Last week, I wrote about the birthright citizenship case, one of several major Supreme Court decisions handed down over the past few weeks. Today, I want to look at what is probably the second most controversial decision, and one surrounded by a great deal of confusion and misinformation.
The case, Wolford v. Lopez, concerns whether registered concealed carry permit holders may carry firearms on private property that is open to the public. Opponents claim, by forcing private business owners to allow guns in their stores and offices, the ruling takes away the rights of private business owners and puts them in danger. That, however, is not the case.
To understand this decision, let’s look at the history behind it, particularly the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, where the Court ruled that the Second Amendment protects the right of law-abiding citizens to carry handguns in public for self-defense. The Court also established a new constitutional standard for evaluating firearm laws.
Before Bruen, courts generally used a two-step balancing test. They first asked whether a law affected Second Amendment protections. If it did, they then weighed the government’s interest, such as reducing crime or improving public safety, against the Second Amendment protections. This approach often allowed courts to uphold gun regulations if they believed the law reasonably promoted public safety.
The Bruen decision changed that approach. The Supreme Court ruled that judges should no longer weigh public safety against constitutional rights. Instead, courts must first determine if a law restricts the Second Amendment. If it does, the government must prove that the law is consistent with the nation’s historical tradition of gun regulation. In other words, the government must show that similar laws existed during the nation’s early history. If there is no historical tradition supporting the law, it is likely unconstitutional.
This brings us back to the case at hand. In response to the Court’s decision in Bruen, Hawaii passed a new law in 2023 allowing people with concealed carry permits to carry firearms, but imposed several new restrictions. The most controversial provision required permit holders to obtain explicit permission from a property owner before carrying a firearm into a privately owned business that is open to the public, such as a gas station or restaurant.
Supporters of the Hawaiian law argued the restriction respected private property rights while helping reduce the risk of gun violence in places where large numbers of people gather. They believed the law was a reasonable response to the Supreme Court’s Bruen decision because it balanced constitutional rights with concerns about public safety.
Second Amendment advocacy groups disagreed. They argued that the law effectively eliminated concealed carry because so many places are privately owned but open to the public. As a result, they contended, Hawaii had made it nearly impossible for permit holders to carry firearms during their normal daily activities. Several individuals filed a lawsuit against Hawaii Attorney General Anne E. Lopez. The case eventually made its way to the Supreme Court.
In Wolford v. Lopez, the Court ruled that Hawaii’s default prohibition violated the Second and Fourteenth Amendments. The Court concluded that the state had failed to demonstrate a historical tradition supporting such a broad restriction and that the law effectively prevented permit holders from exercising their constitutional right to carry firearms for self-defense in many ordinary public settings.
Up to this point, the case has generally been reported accurately. The confusion comes from what the Court said next.
The Court also made it clear that private property owners still have the right to decide whether firearms are allowed on their property. What the state cannot do is automatically assume that every private business is a gun-free zone unless the owner gives affirmative permission. Instead, the default is reversed; property owners must choose for themselves if they want to prohibit firearms.
In other words, the Court did not take away the rights of business owners to restrict guns on their property. If a business owner posts a “No Firearms” sign, then firearms are not permitted. For example, open carry is legal in Oklahoma, but if today I visited a store that posted a sign allowing concealed carry while prohibiting open carry, that store owner has every legal right to make that rule.
So, while Wolford v. Lopez is certainly a victory for gun owners, it does not strip away anyone’s right to decide what rules apply on their own private property.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
