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PaperclipPerfector  4d ago (text post)   16335 thread views

Culture War Roundup for the week of June 22, 2026

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Wolford v. Lopez Dropped

Holding: Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and Fourteenth Amendments.

Alito, 6-3.

Hawaii's statute here was not unprecedented. As one of multiple jurisdictions with a post-Bruen tantrum bill, it joined New York City, Chicago, New Jersey, California, and Maryland. It was unusual only in the sense that the 9th Circuit did not offer an injunction, even as the California law had been enjoined by the same court and panel.

In that sense, this case will not have broad impact: only Hawaii had a standing version of the statute, Hawaii has separately made possession and lawful carry near-impossible in ways this case didn't touch, and the holding is specific to this case. On the other hand, this sticks a fork in the other five lawsuits, as much as anything can be a sure bet when it comes to law or judges doing their jobs, and there's a lot of dicta that has broader implications. On the gripping hand, this court has been shipping broadsides and warning shots on the Second Amendment for over a decade; it's hard to expect the actual holding and clear rule to stick, and implausible any amount of hinting dicta would.

Some general notes:

  • The majority is even more straightforward than I expected. Alito is, bluntly, padding the majority, it's still only 24 pages, and even then it's still half history lesson and a couple pages of a lengthy hypothetical to explain the statute's impact on the law-abiding.
  • It's also very loud about it. Alito's a grumpy writer at the best of times, and there's a lot of the text that's telegraphing his dislike of the lower court and state legislative defiance, here. The "Spirit of Aloha" shows up, and VanDyke gets a nice quote. The biggest tell is just "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense."
  • Alito does still duck on the question of the law's purpose, though: "Petitioners and the United States argue that the new default rule was enacted to undermine our decision in Bruen, but whatever the purpose of the new law, the shift from the old common-law rule unquestionably imposed a new and significant burden on the exercise of the right that this Court recognized in Bruen."
  • The analysis of historical analogues takes up the most paper, but Alito's "step one" analysis has the most meat to it. A lot of lower courts have ducked the Second Amendment by including interest-balancing or historical analogue tests before a plaintiff can even argue the Second Amendment is implicated, and Alito pretty heavily ties that off if they follow the holding here. Big if, though.
  • It's a 6-3 split. Duh. Technically the liberal dissenters are just saying Bruen shouldn't cover this law. Kagan by saying the historical analogues are close enough in a way that would make any law an analogue for anything else in a one-paragraph dissent that's threadbare, while Sotomayor and Jackson draw up an alternate universe where it was just a property law and didn't implicate the Second Amendment at all. But that's a pretty weak fig leaf, and Jackson outright says "I think Bruen was wrongly decided". There were a lot of people trying to pull tea leaves from Hemani, and the tea leaves are just that they didn't want to be voting against potheads, and that's not going to apply to anything else.
  • There's a Barrett concurrence that mostly seems written to counter the Sotomayor/Jackson position, which is fair, but also kinda shooting fish in a barrel since Jackson doesn't really seem to be interacting with concepts like "We don't do this in the 1A context". She does also bash Hawaii's attempt to use Black Codes as support, which are joined by Thomas and Gorsuch. There's a II-A section that explicitly draws out what sort of prohibitions she would accept, that notably no one else (even Roberts!) joins... but it's also more constrained than the exceptions Alito and Roberts have signed onto before, so I dunno that it's worth reading too deeply into it.
  • At least in the short term, both Wolford and Hemani are likely to mean more for what happens to other cases, not their own holding. There's still the hardware and under-21 cases, they haven't been granted or denied cert yet, and not much time before the summer break. The narrowness of these decisions would make any GVR clearly pretextual, and pretext that's doomed to fail, especially in cases like Duncan that have already been GVR'd once before in Bruen. At best, it buys two years while Roberts yells 'don't make me pull over' to brats who know he won't. ... but that doesn't make it implausible.

