, I don't understand why they should be excluded.
“The Justice is pushing back on the petitioner's apparent argument that certain historical laws should be excluded from the Bruen-style historical tradition analysis, expressing doubt about the reasoning by pointing out those laws were never deemed unconstitutional and were part of historical tradition. The phrase 'I don't understand why they should be excluded' signals skepticism toward the petitioner's position, though it also carries a clarifying dimension as the Justice seeks to understand the logical basis for exclusion.”
Because they are outliers. They are by definition unconstitutional. They have been --
-- found unconstitutional.
Afterwards, not at the time. And if the test says what's happening at the time tells us what's constitutional for this purpose, why aren't they in?
“The Justice is directly challenging the petitioner's argument by pointing out an apparent inconsistency — the distinction between 'afterwards' and 'at the time' — and pressing on why certain parties wouldn't qualify under the stated constitutional test. The rhetorical 'why aren't they in?' signals probing skepticism of the argument's logic.”
Respectfully, a law is always unconstitutional when it -- from its inception, it's -- when it's --
So the history doesn't matter?
“The terse rhetorical question 'So the history doesn't matter?' strongly implies the Justice finds the counsel's dismissal or downplaying of historical context questionable, challenging the logical consistency of their argument. The phrasing carries a skeptical, slightly incredulous tone rather than genuine neutral inquiry.”
We shouldn't care 1 about the history then?
“The question challenges the counsel's apparent dismissal of historical analysis, probing the logical consistency of their argument. The rhetorical framing ('We shouldn't care about...') signals skepticism toward a position that may be downplaying historical context, though it retains some clarifying intent to understand the counsel's actual stance.”
We should deeply care about the history, but the whole point of the Bruen framework is as follows: The history and tradition of the Second Amendment are particularly important because it is codifying a preexisting right. To figure out in sort of common law fashion what the national history and tradition are, you throw out outliers. And I can -- can think of no greater outlier than blatantly unconstitutional laws that flipped what had been the tradition in states like Louisiana and during the period before those states were readmitted to the union for the purpose of trying to reduce newly freed slaves back to conditions of servitude, made it a new crime, new trespass in order to go about armed on private property. Those are obvious outliers --
-- that should not count under the whole point of Bruen.
Mr. Katyal will address it. I just have one more question. I -- I'm trying to understand whether 1 there is a Second Amendment problem in the following circumstance: So what if a state that's trying and hoping to dissuade gun rights, so it fits your view of, like, a state acting in a pretextual way, passes a law providing for free "no gun" signs to every business, and they're really very invested in this, so much so that their law offers to send these signs to every business, offers to send someone out to put the signs up at the business owner's request? Do we have a Second Amendment problem in that situation?
“The Justice is constructing a detailed hypothetical scenario to probe the limits of the petitioner's argument about pretextual state action, showing intellectual engagement and some skepticism by testing whether the argument's logic leads to potentially problematic conclusions. The elaborate hypothetical suggests genuine exploration of where the Second Amendment line should be drawn rather than simple hostility.”
If you're just -- no, I don't think so. You're not having a law that's regulating arms-bearing conduct. You're -- I think the premise of the hypothetical is you retain the rule --
But it affects -- it affects arms-bearing conduct perhaps in even a more egregious way than what you're talking about here today.
“The Justice is pushing back on petitioner's argument by suggesting there are more extreme cases of arms-bearing restrictions than what is being argued, implying the current argument may not be as significant or well-calibrated as presented. The comparative framing ('even more egregious') signals both skepticism about the argument's scope and concern about broader implications.”
I think we go back to the -- the words of Bruen and Rahimi, which is --
And their purpose is to dissuade. That was part of the hypothetical.
“The Justice appears to be clarifying or reinforcing a specific element of a hypothetical already under discussion, reminding counsel that 'purpose to dissuade' was part of the scenario. This is primarily a clarifying/engagement move to ensure the hypothetical is being properly addressed.”
So your -- your test was about the purpose of the state. We have the purpose here. We have the effect here. Ninety-seven percent of the businesses, let's say, in Hawaii under the test that I'm -- or the law that I'm positing accepts this offer.
“The Justice is actively probing the petitioner's test by constructing a hypothetical scenario (97% of businesses in Hawaii) to test its limits and implications. This combines intellectual engagement with skeptical probing of whether the proposed test is workable or leads to problematic outcomes.”
Yes. And what I'm trying to distinguish is I think your hypothetical really illustrates what we're not doing, which is a bad legislative motive, purpose, and sort of effects test, whereas what we're saying is our pretext argument is very firmly rooted in the idea --
Right. I just want to know is the Second Amendment implicated, and I think you're saying no. And I don't understand why it wouldn't be in this situation if it is in the situation here.
“The Justice is directly challenging the counsel's position that the Second Amendment is not implicated, expressing genuine confusion and skepticism with 'I don't understand why it wouldn't be.' This combines clarifying intent with notable skepticism toward the argument being advanced.”
Because, in the law that Hawaii is enacting, it is regulating arms-bearing conduct by saying, if I carry my 1 gun to a gas station, I am presumptively committing a crime. That is a direct regulation of where and how you can bear arms, under what circumstances. You are hypothesizing a situation in which the state is merely subsidizing certain types of speech. That might have other constitutional problems, but the problem is not going to be with respect to regulating arms-bearing conduct --
-- in the way that we think Bruen is talking about.
Thank you, counsel. Mr. Katyal. ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE RESPONDENT
“This is a purely procedural transition statement thanking outgoing counsel and introducing the next advocate. It contains no emotional valence or substantive judicial commentary.”
Thank you, Mr. Chief Justice, and may it please the Court: This case is about two fundamental rights, the right to bear arms and the property right to exclude. And there's lots of agreement among how -- among the parties about how those rights interact. Everyone agrees 1 there's a right to carry on private property if the owner wants guns on his property. That was elicited by Justice Sotomayor to my friends. And everyone also agrees there's also no such right if the owner doesn't want guns. The only question is whether there's a Second Amendment right to assume the owner wants guns on his property when he's been -- when he's been silent. There is not. There is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun. The Constitution protects the right to keep and bear arms. It doesn't create implied consent to bring those arms onto another's property. At bottom, that is Petitioners' theory, and yet they have zero support for this, zero support from the founding or for the next 200 years, no treatise, no commentator, no court. Not only is there zero affirmative support, it runs counter to our traditions of implied consent. From the founding in Federalist Paper 45 on, states have used law and custom to clarify the rules around consent. 1 In some states, it's natural to say, when a homeowner invites you in, they're fine with you bringing your gun unless they say otherwise. But, in others, it's pretty obvious that if you bring your gun to someone's house, you have to ask. And the same is true for stores. In some places, it's reasonable to assume guns are welcome. In others, it's pretty clear an invitation to shop is not an invitation to bring your Glock. It's reasonable for a state to clarify these defaults, passing laws that say you can't assume -- that you can assume consent absent permission or, as here, that you can't assume it. The Constitution permits this type of democratic flexibility and states functioning as laboratories. Before rigidly constitutionalizing one type of property default rule, this Court should insist on at least some evidence that the Second Amendment so requires it. I welcome the Court's questions.
