WOLFORD ET AL. v. LOPEZ, ATTORNEY GENERAL OF HAWAII
No. 24–1046
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
June 25, 2026
609 U. S. ___ (2026)
Argued January 20, 2026
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WOLFORD ET AL. v. LOPEZ, ATTORNEY GENERAL OF HAWAII
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 24–1046. Argued January 20, 2026—Decided June 25, 2026
For years, the State of Hawaii made it almost impossible to obtain a license to carry a firearm. Four years ago, however, this Court held in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense. Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result. At issue in this case is a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner. Hawaii’s new rule imposes severe restrictions on the daily activities of residents who have satisfied the State’s rigorous requirements for the issuance of a carry permit. When these permit holders leave home, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, restaurants, and stores. This law flips the default rule at common law, under which anyone has an implied license to enter property held open to the public unless the property owner withdraws consent.
In District of Columbia v. Heller, 554 U. S. 570, this Court held that the Second Amendment protects an individual right to keep and bear arms, with the Amendment’s “central” concern being the fundamental right of self-defense. Id., at 577. Heller instructed courts to ascertain the scope of the right by looking to history and emphatically rejected an ahistorical “judge-empowering ‘interest-balancing inquiry.’” Id., at 634. The Court later held in McDonald v. Chicago, 561 U. S. 742, that the Second Amendment right applies equally to the Federal
In Bruen, the Court fleshed out the process of historical analysis required in a Second Amendment case, holding that the analysis involves two steps. First, a court must determine whether the challenged law falls within the plain text of the Amendment’s language by asking whether the law applies to “the people” (i.e., all members of the political community) and restricts the “keep[ing]” (i.e., possession) or “bear[ing]” (i.e., carrying) of “Arms” (i.e., weapons customarily used for offensive or defensive purposes). If a challenged law falls within the plain text, it is presumptively unconstitutional—which means that it may violate the preexisting right that the Amendment codified. But the government may show that its challenged law did not infringe the historical understanding of the codified right. While a variety of sources may aid this inquiry, the best evidence is often what Bruen called historical analogues—old legal rules from which a court may draw a strong inference that the modern law at issue is consistent with the codified right. Bruen identified three important inquiries for evaluating proffered historical analogues: the number of jurisdictions in which they were adopted, the extent to which they were well-accepted, and whether any analogue or collection of analogues is “relevantly similar” to the modern law in terms of “how” and “why” it restricted the keeping or bearing of arms. 597 U. S., at 29.
Petitioners—three residents of Maui County who possess concealed-carry permits and an organizational plaintiff with members who have such permits—filed suit in federal court seeking temporary and permanent injunctive relief, contending that the law at issue violates their constitutional rights. The District Court enjoined enforcement of the law as applied to private property open to the public, but the Ninth Circuit reversed that injunction.
Held: 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. Pp. 13–24.
(a) The restrictions imposed by Hawaii’s challenged law fall within the plain text of the Second Amendment, so the law is presumptively unconstitutional. No party disputes that petitioners are among “the people” protected by the Second Amendment or that they seek to “bear” “Arms.” Therefore, “the plain text of the Second Amendment protects” what petitioners want to do: carry handguns for self-defense. Bruen, 597 U. S., at 32. To be sure, owners of establishments that are open to the public can admit or exclude persons who are carrying guns for self-defense under either the common-law rule or Hawaii’s law. But
(b) Hawaii’s proffered historical analogues do not support the constitutionality of its new default rule. Pp. 16–24.
(1) Hawaii’s argument that its “particular customs and laws,” Brief for Respondent 24, support the new default rule fails because the Second Amendment has the same meaning in all parts of the United States. The Second Amendment cannot give way to “the spirit of Aloha” in Hawaii, contra, State v. Wilson, 154 Haw. 8, 27, 543 P. 3d 440, 459, any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment. Pp. 16–19.
(2) The State’s colonial and early state law analogues consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property. These laws—including a 1721 Pennsylvania law, 1722 New Jersey statute, 1728 Maryland statute, 1763 New York law, and 1771 New Jersey law—targeted unauthorized hunting and applied to land where game could be found, not retail establishments that residents frequent as part of their daily routines. Those laws had little if any impact on the Second Amendment’s central objective of protecting the fundamental right to self-defense, and their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting. The gap between the State’s anti-poaching analogues and its new rule is too wide. Pp. 19–22.
(3) The State’s remaining analogues are even weaker. An 1893 Oregon law prohibited armed trespass on “enclosed premises,” but it is unclear whether such premises included commercial establishments open to the public. Regardless, a lone statute adopted nearly a century after the adoption of the Second Amendment and well after the adoption of the Fourteenth Amendment sheds little if any light on the meaning of the Second Amendment right.
116 F. 4th 959, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which THOMAS and GORSUCH, JJ., joined as to Part II–B. KAGAN, J., filed a dissenting opinion. JACKSON, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
JASON WOLFORD, ET AL., PETITIONERS v. ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII
No. 24–1046
SUPREME COURT OF THE UNITED STATES
June 25, 2026
609 U. S. ____ (2026)
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE ALITO delivered the opinion of the Court.
For years, the State of Hawaii made it almost impossible to obtain a license to carry a firearm. Four years ago, however, this Court held in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), that the Second and Fourteenth Amendments protect the right to carry handguns outside the home for self-defense. Hawaii responded by replacing its old law on carry permits with new laws that achieved a similar result. On a large portion of the land within the State’s boundaries, possession of a firearm is now flatly prohibited. And the law now before us severely burdens the ability to carry a firearm in much of the rest of the State by prohibiting firearms on private property without the express and affirmative consent of the property owner.
This law departs sharply from the standard common-law rule on access to private property held open to the public. Under that rule, everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so. By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner’s express authorization. The effect of this new rule is to impose
This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. We hold that the law is unconstitutional.
I
When Hawaii adopted the law now before us, it did so against the backdrop of this Court’s Second Amendment decisions, and many of the arguments that the State11 now advances were addressed in those decisions. We therefore begin with an overview of that body of law.
A
1
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For more than two centuries after the ratification of the Second Amendment, this Court had few occasions to examine its meaning. Such an occasion arose in District of Columbia v. Heller, 554 U. S. 570 (2008).
The case was brought by Dick Heller, a resident of the District of Columbia whose story highlighted the reason why the right to keep and bear arms for self-defense was
When his case reached this Court, we provided our first thorough exploration of the Second Amendment’s meaning. We rejected the argument that the Second Amendment right extends only to members of a state militia and held instead that the Second Amendment, like other provisions of the Bill of Rights, protects an individual right enjoyed by “‘the people.’” Id., at 579–581. Our opinion went on to explain the meaning of the Second Amendment’s other key terms. The phrase “to keep and bear Arms,” we held, signifies what its terms mean in ordinary usage—that is, to “have” and “carry Arms.” Id., at 583–585. And “Arms,” we explained, refers to implements used for offense or defense. Id., at 581. We added that handguns, which are “overwhelmingly chosen by American society” for self-defense, fall squarely into this category. Id., at 628.
We also identified the Amendment’s “central” concern: securing the fundamental right of self-defense. Id., at 577, 581, 599, 628, 635. In late 18th century America, the need
But while the founding generation cherished the Second Amendment right, they did not think it was absolute. Heller explained—and later cases have reiterated—that the Second Amendment “codified a pre-existing right.” Id., at 592. And this right, as understood at the time, was not an “unlimited” right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id., at 592, 626. Similarly, Heller warned that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Id., at 626; see also McDonald v. Chicago, 561 U. S. 742, 786 (2010) (opinion of ALITO, J.); United States v. Rahimi, 602 U. S. 680, 699 (2024).
2
Because the Second Amendment protects a right that already existed when the Amendment was adopted, Heller instructed courts to ascertain the scope of the right by looking to history. And to emphasize the point, Heller emphatically
B
Heller concerned an ordinance adopted by the District of Columbia, and therefore the decision did not govern the States. But since virtually all the provisions of the Bill of Rights had been held to apply equally to the Federal Government and the States, it was inevitable that the Court would have to decide whether the Second Amendment right merited similar treatment. Two years after Heller, that question came before us in McDonald.
The case was brought by residents of Chicago, a city, like Washington, D. C., with a high rate of violent crime.66 The lead plaintiff, Otis McDonald, was a man in his late seventies who lived in a dangerous neighborhood and had been subjected to violent threats from drug dealers. McDonald, 561 U. S., at 751. A city ordinance effectively barred McDonald and the other plaintiffs from possessing guns in their homes for self-defense, and they contended that the
The city of Chicago opposed nationwide application of Heller, arguing that law enforcement needs and public attitudes about guns varied from State to State and city to city and that States and cities should have leeway to regulate gun possession as their lawmakers saw fit. See Brief for Respondent in McDonald v. Chicago, O. T. 2009, No. 08–1521, pp. 24–31. The Court, however, disagreed. The plurality opinion, joined by four Justices, concluded that the Second Amendment right, like nearly all the rights protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, should apply equally to the Federal Government and the States. McDonald, 561 U. S., at 750. Following a body of precedent dating back more than a century, the plurality concluded that the provision of the Fourteenth Amendment that did this work was the Due Process Clause. Id., at 767–787. JUSTICE THOMAS, who provided the decisive fifth vote, reached a similar result based on the Fourteenth Amendment’s Privileges or Immunities Clause. Id., at 805–806 (opinion concurring in part and concurring in judgment). But either way, McDonald settled the question whether the Second Amendment embodies a uniform national standard or one that varies from one locale to another.