It’s pretty annoying that every gun case now is constitutionally required to be an 18th-century literature review, especially if we have to do the extra work of figuring out which laws were and weren’t racist.

if we have to do the extra work of figuring out which laws were and weren’t racist

Oh, that one's easy: all of them were racist, of course!

Unfortunately that is primarily because the 2A has been a red headed stepchild in SCOTUS forever - with SCOTUS not taking almost any 2A cases - so they haven't built up much precedent. Going back in history to see what laws were around is how SCOTUS does all the constitutional interpretation, but because they have a ton of built up caselaw they point to those cases (which should eventually point back to founding era stuff) it just seems less like that is what its doing on its face. If SCOTUS were to take up a couple 2A cases each term, like they do for the 1A, we'd have a similarly built up rulings to make things seem more obvious based on previous rulings.

Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment. Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

As far as laws being racist or not, once a law has been ruled unconstitutional it is considered as though it was always unconstitutional - so citing an unconstitutional law for evidence is a really bad argument. Hence why using the Black Codes for evidence was a nonstarter.

Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

Yes. That's what Europe does, we know what it looks like.

Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment.

The difficulty with 2A is that a straightforward reading is not really compatible with a stable modern society. A crazy man with a flintlock musket can only do so much damage, despite it having been the state of the art weapon system for the bulk of military forces. A crazy man with a flock of explosive drones or a fission bomb can do much more damage, and no country can survive engaging in mutually assured destruction diplomacy with the craziest 1% of their citizens individually. Different people may draw the line in slightly different places for 2A, but very few believe that no line should be drawn at all.

This is not so much different from limitations on the 1A. Should it be allowed to promise people rewards for committing crimes? Should it be allowed to make fraudulent bomb threats or SWAT people? Should a mob boss go free as long as all he did was talk to his underlings? All of these are restrictions on free speech, but they are obvious restrictions which are required to have a functioning state at all.

Well, if it helps, I am not on of those who believe in the right to own McNukes. I believe a reasonable argument could be made that at our founding we the people were generally expected to own and operate man portable rifles and pistols generally. Yes, I know warships were privately owned in the distant past, so one could make that argument and I don't have a truly principled reason to restrict them but I accept they are and don't advocate to own one.

How I believe the 2A should be looked at is what constitutes an "arm" in regards to the 2nd Amendment. Even before the US was a country, repeating rifles did exist even if in a rudimentary form so I would argue AR-15s style performance could be reasonably foreseen by our founders. Now I'd argue automatic weapons should be allowed, but I know that just isn't feasible, so you work with the world you have now - and people being allowed to own sporting rifles and pistols should be pretty uncontroversial for being covered under the 2A. The problem is many federal judges and state governments would immediately strip people of being able to own any arm if they had the chance - and we're fighting for even the basics of keeping the 2A available in many states.

When we look at other amendments for new tech, we look for analogs: the internet is just the printing press, but way better. AR-15s are just better repeating rifles. Drones are allowed to be owned, so are some explosives - so I will not be surprised if we see drone based terror attacks in the US very soon - and I'm not sure what can be done to stop it. The technology exists, isn't difficult to make, can't be easily restricted (compared to controlling Uranium and its enrichment), etc. it is only a matter of time. Some people already tried for the UFC event during flag day but got caught before they were able to do it.

The exceptions for the 1A, especially in regards to political and religious speech are darn near unlimited - and I can cause much more damage to many more people by advocating terrible forms of government (fascism, socialism) than I could as one man with a machine gun; but attenuated causes are harder for us humans to truly take the full weight of.

Should a mob boss go free as long as all he did was talk to his underlings?

"Will no one rid me of this turbulent DA?"

The difficulty with 2A is that a straightforward reading is not really compatible with a stable modern society.

I see this claim thrown around as obviously true on a regular basis but I don't think it really stands up to scrutiny. Something about an armed society being a polite society.

How are you defining "stable" and "modern" in this context? Do New York and California count? Do Texas and Florida not?

Something about an armed society being a polite society.