Are there any other 1 constitutional rights that you can place -- on which you could place similar limitations?
“The question probes whether the respondent's argument can be extended to other constitutional rights, implying a potential logical inconsistency or slippery slope. This is a classic skeptical move to test the limits and consistency of the argument, though it also carries some genuine intellectual engagement in exploring the broader constitutional implications.”
Sure. I think -- you know, I think -- I think the general proposition of the law is that property rights, you know, are --
Open to the public, always add that part. We're not talking about private homes. We're talking about restaurants, we're talking about malls, things like that.
“The Justice is clarifying the scope of the discussion by specifying that the argument pertains to places open to the public (restaurants, malls) rather than private homes, ensuring the record and counsel are aligned on the factual parameters being discussed. This is primarily a clarifying statement with some engagement in defining the boundaries of the legal question.”
Yeah. So -- so I do think -- I mean, first of all, I do think they are talking about private homes. That's what I think ultimately my friend conceded to Justice Barrett earlier in the -- in the questioning, but --
I thought he made the distinction between private homes versus property, private property open to the public as opposed to closed to the public.
“The justice is referencing a distinction previously made in argument and seeking to clarify or confirm their understanding of it, indicating a neutral clarifying intent. The phrasing 'I thought he made the distinction' suggests the justice is checking their comprehension of opposing counsel's argument rather than challenging or endorsing it.”
Justice Thomas, his brief made that distinction, but at least as I understood what he was saying at argument, that his rule would apply even there. And I think 1 this is what's so dangerous about his rule, because he's saying, look, you know, as long as something has to do with guns, then we go right to Bruen step two, where the burden has shifted. And I think this Court --
Well, that's, you know, the -- I'm not going to argue that point, but I do want to know if there are other constitutional rights in similar circumstances on which you could place similar limitations.
“The Justice concedes or sets aside one point ('I'm not going to argue that point') but pivots to probe whether the principle being argued has broader constitutional analogues, which is a clarifying/engagement move testing the coherence and scope of the argument with mild underlying skepticism.”
I do think that there are. I mean, I think, here, you know, this case concerns guns, but sometimes, like, for example, this Court's decision in Breard recognized, for some First Amendment restrictions, you could have a change in the default rule and that was understood as constitutional. Here, we're just following the long --
-- there were a -- a state that said: We're going to flip the default rule so that you cannot leaflet in shopping centers unless you secure permission 1 first.
“The Justice is posing a hypothetical scenario that flips the default rule, which is a classic engagement technique to test the logical boundaries of the argument. However, the scenario also carries concern about the implications of allowing states to flip default rules, suggesting the Justice may be probing potential negative consequences.”
Would that be constitutionally problematic or not?
“The question probes constitutional limits in an exploratory way, suggesting intellectual engagement with the constitutional implications while also carrying some concern about potential problems and skepticism about how counsel would draw the line.”
The -- the -- the problem there is that oftentimes, in the First Amendment context, the First Amendment rules are different than the Second Amendment because they forbid content discrimination and viewpoint discrimination. And a leafleting law often will have some sort of illicit thumb on the scale for a certain set of viewpoints. And so that's what --
Well, but, like any leafleting for anybody --
“The 'Well, but' construction signals mild pushback or reframing, suggesting the Justice is drawing a comparison to challenge or probe the argument. The incomplete nature of the utterance indicates an interjection mid-thought, pointing toward skepticism or engaged questioning rather than hostility.”
Right. In that circumstance, you know, it -- it may -- it's -- this Court's precedents on viewpoint and content are so broad, it might encompass that. But, even if that were -- even if you could jump past that, you'd still have to at least have rational basis review. This Court, in Free Speech Coalition 1 versus Paxton, recently said, even for stuff that has not -- isn't encompassed in the First Amendment, you still have to have at least some rational basis. Your example would flunk that. Here, Hawaii's done the opposite. There have been no guns, effectively, in Hawaii for 200 years. The underlying, you know, expectations and local custom, as Justice Sotomayor was saying, was that nobody had to think about guns. What the Hawaii legislature said here in the wake of this Court's Bruen decision is Bruen's a real game-changer and, as a result, some shop owners are going to be caught unaware. They're not going to realize that someone might have a concealed Glock on them and the like. And so, to vindicate those expectations, they said, we are placing the default rule there on the property owner to say whether they wanted to affirmatively invite guns in. And in choosing where to place that responsibility and that burden, I think it is absolutely reasonable for the state to place it with private property owners, whose consent is 1 required.
Counsel, I just want to understand because one of the motivating concerns, and you can see it in -- in our decisions under the Second Amendment, is that it is a disfavored right. And it strikes me that one of the things that your side of the case has to come to grips with is that it is a very clear constitutional right under the First Amendment if I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, you know, give me your vote, that's exercising a First Amendment right. But you say that it's different when it comes to the Second Amendment, that you can walk up -- one of the candidates wants to walk up and he's carrying a gun, is -- is -- what -- what exactly is the basis for the distinction? Because part of, again, what -- what our precedents talk about in this area is that the Second Amendment has been treated as sort of, you know, a second-level right. And that's 1 one area where I -- given this law, I don't really see the basis for the distinction.
“The Justice is probing the respondent's position by highlighting an apparent inconsistency in how First and Second Amendment rights are treated, directly challenging the basis for distinction and referencing prior precedents that have treated the Second Amendment as a 'second-level right.' The phrase 'I don't really see the basis for the distinction' signals skepticism toward the respondent's argument, while the concern about constitutional inconsistency adds a layer of principled worry.”
So we totally agree, the Second Amendment has no disfavored right. At the same time, there are rules about the Second Amendment and I think rules that this Court laid down in Bruen in which you've said the relevant question is whether or not the scope of the Second Amendment's text as informed by history would say that there is a violation of the right. With the First Amendment, you've got burden tests and all sorts of stuff that this Court disclaimed in Bruen at page 22. And so it's just going to apply somewhat differently. But our fundamental point to you is, yes, this is -- this is a law that goes -- which traces back to the founding with other laws like New Jersey in 1721 -- in 1771, laws that basically said, look, when you're bringing guns onto property, even property open to the public, that states are free to flip the default rules. Indeed, that is what happened, although going back all the way to -- all the 1 way to those early examples. And my friend on the other side is, I think, selectively reading those to say, oh -- the Solicitor General is saying, oh, these laws are just about poaching and the like. Absolutely not. They have no answer to what we said in our red brief, which is that these laws dealt with improved lands. And improved lands were, as Professor Hartog says, stores, seed stores, and things like that.
Right. But let me just switch gears a little bit. We talked about the tradition in -- in Hawaii. Hawaii, given its obvious origins and its -- its admission to -- to the United States fairly recently, has a totally different, in some areas, tradition and practice. The law of property in particular in Hawaii, I mean, for the longest time, I don't know, maybe it's still the case, is that you don't own property, you get it on long-term lease as if you were, you know, a bank in a skyscraper in New York. That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United 1 States. And do we isolate, do we have different traditions in different states when it comes to applying Bruen?
“The Justice is intellectually exploring whether Hawaii's unique legal traditions should factor into the Bruen analysis, showing genuine curiosity about whether constitutional tradition can vary by state. The tone is exploratory and thoughtful rather than hostile or strongly skeptical, with the Justice 'switching gears' to probe a conceptual question about the application of historical tradition analysis across different states.”
