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PaperclipPerfector  3d ago (text post)   13409 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.

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: "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.

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.

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