I don't think that's necessarily so, in the hey-day of duelling what you got was finer and finer gradations of who was a gentleman and who wasn't, so who could be insulted with impunity and who couldn't, and if a social inferior could or could not challenge a social superior, and fights over what we would consider nothing or at least that an apology would be acceptable. An armed society, in those days, was one where the most minor perceived slight demanded blood or else, because being perceived not to defend your status and position meant you could be treated as contemptible and cut out of society.

Two examples from "Nicholas Nickleby", the first being that Nicholas hears his sister being insulted, demands satisfaction, and is refused on grounds of being a nobody. The second is the two men of equal status (or one is slightly higher) quarrel and then it ends in a duel, because now they are both of a position where it's expected:

(1)

He heard his sister’s sufferings derided, and her virtuous conduct jeered at and brutally misconstrued; he heard her name bandied from mouth to mouth, and herself made the subject of coarse and insolent wagers, free speech, and licentious jesting.

…‘Let me have a word with you, sir,’ said Nicholas.

‘With me, sir?’ retorted Sir Mulberry Hawk, eyeing him in disdainful surprise.

‘I said with you,’ replied Nicholas, speaking with great difficulty, for his passion choked him.

‘A mysterious stranger, upon my soul!’ exclaimed Sir Mulberry, raising his wine-glass to his lips, and looking round upon his friends.

‘Will you step apart with me for a few minutes, or do you refuse?’ said Nicholas sternly.

Sir Mulberry merely paused in the act of drinking, and bade him either name his business or leave the table.

…‘Your name and address?’ said Nicholas, turning paler as his passion kindled.

‘I shall give you neither,’ replied Sir Mulberry.

…Sir Mulberry looked at him contemptuously, and, addressing his companions, said— ‘Let the fellow talk, I have nothing serious to say to boys of his station; and his pretty sister shall save him a broken head, if he talks till midnight.’

…‘Will you make yourself known to me?’ asked Nicholas in a suppressed voice.

‘No,’ replied the other fiercely, and confirming the refusal with an oath. ‘No.’

…‘You are a villain,’ said Nicholas.

‘You are an errand-boy for aught I know,’ said Sir Mulberry Hawk.

‘I am the son of a country gentleman,’ returned Nicholas, ‘your equal in birth and education, and your superior I trust in everything besides. I tell you again, Miss Nickleby is my sister. Will you or will you not answer for your unmanly and brutal conduct?’

‘To a proper champion—yes. To you—no,’ returned Sir Mulberry, taking the reins in his hand. ‘Stand out of the way, dog. William, let go her head.’

…‘Ye-es,’ said the other, turning full upon him. ‘If you had told him who you were; if you had given him your card, and found out, afterwards, that his station or character prevented your fighting him, it would have been bad enough then; upon my soul it would have been bad enough then.’

(2)

Meanwhile, the two seconds, as they may be called now, after a long conference, each with his principal, met together in another room. Both utterly heartless, both men upon town, both thoroughly initiated in its worst vices, both deeply in debt, both fallen from some higher estate, both addicted to every depravity for which society can find some genteel name and plead its most depraving conventionalities as an excuse, they were naturally gentlemen of most unblemished honour themselves, and of great nicety concerning the honour of other people.

These two gentlemen were unusually cheerful just now; for the affair was pretty certain to make some noise, and could scarcely fail to enhance their reputations.

‘This is an awkward affair, Adams,’ said Mr. Westwood, drawing himself up.

‘Very,’ returned the captain; ‘a blow has been struck, and there is but one course, of course.’

‘No apology, I suppose?’ said Mr. Westwood.

‘Not a syllable, sir, from my man, if we talk till doomsday,’ returned the captain. ‘The original cause of dispute, I understand, was some girl or other, to whom your principal applied certain terms, which Lord Frederick, defending the girl, repelled. But this led to a long recrimination upon a great many sore subjects, charges, and counter-charges. Sir Mulberry was sarcastic; Lord Frederick was excited, and struck him in the heat of provocation, and under circumstances of great aggravation. That blow, unless there is a full retraction on the part of Sir Mulberry, Lord Frederick is ready to justify.’