No, Your Honor. I think my friend on the other side has mischaracterized our argument. Our argument is that the Second Amendment means the exact same thing in every state: No Second Amendment right to enter private property without an owner's consent. What varies is what the definition of consent is from state -- from state to state. And local law and custom help inform that. That's what I think that Justice Holmes's opinion in McKee recognizes. So just to take a simple example --
Well, just before -- I don't want to lose the -- the thought. You said part of the history and tradition is there's no right to enter private property without the owner's consent, right?
“The Justice is interrupting to capture a specific point made by counsel before it gets lost, seeking to confirm their understanding of the argument about history and tradition regarding private property rights. This is primarily a clarifying move with engaged intellectual curiosity, not skeptical or hostile.”
Well, we know 1 that that's not a through line, right, because you do have a right to enter the owner's private property if you want to exercise your First Amendment rights, right?
“The Justice is pushing back on the respondent's argument by pointing out an apparent inconsistency or exception ('we know that's not a through line'), using a rhetorical question to challenge the logical consistency of the counsel's position regarding property rights and First Amendment access.”
So not without their consent, Your Honor.
Sure. I don't have to have a sign on -- on the -- the -- the -- the sidewalk before you enter my property saying okay to come on if you're going to give me some leaflet or okay to come on if you're a candidate. The assumption is that there is a First Amendment right. Yes, you can -- you can withdraw it. And, again, I'm just trying to figure out exactly what the difference is between the First Amendment and the Second Amendment.
“The Justice is intellectually exploring a parallel between First and Second Amendment rights, drawing an analogy about implicit rights and withdrawal of consent, while explicitly stating they are 'trying to figure out' the distinction — indicating genuine engagement and some clarifying intent rather than strong skepticism or hostility.”
What I think what's doing the work in your hypothetical about the leafleting or something is the government is putting its thumb on the scale of some sort of speech and saying they're worried about some type of leaflet or the like. To the extent that they just ban it 1 entirely, it would flunk rational basis review. The relevant right there is not located in the property, property and the place it's spoken, but, rather, the government is coming in and affirmatively taking a position on the --
Well, Mr. Katyal, I don't understand why you're resisting the First Amendment -- well, I do understand why you're resisting it, but let's say there's no content discrimination. It's just a ban on leafletting and it's a ban because people don't like solicitation, so they just don't want people passing out pamphlets. It's not aimed at Jehovah's Witnesses or anything like that, like some of our old cases. Why would that fail rational basis review?
“The justice is probing the respondent's resistance to a First Amendment framing by constructing a hypothetical that strips away content discrimination, intellectually testing whether a general leafletting ban would survive rational basis review. The self-correction ('well, I do understand why') adds a touch of skepticism about counsel's strategy, while the hypothetical construction reflects engaged intellectual exploration.”
So I think it might because, as this Court said in Free Speech versus Paxton, you still have to have some underlying rationality for it.
Yeah. People find 1 it annoying. They don't like it. They think it affects their businesses, and people don't want to go to businesses if they're going to be accosted by pamphleteers.
“The Justice is articulating the practical concerns and grievances of those who find pamphleteering disruptive, suggesting a degree of concern about the real-world implications of protecting such activity. The tone acknowledges legitimate complaints while also engaging with the competing interests at stake, without being overtly hostile or fully approving of either side.”
It may be a rational basis problem, but I don't think it's a First Amendment problem. This Court in Rowan said that "the right to engage in expressive activity generally stops at the outer boundary of every person's domain."
And that's the point, right, of --
“This brief, incomplete utterance appears to be a Justice confirming or echoing a point made by counsel, suggesting either approval/agreement or active engagement in following the argument's logic. The phrase 'that's the point, right' indicates the Justice is either affirming understanding or seeking confirmation of the argument's core premise.”
Let me get -- let me -- one more --
“This is a procedural interjection where the Justice is simply asking for an opportunity to pose another question. The fragmented, interrupted nature of the utterance reflects standard courtroom management with no discernible emotional valence.”
-- one more question. So let me take it out of the First Amendment for you. I mean, let -- let's pretend that public accommodation laws don't exist. Because the Fourteenth Amendment doesn't apply to private action, only state action, let's say that a state, in the absence of public accommodation laws, decides to flip the default and say, unless the owner affirmatively consents, black people cannot 1 enter your home.
“The Justice is constructing a hypothetical that removes First Amendment considerations to probe the underlying constitutional logic, showing both intellectual engagement and concern about the implications of the respondent's argument — specifically whether the government could use 'default rules' to enable racial discrimination in private contexts.”
Yeah. So I think that's a -- that's one which would be unconstitutional --
-- every day of the week because it would violate the Equal Protection Clause because the government on its face is making a racial classification. So --
Because there's state action in the way the government is adjusting its property defaults?
“The question probes the legal basis of the argument by restating it as a question, suggesting both a desire to clarify the reasoning and mild skepticism about whether 'state action in property defaults' is sufficient justification. The phrasing 'Because...' indicates the Justice is testing whether this is indeed the respondent's logic.”
Even if there's a long history and tradition, say, in Louisiana --
“The utterance appears to be the beginning of a hypothetical or counterfactual construction ('Even if...'), suggesting the Justice is exploring the logical implications of a 'history and tradition' argument. The 'even if' framing indicates intellectual engagement and possibly mild skepticism about whether historical tradition alone is sufficient to justify a legal position.”
-- of this kind of discrimination at the doorstep?
“The phrase 'at the doorstep' suggests the Justice is probing the limits or boundaries of discrimination claims, expressing concern about where the line should be drawn. The fragmentary nature of the utterance (beginning with '--') indicates it's mid-sentence, but the framing suggests worry about the practical implications of allowing or disallowing certain discrimination claims.”
Right. It would still violate the equal protection.
Why isn't there state action here when the state is flipping the default? It's not just a matter of property law.
“The Justice is directly challenging the respondent's position by questioning why state action wouldn't apply when the state is actively altering a default rule, signaling doubt about the respondent's argument. The 'Why isn't there' framing is a classic skeptical probe, though the secondary clause adds a degree of intellectual engagement about the legal framing.”
Right. Our point is not whether there's state action or not. It's that there's no underlying right. My friend assumes -- has -- has conceded this. He said there is no right to come onto private property absent consent. And so the only question is whether the state can fill in the conditions --
Yeah, there's no right --
“This brief utterance appears to be a partial agreement or acknowledgment ('Yeah') followed by what seems to be a concurring statement about there being 'no right.' Without more context, the dominant classification is neutral/procedural, with some approval suggested by the affirming 'Yeah.'”
-- to come onto private property without consent. So my public accommodations example is right. I mean, absent a public accommodations law or in a private residence, you could turn someone away on the basis of race.
“The Justice appears to be affirming their own prior example ('my public accommodations example is right') while exploring the logical implications of the legal framework being discussed. The statement engages intellectually with the boundaries of public accommodations law versus private property rights, showing some concern about racial discrimination implications but primarily testing and confirming a legal proposition.”
But there is no antidiscrimination component in the Second Amendment the way there is with the Equal Protection Clause.
