Amicus Curiae Brief — Jason Wolford, et al., Petitioners v. Anne E. Lopez, Attorney General of Hawaii

No. 24-1046

In the Supreme Court of the United States

JASON WOLFORD, et al.,

v.

Petitioner,

ANNE E. LOPEZ, Attorney General of Hawaii,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

––––––––––––––––––––––––––––––

BRIEF FOR THE STATES OF MONTANA, IDAHO,

23 OTHER STATES, AND THE ARIZONA LEGISLATURE AS AMICI CURIAE IN SUPPORT OF PETITIONER AND REVERSAL

––––––––––––––––––––––––––––––

RAÚL R. LABRADOR

AUSTIN KNUDSEN

Idaho Attorney General

Montana Attorney General

ALAN HURST

CHRISTIAN B. CORRIGAN

Solicitor General

Solicitor General

SEAN M. CORKERY

PETER M. TORSTENSEN, JR.

Assistant Solicitor General Deputy Solicitor General

IDAHO OFFICE OF THE

Counsel of Record

ATTORNEY GENERAL

MONTANA DEPT. OF JUSTICE

700 W. Jefferson St.

215 N. Sanders Street

Suite 210

Helena, MT 59601

Boise, ID 83720

peter.torstensen@mt.gov

(406) 444-2026

(406) 444-2026

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST AND

INTRODUCTION ................................................ 1

STATEMENT OF THE CASE ................................... 3

SUMMARY OF THE ARGUMENT ........................... 4

REASONS TO GRANT THE PETITION .................. 5

I.

The Ninth Circuit’s “default rule” holding

created a circuit split ........................................... 5

A. The Second Circuit rightly held that

there was no historical tradition for

flipping the presumption ............................... 7

B. Considering a similar law and

identical historical regulations, the

Ninth Circuit’s decision explicitly

creates a circuit split ..................................... 9

II. The Ninth Circuit’s “sensitive places”

analysis deepens an existing split on the

relevant historical era and improperly

applied Bruen’s analogical inquiry .................... 11

A. Hawaii’s late-nineteenth century

analogues fail to show a historical

tradition of public-carry bans in

public parks and beaches ............................ 14

ii

B. Hawaii’s historical evidence fails to

show a historical tradition of publiccarry bans in bars and restaurants

serving alcohol ............................................. 19

III. Given the lower courts’ active resistance to

Bruen, this Court’s review is sorely needed ...... 24

CONCLUSION ......................................................... 24

ADDITIONAL SIGNATORIES ................................ 26

iii

TABLE OF AUTHORITIES

Cases

Antonyuk v. James,

120 F.4th 941 (2d Cir. 2024) ....................... 6-8, 10

Atkinson v. Garland,

70 F.4th 1018 (7th Cir. 2023) ...................... 16, 19

Bevis v. City of Naperville, Ill.,

85 F.4th 1175 (7th Cir. 2023) ........................ 9, 24

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) .............................. 9

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................... 1, 14-15, 16, 23

Duncan v. Bonta,

No. 23-55805, 2025 WL 866011

(9th Cir. Mar. 20, 2025) ..................................... 24

Duncan v. Bonta,

No. 23-55805, 2025 WL 867583

(9th Cir. Mar. 20, 2025) ....................................... 9

Gamble v. United States,

139 S. Ct. 1960 (2019) ........................................ 23

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011) .......................... 14

Konigsberg v. State Bar of Cal.,

366 U.S. 36 (1961) .............................................. 12

Koons v. Platkin,

673 F.Supp.3d 515 (D.N.J. 2023)....................... 16

iv

Lloyd Corp. v. Tanner,

407 U.S. 551 (1972) .............................................. 5

McDonald v. City of Chi.,

561 U.S. 742 (2010) .............................. 1, 6, 11, 23

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) .... 1-5, 7-10, 12-17, 19-20, 22-24

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) .............................................. 5

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ............................ 21

United States v. Rahimi,

602 U.S. 680 (2024) .......................................... 2, 4

Wooley v. Maynard,

430 U.S. 705 (1977) .............................................. 5

Statutes

28 U.S.C. §46(c) ........................................................ 24

Haw. Rev. Stat. §134-9.1(a)(4) .................... 3, 4, 19-22

Haw. Rev. Stat. §134-9.1(a)(9) ......................... 3, 4, 18

Haw. Rev. Stat. §134-9.5 ........................................ 3, 4

Haw. Rev. Stat. §134-9.5(b)........................................ 6

v

Other Authorities

Addendum, Dkt. 6-2, Wolford, et al. v. Lopez,

No. 23-16164 (9th Cir. Oct. 5, 2023) .................. 18

William Baude, Constitutional Liquidation,

71 STAN. L. REV. 1 (2019) ................................... 14

Office of the Governor – News Release –

Gov. Green Signs Firearms Legislation,

https://tinyurl.com/2vrysv73 ................................ 6

1

STATEMENT OF INTEREST AND

INTRODUCTION 1

Just a few years ago, this Court reminded lower

courts that the right to keep and bear arms “is not ‘a

second-class right, subject to an entirely different body

of rules than the other Bill of Rights guarantees.’” N.Y.