‘There is no more to be said,’ returned the other, ‘but to settle the hour and the place of meeting. It’s a responsibility; but there is a strong feeling to have it over. Do you object to say at sunrise?’

‘Sharp work,’ replied the captain, referring to his watch; ‘however, as this seems to have been a long time breeding, and negotiation is only a waste of words, no.’

‘Something may possibly be said, out of doors, after what passed in the other room, which renders it desirable that we should be off without delay, and quite clear of town,’ said Mr. Westwood. ‘What do you say to one of the meadows opposite Twickenham, by the river-side?’

The captain saw no objection.

...After a pause, and a brief conference between the seconds, they, at length, turned to the right, and taking a track across a little meadow, passed Ham House and came into some fields beyond. In one of these, they stopped. The ground was measured, some usual forms gone through, the two principals were placed front to front at the distance agreed upon, and Sir Mulberry turned his face towards his young adversary for the first time. He was very pale, his eyes were bloodshot, his dress disordered, and his hair dishevelled. For the face, it expressed nothing but violent and evil passions. He shaded his eyes with his hand; grazed at his opponent, steadfastly, for a few moments; and, then taking the weapon which was tendered to him, bent his eyes upon that, and looked up no more until the word was given, when he instantly fired. The two shots were fired, as nearly as possible, at the same instant. In that instant, the young lord turned his head sharply round, fixed upon his adversary a ghastly stare, and without a groan or stagger, fell down dead.

‘He’s gone!’ cried Westwood, who, with the other second, had run up to the body, and fallen on one knee beside it.

‘His blood on his own head,’ said Sir Mulberry. ‘He brought this upon himself, and forced it upon me.’

‘Captain Adams,’ cried Westwood, hastily, ‘I call you to witness that this was fairly done. Hawk, we have not a moment to lose. We must leave this place immediately, push for Brighton, and cross to France with all speed. This has been a bad business, and may be worse, if we delay a moment. Adams, consult your own safety, and don’t remain here; the living before the dead; goodbye!’

With these words, he seized Sir Mulberry by the arm, and hurried him away. Captain Adams—only pausing to convince himself, beyond all question, of the fatal result—sped off in the same direction, to concert measures with his servant for removing the body, and securing his own safety likewise.

So died Lord Frederick Verisopht, by the hand which he had loaded with gifts, and clasped a thousand times; by the act of him, but for whom, and others like him, he might have lived a happy man, and died with children’s faces round his bed.

I don't think @quiet_NaN is saying that widespread gun ownership or widespread concealed carry of handguns is incompatible with a modern society - he is saying that the text of the 2nd amendment doesn't distinguish between "citizen grade weapons" like AR15s and "military grade weapons" like F35s, VX gas grenades, and nukes, and therefore taking it literally and seriously would allow nuclear-armed Branch Davidians and suchlike, and that that is not compatible with a modern society. I agree - I think that a government that is actually meaningfully restricted in its actions by fear of small groups of armed citizens is a failed state, and would perform like one.

See for example this subthread where pro-2nd amendment Motteposters argued that it protected a private right to own siege artillery and warships at the time of the founding.

At some point there is going to be litigation over whether the 2nd amendment permits private ownership of killer drones. The legal arguments will be about as edifying as the litigation over full-auto and scary-looking semi-auto rifles, but the results will matter.

At some point there is going to be litigation over whether the 2nd amendment permits private ownership of killer drones. The legal arguments will be about as edifying as the litigation over full-auto and scary-looking semi-auto rifles, but the results will matter.

Speaking as something close to a 2A absolutist, this can be mitigated the same way the US can regulate psi-emitters and other forms of bio-engineered insectoid war-horrors - by the FCC.

The FCC is as subject to the Second Amendment as any other part of government.

I think the idea is that since psi-emitters and insectoid war-horrors are fictional, they are regulated by the FCC as fictional media.

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First Amending the Constitution we have a process for if an old part of the constitution is that far out of touch with modern society.