And so that's why it functions --
So, Mr. Katyal, going back to --
“This is a brief, incomplete utterance that appears to be a procedural redirection back to a prior topic. It carries no discernible emotional valence beyond standard judicial demeanor, making it predominantly neutral with slight clarifying/engagement potential as the Justice begins to revisit an earlier point.”
Mr. Katyal, you're just -- you're just relegating the Second Amendment to second-class status. I don't see how you can get away from that. If someone owns a store -- or let's say it's a little restaurant and this person has very strong political opinions and does not want anybody in that restaurant who is wearing attire that is expressing approval of a particular political candidate. That person -- the owner of that store -- restaurant has the right to say you can't come in, right?
“The opening statement 'you're just relegating the Second Amendment to second-class status' and 'I don't see how you can get away from that' signal strong disagreement and hostility toward the respondent's argument. The follow-up hypothetical about a restaurant owner appears designed to challenge the respondent's position through an analogy, blending engagement with underlying skepticism and hostility.”
All right. Now could Hawaii enact a statute that says that if you are wearing the attire, attire expressing approval of a particular political candidate, you can't come in unless you get express consent from the owner of the restaurant?
“The Justice is posing a hypothetical about a specific state statute to probe the limits of the respondent's argument, exploring whether the principle extends to political attire in restaurants. This is characteristic intellectual engagement — testing the boundaries of the legal position without expressing overt skepticism or hostility.”
Again, that's viewpoint discrimination and prohibited by --
It's a violation of the First Amendment. We have a violation of the First Amendment and what is -- and a violation of the right that the Court held is 1 protected by the Second Amendment in Bruen, which is the right of law-abiding citizens to carry a firearm for purposes -- outside of the home for purposes of self-defense.
“The Justice appears to be framing or summarizing the constitutional violations at issue (First and Second Amendment), seemingly in a manner that aligns with or restates the respondent's position, suggesting some approval or engagement with the argument. The reference to Bruen and law-abiding citizens carrying firearms suggests intellectual engagement with the legal framework rather than skepticism or hostility.”
I quite agree with much of what you're saying. I think what's the difference is that the Second Amendment, it's not a second-class right. It just has -- doesn't have the same components of viewpoint discrimination or antidiscrimination for the Fourteenth Amendment. And it's just not in the Second Amendment. And I think the key point here is the Court -- if you accept my friend's invitation, you for the first time would be saying there is some sort of right here which no commentators recognize, no treatises recognize, no court has ever recognized. Compare this to Bruen in which you had St. George Tucker, you had many state decisions in the 18th and 19th centuries that said laws like the New York one were unconstitutional.
Justice Sotomayor cited a poll about what the people of Hawaii think about the possession of guns. I'm not 1 aware of the poll, but let's assume it's correct. Let's assume that 78 percent or whatever the figure was in the poll that she cited really don't like guns. So what then is the big deal about this statute? Why does it matter if store owners and owners of private property that is -- that are generally open to the public don't like guns, why is it a big deal to say they want people carrying guns to stay out, just put up a sign?
“The Justice is engaging with a hypothetical scenario, accepting the poll's premise and probing the significance of the statute by suggesting property owners could simply post signs—this is an intellectually exploratory challenge that tests the strength of the respondent's position while showing some implicit skepticism about why the law is necessary at all.”
Why does Hawaii have to have this law?
“The blunt, direct challenge 'Why does Hawaii have to have this law?' carries a skeptical edge, probing the necessity and justification of the law, but it could also be a genuine clarifying question seeking the respondent's rationale. The terseness suggests some skepticism toward the law's basis.”
So I think Hawaii has -- like all state legislatures, has the right to put a default rule in that says -- that tracks the expectations of its people, and --
But, if that's true, then what's wrong with California's law, which flipped the default rule and said it can only be overcome with a sign?
“The Justice is using the respondent's own logic against them ('if that's true, then...'), a classic skeptical rhetorical move that challenges the internal consistency of their argument. The question probes why California's approach would be problematic if the respondent's premise is accepted, suggesting doubt about the respondent's position.”
Right. So I do think California's law would probably be constitutional, but our argument doesn't depend 1 on it --
-- because Hawaii here --
-- you disagree with the Ninth Circuit's decision on that score?
“The question is primarily clarifying in nature, seeking to confirm whether the respondent's counsel disagrees with the lower court's ruling. It has a mild skeptical undertone since it's probing the counsel's position relative to a court that ruled in their favor, but the core intent appears to be establishing the party's stance for the record.”
I do, but I think that here --
And so a result here, you -- you'd admit, would logically entail permitting California's law or ones like it to pass?
“The Justice is pressing the respondent to admit a logical consequence of their position—namely that their argument would validate California's law—which signals skepticism about the argument's implications. The phrase 'you'd admit' is a rhetorical challenge probing the logical extension of the respondent's position, with underlying concern about the broader consequences if the argument were accepted.”
No, you -- you don't have to go that far. You can say --
Oh, I know I don't have to go that far, but you just said you would go that far.
“The Justice is pointedly catching the counsel in an overreach — noting that the counsel volunteered a broader position than necessary ('you just said you would go that far'). This reflects skeptical probing of the argument's outer limits, with a mild edge of hostility in the rhetorical 'Oh, I know' dismissal of counsel's framing.”
-- but I don't think you do, Justice Gorsuch. (Laughter.)
So -- and the -- and the -- and the reason for that --
No, I appreciate 1 your candor about the extent of where your argument leads. And so it seems to me that, you know, you could have a state law that doesn't just flip the presumption and require express oral consent but requires express written consent, maybe a sign, maybe an irrebuttable presumption of flipping -- I appreciate your candor on that. The other question I want to ask you is the black codes. I -- I struggle to see what relevance laws that are outliers -- and in Bruen, we're not supposed to consider outliers. They're put aside under our test. We're looking for the mainstream and a significant tradition. And you rely very heavily on an 1865 black code law in Louisiana. You say it's a dead ringer and a reason alone to affirm the judgment. And I really -- I -- I really want to understand how that could be.
“The Justice expresses appreciation and approval for counsel's candor, but then pivots to strong skepticism about the reliance on an 1865 Black Code law from Louisiana, questioning how an outlier law can support the argument under the Bruen framework. The phrase 'I really want to understand how that could be' signals genuine disbelief and probing skepticism more than pure clarification.”
So let me take those in turn. So, first, with respect to the California law, I think it's really important to understand here the Hawaii law has a much broader definition of consent, a much more 1 general --
That wasn't the question. Why don't you answer the question posed.
“The Justice sharply redirects counsel after they failed to answer the posed question, using a dismissive correction ('That wasn't the question') followed by a directive tone. This signals strong displeasure and impatience, characteristic of hostility, though a procedural/neutral component remains since it also serves to manage the argument's direction.”
About the California law or the --
Yeah. No. I want to understand how you think black codes --
“The phrase 'I want to understand' is a direct signal of clarifying intent, seeking to comprehend how the counsel views black codes fitting into their argument. The informal 'Yeah. No.' suggests mild pushback or redirection, adding slight skepticism and engagement, but the dominant tone is one of genuinely seeking clarification.”
-- should inform this Court's decision-making.