State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70

(2022) (quoting McDonald v. City of Chi., 561 U.S.

742, 780 (2010) (plurality op.)). Yet courts across the

country continue to defer to legislative “judgments regarding firearm regulations” despite Bruen’s declaration that “judicial deference to legislative interest balancing … is not [the] deference that the [Second

Amendment] demands.” Id. at 26. But the district

court deferred to the balance struck by the American

people—“‘the right of law-abiding, responsible citizens

to use arms’ for self-defense.” Id. (quoting District of

Columbia v. Heller, 554 U.S. 570, 635 (2008)). The

Ninth Circuit charted a different course: “blessing”

Hawaii’s efforts to ban “law-abiding and licensed citizens … from carrying firearms in most public and private spaces.” Pet’rs’ App. (“Pet.App.”) at 170a (VanDyke, J., dissenting from denial of rehearing en banc).

To address concerns about public safety and gun

violence, the Hawaii legislature banned the public

carry of firearms in certain “sensitive places,” including parks, beaches, and bars and restaurants serving

1 As required by Rule 37.2, counsel for amici timely notified coun-

sel of record its intent to file this brief. No counsel for a party

authored this brief in whole or in part, and no person other than

amici or their counsel contributed money intended to fund the

preparation or submission of this brief.

2

alcohol. Not only that, but the Hawaii legislature

flipped the default rule for public carry on private

property held open to the public. Rather than presuming that public carry was permissible unless expressly

forbidden, public carry is now presumptively forbidden in Hawaii unless expressly permitted.

No doubt courts may use analogies to “historical

regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in

new and analogous sensitive places are constitutionally permissible.” Id. at 30. But Bruen’s analogical inquiry requires courts to determine whether a modern

and historical regulation are “relevantly similar”—

that is, whether they impose a comparable burden and

are comparably justified. See United States v. Rahimi,

602 U.S. 680, 692 (2024). States may not “expand[] the

category of ‘sensitive places’ [too broadly]—i.e., to “all

places of public congregation”—as that would “exempt

cities from the Second Amendment” and “eviscerate

the general right to publicly carry arms for self-defense.” Bruen, 597 U.S. at 31. Nor can states flip the

default rule as subterfuge for banning law-abiding and

licensed citizens from the public-carry right Bruen secured. See Pet.App.178a-180a. To ensure that courts

properly employ the “nuanced approach” that Bruen’s

analogical inquiry requires, the States of Montana,

Idaho, Alabama, Alaska, Arkansas, Florida, Georgia,

Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, North

Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming, and the

Arizona Legislature (“Amici States”) submit this

3

amicus brief in support of petitioner and urge this

Court to grant the petition.

STATEMENT OF THE CASE

In June 2023, Hawaii’s legislature acted to address

concerns about public safety and gun violence by enacting Act 52 (codified at Haw. Rev. Stat., ch. 134),

which prohibits the carry or possession of firearms in

designated sensitive places. Act 52 prohibits public

carry in, as relevant here, bars and restaurants serving alcohol, see Haw. Rev. Stat. §134-9.1(a)(4), parks

and beaches, id. §134-9.1(a)(9), and adjacent parking

areas. Act 52’s so-called “default rule” prohibits carrying a firearm on another’s property without express

authorization. Id. §134-9.5. Act 52’s sweeping restrictions seek to convert many traditional public

spaces into “sensitive places” where firearms “could

be prohibited consistent with the Second Amendment.” See Bruen, 597 U.S. at 30.

Plaintiffs Jason Wolford, Alison Wolford, Atom

Kasprzycki, and the Hawaii Firearms Coalition allege

that these sensitive-place restrictions violate their

“constitutional right to bear arms in public for self-defense.” 2 Bruen, 597 U.S. at 70. Wolford sought a temporary restraining order (“TRO”) and preliminary injunction (“PI”) to enjoin Hawaii from enforcing the

above provisions of Act 52. Pet.App.83a-84a & n.2. The

district court considered only Plaintiffs’ request for a

TRO, and as relevant here it enjoined: §134-9.1(a)(4)

(bars and restaurants serving alcohol), §134-9.1(a)(9)

2 This brief refers to Petitioner as “Wolford” and Respondent as

“Hawaii” unless otherwise indicated.

4

(parks and beaches), and §134-9.5 (private property

held open to the public). Pet.App.83a-85a & n.2. By

stipulation, the district court converted the TRO into

a PI, Pet.App.215a-218a, and Hawaii appealed,

Pet.App.10a. The Ninth Circuit reversed the district

court’s grant of the preliminary injunction as to Haw.

Rev. Stat. §§134-9.1(a)(4), (9), and 134-9.5.

Pet.App.79a. The full court denied Wolford’s petition

for hearing en banc. Pet.App.169a.

SUMMARY OF THE ARGUMENT

1. By reversing the injunction on Hawaii’s default

rule, the Ninth Circuit created a circuit split. Relying

on the same precedent and the same historical regulations as the Ninth Circuit, the Second Circuit upheld

an injunction on a nearly identical New York law.