C
After McDonald, 12 years elapsed before the Court’s next major Second Amendment decision: Bruen. In the interim, lower courts rejected nearly all Second Amendment claims based on reasoning that resembled that in Justice Breyer’s Heller dissent. See Bruen, 597 U. S., at 18–19, 26.
In Bruen, we considered one such decision, which upheld a New York law that severely restricted the right to carry a handgun outside the home for self-defense. In doing so, we
That analysis, we held, involves two steps. First, a court must determine whether the law before it clashes with the “plain text” of the Amendment’s language. Id., at 24. This inquiry entails three subsidiary questions. First, does the law apply to “the people“—which is to say, to “all members of the political community“? Heller, 554 U. S., at 580. Second, does it concern any form of “Arms,” i.e., any weapon customarily used for offensive or defensive purposes? See id., at 584. Third, does the law place any restrictions on either the “keep[ing]” (i.e., possession) or the “bear[ing]” (i.e., carrying) of arms? See Bruen, 597 U. S., at 32–33.
If a challenged law falls within the plain text of the Second Amendment, it is presumptively unconstitutional, id., at 24—which means that it may violate the preexisting right that the Amendment codified. But because that right was not in every way coterminous with the Amendment’s literal language, further analysis may be needed. Specifically, the relevant government—federal, state, or local—may be able to show that its challenged law did not infringe the historical understanding of the codified right. See ibid.
A variety of sources, including scholarship, may aid this inquiry. See id., at 34–60. But often, the best evidence may be what Bruen called historical analogues. Id., at 28. These are old legal rules from which a court may draw a strong inference that the modern law at issue is consistent with the codified right. A party defending against a Second Amendment claim may rely on a single analogue or a group of analogues. Bruen identified three important inquiries that courts should undertake in evaluating proffered analogues. The first is the number of jurisdictions in which they were adopted. See id., at 67 (“[W]e will not stake our interpretation . . . upon a law in effect in a single State, or a single city” (citing Heller, 554 U. S., at 632)). The second is the extent to which they were well-accepted. This
The third is whether any analogue or collection of analogues is “relevantly similar” to the modern law. Id., at 29. Determining whether this condition is met requires consideration of “how” the analogue restricted the keeping or bearing of arms—that is, whether it imposed a restriction similar to that imposed by the challenged law. Ibid. And a court must also consider “why” the analogue restricted the keeping or bearing of arms—that is, whether its rationale was similar to that of the new law. Ibid. In order to be sufficiently similar to the modern law being challenged, a putative analogue need not be a “dead ringer” or “historical twin.” Id., at 30. Particularly when the modern law addresses a situation that could not have arisen when the Second or Fourteenth Amendment was adopted, it is too much to demand such a close match. But the “how” and “why” of the historical analogue and modern regulation must be close enough to enable a court to say: “Because this historical law was understood to be compatible with the right codified by the Second Amendment, we can infer that the restriction imposed by the modern law is likewise consistent with that right.” Making this determination is far more disciplined than the “interest-balancing,” “judge-empowering” standard that Heller emphatically rejected, but it is not mechanical. Bruen, 597 U. S., at 22 (quoting Heller, 554 U. S., at 634; internal quotation marks omitted). It undeniably necessitates an exercise of judgment.
Applying this framework, Bruen held that the challenged New York law, which broadly prohibited law-abiding citizens from carrying commonly used firearms in public for self-defense, violated the Second and Fourteenth Amendments. 597 U. S., at 38. We found that the State’s proffered
In addition to holding that New York’s law violated the Second Amendment, we pointed out that six other jurisdictions had adopted statutory provisions like New York’s. See id., at 15, n. 2. One of those jurisdictions was Hawaii.77
D
In Bruen, the law at issue concerned conduct that could have occurred when the Second and Fourteenth Amendments were adopted—carrying a handgun outside the home for self-defense. By contrast, in our most recent Second Amendment case, United States v. Rahimi, 602 U. S. 680, the law in question,
The dissent applied the same test but came to the opposite conclusion, see id., at 747 (opinion of THOMAS, J.), exhibiting how Heller’s history-based methodology—true to the warning contained in that ground-breaking decision—is not mechanical, see 554 U. S., at 626–628, 635.
A
With this background in mind, we turn to the Hawaii law challenged in this case. Before Bruen, Hawaii issued firearms carry licenses only in “exceptional case[s].”
At common law, opening up private property to the general public implies a “license to all persons to enter,” meaning that “no person is a trespasser by merely entering therein” unless the property owner has given “due notice” that such a person is banned. Commonwealth v. Power, 48 Mass. 596, 602 (1844); see also, e.g., State v. Steele, 106 N. C. 766, 780–783, 11 S. E. 478, 484–485 (1890); Barney v. Oyster Bay & Huntington Steamboat Co., 67 N. Y. 301, 302–303 (1876); Jencks v. Coleman, 13 F. Cas. 442, 443–444 (No. 7,258), (CC RI 1835) (Story, J.).
After Bruen, Hawaii and four other States singled out in that decision flipped this default rule. Rather than allowing all to enter private property open to the public unless specifically prohibited, these new laws provided that no one carrying a firearm may enter without express authorization. See
Hawaii’s new default rule is part of a tight web of laws that severely restricts the carrying of firearms for self-defense. To start, carrying a handgun for self-defense requires a special license, and obtaining that license is a rigorous process.
But even for those who fulfill these stringent requirements, Hawaii imposes two additional restrictions on carrying firearms. The first bans the possession of a firearm in significant categories of places: “[a]ny [state-owned] building” or “adjacent grounds and parking areas“; “[a]ny public or private hospital” or “other place at which medical or health services are customarily provided“; any “restaurant serving alcohol“; any “stadium, movie theater, or concert hall“; any “public library property“; “any public or private” college or university; “any public school, charter school,” or private school; any “beach, playground,” or park; “any bank or financial institution“; any “amusement park, aquarium, carnival, circus, fair, museum, water park, or
The second restriction—the one at issue in this case—generally prohibits licensed individuals from carrying a firearm, even if unloaded or inoperable, “on private property of another.”
III
Petitioners—three residents of Maui County who possess concealed-carry permits and an organizational plaintiff with members who have such permits—contend that these restrictions violate their rights under the U. S. Constitution, and they filed suit in federal court, seeking both temporary and permanent injunctive relief. The District Court declined such relief with respect to private property that is closed to the public, but it enjoined enforcement of the new
A panel of the Ninth Circuit reversed that injunction, and the full Ninth Circuit denied rehearing en banc. Judge VanDyke, joined by five other judges, issued an opinion dissenting from the denial of rehearing en banc. 125 F. 4th 1230, 1231 (2025). Judge Collins, joined by Judge Bress, likewise filed a dissent. Ibid. We granted certiorari to decide whether Hawaii may prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission. 606 U. S. 1066 (2025).
IV
A
As with any Second Amendment challenge, we began by asking whether the restrictions imposed by the challenged law fall within the plain text of the Second Amendment, see Bruen, 597 U. S., at 17, and we find that this requirement is easily met.
No party disputes that petitioners are among “the people” protected by the Second Amendment or that they seek to “bear,” i.e., to carry, “arms.” Therefore, “the plain text of the Second Amendment protects” what petitioners want to do: carry handguns for self-defense. Id., at 32.
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. To be sure, owners of establishments that are open to the public can admit or exclude persons who are carrying guns for self-defense under either the common-law rule or Hawaii’s substitute. As a practical matter, however, the choice between these two default rules is often outcome-determinative with respect to Hawaiians’
More broadly, Hawaii’s new default rule burdens those wishing to exercise their Second Amendment right. Some proprietors who do not themselves object to entry by carry-permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers. So under Hawaii’s new default rule, a proprietor in this category may only be willing to consent discreetly to the entry of permit holders who make the effort to inquire. This arrangement imposes a new burden on permit holders who will have to somehow obtain permission to carry a firearm on the property before stepping foot on it.