“This appears to be a sentence fragment mid-utterance, likely part of a larger statement about what factors should guide the Court's decision. The procedural/transitional nature of the fragment with no clear emotional valence suggests predominantly neutral sentiment, with some engagement as the Justice is framing the analytical framework for discussion.”
It's quite an astonishing claim to me.
“The phrase 'quite an astonishing claim' signals strong disbelief and incredulity directed at the respondent's argument. The word 'astonishing' carries a dismissive, challenging tone that blends skepticism about the argument's validity with mild hostility toward its audacity, stopping just short of outright rejection.”
So -- so the black codes are undoubtedly a shameful part of our history, but that doesn't at all mean that this particular law is irrelevant to Second Amendment analysis for two reasons. First, the Solicitor General says correctly, as she did just now, that Louisiana wasn't a state in 1865. The relevant point is what happened in 1868, when Louisiana was 1 admitted to be a state. The Act of June 22nd, 1868, admitted Louisiana as a state. That was the radical Reconstruction Congress. It examined the Louisiana laws, including this specific statute, and Louisiana was admitted into the union by the Reconstruction Congress. There were many laws that the Louisiana --
You're not answering the question. The question is it's an outlier, and -- and you just called it a shameful outlier. And I -- I agree with that. And Bruen was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional the moment they were passed and, yes, when Louisiana was admitted to the union.
“The Justice directly accuses counsel of not answering the question, signals strong disagreement with relying on an outlier statute, and expresses partial approval of their own framing ('I agree with that'). The tone combines hostility (interrupting/redirecting counsel) with skepticism about the legal argument's reliance on a 'shameful outlier,' while the agreement with counsel's own characterization introduces a mild approval element.”
So, Justice Gorsuch, when I said it wasn't --
I understand a lot of people like to cite the black codes who promote gun restrictions, who would -- otherwise, they would be garlic in front of a vampire in front of them. But, here, they -- they like them, they embrace them, and I'm really interested in why.
“The Justice uses a colorful 'garlic in front of a vampire' metaphor to highlight what they see as an unusual or contradictory reliance on black codes by gun restriction advocates, expressing genuine intellectual curiosity ('I'm really interested in why') while probing the tension in the respondent's historical argument, combining skepticism with engaged inquiry.”
So, Justice Gorsuch, when I said the black codes were a shameful period, there are parts of the black codes like this particular statute which were race-neutral, which the Congress of the United States, the -- the same Congress that ratified the Fourteenth Amendment, implicitly blessed by admitting Louisiana back in. It didn't treat that with the same -- with respect to other laws from other states, but it did here. And, most importantly, even the opponents of the black codes recognized, as the Sickles general order says, that you have no right to carry a firearm onto someone's property absent their consent.
We said in Ramos --
“This is a very brief, incomplete utterance where the Justice is beginning to cite precedent from Ramos. Without more context, it appears largely neutral/procedural, potentially leading into a clarifying or engaging follow-up about how prior case law applies.”
Mr. -- Mr. Katyal, wasn't the purpose of the laws in the post- -- in the post-Reconstruction South that disarmed black people precisely to prevent them from doing what the Second Amendment is designed to protect, which is to defend yourself against attacks? They didn't want the -- they wanted to disarm the black population in order to help 100 the Klan terrorize them and other -- and law enforcement officers in that period in that region, they wanted to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?
“The Justice is strongly challenging the respondent's use of post-Reconstruction era laws as historical precedent for Second Amendment interpretation, pointing out the deep irony that these laws were designed to disarm Black people and facilitate racial terror — the opposite of what the Second Amendment protects. The rhetorical question ('is it not the height of irony') signals sharp skepticism toward the argument, with some hostility evident in the forceful historical framing.”
So, Justice Alito, we quite agree with you that parts of the black codes were motivated by and had exactly that operation. Our point to you is this consent requirement did not operate that way. Indeed, if anything, it protected black churches and black-owned businesses and the like by insisting on this consent rule. And that is why the radical Reconstruction Congress admitted Louisiana back in. They said no to various laws, but they never did that with respect to this. And this law stayed on the books for a long time. More generally, of course, we've obviously for good reason taken all this time on Louisiana, but remember our argument, if we 101 were to get to the historical analogs and the like, we don't think you even need to, but if you got there, you wouldn't just look to Louisiana in 1865. You'd start with New Jersey in 1771.
Well, on -- on Louisiana, in -- in Ramos, on the jury trial right, the question of whether he had a right to a unanimous jury, there were Louisiana and Oregon precedents going way back that allowed non-unanimous juries. And we flatly rejected that historical example for the exact reason that Justice Alito and Justice Gorsuch have been mentioning. Those were rooted in racial prejudice designed to prevent black jurors from having their votes counted on juries in the wake of a decision like Strauder in 1880. And we just said no, that's -- that's inadmissible to account for that as somehow justifying an exception to the constitutional right. It seems like the same kind of thing here. What's different?
“The Justice is drawing a strong analogy to Ramos to challenge the respondent's position, using historical precedent rooted in racial prejudice to question why the current case should be treated differently. The closing 'What's different?' signals skepticism toward the respondent's argument while also inviting engagement with the distinction.”
Well, Justice Kavanaugh, we just disagree with the idea that that 102 applies to this particular law from Louisiana in 1865. But, regardless, our tradition goes way back before that. New Jersey in 1771, 1721 Pennsylvania, the law said, "you cannot carry any gun or hunt on the improved or enclosed lands of any plantation." The 1763 New York law, which my -- the Solicitor General only read part of, says that it was unlawful to carry, shoot, or discharge any musket or other firearm whatsoever into any orchard, garden, or other enclosed land whatsoever. And there's other statute after statute. There's no allegation by anyone that those were motivated by any sort of racist concerns or the like. And what they've said is, oh, no, that was just limited to poaching. That's just wrong. There's two parts, for example, to the New Jersey law. Part 2 is about poaching.
-- laws, a couple of them that you cite, it seems to me you're 103 approaching the whole analysis upside down from how the Court's cases have approached it. The Court's cases have started with the text, which declares an individual right. And then, in Heller and in Bruen, the Court has elaborated on, of course, there -- as there are with all rights, as Heller said, some exceptions, but those exceptions, to be recognized, must be historically rooted, deep tradition, a broad tradition, widely recognized, commonly recognized, not isolated examples, particularly not ones from the black codes. But even apart from that, not isolated examples. And I just don't see the kind of broad tradition of the regulation here that you see with the other things specified in Heller, for example.
“The Justice is directly challenging the respondent's legal methodology, arguing their analysis is 'upside down' from established precedent and explicitly stating 'I just don't see' the required historical tradition. This combines strong skepticism about the argument's validity with elements approaching hostility through the forceful dismissal of the respondent's cited laws and approach.”