A crazy man is NOT what you are afraid of with causing mass casualties. I am thinking about by crazy you mean the street panhandling man with schizophrenia. He’s going to commit enough small crimes to institutionalize him first. By crazy you actually mean high agency but hates people like Osama Bin Laden who can accumulate arms and not commit other crimes. That may not change your argument but it’s still not a crazy person.

Your last paragraphs are not just speech. Paying someone to commit crimes is an act of paying people. They all lead directly to actions that are criminal. There is something going on that is more than just speech but directing physical actions thru speech.

So if you can't prove that an exchange of money has taken place (or it did not yet take place at all), then no amount of evidence implicates a man who said "I will pay you to make X disappear" in the following murder of X?

I would say that a fission bomb, or any weapon of mass destruction, is not a weapon you can "bear". (But you still have a point about drones.)

Also, people were allowed to own cannons back then and they could probably do more damage with one than with a musket.

...you can still own a cannon of the type used back then (at least under federal law).

Not only cannon, but privately owned warships were an entire thing.

So if we really want to argue that we should return to the founders' intent, no automatic guns, but Amazon can mount weaponry on its delivery vehicles?

They had 22 shot .46 caliber rifles before the Constitution was written. Not full auto, but as semiautomatic as they could make it.

...You understand that "automatic guns" are already unregulatable, correct? As in, it is no longer possible in any practical sense to regulate the ownership of automatic weapons in the United States of America. You can purchase a legal, full-auto AR-15 from Palmetto State Armory for a reasonable sum. Several companies are producing belt-fed light machine guns for the unregulated civilian market. Criminals have been mass-importing high quality auto-sears and full-auto lockwork from China by the container-load for years now. The government is incapable of keeping full-auto weaponry out of the hands of anyone who wants it, and is almost entirely incapable of prosecuting even those who gain such weaponry illegally, or even simply those who commit crimes with such weaponry. They are at the point of prosecuting a small fraction of carefully selected cases in a vain attempt to maintain keyfabe that meaningful prohibitions still exist.

You can purchase a legal, full-auto AR-15 from Palmetto State Armory for a reasonable sum.

Do you mean true select-fire, or some kind of workaround? I certainly missed this happening.

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As always Technicals remain the most superior war fighting weapon.

Can we get the Chicken Tax struck down on 2nd Amendment grounds?

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You'll have to explain how the founders didn't intend to allow automatic weapons, first. Of course they thought normal people should be able to buy and carry normal weaponry.

Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

Yes: "time, place, and manner" restrictions on speech are exactly this. I don't point this out to disagree with your substantially correct point that the Court is much less deferential to the Second Amendment than to the First, and frankly I don't think they're nearly deferential enough to the First. But they do engage in "interest balancing" on basically all issues. There is a reason Iustitia wields a balance scale.

The courts mostly have been treating gun regulation as an interest in itself -- often a compelling interest which overrides the First Amendment, as with the Defense Distributed case and various other 3D printing cases. They'd never do anything like that for the First.

That is fair, "time, place, manner" is more interest balancing that I wasn't thinking about - but the scales are much more defined on the first than the second.

You've got three levels with the first amendment: strict scrutiny, intermediate scrutiny, and rational basis. The problem was a lot of courts were treating the 2A with "rational basis" level analysis far too often when they should be treating most with strict scrutiny most commonly which is what I think SCOTUS is slowly building towards if they keep taking on a couple 2A cases per session.

While I expected them to uphold the vampire rule, and am thus surprised, the court is a long way from anything like strict scrutiny, given that in Bruen's footnote 9 they basically give the blue states carte blanche to impose prior restraint on gun rights, as NJ has.

Alito's a grumpy writer at the best of times,

That's putting it mildly, and a reason I enjoy reading his opinions. A big day for him with the Hawaii case and then 2 immigration cases.

Based on the stats for the remaining cases, Roberts seems likely to have some of the major culture war ones, especially birthright citizenship. However, for day-to-day practice for me, Chatrie will be the big one, and I wonder if Roberts will take that one as well (he took Carpenter and Riley, the last two big 4th amendment ones).

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