To see what Hawaii’s new default rule means in practice, consider its impact on a resident of Hawaii whose situation is like that of Jaime Caetano, a young Boston woman who wanted to carry a weapon to defend herself from a violent ex-boyfriend but was criminally prosecuted when she used a non-lethal weapon to fend him off. See Caetano v. Massachusetts, 577 U. S. 411, 412–413 (2016) (ALITO, J., concurring in judgment). Suppose our hypothetical young woman, after clearing all the hurdles needed to get a Hawaiian carry permit, leaves her home on a weekday morning and carries a handgun on her person or in a purse. On the way to work, she intends to fill up her car at a gas station. During her lunch break, she plans to walk to a fast-food restaurant and then buy some items at a large drug store. After work, she wants to pick up clothes at a dry cleaner and then shop for groceries. Unless each of these establishments has posted a sign saying “Guns Welcome” or something to that effect, each visit could expose her to criminal liability.
Imagine what our hypothetical young woman will have to do when she drives to the supermarket after work. When
Instead of going through all this, she may choose to remain armed when she enters the supermarket and promptly search for someone who is authorized to provide the consent that the law demands. This will prolong the violation of the terms of the Hawaii law, and finding someone who can provide consent may not be easy. For example, it is most unlikely that the supermarket employee who is gathering up shopping carts in the parking lot or the employee who is restocking shelves will possess that authority. During all the time this search goes on, our hypothetical young woman will be violating the terms of the statute, and if that is brought to the attention of the police (say, by a store employee or customer who hears her ask for permission to enter), she may be charged with a criminal offense or lose her license.
When our hypothetical young woman visits the restaurant at lunch, her situation may be even more difficult. Unless her place of employment has a gun locker where she can store her gun, she may be unable to leave it behind when she leaves the building. See
If our hypothetical young woman remains armed during the lunch break, she will violate the terms of the law if she sets foot inside any establishment without a “Guns Welcome” sign, even if she immediately seeks someone who can provide authorization to stay. And as was the case with the supermarket, finding such a person may not be easy. Thus, by the end of an ordinary day, our hypothetical young woman could be a criminal at least six times over. In short, Hawaii’s law severely hampers the ability of law-abiding citizen to exercise the right Bruen recognized.
Hawaii nonetheless argues that petitioners’ challenge fails at the first step of Bruen’s two-step framework because “the right to bear arms did not encompass the right to armed entry onto private property without the owner’s consent.” Brief for Respondent 9. The State then launches into a lengthy discussion of historical materials and precedents that, it contends, supports this argument. Id., at 9–27.
We will discuss all these authorities, but they are out of place at Bruen’s first step. At that stage, as we have explained, the question is simply whether a challenged law falls within the Second Amendment’s “plain text.” 597 U. S., at 24. We therefore move on to the second step.
B
At this second step, the inquiry mandated by Heller and Bruen turns to an exploration of the historical understanding of the scope of the right the Constitution codified. Hawaii’s first argument on this score is based on “Hawai’i’s particular customs and laws.” Brief for Respondent 24. The State starts with the undisputed principle that the owner of private property is generally free to exclude anyone from entering without consent. See Florida v. Jardines, 569 U. S. 1, 7–8 (2013). It acknowledges that an owner’s
In support of this argument, the State recounts its long history of antipathy to the private possession of firearms. It tells us that one of the very first written laws of the Kingdom of Hawaii, issued in 1833 by King Kamehameha III, prohibited the possession of all deadly weapons.1111 Later laws adopted before and after Hawaii became part of the United States continued to heavily restrict the possession and carriage of firearms. See, e.g., Act of May 25, 1852, §1, 1852 Haw. Sess. Laws 19 (limiting the right to carry any deadly weapon in public); Haw. Rev. Laws, ch. 209, §3089 (1905), as amended by Act of Mar. 19, 1913, §1, 1913 Haw. Sess. Laws 25. And prior to Bruen, Hawaii permitted public carry only in “exceptional” cases “when an applicant show[ed] reason to fear injury to the applicant’s person or property.”
When we assess whether a challenged law is consistent with the right the Second Amendment codified, we seek the general understanding of that codified right at the relevant point in time. An outlier legal rule adopted in a few locales
C
1
With this preliminary question out of the way, we turn to Hawaii’s main argument: that analogous colonial and early state laws support the constitutionality of the State’s new law. These old laws, however, are vastly different from Hawaii’s new default rule. They consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property.1515
A 1722 New Jersey statute contains nearly identical language. See An Act to Prevent the Killing of Deer out of Season, and against Carrying of Guns and Hunting by Persons not Qualified, 1722 N. J. Laws pp. 100–101 (no person shall “carry any [g]un, or [h]unt on the [i]mproved or [i]nclosed [l]ands in any [p]lantatio[n] . . . other than his own“). And a 1728 Maryland statute and a 1763 New York law fall into the same category. The Maryland law, titled “An Act to Encourage the Destroying of Wolves, Crows, and Squirrels,” made it unlawful to “come to hunt with Guns or Dogs, within any Inclosed Grounds, Islands, Peninsula’s, or Necks fenced across from Water to Water, without Leave or Licence from the Proprietors thereof, first had and obtained.” 1728 Md. Laws p. 13. And the New York law, titled
A 1771 New Jersey law followed this tradition. Titled “An act for the preservation of deer, and other game, and to prevent trespassing with guns,” this law provided that a person could not “carry any gun on any lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he hath license or permission in writing from the owner or owners, or legal possessor.” 1771 N. J. Laws pp. 25–26.1616
In sum, the State’s analogues principally targeted unauthorized hunting. Their coverage differed sharply from that of the Hawaii law now before us. They applied to land where game could be found, not retail establishments that residents of cities and suburbs frequent as part of their daily routines. They had little if any impact on the Second Amendment’s central objective: protecting the fundamental right to self-defense. And their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting. That conduct often entailed the theft of private property: The poacher took game that the property
The conduct restricted by the Hawaii law has none of these effects. Others on the premises will not even notice a person peacefully carrying a concealed weapon in the manner demanded by Hawaiian law.
To test whether these analogues are “relevantly similar” to the challenged Hawaii law, we may ask the question set out earlier: “Because it was accepted that prohibiting unauthorized hunting on private land was consistent with the Second Amendment right, can we infer that it is also consistent with that right to ban a person who is lawfully carrying a concealed handgun for self-defense from entering a gas station, coffee shop, grocery store, or other private property open to the public without express and unambiguous consent?” The question answers itself. The gap between the State’s anti-poaching analogues and its new rule is just too wide.
2
The State’s two remaining analogues are even weaker. The first is an 1893 Oregon law that prohibited anyone “other than an officer on lawful business, [from] being armed . . . or trespass[ing] upon any enclosed premises or lands without the consent of the owner.” 1893 Ore. Laws p. 79. On its face, it is not clear that this statute is relevant to the issue before us. For one thing, even if commercial establishments that are open to the public were considered “enclosed” at the time of the adoption of the Bill of Rights, see n. 13, supra, no Oregon authority shows that the Oregon statute used the term to refer to such establishments. To the contrary, Oregon courts have interpreted the phrase
Finally, we come to the State’s most remarkable analogue, an 1865 Louisiana statute that made it unlawful “for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.” 1865 La. Acts No. 10, §1, p. 14. Regardless of this provision’s pedigree, it has no probative value for present purposes. As we have said, in considering the probative value of a historical analogue, we must consider whether it was widespread, well-known, and widely accepted. See Bruen, 597 U. S., at 35. Because this statute was neither widespread nor widely accepted, it carries no weight.
We could stop there, but there is another reason for rejecting Hawaii’s reliance on this statute. It was adopted by the Louisiana Legislature between the end of the Civil War and the beginning of Reconstruction. When the war ended, the legislatures in defeated Confederate States quickly enacted so-called Black Codes that aimed to perpetuate the
As we laid out in McDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. See 561 U. S., at 757, 771, 776–779; id., at 843–846 (opinion of THOMAS, J.). And this was well-understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. The Republican Party Platforms of 1856 and 1860 called for protection of the right to keep and bear arms for self-defense. Unless we put history entirely out of our minds, Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.
* * *
The Hawaii law at issue here violates the constitutional right to keep and bear arms. Therefore, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JASON WOLFORD, ET AL., PETITIONERS v. ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII
No. 24–1046
SUPREME COURT OF THE UNITED STATES
[June 25, 2026]
609 U. S. ____ (2026)
BARRETT, J., concurring
I join the Court’s opinion in full. I write to add a few points about why Hawaii’s law triggers—and fails—Second Amendment scrutiny.
I
Hawaii and the principal dissent insist that this is a case about property law, not the Second Amendment. The argument goes like this: No one has the right to enter private property—let alone to bring firearms onto it—without the owner’s consent. Brief for Respondent 14–15. Whether consent can be implied or must be express depends on local custom and property rules, which States have always had authority to modify. Id., at 15–16. By requiring express consent, Hawaii has simply modified a default rule of property law. And because the “‘pre-existing [Second Amendment] right’” did not require any particular default rule, Hawaii’s law does not even implicate the Second Amendment. Id., at 13 (quoting New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 20 (2022)); see post, at 6–13 (JACKSON, J., dissenting). No further analysis is necessary.