Right. So I agree with some of what you're saying. So I completely agree that the relevant test under Bruen is text, and then the next words you used were "as informed by history." And so the question is whether or not there is some sort of right at the framing, 104 whether the right to keep and bear arms was understood, the right to assume an owner's consent to bring arms. That's where we think this case -- their case falls apart because, for the first time, you'd be saying, if you accept their invitation, in the absence of any affirmative evidence whatsoever, a commentator, a court, anything, that said that -- that there was a right to imply consent, there's just nothing. There is precious zero on that. And here's why it's so important. You heard my friend when he stood up, he said, and under -- under questioning from Justice Barrett, hey, is your rule going to apply to private homes? Because lots of states even today have those, Alaska, you know, and Arkansas and the like. And he ultimately said yeah because the burden-shifting, you wouldn't be able to defend the law under the burden-shifting of step two of Bruen in which you have to have demonstrated historical analogs and the like. That gets everything undone entirely. I mean, this Court has a general rule, Justice 105 Alito wrote about it in Kennedy versus Louisiana, which is, when you are coming in to challenge a state law, you bear a heavy presumption that your challenge is invalid, that there's a presumption of good faith and presumption of regularity on the part of the legislature. If you just jump to Bruen step two and say, oh, this law deals with guns, therefore, the burden flips to the government, then, yeah, you're going to have a really difficult time defending laws every state is like the ones that deal with gun consent on private homes and the like.
Well, which is why you don't want to get to step two because it's a lot harder for you at step two. But I think what Justice Kavanaugh is asking is, I have the same question, is how can you avoid step two? Because the text encompasses it. And that leads you to step two, where you have all the difficulties you were just saying.
“The Justice is clearly probing the weakness in respondent's position by pointing out that they cannot avoid step two given the statutory text, and that step two presents significant difficulties for them. This is skeptical questioning that exposes logical gaps in the argument, while also showing intellectual engagement by building on Justice Kavanaugh's line of questioning.”
Because, if you read Bruen as only about the text, okay, I agree with you, you could say, well, maybe it's the 106 right to keep and bear arms as implicated by these implied default rules, but it is the text as informed by history. And when you ask yourself text as informed by history, where has anyone ever said there's a right to presume consent of the owner in the absence of an explicit statement? It just doesn't exist.
But that's the second step when you're looking at the history. I mean, I could see history being relevant at the first step if you're talking about what is the meaning of arms, for example. But, when you're talking about things that kind of go to what is the core of the right or is it included and you're talking about history and tradition, I guess I don't see how it's the first step.
“The Justice is pushing back on the respondent's analytical framework, questioning why history is the 'first step' in the analysis rather than the second, which shows skepticism toward the argument's structure. However, there is also genuine intellectual engagement and some clarifying intent as the Justice works through the logical steps of the constitutional framework.”
Well, I think it -- it's got to be. Otherwise, I think you run into the problem that you've now flipped the burden for every firearms regulation. As long as it deals with guns, then the -- then the state has to come in or the federal government has to come in with an affirmative thing. And we have all 107 sorts of laws that --
That's exactly what the cases say.
“The phrase 'That's exactly what the cases say' is an affirmative, validating statement that confirms the counsel's point aligns with existing precedent. This strongly signals approval, though some neutral procedural weight is retained given the brief, declarative nature of the statement.”
I -- I mean, I thought that's what the cases say. If it deals with arms, and this is what Heller Part 3 says, then the government comes in and shows there's a historical tradition. And to get ahead of all this, Heller actually went through and specified a number of kinds of regulations that would be permissible because they are so broadly and deeply rooted. At least -- I mean, what's wrong with that reading of our precedent?
“The Justice is challenging the respondent's reading of precedent by asserting their own understanding of what Heller says, suggesting skepticism toward the respondent's position. However, the closing question 'what's wrong with that reading?' also has a clarifying dimension, genuinely inviting the respondent to engage with the Court's framework rather than purely dismissing their argument.”
Because then it would really, as the Everytown brief says, threaten gun regulation more generally in ways this Court has so far not reached because you have all sorts of times in which, like, take 920 -- the 922 statute, 11 different categories of things that are singled out as gun regulation. If every single time the state had to defend the burden on each of those things and say you've got to find, you know, historical 108 analogs, that really does undo, I think, the much more limited nature of the inquiry that --
-- Bruen recognized at step one.
-- I thought your answer to Justice Barrett and Justice Kavanaugh is that really step one is trying to help us to understand what the scope of the right is.
“The Justice appears to be helpfully summarizing or restating counsel's argument in a favorable light, suggesting approval of the framing while also seeking clarification about whether this characterization accurately captures counsel's position regarding the analytical framework.”
The Second Amendment right, is it really being implicated here?
“The question challenges whether the Second Amendment is even applicable to the case at hand, suggesting doubt about the respondent's framing of the issue. The word 'really' signals skepticism about the premise, though it could also be a genuine inquiry seeking clarification on the constitutional basis of the argument.”
And so that when you have a situation like this one in which there is broad consensus, everybody agrees that there is some limit to the Second Amendment right, and you read a case that said that limit was geography in the sense that you don't have a Second Amendment right to bring your gun onto someone else's private property, they have to consent for you to be able to do that. We have already limited the scope of the Second Amendment right for purposes of this discussion because we're talking about a right 109 that doesn't just freely exist. So, in the Chief Justice's leafletting example, it's -- it's similar. Like, I don't see the Second Amendment operating differently than, say, the First Amendment because, in the leafletting example, the reason why you get to go up to the person's door is not because you have a First Amendment right to do that. You get to go up to the -- the person's door because there is a custom and tradition of implying the person's consent --
“The Justice is actively developing and articulating a legal framework, drawing analogies between the First and Second Amendments and exploring the concept of implied consent and geographic limits. This is intellectual engagement — the Justice appears to be constructing an argument or theory rather than challenging the respondent, showing curiosity and active participation in shaping the legal reasoning.”
-- for you to do that in that situation, that -- that -- that all the states, everybody says, when you come for the purpose of passing a leaflet, we are going to assume, we're going to imply that the owner is allowing you to do that. He doesn't have to put up a sign that says please come. We're going to -- but it's -- it's operating around property rights, not that your First Amendment right is what is getting you onto his property.
“The Justice is actively working through the logic of implied consent for leafleting on private property, exploring how the doctrine operates through property rights rather than First Amendment rights. The somewhat fragmented, thinking-aloud quality suggests intellectual engagement and clarification, with mild skepticism about how the doctrine fits together.”
Similarly, the 110 Second Amendment right is not getting you onto someone's property in this way if it's a private property, even the property open to the public. It's the implicit consent that many states have allowed that is what is doing the work of allowing you to carry your gun in that gas station. Am I right about that?
“The Justice is working through a legal framework about Second Amendment rights vs. property rights and implicit consent, ending with 'Am I right about that?' which seeks confirmation of their reasoning. This combines clarifying intent (testing their own understanding of the argument's structure) with moderate engagement in exploring the doctrinal logic, and slight skepticism in challenging whether the Second Amendment alone does the work claimed.”
That's exactly right. And the one thing I would add is that what I think is doing the work in my friend's argument is some sort of insinuation that Hawaii has singled out and is hostile to guns or the Second Amendment and the like. And I'd point you to two reasons why that's wrong. Number one, Hawaii has these very same laws about implied consent and changing the default rules for other things besides guns. So 445115 has it for cards and banners and placards, akin to the example that you're mentioning before. 339-4 is about litter and bringing it on. 291C is about vehicles and the like.
And what you're saying, I think, is that there is no Second 111 Amendment right to assume implicit consent.
