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PaperclipPerfector  3d ago (text post)   14095 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.

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.

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.

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