This argument misunderstands the role of historical evidence in a Second Amendment challenge. Bruen
In this case, Bruen’s first step is easily satisfied. Petitioners are members of “the people” and wish to “bear” “Arms” onto private property held open to the public. U. S. Const., Amdt. 2. Hawaii’s law makes it a crime for
“A [licensed] person carrying a firearm [to] intentionally, knowingly, or recklessly enter or remain on private property of another person while carrying a loaded or unloaded firearm, whether the firearm is operable or not, and whether the firearm is concealed or unconcealed, unless the person has been given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property.” Haw. Rev. Stat. §134–9.5(a) (2023).
It is irrelevant, for purposes of the Amendment’s plain text, that a property owner has the right to exclude anyone who wishes to enter her property with firearms. No one doubts that all property owners in Hawaii could bar the carry of arms on their respective premises, if they wanted to. But the Second Amendment does not apply to private parties. It does apply to the States. See U. S. Const., Amdt. 14, §1. And when a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment.22
Consider how Hawaii and the principal dissent’s argument would play out in another context. What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny? On Hawaii and the principal dissent’s logic, the answer is apparently yes: No one has the right to enter another’s property without permission, and the State has merely adjusted the default to require permission to be clear. But that is plainly wrong. Because the law regulates religious and expressive conduct, its enactment is state action that triggers First Amendment scrutiny. Cf. Martin v.City of Struthers, 319 U. S. 141, 143 (1943) (municipal ordinance prohibiting door-to-door solicitation violates the First Amendment).
The same goes for a default rule, like Hawaii’s, that targets the right to bear arms. Property laws, no less than other laws, are subject to constitutional limits. See ante, at 18, n. 13. So when a property law “restrict[s]” the bearing of arms, ante, at 7, the State must prove that the law abides by the limits of the Second Amendment.
II
The Second Amendment secures the pre-existing right of the people to have and carry weapons for their defense. But that right was not unlimited at the founding, and it is not unlimited today. See District of Columbia v. Heller, 554 U. S. 570, 626 (2008). Now, as then, States may regulate the keeping and bearing of arms so long as they do not “infring[e]” the right, as originally understood. U. S. Const., Amdt. 2. To determine when a modern regulation crosses the line, we assess whether it comports with “the Nation’s historical tradition of firearm regulation.” Bruen, 597 U. S., at 24. By asking “why” and “how” States historically regulated the right, we can identify the range of permissible regulatory goals and how far States may go to achieve them. Id., at 29. Both the end pursued and means deployed must be “consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U. S., at 692.
Under Hawaii’s new default rule, no licensed individual (with narrow exceptions) can carry a gun onto someone else’s property, even if it is held open to the public, without express and unambiguous authorization. Haw. Rev. Stat. §134–9.5(a) (2023). Hawaii explains that this law reflects Hawaiians’ aversion to the public carry of weapons—an attitude reinforced by almost two centuries of restrictive gun laws. See 2023 Haw. Sess. Laws 114 (explaining that the default rule was enacted “based on the legislature’s
To satisfy Bruen, Hawaii must identify historical laws that pursued an analogous goal in an analogous way. Hawaii draws two analogies: one to 18th-century antipoaching laws and the other to 19th-century laws that were mostly designed to suppress newly freed blacks. Unsurprisingly, the analogies fail.33
Hawaii first points to several 18th-century laws that, broadly speaking, prohibited the carry of firearms onto certain property without the owner’s consent. See ante, at 19–21. Hawaii argues that these laws stand for the principle that a State may “vindicate a property owner’s right to control whether and under what conditions the public enters his property” by “condition[ing] . . . entry on obtaining the property owner’s consent.” Brief for Respondent 28. But that is pitched at too high a level of generality. Because Hawaii’s law applies only to the carry of firearms onto property held open to the public, the State must offer a justification for singling out firearms for disfavored treatment. Cf. Bruen, 597 U. S., at 29 (asking “how and why the regulations burden a law-abiding citizen’s right to armed self-defense” (emphasis added)). On that score, the reason is clear: Hawaiians disapprove of people carrying guns in public. The problem for Hawaii, however, is that the 18th-century laws support neither the end that Hawaii pursues nor the means that it deploys, so they cannot justify Hawaii’s default rule.
Start with the “why” of the 18th-century laws. As the Court explains, ante, at 21–22, they were enacted in response to the various “abuses, damages and inconveniences” caused “by persons carrying guns and presuming to hunt on other people’s lands,” 1721 Pa. Laws ch. 246, §3 (preamble), in 3 The Statutes at Large of Pennsylvania From 1682 to 1801, p. 255 (J. Mitchell & H. Flanders eds. 1896). Perhaps chief among these was significant damage to property. One colony complained that “great Numbers of idle and disorderly Persons” would “hunt with Fire-Arms” and “tread down the Grass, and Corn and other Grain standing and growing in the Fields and Inclosures” in the process, causing “Ruin and Destruction [to] the most valuable Improvements.” Act of Dec. 20, 1763, ch. 1233, preamble, in Laws of New-York from the Year 1691, to 1773
Yet the 18th-century laws were targeted in “how” they combated the dangers of poaching: They imposed a default rule rather than a flat prohibition, and they generally confined it to places where poaching was likely to occur.44 For example, Pennsylvania’s 1721 law and New Jersey’s 1722 law each applied only to “improved or inclosed lands of any plantation.” 1721 Pa. Laws ch. 246, §3, at 255; see 1722 N. J. Laws ch. 35, §4, in Acts of the General Assembly of the Province of New-Jersey 101 (S. Nevill ed. 1752) (“improved
What, then, is the regulatory principle that justified these laws? Some might zero in on the fact that they targeted poaching and conclude that a modern law is not “relevantly similar” if it addresses something other than hunting. Cf. Brief for Petitioners 33–34. That focus, however, is too narrow.55 Colonial legislatures targeted poaching because that was the particular misconduct that they happened to confront. But “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied” earlier generations. Bruen, 597 U. S., at 27.
So the problem with Hawaii’s default rule is not that it targets a regulatory problem besides poaching. It is that the rule does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns. In other words, Hawaii is responding to the general danger associated with the presence of firearms, not to any specific, heightened risk of their misuse. See 2023 Haw. Sess. Laws 114 (invoking general “risks to public health, safety, and welfare associated with firearms and gun violence“). And rather than confining the rule to specific places where firearms are likely to be misused, Hawaii applies it to all private property, even property held open to the public. From the hardware store, to the gas station, to the fast-food restaurant—individuals cannot carry weapons for self-defense unless they obtain express consent.66
The 18th-century hunting regulations do not support such a rule. Mere disapproval of protected conduct is not a valid reason to severely restrict it.
Hawaii also notes that several States enacted similar default rules in the mid-to-late 19th-century.77 These laws get Hawaii nowhere.
Once again, look to their “why.” Hawaii offers no evidence that these laws were designed to vindicate the community’s aversion to people carrying guns in public. Nor is it plausible that they rested on such a basis. At the time, guns were commonly owned for self-defense and hunting, and that trend only increased when many Civil War veterans brought their weapons home. See T. Lansford, The Early History of Guns: From Colonial Times to the Civil War, in 1 Guns and Contemporary Society 28 (G. Utter ed. 2016). And while state courts often upheld gun regulations during this period, they did so because the States were pursuing specific regulatory ends, not because they were hostile to gun rights. See, e.g., State v. Chandler, 5 La. Ann. 489, 489–490 (1850); Cockrum v. State, 24 Tex. 394, 401–402 (1859); Sutton v. State, 12 Fla. 135, 136–137 (1867).