“The Justice is restating the respondent's argument in their own words to confirm understanding, which is characteristic of clarifying behavior. The phrase 'what you're saying, I think, is' signals an attempt to paraphrase and verify the argument rather than challenge it, though there is mild engagement as the Justice frames a constitutional principle.”
There is no -- to the extent we're talking about is this about consent, and I think we are because you don't have a right to go on without consent, then is the Second Amendment doing work with respect to allowing you to say I have a constitutional right to assume that I'm allowed to be here? And you're saying they have no case, no history, no nothing that establishes that principle.
“The Justice is probing the respondent's argument about whether the Second Amendment provides a constitutional right to assume permission to be on property, while simultaneously pressing that the opposing side has 'no case, no history, no nothing' — a skeptical framing challenging the strength of their constitutional claim. There is also a clarifying element as the Justice works through the consent-based logic of the argument.”
That's exactly right. And the other thing I'd point to about this motivation attack by my friend on the other side is that, you know, the -- you know, Hawaii, the legislature, took Bruen seriously. This statute's all about making sure the right of Bruen is vindicated. And just last year, for example, Hawaii issued 2207 concealed permit -- permits for firearms.
You know, they only denied 119 applications, and the majority of 112 those were denied because people didn't fill out the application in full or they got it out of time.
Thank you, counsel. Justice Thomas?
“This is a purely procedural utterance involving acknowledgment of counsel and passing the floor to another Justice, with no emotional valence or substantive content whatsoever.”
If you're going to cite the Louisiana black codes of 1865, don't you also have to cite the subsequent adoption of the Fourteenth Amendment that was in part generated because of laws like that?
“The Justice is directly challenging the selective use of historical evidence (the Louisiana black codes) by pointing out that the counsel must also account for the Fourteenth Amendment, which was enacted precisely in response to such laws. This is a probing, skeptical question that exposes a potential weakness in the historical argument being made.”
Right. So that is exactly our point, that the Reconstruction Congress that ratified the Fourteenth Amendment, this is the unusual case in which you have those folks saying effectively Louisiana should come in. And many of the parts of the black codes, including parts that Justice Alito were referring to that were racially discriminatory about firearms, were struck from the Louisiana law. But this law stayed in effect. And so, yes, we do think it is relevant history. We don't think our argument depends on it because there's statute after 113 statute from the founding on. And the idea that those -- that the number of statutes we've provided isn't enough, I think, is -- is very hard to reconcile when you have zero tradition, zero evidence on the other side saying these statutes were problematic. I mean, these statutes were around. You would have thought someone, if this was an infringement on the right to keep and bear arms, would have had a court case, a commentator, anything like what you had in Bruen. You've got none of that.
Well, actually, there was quite -- as I said in my McDonald opinion, quite a bit of discussion of these sorts of laws and the consideration of some that they thought that the privilege -- or Immunities Clause in the Fourteenth Amendment preempted these.
“The Justice is referencing their own prior opinion (McDonald) to add historical context about Privileges or Immunities Clause discussions, suggesting intellectual engagement and mild approval of the historical framing rather than challenging counsel directly. The self-citation indicates the Justice is actively contributing to the argument's development rather than attacking it.”
So, Justice Thomas, I agree with you about what you said there, but I don't think it applied to this specific 114 question, which is private property default rules. I think what -- the evidence you were talking about there dealt with other aspects of state regulation over firearms.
Justice Alito? Justice Sotomayor?
A three-part question. In one or two sentences, could you answer -- finish answering the California point that Justice Gorsuch raised? Number two, finish your list on where else the State of Hawaii has flipped the presumption. You -- you got up to littering, and then you were cut off. And then, number three, I have never quite understood the Court's recent jurisprudence on outliers don't count. I don't know how much outliers mean.
“The justice is organizing multiple questions in a structured way, showing genuine curiosity and engagement with the arguments. The admission 'I have never quite understood' signals authentic intellectual inquiry rather than skepticism or hostility, and the request to complete interrupted arguments shows fairness and clarifying intent.”
Meaning, at the founding, there were 13 states. I don't know how many territories at the time because I don't remember off the top of my head. But there were at least four states that had flipped the presumption: New Jersey, New York, 115 Maryland, then -- and Pennsylvania. And then later there was Massachusetts in 1790 at least for a group of islands. And then you don't have just the black codes; you have Oregon and Florida flipping the presumption a little later on. So it seems to me that you can't call all of these laws out -- this many outlaws -- outliers. And so the custom and tradition that existed was you -- the license you had and whether you presumed or didn't presume permission could be flipped, correct?
“The Justice is marshaling historical evidence to challenge the respondent's framing of certain laws as 'outliers,' suggesting skepticism toward the respondent's position while also engaging substantively with the historical record. The rhetorical structure ('you can't call all of these...outliers') signals skeptical pushback, though the concluding 'correct?' invites confirmation and shows some clarifying intent.”
So why don't you answer the other two questions.
“This is primarily a procedural directive from the Justice, redirecting counsel to address unanswered questions. The slight hint of impatience in 'why don't you' adds minimal hostility, but the statement is largely neutral and administrative in nature.”
Yeah. So, on the California thing, the -- the one thing I would just add to the -- my prior discussion with Justice Gorsuch is just I think the overall understand -- overall history of what the Hawaii legislature did here was relevant. They weren't trying to attack a second-class right or something like that. They were rather trying to take Bruen seriously by opening up what counts as consent, unlike 116 California, deviating even from the old historical laws like New Jersey in 1771, which required written consent. And I think what did the work in my friend's argument in his opening statement was this idea that 96.4 percent of Hawaii is now encompassed. You pointed out that dealt with sensitive places. But there is a much more fundamental problem and it has infected this case from the start. If you read page 1 of his brief, it says quote -- it says 96.4 percent of the publicly accessible land in Hawaii is impacted by this law -- by -- by this law. The map he's got isn't even about Hawaii. It's about one county in Hawaii and not even the most populous county in Hawaii and it's a map he drew himself. So I'd just caution the Court into saying -- because, if you read these briefs, it does sound like, oh, the government of Hawaii is out to get guns or something like that. Nothing could be farther from the truth. They've taken Bruen seriously, as the permit statistics I read to you say. 117 With respect to Hawaii singling out firearms, there's statute after statute. I was reading 291-112, which is that you can't use a vehicle for habit -- for habitation on private property "without the authorization of the owner." There's also 633-16, that you can't remove shopping carts without the written consent of the owner. There's statute after statute like this. And the amicus briefs from the property law professors goes through and says this is true not just in Hawaii but in state after state. They flip default rules all the time. Your last question was about outliers. And I think, here, our most important point is we don't think that there's some sort of mechanistic formula for how many states is enough or anything like that. We do think it's relevant that there are a number of states at the founding that do have this. This Court on the sensitive places part of Bruen said legislative assemblies may be a -- a sensitive place. There was only one state in the founding that had that. That was 118 Maryland, and it passed two separate laws five years apart during the Colonial era. That was enough to count as an analog. We certainly think the larger, much larger, number here is enough to count as an analog because these laws actually did the same thing as what the Hawaii law does. It said for -- with respect to property that is open to the public, like plantations, like premises, like enclosed land, Professor Hartog says that includes seed stores, other retail establishments, akin to the kinds of things that my friend is challenging here, there is historical precedent for all of that. We think that's certainly enough to make this constitutional.
