Case made to SCOTUS: States can't ban carry on property open to public

The U.S. Supreme Court heard oral arguments on a Second Amendment case out of Hawaii on Jan. 20 that could set precedent nationwide.

At the center of the case is the Bruen test — a 2022 landmark SCOTUS ruling (New York State Rifle & Pistol Association v. Bruen) that expanded gun rights, especially the right to carry a handgun in public.

The case, Wolford v. Lopez, dates back to June 2023, when three plaintiffs from Maui County sued over new state legislation that criminally prohibits a person with a concealed carry permit from bringing a handgun onto 15 types of property. Prior state law allowed a person with a carry permit to bring firearms onto private property that is open to the public unless the property owner prohibited it. Under new law, carrying a firearm onto private property that is open to the public is generally prohibited unless the owner affirmatively gives permission or by posting clear and conspicuous signs — somewhat similar to Ohio law on places of worship. The U.S. Court of Appeals for the Ninth Circuit in September 2024 upheld the state law.

Attorneys speaking on behalf of the petitioners Jan. 20 were Alan Beck, a San Diego attorney, and Sarah Harris, principal deputy solicitor general with the U.S. Department of Justice. Washington, D.C.-based, attorney Neal Katyal spoke on behalf of Hawaii.

One key issue debated during arguments before the high court was on "presumption" and whether it should be flipped. Under new state law, the presumption is on prohibition of guns on property that is open to the public. Beck and Harris made the case that this new unconstitutional presumption should be flipped.

Justice Ketanji Brown Jackson first attempted to challenge Beck by redefining the Bruen ruling.

"Well, in Bruen, the court said that there's a general right to carry," Beck pointed out.

"A general right to carry on public property," Jackson replied.

"No. It — it's a right to carry in public, your honor. Not a right to carry on public property."

In a later exchange with Harris, Justice Jackson tried to downplay the relevance of the Second Amendment.

"[C]an we just be a little bit more specific about the Second Amendment right that you say is being infringed on here?" Jackson asked. "I think the United States is on board with this — that the Second Amendment yields to the property interests of a private property owner 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?"

"I think, when you collapse the whole inquiry into a specific question of what happens vis-a-vis property rights, you're backing away from the Bruen framework," Harris countered. "So what we're answering here is what is the scope of the right to publicly carry under the Second Amendment. … [W]hen 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, etc."

'Flipping' the presumption

Justice Sonia Sotomayor attempted to establish Hawaii's precedent, asserting that "most property owners for 200 years didn't carry weapons in this state without an owner's consent."

"And states cannot retain their pre-statehood traditions as sort of a — a veto for the Second Amendment national tradition," Harris countered. "[Y]ou can't use local customs to say that each state gets its own Second Amendment."

Sotomayor continued pressing on the presumption of letting the property owner choose.

"But the presumption is that you're trespassing," Harris said. "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."

Justice Neil Gorsuch pointed out Hawaii's presumption problem.

"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," he said. "But how do we think about that, given that it flips the presumption on the long-standing implied license only with respect to firearms — not knives, not solicitation, not politicking, not anything else?"

"That's exactly right," Harris said. "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."

Harris continued: "And, again, it's not just sort of, oh, is it easy to get one person's consent? How hard is it? … 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 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."

Justice Samuel Alito schooled Katyal on the state's hypocrisy where rights are concerned, pointing to a hypothetical of a restaurant owner choosing to ban people wearing certain political attire unless those people first get expressed consent from the restaurant owner.

It's a violation of the First Amendment," Alito told the attorney defending the state law. "We have a violation of the First Amendment ... and a violation of the right that the court held is 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 entire audio and written transcript of the oral arguments also can be found at supremecourt.gov/oral_arguments/audio/2025/24-1046.