In fact, Hawaii does not dispute that most of the 19th-century laws were understood not to address the carry of guns in general but to curtail the freedom of blacks in particular.88 After the Civil War, the labor market in the South
Louisiana was one of those States. In 1865, three of its local governments enacted sweeping measures that one observer described as restoring “slavery in substance.” S. Exec. Doc. No. 2, 39th Cong., 1st Sess., 96 (1865). Among other things, these ordinances prohibited blacks from renting or keeping a house within town limits, barred them from entering the town without permission of their employers, and forbade them from carrying weapons without authorization. Id., at 92–96. Fearing backlash from Congress, the state government opted for a subtler approach. See W. Caskey, Secession and Restoration of Louisiana 187 (1938). In the fall of that same year, the Democratic-controlled legislature convened a special session and tasked a joint committee with proposing legislation “‘to make [freedmen’s] labor available to the agricultural interests of the State.’” T. Wilson, The Black Codes of the South 78 (1965). The resulting package of laws was facially neutral, id., at
One provision of Louisiana’s Black Code was the default rule that Hawaii invokes today. At the time, Louisiana apparently did not restrict by statute where individuals could hunt for game. See Sawers 746, 748; see Fur, Fin, and Feather: Containing the Game Laws of the Principal States of the United States, and Canada 52 (4th ed. 1868). But under the State’s 1865 law, no one was permitted to carry firearms “on the premises or plantations” of another without his permission. 1865 La. Acts No. 10, §1, p. 14. Like the other components of Louisiana’s Black Code, this law was designed to control black labor: It “restricted the ability of blacks to feed themselves on open land,” thus “pushing [them] into the agricultural labor market.” Sawers 748; cf. Foner 203 (explaining that “by limiting hunting,” Southern States “made it more difficult for blacks to obtain food or income without working on plantations“). In addition, by presumptively banning the carry of firearms on private property, the law put blacks “at a further disadvantage in protecting themselves” against private violence. B. Crouch, “All the Vile Passions“: The Texas Black Code of 1866, 97 S. W. Hist. Q. 12, 29 (1993); see 3 Cong. Rec. 1648 (1875) (Report of Rep. Hoar) (describing Louisiana’s law as
It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction. We can put aside the question whether they are legitimate evidence of the Second Amendment’s scope, post, at 30–32 (opinion of JACKSON, J.), because regardless, they do not help Hawaii. The State seems to think Bruen is a matching game: Southern States enacted broad default rules, Hawaii reasons, so it can do the same today. But even if Hawaii is right that the how is analogous, it also must identify an analogous why. The Black Codes were enacted to subordinate newly freed slaves.1010 Hawaii obviously does not contend that its law promotes an analogous interest. So its law and the default rules in the Black Codes are not “‘relevantly similar.’” Bruen, 597 U. S., at 29. Most would take that as a compliment.
Applying old principles to new circumstances is not always easy. This case, however, is not hard. While most Hawaiians might prefer that no one carry firearms in public places, a majority’s opposition to a constitutional right is not a permissible basis for restricting it. After all, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy” and “to place them beyond the reach of majorities and officials.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).
JASON WOLFORD, ET AL., PETITIONERS v. ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII
No. 24–1046
SUPREME COURT OF THE UNITED STATES
[June 25, 2026]
609 U. S. ____ (2026)
KAGAN, J., dissenting
I would uphold the challenged Hawaii law because, as JUSTICE JACKSON shows in Part III of her opinion, it is a modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent. See post, at 18–25. The “how” is identical: The new law, just like the old ones, sets a default rule against gun carry that a private landowner may reverse. The “why” is sufficiently close. Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property. That the old laws had a special (though by no means exclusive) concern with poaching does not matter. “The regulatory challenges posed by firearms today are not always the same as those that preoccupied” earlier generations. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 27 (2022). The key question is whether the challenged regulation is “consistent with the principles that underpin our regulatory tradition.” United States v. Rahimi, 602 U. S. 680, 692 (2024) (emphasis added). Here, the challenged law is consistent with those principles because it reflects, as the old laws did, the perceived “abuses, damages and inconveniences” that can be caused by persons carrying guns “on other people’s lands.” 1721 Pa. Laws ch. 246, §3 (preamble), in 3 The Statutes at Large of Pennsylvania From 1682 to
JASON WOLFORD, ET AL., PETITIONERS v. ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII
No. 24–1046
SUPREME COURT OF THE UNITED STATES
[June 25, 2026]
609 U. S. ____ (2026)
JACKSON, J., dissenting
Today the Court declares unconstitutional Hawaii’s efforts to protect the rights of its residents—both those who wish to carry guns and those who prefer that guns are not carried on their private property without their express permission. To hear the majority tell it, Hawaii’s law is a blatant attempt to end-run our Second Amendment precedents. But the statute at issue does no such thing. Instead, it fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment.
The majority thinks otherwise; it reaches today’s result by purporting to apply the test we established in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). But the majority gets both the Bruen test and its application wrong. Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent. And even if the Second Amendment were implicated here, Hawaii has proffered ample analogues demonstrating a history and tradition of States protecting their residents’ property rights by requiring those wishing to carry guns onto private property to get express consent from the property owner before doing so.
I
Since its time as a sovereign kingdom, Hawaii has never permitted the widespread carrying of firearms in its territory. In 1833, King Kamehameha III of the Kingdom of Hawaii prohibited the possession of “dangerous weapon[s].” Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any “knife, sword-cane, or any other dangerous weapon“). Hawaii maintained this tradition of strictly regulating weapons both before and after it was annexed as a U. S. territory in 1898. See, e.g., Act of May 25, 1852, §1, 1852 Haw. Sess. Laws 19 (expanding definition of deadly weapons); Haw. Rev. Laws, ch. 209, §3089 (1905), as amended by Act of Mar. 19, 1913, §1, 1913 Haw. Sess. Laws 25.
In 1927, Hawaii began regulating firearms in particular by carefully controlling who may carry them. Act 206, §5, 1927 Haw. Sess. Laws 209–211. Such regulation continued even after statehood in 1959, when Hawaii began allowing private gun ownership but only if the applicant could show an “exceptional case.” Act 163, §1, 1961 Haw. Sess. Laws 215. Thus, “[t]he history of the Hawaiian Islands does not include a society where armed people move about the
That custom continued until very recently. Prior to this Court’s decision in Bruen, Hawaii issued concealed-carry permits only in “exceptional case[s],” which required “an applicant [to] sho[w] reason to fear injury to the applicant’s person or property.”
Following Bruen’s rejection of licensing schemes like Hawaii’s, the State was forced to alter its long-standing tradition. To accomplish this, it enacted Act 52, which allowed for concealed-carry permits to issue after applicants passed a background check and underwent a training process. See 2023 Haw. Sess. Laws 113–136. Act 52 also restricted where and how license holders could carry their guns. See §2, id., at 114–119 (codified at
One problem that Hawaii confronted as it undertook to implement Act 52 was how best to protect Hawaiians who, accustomed to the traditional practice, might not be aware that gun laws were changing to allow for armed—and concealed—carry in everyday life. In particular, given Hawaii’s history, private property owners were unlikely to expect guns to be carried onto their property or to know that they needed to take steps if they did not wish to permit armed entry. See Wilson, 154 Haw., at 27, 543 P. 3d, at 459 (noting lack of custom of armed carry). The community was up in arms about this (so to speak). Hawaii’s Legislature held hearings and received testimony from residents and the business community indicating that private property
This input from Hawaii’s residents mirrored evidence from around the country. One nationwide study revealed widespread public misunderstanding about whether it was lawful to bring a gun onto private property. See I. Ayres & S. Jonnalagadda, Guests With Guns: Public Support for “No Carry” Defaults on Private Land, 48 J. Law Med. & Ethics 183, App. 8, Table A5 (2020). Not only that, but the study’s respondents generally had preferences against armed carry in certain spaces, even spaces open to the public. See id., at 186 (“Only about one-quarter of respondents (25.1%) expressed support for a default right of employees to bring guns into their places of employment . . . . A larger, but still minority proportion of respondents (44.2%), believe customers, by default, should be allowed to carry into retail establishments“); id., at 185, Table 1.
A straightforward solution emerged: Act 52 would require gun owners to get affirmative consent from the property owner before carrying a firearm onto private property. See id., at 188–189 (suggesting this approach). Hawaii codified this affirmative-consent solution in
Section 134–9.5 thus helped narrow the informational asymmetry caused by the potential sea change in Hawaii’s gun-possession rates. Indeed, the enacted law stated that the legislature had adopted the rule to “respec[t] the right of private individuals and entities to choose for themselves whether to allow or restrict the carrying of firearms on their property” and to promote “public health, safety, and welfare.” 2023 Haw. Sess. Laws 114. By enacting
Notably, in making this choice, Hawaii was not alone. It joined four other States that had similar laws. See
II
Petitioners believe that having to ask for permission to carry a firearm onto private property open to the public is an unconstitutional burden on their Second Amendment rights. But their bid to invoke the Constitution stumbles out of the gate—at step one of this Court’s Bruen test.22 There is no constitutional right to enter private property
To avoid this obvious outcome, the majority has to reconceptualize Bruen. Instead of applying a threshold criterion asking whether the challengers have shown that the plain text of the Second Amendment—which codified a pre-existing right to carry—covers conduct that the challenged law restricts, the majority essentially directs courts to start by simply asking whether a gun owner cannot do what she wants with her firearm. Ante, at 13–14. The majority thereby eliminates step one’s effectiveness as a means of identifying gun-related laws that impinge on rights secured by the Second Amendment. This move represents a significant expansion that, as applied here, obscures what Bruen’s actual step-one analysis reveals: This case is about property rights, not gun rights.
