The Supreme Court's entire framework for Second Amendment cases is coming apart - Ian Millhiser @ Vox

[In It to Win It]

Gift Link
Vox

The Supreme Court’s Republican majority spent much of Tuesday morning trying to figure out how two mutually exclusive principles can both be true at the same time. One principle is that all Second Amendment cases must be judged using a bespoke legal rule that only applies to the Second Amendment. The other principle is that the right to bear arms must not be treated differently than other constitutional rights.

Four years ago, in New York State Rifle & Pistol Association v. Bruen (2022), the Republican justices struck down a century-old New York law that required anyone who wishes to carry a handgun in public to demonstrate “proper cause” before they could obtain a license allowing them to do so. On Tuesday, the Court heard Wolford v. Lopez, a challenge to a Hawaii state law that appears to have been designed intentionally to sabotage Bruen.

While the law at issue in Bruen directly banned most people from carrying a gun in public, Hawaii’s law tries to achieve this same goal indirectly by requiring gun owners to obtain explicit permission from a business’s owner or manager before they can bring a gun into that business. Because few businesses are likely to grant such permission — and few gun owners are likely to go into a business unarmed, ask the manager for permission, and then return with their weapon — Hawaii’s law is likely to operate as an effective ban on firearms in most public spaces.

But Bruen also announced a bizarre legal rule that applies only in Second Amendment cases. Under Bruen, a gun regulation is constitutional only if the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Thus, government lawyers must prove that consistency by comparing the modern-day law to “analogous regulations” from the time when the Constitution was framed. If the courts deem the old laws to be sufficiently similar to the new law, then the new law does not violate Bruen.

This bespoke rule for Second Amendment cases is so vague and ill-defined that judges from across the political spectrum have complained that it is impossible to apply. But, in Wolford, Hawaii’s lawyers made a very strong argument that their law should survive Bruen. Their brief names an array of old laws that are very similar to the Hawaii law at issue in Wolford.

The Supreme Court’s Republican majority spent much of Tuesday morning trying to figure out how two mutually exclusive principles can both be true at the same time.

— Vox (@vox.com) 2026-01-20T19:23:42.049Z

[Igel]

1. Strikes me as not a hard rectangle to square.

To obtain explicit permission is a burden on the exercise of the right--the owner may not be there that moment, might be busy; might have a manager running the establishment. But property owners have full rights to simply post a notice saying firearms aren't allowed. If by the cash register, fine--see the notice, put down your intended purchase, and exit. Don't make it a postage-stamp sized notice, just reasonable.

Strikes me that's likely how "analogous" laws would have worked, historically. Maybe word of mouth would have sufficed, but gone are those days. If it works as a ban, it works as a ban. But it doesn't make a criminal out of somebody who walks onto private property that's not posted.

[TommyT139]

2. Rules like that are posted on the door

...at least the ones I've seen: no hats, hoods, masks, and yes, guns. That's where it makes sense to post something like that, not the cash register.

I don't know the historical Hawaiian conventions, but if pertinent, they'd be mentioned in the case documents I'd think, or during oral arguments.