So just on your last point, Mr. Katyal, I -- I took Ms. Harris to be saying with respect to your analogs at Bruen step two that her principal point was, look, it's not about, like, is it about poaching, but the difference between those laws and this law is that those laws were about lands that were closed to the public. And that was her 119 principal point that -- that made that, like, just a different category.
“The Justice is primarily clarifying the opposing counsel's argument back to the respondent, summarizing Ms. Harris's position on the Bruen step two analogs to ensure the respondent addresses it accurately. This is a clarifying and intellectually engaged intervention that helps focus the debate, with mild skepticism toward whether the respondent's analogs truly map onto this case.”
Right. And it just blows off the word "improved" in the statutes. It's not just about unfenced -- it's not just about fenced land but improved land. For improved land, the statutes did change the default rule and say you couldn't imply the consent of the owner. And as Professor Hartog said, that applied to stores. It applied to plantations. Indeed, that's the definition of plantations. And it applied to premises, which is another word used in some of these statutes. And so the idea that it didn't apply to these types of things that are just like what my friends are challenging is just wrong.
Okay. And on -- on this -- your step one inquiry, which I -- I find interesting and difficult, I mean, I think somebody could say: Look, what these consent-flipping, default-flipping rules do, they do burden the carrying of firearms and -- and that's what they are, and to incorporate the burden into one's understanding of the 120 scope of the right is a kind of category mistake, that the burden is supposed to be at step two, and these are burdens on the carrying of firearms.
“The Justice is intellectually engaging with a complex doctrinal argument about the two-step framework, acknowledging the difficulty and interest of the question while raising a potential counter-argument about category mistakes. The tone is exploratory and analytically curious rather than hostile or strongly skeptical, suggesting genuine intellectual engagement with the structural logic of the argument.”
So two things. One, factually, we just fundamentally disagree that this burdens firearms. As Justice Alito was saying earlier, if people in Hawaii don't want to have the guns anyway, they're always going to be able to, even under their rule, say, you know, have signs that say no guns allowed. So, either way, you could have that burden. The second thing is, legally, this Court has made clear as day at page 22 of Bruen you can't ask that burden test. Here's the language. You said: "Heller and McDonald expressly rejected the application of any judge-empowering, interest-balancing inquiry that asks whether the statute burdens a protected interest in a way." And so, you know, that which my friend is definitely trying to say, that this burdens the right, that is not a Second Amendment violation. That's going down the road of undue burdens that this Court has criticized in a 121 separate number of contexts in saying that's a smoke screen for policy judges' preferences. Rather, the inquiry at Bruen step one has always been text is informed by history. And when you ask yourself what in the text informed by history this Hawaii law violates, the answer is precious zero. No commentator, no treatise, no court, no one's ever said you have a right to imply consent of the private property owner. And rather, the fundamental tradition, which Justice Sotomayor was saying earlier, that Justice Scalia recognized in the Jardines opinion is that there's a fundamental right to exclude, and that right to exclude has always meant, at the time of taverns and the like, you can exclude people for violating the terms on which they come in even if your tavern's open to the public.
Near as I can tell, the movement to flip the burden in -- with respect to firearms began in the states in 122 2020. Is that right?
“The Justice is seeking factual confirmation about the historical timeline of burden-shifting in firearms law, using tentative language ('near as I can tell') that signals genuine information-seeking rather than challenge. This is primarily a clarifying question with some intellectual engagement about the legal/historical record.”
The burden to flip the firearms with respect -- with laws like this, I think that was after Bruen. I think that was when this Court's decision in Bruen happened. And then laws like -- the states like Hawaii in which there was no tradition at all of carrying had to deal with this question for the first time.
How many states have laws like Hawaii's with respect to firearms on property?
“This is a factual inquiry about how many states have similar laws, suggesting the Justice is gathering empirical context to evaluate the case's broader implications. The question is neutral in tone, seeking clarifying information while also showing intellectual engagement with the scope of the issue.”
So I think five states have enacted those laws just in the few short years since the Bruen decision. I think other states, there's one, a brief for you from D.C. saying some other states are considering it. Our point is the Constitution permits both types of rules. It doesn't -- there's -- it's not constitutionally compelled that you have to use the Hawaii rule. States function 123 as laboratories. They can do either -- they can pick either default rule. Neither is an infringement on the Second Amendment right to keep and bear arms.
Justice Barrett? Justice Jackson?
And it's not an indictment necessarily that this arose after Bruen. It was in response to Bruen because Bruen gave rise to the need for clarity about property owners. Once Bruen said you can carry the gun outside of your home and there was an alternative, you know, well-established principle that private property owners can exclude people, I think the states were trying to make sure that property owners had the opportunity to do that. And that only became necessary once Bruen allowed people to carry their guns anywhere, right?
“The Justice appears to be actively defending or supporting the respondent's position by contextualizing why the law arose post-Bruen as a reasonable response rather than an indictment of its legitimacy. The framing is sympathetic and constructive, building a logical narrative that supports the respondent's argument about property owners' rights, with some engagement in exploring the legal landscape created by Bruen.”
I mean, it wasn't 124 like they were necessarily trying to keep people from carrying the guns. They were giving property owners the right to exclude by making sure that they were asked: Do you want this gun in your store?
“The Justice appears to be reframing or pushing back on the characterization of the historical law's purpose, suggesting it was about property owner rights rather than gun prohibition. This shows some skepticism toward one interpretation while offering an alternative reading, blended with intellectual engagement in working through the historical meaning.”
Exactly. And I was saying to Justice Gorsuch, with respect to California law, Hawaii took it far more seriously. They said: We want to make sure that you have the opportunity to get on-the-spot oral consent, which is why the gas station hypothetical that the Chief Justice used and the others, it is not an issue under the Hawaii law because you do have the ability to go and ask for consent even if there's no posted -- no sign one way or the other.
Thank you, counsel. Rebuttal, Mr. Beck. REBUTTAL ARGUMENT OF ALAN A. BECK ON BEHALF OF THE PETITIONERS
“This is a purely procedural statement transitioning between counsel arguments, with a standard 'Thank you' and directing rebuttal argument. There is no substantive judicial sentiment expressed.”
Your Honor, this -- as the NRA's amicus brief makes very clear, this is a historical tradition of carrying on private 125 property open to the public. This whole legal theory regarding the presumptive ban, default rules, started off with a Law Review article that was published in 2020, and the premise of that Law Review article is putting in a presumptive ban like Hawaii has would lessen people from carrying. The State of New York adopted that law first, and the governor of New York said the express reason they were doing that was to undermine the Bruen opinion. There's no -- there's a clear body of evidence here that this was done to undermine Bruen and to undermine the Second Amendment right, and, thus, this law very clearly implicates the Second Amendment. And the state has simply failed in its burden to justify this law through relevantly similar historical analogs. Therefore, this Court should rule in our favor.
Thank you, counsel. The case is submitted. (Whereupon, at 12:01 p.m., the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument, with no emotional valence or substantive judicial commentary whatsoever.”