A
“‘[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.’” Florida v. Jardines, 569 U. S. 1, 8 (2013) (quoting Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (K. B. 1765)). This principle, called the right to exclude, is the “sine qua non” of property. Cedar Point Nursery v. Hassid, 594 U. S. 139, 150 (2021) (internal quotation marks omitted). It is “one of the most essential sticks in the bundle of rights that are commonly characterized as property” and is “universally held to be a
Stated simply, the right to exclude means that members of the public may not enter privately owned property without the consent of the owner. To do so would be a trespass. 4 M. Wolf, Powell on Real Property §34.25, p. 34–222 (2026) (Powell on Property); see ante, at 10. Consent to enter property is often referred to as a “license.” Powell on Property §34.25, at 34–220. And a license is a privilege, revocable at the will of the property owner. 8 D. Thomas, Thompson on Real Property §64.03 (2016); Powell on Property §34.25, at 34–223 (“A license is revocable by any manifestation of the licensor’s intent to end it“).
The consent establishing a license to enter someone else’s property can be explicit or implicit. Id., at 34–220. The form of consent typically depends on the nature of the private property at issue. In many places, private property owners welcome visitors (think shops, gas stations, and the like). Thus, as the majority notes, the public generally enjoys an implied license to enter this sort of property—that is, private property open to the public. Ante, at 10. The operation of the implied license in this context means that the public can enter such property without seeking the owner’s affirmative consent; such entry is not considered a trespass. Ibid.; Powell on Property §34.25, at 34–222. Of course, the owner retains the option to revoke that implied license in whole or in part, even when operating private property open to the public. Id., at 34–221.33
The scope of any license to enter can vary in ways that are relevant here. First, as courts have traditionally
Second, because States have the power to set default consent rules, state law can alter the scope of a license to enter private property. For example, the English rule was that the public had to obtain the owner’s express permission to hunt or fish on “unenclosed” private property. M. Brady, Property v. Guns: The Level-of-Generality Problem in Wolford, 78 Stan. L. Rev. Online 156, 165 (2026). But some States altered this rule via positive law. See, e.g.,
In all events, uniformity with respect to the scope of licenses to enter private property was never thought necessary or even desirable. Instead, local inhabitants molded
B
All this makes clear that Hawaii’s law does not restrict the right to carry a gun at all. Instead, its law vindicates its resident’s property rights by operating on the scope of the implied license to enter. And it does so by requiring gun owners to seek express consent, rather than assume implied consent. See
Bruen instructs that courts must start by asking whether “the Second Amendment’s plain text covers an individual’s conduct.” 597 U. S., at 24. But “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” District of Columbia v. Heller, 554 U. S. 570, 626 (2008). The Second Amendment “codified a pre-existing right, and preexisting limits on that right are part and parcel of it.” United States v. Rahimi, 602 U. S. 680, 737 (2024) (BARRETT, J., concurring). So, at Bruen’s first step, courts must determine whether the activity asserted is part of this pre-existing right.
Here, those pre-existing limits doom petitioners’ case. Petitioners wish to carry guns onto private property without seeking express consent. See Brief for Petitioners 24 (arguing that the Second Amendment allows them to “carr[y] firearms on private property open to the public without first getting express permission from the proprietor“). Yet everyone agrees that consent is a precondition to exercising any right to carry on private property.44 That
To be sure, the public might well have an implied license to enter private property open to the public, and such permission might generally include the ability to enter armed. See ante, at 10. But as I have explained, any such license is not a matter of right—a license is a creature of state law and custom, and it can vary accordingly. See supra, at 7–8. Unsurprisingly, then, there are multiple historical examples of States altering the scope of implied licenses through legislation. Under the common law of England, there was no implied license for a person’s livestock to enter another person’s unfenced land. But the Colonies reversed that rule through legislation, requiring landowners to fence out roaming livestock that they did not want on their property. See B. Sawers, The Right To Exclude From Unimproved Land, 83 Temp. L. Rev. 665, 679–684 (2011).
And it’s not just livestock. States have also historically altered the scope of implied licenses to carry firearms onto private property—the subject of today’s case. During the founding and Reconstruction eras, multiple States passed laws that operated on the interaction between armed carry and the right to exclude. These laws, like Hawaii’s, required affirmative consent for armed entry onto private property. See Act of Dec. 21, 1771, §1, Laws of the State of New-Jersey 26 (1821) (1771 N. J. Laws) (barring visitors from “carry[ing] any gun on any lands not his own, and for which the owner pays taxes, or is in his lawful possession,
Thus, at presumably relevant historical time periods, it was commonly understood that the right enshrined in the Second Amendment yields to property rights where private property is concerned.55 Entry was, in the first instance, subject to the right to exclude. And because state law and custom set the bounds of the right to exclude, the scope of one’s ability to carry firearms onto private property open to the public, and the form of the consent required, were likewise changeable by custom or state law.
This was the backdrop against which the Second Amendment came into being (and which the Fourteenth Amendment incorporated); the right it enshrined did not protect an unyielding liberty to carry a gun onto private property via implied consent. In other words, the conduct here—carrying a gun onto private property without securing the
Conceptualizing Hawaii’s law as “flipping the default,” ante, at 10, misses the point: State law supplies the default. Yes, the historical custom in most States set the consent rule to be implicit in most circumstances. But that custom was by no means universal—as I have explained, some States decided that consent to carry firearms onto private property must be explicit. And in every instance, the States retained the power to determine whether the required consent could be implied or had to be explicit. See Barnhill v. Johnson, 503 U. S. 393, 398 (1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in property’ are creatures of state law” (citing McKenzie v. Irving Trust Co., 323 U. S. 365, 370 (1945))); Phillips Petroleum Co. v. Mississippi, 484 U. S. 469, 484 (1988) (noting the “general proposition [that] the law of real property is, under our Constitution, left to the individual States to develop and administer” (internal quotation marks omitted; alteration in original)).
Recognizing state autonomy in this respect is especially appropriate here, since Hawaii has never had a custom of armed carry. Wilson, 154 Haw., at 27, 543 P. 3d, at 459. In this way, Hawaii’s use of its prerogative to protect the interests of its residents is consistent with its own traditions. Although the relevant principle—that the State can choose whether an implied license exists—applies nationwide, Hawaii’s footing is especially strong because it has always effectively set its default rule in the same direction: In the absence of the widespread availability of guns, those who sought to carry guns onto private property open to the public in Hawaii never had an implied license to do so. Section 134–9.5 merely codified that existing norm.
The majority chastises Hawaii for seeming to argue that the meaning of the Second Amendment should change State-to-State. Ante, at 16–19. But the majority
The majority’s contrary conclusion means that, despite yielding to property law when it comes to the fact of consent, the Second Amendment dictates its form. That disconnect is both puzzling and unfounded. The form of consent is simply not of constitutional dimension.
C
Rather than respond to Hawaii’s evidence that the right to exclude resolves this case at the first step of Bruen, the majority moves the goal posts. It announces that, at step one, courts must look only to the “plain text” of the Second Amendment devoid of any historical understanding. Ante, at 7, 13. And it rejects Hawaii’s attempts to clarify the meaning of the plain text as it relates to the relevant conduct: carrying a firearm onto private property without express consent. History, according to the majority, is “out of place at Bruen’s first step.” Ante, at 16. Instead, the majority seeks to confine history to Bruen’s second step—when the government must identify a history and tradition that relevantly limits the scope of the Second Amendment right. Ante, at 7–8; see 597 U. S., at 19. This shift is surprising, not only as a matter of precedent but also in light of the majority’s chosen methodology.
Specifically, Bruen relied heavily on Heller, which “demand[ed] a test rooted in the Second Amendment’s text, as informed by history.” 597 U. S., at 19 (emphasis added).77 According to Bruen, Heller had “relied on text and history” for “defining the character of the right . . . , suggesting the outer limits of the right, [and] assessing the constitutionality of a particular regulation.” Bruen, 597 U. S., at 22 (emphasis added). This characterization of Heller made sense, as the main point of Heller’s analysis was to explain that the text of the Second Amendment codified a pre-existing right. 554 U. S., at 592. History, then, was necessary for interpreting the text.
Bruen then derived its first step from the “test . . . set forth in Heller.” 597 U. S., at 26. Heller indicated that it is appropriate to consider history in ascertaining the scope of the Second Amendment right—what Bruen later adopted as step one. 554 U. S., at 592. And step one is supposed to have a function: It operates as a check to make sure that
Although Bruen did not conduct a historical analysis itself, that was because Bruen’s step-one “plain text” determination was obvious after Heller. In other words, the interpretive question the Bruen Court was asked to answer required no interpretation of the text of the Amendment beyond what Heller had done. 597 U. S., at 32. Heller had already reviewed the historical record and had essentially concluded that the proposed course of conduct at issue in Bruen—“carrying handguns publicly for self-defense“—was covered by the text of the Second Amendment. Bruen, 597 U. S., at 32 (citing Heller, 554 U. S., at 592). Indeed, the parties in Bruen did not dispute this point. 597 U. S., at 33.
