The Supreme Court Could Make It Easier to Bring a Gun Everywhere

The Trump administration also urged the court to take up the case and overturn the Ninth Circuit’s decision, which it described as “nullifying” Bruen. “Because most property owners do not post signs either allowing or forbidding guns, Hawaii’s default rule functions as a near-complete ban on public carry,” they claimed. “A person carrying a handgun for self-defense commits a crime by entering a mall, a gas station, a convenience store, a supermarket, a restaurant, a coffee shop, or even a parking lot.”

The state of Hawaii vigorously defended the lower court’s ruling and the default property rule in general. The revised law, it argued, “represents a permissible effort to vindicate the rights of Hawaii’s citizens to exclude armed individuals from their private property.” Default property rules are not unknown to the law, it observed, pointing to a 1951 Supreme Court ruling in favor of a municipal law that forbade “door-to-door solicitation” unless the owner gave express consent, even though such a law might appear to violate the First Amendment.

Hawaii also pointedly noted that, when it comes to history-and-tradition tests, the state has a unique tradition of its own as a former sovereign country. The plaintiffs claimed there was a historical tradition of implied permission in American history. “That may be true in other states, but in Hawaii, open carry has never been the default,” the state told the court. “Hawaii has limited the carrying of weapons in public spaces since at least 1852—decades before the U.S. Constitution was extended to Hawaii.” (The islands were annexed by the United States in 1898.)