Here, the parties do not agree about the meaning of the Second Amendment, nor have our past cases established the meaning of the Second Amendment applicable to petitioners’ proposed conduct—namely, “carrying firearms on private property open to the public without first getting express permission from the proprietor.” Brief for Petitioners 24. So today’s step-one question is whether the Second Amendment protects armed carry onto private property open to the public without express consent. And that inquiry demands additional interpretation of the pre-existing limits baked into the Second Amendment. See Heller, 554 U. S., at 576–578, 592–595.88
The Court’s sudden aversion to consulting history to inform the scope of the Second Amendment right at Bruen’s step one is strange, to say the least. Several Members of the majority have elsewhere opined that interpreting the Second Amendment requires understanding the original
Worse, the majority’s new methodology is a one-way ratchet: It inevitably works only to the benefit of armed carry by removing any real burden of proof on gun owners at step one. The majority simply equates the ability to carry a gun with the right to carry anywhere and everywhere. Ante, at 14. Because of that, it then assumes that any impediment to carrying qualifies as a burden on the right. Ante, at 14, 16. The upshot of the majority’s view of Bruen’s first step is thus that any law that regulates the carrying of firearms is presumptively unconstitutional. But under this Court’s precedents, assessing whether conduct falls within the right protected by the Second Amendment requires more than breezily asserting that the restricted conduct involves carrying a firearm.
Ultimately, the majority spills much ink arguing that the Bruen test is “disciplined” but, conveniently, “not mechanical.” Ante, at 8. As it turns out, “not mechanical” is a gross understatement. Bruen becomes boundless once the majority abandons its chosen methodology, and the Court ends up with a more protective Second Amendment than the Framers understood themselves to be adopting. If
III
Even if the majority were correct about how step one cashes out, Hawaii has carried the step-two burden of showing that its regulation is consistent with this Nation’s historical tradition of firearm regulation. Bruen, 597 U. S., at 24. Bruen’s second step requires courts to “ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” Rahimi, 602 U. S., at 692 (quoting Bruen, 597 U. S., at 29). “Why and how the regulation burdens the right are central to this inquiry.” Rahimi, 602 U. S., at 692. There is no requirement that a State produce a “‘dead ringer’” or a “‘historical twin.’” Ibid. (quoting Bruen, 597 U. S., at 30). Instead, “‘the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.’” United States v. Hemani, 608 U. S. ___, ___ (2026) (slip op., at 4) (quoting Rahimi, 602 U. S., at 692; emphasis added).
The analogues cited by Hawaii clearly establish that legislatures historically required affirmative consent for
A
Hawaii cites a combination of founding-era and Reconstruction-era laws. From those analogues, a principle plainly emerges: States routinely required affirmative consent for armed carry onto private property to vindicate the rights of property owners, including the right to exclude, and to prevent real-world harms arising from unauthorized armed carry.
To start, the “how” maps on perfectly to Hawaii’s law: Hawaii’s historical analogues operated by requiring those wishing to carry a gun onto private property to get express consent from the owner. For example, a 1771 New Jersey law provided that a person could not “carry any gun on any lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he hath license or permission in writing from the owner or owners, or legal possessor.” 1771 N. J. Laws 26 (emphasis added). And New Jersey was not alone in requiring express consent: Multiple other States likewise required affirmative consent before visitors could carry firearms onto the private property of another, both at the time of the founding and during Reconstruction. See, e.g., 1721 Pa. Acts, §3, at 255 (requiring “license or permission from the owner” to “carry any gun or hunt on the improved or inclosed lands of any plantation other than his own“); Act of Dec. 20, 1763, ch. 1233, §1, in 1 Laws of New-York, from the Year 1691, to 1773 inclusive, p. 442 (1774) (1763 NY Act) (criminalizing “carry[ing] . . . any Musket, Fowling-Piece, or other Fire-Arm whatsoever, into, upon, or through” certain enclosed lands “without Licence in Writing“); 1865 La. Acts, No. 10, §1, at 14 (“[I]t shall not be lawful for any person or persons to carry fire-
Some of those laws did not extend to all private property in the State. But a significant number applied to the type of property at issue here: private property open to the public. The New Jersey law, for example, applied to “any lands not [the trespasser’s] own, and for which the owner pays taxes, or is in his lawful possession.” 1771 N. J. Laws 26. That would necessarily have encompassed private property open to the public, including the type of locations to which Hawaii’s law applies. See Decl. of H. Hartog ¶¶ 32, 34 in Koons v. Platkin, No. 1:22–cv–7464 (D NJ, Feb. 13, 2023), ECF No. 84 (noting that New Jersey’s law would have applied to “all varieties of real property, including the typical ‘businesses’ of the times“: “taverns, leathersmiths and blacksmiths, pharmacies, seed stores, and merchants who bought and sold livestock“).
Even laws that do not appear on their face to apply to private property open to the public are, after some inquiry, akin to Hawaii’s regulation. Pennsylvania’s law applied to “the improved or inclosed lands of any plantation other than [the trespasser’s] own.” 1721 Pa. Acts, §3, at 255. And several Reconstruction-era laws applied to “the premises or plantations of any citizen.” 1865 La. Acts, No. 10, §1, at 14; see 1866 Tex. Laws 1321, §1; 1865 Fla. Acts, §19, at 27. As Hawaii explains, “improv’d or inclosed Lands” and “premises or plantations” exempted undeveloped and unfenced land but still included much of the private property open to the public. Brief for Respondent 31, 33–35 (internal quotation marks omitted); see also Brief for Professors of Property Law as Amici Curiae 26.
Beyond property rights, the broader animating regulatory principles included limiting armed trespass, property theft or damage, and gun violence, whether intentional or accidental. See 1721 Pa. Acts, §3 (preamble), at 255 (targeting “divers[e] abuses, damages and inconveniencies” related to unauthorized armed carry, i.e., ”carrying guns and presuming to hunt on other people’s lands” (emphasis added)); 1722 N. J. Laws 101 (similar). For example, the colony of New York, which in 1763 passed a law applying to “Orchard[s], Garden[s], Corn-Field[s], or other inclosed Land whatsoever,” found that the unauthorized carrying of firearms was leading to a number of issues, including creating “great Danger of the Lives of his Majesty’s Subjects, the Ruin and Destruction of the most valuable Improvements, the grievous Injury of the Proprietors, and the great Discouragement of their Industry.” 1763 NY Act 441–442.
New York had reason to be concerned. Historically, poaching was dangerous to people and property. Stray gunshots injured and even killed people. See Brady, 78 Stan. L. Rev. Online, at 167–168. And poachers were known for “strik[ing] back with deadly force when cornered.” T. Lund, American Wildlife Law 30 (1980). Not only was poaching dangerous to bystanders and property owners, but the tactics used by hunters—including creating fires and leaving carcasses to rot—caused property damage. Id., at 32. In
These historical analogues suffice to demonstrate a tradition of state regulation within which Hawaii’s law fits comfortably. Like Hawaii’s, these laws required consent for armed entry onto private property open to the public. And like Hawaii’s, they did so to protect property owners’ rights and to prevent the harms that generally accompanied unauthorized armed entry onto private land.
B
At step two, the majority again misapprehends this Court’s precedents. It observes that many of the analogues discuss unauthorized hunting—and goes no further, essentially requiring a “dead ringer” for Hawaii’s law. Ante, at 19–22. But Rahimi demands more effort. The lack of an exact match cannot be dispositive; instead, the majority should have searched for the animating principles in Hawaii’s analogues. 602 U. S., at 691.1212 The majority’s arguments for why Hawaii’s analogues are insufficient do not follow from Rahimi’s reasoning.
First, the majority insists that the “why” is different because the historical laws targeted poaching. In the
But to set the principle of Hawaii’s analogues at “poaching” is to demand a historical twin insofar as it requires the modern legislature to target an identical problem as legislatures in the past. Such a narrow search results in a “law trapped in amber.” Rahimi, 602 U. S., at 691. Seen at the correct level of generality, however—i.e., one that does not put the modern legislature into a “regulatory straightjacket,” Bruen, 597 U. S., at 30—historical laws targeting poaching are also appropriately viewed as being aimed at protecting the property rights of landowners from the harms of unauthorized armed carry on their property. Hawaii’s law does the same.
The majority is likewise mistaken in maintaining that Hawaii’s law is not “relevantly similar” to its proffered analogues because Hawaii does not restrict conduct that produces effects similar to poaching. Ante, at 21–22 (internal quotation marks omitted). It asserts—without evidence—that this is true because “[o]thers on the premises will not even notice a person peacefully carrying a concealed weapon in the manner demanded by Hawaiian law.” Ante, at 22. That is sheer speculation. It also misses the point. The step-two question is not whether the most anodyne version of the conduct that the modern law targets would produce the same effects as the harms highlighted in the historical laws. Rather, we ask whether the analogues and the modern law target “‘relevantly similar’” issues. Rahimi, 602 U. S., at 692. Here the answer is clearly yes: Both the analogues and §134–9.5 aim to fortify landowners’ right to exclude and protect their interests from the effects of unauthorized armed carry on their private property.
What is more, these historical analogues obviously had purposes beyond poaching. For example, New Jersey first enacted in 1722, and then repeatedly reenacted, a law that banned “trespassing with guns” along with a prohibition on “presum[ing] . . . to hunt . . . on any lands not [the trespasser’s] own.” 1771 N. J. Laws 26, 29; 1722 N. J. Laws 101. In other words, regulating hunting was only one of the law’s objectives. Several Reconstruction-era laws more generally “prohibit[ed] the carrying of fire-arms,” without any mention of game. 1865 La. Acts, No. 10; see also 1866 Tex. Laws 1321, §1 (same). And even for those laws that did not so clearly apply beyond hunting, the “why” was nevertheless broader than harms directly related to poaching. Such laws barred unauthorized possession on “enclosed land or premises of another” (which, as I note above, included businesses), so their “why” encompassed more than stopping the taking of game or destruction of property. See, e.g., 1865 Fla. Acts, §19, at 27. It would be odd for a statute that sought only to prevent poaching to include businesses.
The majority also rejects Hawaii’s analogues based on the contention that the “coverage” of the historical laws “differed sharply from that of the Hawaii law now before us.” Ante, at 21. The analogues, the majority says, applied only “where game could be found.” Ibid. But as I have already explained, several of the historical laws applied to “premises,” so they covered more than merely those places where wild animals roamed.
In the end, the majority simply refuses to acknowledge that the principles underlying these historical regulations are indistinguishable from the principles underlying Hawaii’s. But there is a long historical tradition of States requiring those wishing to carry firearms onto private property to seek the express permission of the property owner and doing so for similar reasons as Hawaii. And if judges may nonetheless reject this lengthy track record because the risks from unauthorized carry were primarily related to
To the contrary, the majority’s analysis demonstrates that, under Bruen, a judge can always choose to invalidate a modern regulation, so long as the judge points to some distinction between the modern regulation and the historical examples (really, any difference at all, no matter how small or irrelevant). Judges still have plenty of discretion left to exercise. And the unfortunate reality is that, regardless of the historical record, the will of the State’s legislature, or the needs of the local community, Bruen’s historical inquiry almost always “cabins” judicial discretion in only one direction: stymieing legislative efforts to restrict guns.1313
C
Finally, a note regarding the majority’s step-two discussion of Hawaii’s effort to use a Black Code (namely, Louisiana’s 1865 law) as a historical analogue. The majority says
The Black Codes were a series of “harsh and restrictive” laws that Southern legislatures enacted in the wake of the Civil War to control former slaves. D. Nieman, To Set the Law in Motion: The Freedmen’s Bureau and the Legal Rights of Blacks, 1865–1868, p. 72 (1979). These laws were a “legal means of subordinating” the newly freed Black population. E. Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, p. 198 (1988). The Black Codes impacted nearly every aspect of life for freedmen in the South “‘[v]irtually from the moment the Civil War ended.’” Id., at 198–203. As relevant here, this included whether freedmen could carry firearms. Id., at 203–204. Indeed, as my colleagues have previously explained, laws that restricted the ownership and possession of guns as part of the Black Codes made life dangerous for millions of Black people in the South for over a century. See McDonald v. Chicago, 561 U. S. 742, 846–850 (2010) (THOMAS, J., concurring) (discussing the impact of the Black Codes on freed Blacks); see also id., at 770–778.
Given the Court’s commitment to elevating the history and tradition of firearm use and regulation when deciding Second Amendment challenges, the idea that courts must categorically exclude historical laws that restricted Black people from possessing firearms (not unlike the categorical exclusion of the people who were historically bound by those laws) warrants further scrutiny.
As I see it, there are two potential reasons to use—or exclude—the Black Codes in Bruen’s history-and-tradition
Only the second set of circumstances justifies removing these laws (and the experiences of those they targeted) from the body of evidence that determines the historical reach of the Second Amendment under Bruen.1414 So, it might well be that the Black Codes are invalid inputs for Bruen’s test, but only if they violated the Second Amendment—which may or may not be the case.1515
Here, Hawaii has presented evidence that, even though the relevant gun restriction was a Black Code, it violated the Fourteenth Amendment but not the Second—evidence the majority ignores. For example, when General Sickles announced the end of South Carolina’s laws prohibiting gun possession by Black people in 1866, he declared: “The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” D. Sickles, General
Confronting the origins of these laws is certainly uncomfortable. The Black Codes were ugly. And racist. And deplorable. Even now, long after their abolishment and the end of the Jim Crow era, Black Americans are still saddled with the ramifications of centuries of legally authorized
But the characteristics that make the Black Codes detestable do not automatically render these laws irrelevant to a fair assessment of the right to carry firearms, especially given how the Court assesses that right. The Court has decided to use history as the metric, and these laws are part of our Nation’s history. So the Court must make an actual assessment of the relevance of what the historical record reveals. To be sure, it would certainly be most convenient for all concerned to skip past the nuance and ignore these painful realities. But choices have consequences: Where the Court has opted to tether its Second Amendment analysis to facts about America’s past, it must contend with our Nation’s entire history, warts and all.
To do otherwise calls into question the legitimacy of the Court’s endeavor to rely solely on historical guidance. It deepens race-based wounds, by classifying the experiences of those who have been historically excluded as categorically irrelevant. It empowers the Judiciary, by allowing the Court to cavalierly pick and choose which parts of the historical record count. And it exposes flaws in the test this Court has crafted—demonstrating, once again, that the discretion to cull the history lies with the Court and seems to operate in service of a single goal: preventing the government from responding to issues arising from the possession of firearms.
To be clear, I am not suggesting that courts must accept Black Codes as historical analogues. My point is merely that the Court cannot have it both ways. Either history does matter, and if so, all potentially relevant historical experiences must be thoroughly examined to determine whether they reflect our Nation’s history and tradition of firearm regulation. Or, it does not, and the Court should
* * *
In my view, our adoption of the Bruen test was a grave mistake. See, e.g., Rahimi, 602 U. S., at 740–747 (JACKSON, J., concurring); Hemani, 608 U. S., at ___ (same). But to the extent the Court has embraced this test, surely it cannot shirk responsibility for adhering to Bruen’s tenets, whatever the result.
Today, the majority fails to faithfully apply its own jurisprudence. It alters the Bruen test and overrides Hawaii’s considered—and in my view, constitutionally sound—judgment that the property interests of its residents should be protected against unauthorized armed entry. For the reasons I have explained, Hawaii’s law is an exercise of state regulatory power that has historically sounded in property law, not the Second Amendment. And it is also entirely consistent with a lengthy historical tradition of States enacting similar restrictions for exactly this reason.
Yet the majority concludes that Bruen requires striking down Hawaii’s law as unconstitutional. From this day forward, it will be difficult to view Bruen as anything more than a fig leaf. While purporting to constrain judges, the majority has unmasked the discretionary choices that lie beneath the Court’s decisions regarding which analogues are “vastly different,” ante, at 19, and whose historical experiences are worthy of inclusion. Of course, the real irony is that the Court’s effort to rein in judicial discretion has resulted in an arbitrary rule that unleashes judges to thwart gun regulation at every turn.
Notes
Our past cases do not answer the question of how the right to exclude—which the Framers were aware of—interacted with the Second Amendment’s pre-existing right to carry. History is needed to “elucidat[e]” (ante, at 2 (BARRETT, J., concurring) (internal quotation marks omitted)) whether the Second Amendment protects the ability to presume implied consent to carry firearms onto private property. Bruen’s second step, by contrast, uses history to address a different question: whether, if the modern regulation does impinge upon the constitutionally protected right to carry firearms, that challenged law “is consistent with the Nation’s historical tradition of firearm regulation.” 597 U. S., at 24.
As JUSTICE BARRETT sees it, the difference between Louisiana’s law and those of the other states was Louisiana’s discriminatory intent: Louisiana enacted its anti-poaching law with the illicit motive of keeping freedmen from being able to hunt and thereby sustain themselves. Ante, at 11–12, 13, n. 10 (concurring opinion). But even if that makes Louisiana’s “why” relevantly different, this seems to be a Fourteenth Amendment problem, not a Second Amendment one. Louisiana’s historical consent-to-carry law was identical to the consent-to-carry laws of other States, and all were enacted to prevent poaching and other related harms. That Louisiana’s Legislature had a discriminatory intent when it chose to subject only former slaves to this restriction should be neither here nor there for Bruen purposes. There is no clear Second Amendment-based explanation for why Louisiana’s decision to exercise the same power other states had used for the same reason—i.e., to prevent poaching and the effects of poaching, including theft of game (admittedly in a racially discriminatory manner on Louisiana’s part)—does not count when assessing what the Second Amendment permits under Bruen.