2. Hawaii’s laws addressed problems that have existed since the Founding, yet Hawaii failed to produce

any “distinctly similar,” Founding-era laws supporting

its public-carry bans in public parks and beaches or in

bars and restaurants serving alcohol. Hawaii’s “failure to do so should be dispositive.” Pet.App.195a. And

even if Reconstruction-era analogues could establish a

historical tradition of firearm regulation, the panel

erred in concluding that Hawaii’s proposed analogues

were “relevantly similar.” Rahimi, 602 U.S. at 692.

3. Bruen reassured law-abiding gun owners that

the Second Amendment was no longer a “second-class

right.” 597 U.S. at 70. But lower courts have largely

failed to follow through on that promise, resorting to

manipulative en banc practices, ahistorical interpretations of covered “arms,” and improperly calibrating

5

the level of generality for Bruen’s inquiry. These incursions on citizens’ public-carry rights will continue

to grow unless this Court intervenes.

REASONS TO GRANT THE PETITION

I.

The Ninth Circuit’s “default rule” holding

created a circuit split.

The rights embedded in the Constitution generally

protect against state action—not private action. See,

e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977). This

means that Hawaii cannot prohibit its citizens from

bearing arms in public, Bruen, 597 U.S. at 9, but private property owners are generally free to do so within

the boundaries of their property. By changing the default rule—decreeing that firearms are prohibited on

private property unless the owner expressly consents

in advance—Hawaii coopts the owners’ power to restrict Hawaiians’ exercise of their right to bear arms.

But the Second Amendment is not the only constitutional right that property owners can interfere with.

They can restrict speech on their property, or association, or religious exercise. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1972). Unless they are public

accommodations, they can exclude people on the basis

of race, sex, or another protected characteristic. Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984).

In any of those contexts, a law like Hawaii’s would

be unconstitutional. Imagine an anti-abortion state

banning abortion discussions on private property

without the owner’s prior express consent. Or imagine

a state requiring express consent before visitors to a

property could pray, or read White Fragility, or hold

hands with a same-sex spouse. No doubt the owners

6

could overrule the state and tell visitors that the forbidden conduct was permitted, but most visitors to

stores and restaurants and such would never ask—

compliance with the state’s unconstitutional wishes

would be easier.

The only reason a court would reach the opposite

conclusion here is because it continues to treat the

Second Amendment as a “second-class” right. McDonald, 561 U.S. at 780. Since this Nation’s founding, a

citizen could enter a business open to the public with

a firearm unless informed otherwise by the owner.

Pet.App.173a. In explicit response to this Court’s decision in Bruen and flipping this presumption, Hawaii

enacted a new “default rule”—prohibiting a citizen

from carrying a firearm on another’s property without

advance permission—whether or not the property is

open to the public. Office of the Governor – News Release – Gov. Green Signs Firearms Legislation,

https://tinyurl.com/2vrysv73; Haw. Rev. Stat. §1349.5(b). As the Ninth Circuit noted, it did this knowing

that few (if any) businesses will expressly provide this

consent—narrowing the public’s right to carry was a

feature of the law, not a bug. Pet.App.57a.

The Ninth Circuit allowed this de facto publiccarry ban to go forward and, in so doing, created a circuit split between it and the Second Circuit. Compare

Pet.App.57a with Antonyuk v. James, 120 F.4th 941

(2d Cir. 2024), cert. denied, No. 24-795 (U.S. Apr. 7,

2025); Pet.App.200a. Ruling on nearly identical laws,

the circuits came to opposite conclusions about the legality of the legislative ruse. And they reached their

contrary holdings based on the same historical data.

The result: New Yorkers may exercise their

7

constitutional rights while Hawaiians may not. This

case provides an ideal vehicle to remind courts that

the Second Amendment requires no less from a state

government than a “demonstrat[ion] that the regulation is consistent with the Nation’s historical tradition

of firearm regulation.” Bruen, 597 U.S. at 17.

A. The Second Circuit rightly held that there

was no historical tradition for flipping the

presumption.

As the Second Circuit recognized when analyzing a

law nearly identical to Hawaii’s, the Bruen analysis

here is straightforward. At step one, the court had “little difficulty” concluding that the “plain text of the

Second Amendment” covers the individual’s conduct.

Id. at 32. The Second Amendment protects the right to

bear arms in public. Id. at 33. And that right does not

distinguish between public property or private property held open to the public. Antonyuk, 120 F.4th at

1044.

At step two, to determine whether the regulation

was “consistent with the Nation’s historical tradition

of firearm regulation,” the court asked whether the

unprecedented inversion of the default rule was “relevantly similar” to historical regulations based on “how

and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at 964 (citation

omitted) (first quote); id. at 1046 (citation omitted)

(second quote). And the court could not find a single

relevantly similar law in the annals of history. Id.

The court reviewed a 1771 New Jersey statute and

an 1865 Louisiana statute that, at the highest level of

8

generality, prohibited the carriage of firearms on private property without the owner’s consent. Id. at 1043.

The court started by observing that it was unclear

how a few historical regulations could establish a historical tradition. Id. at 1046. But more troubling, these

statutes did not share the same “how” and “why” as

the regulation at issue—making them poor analogues.

Id.

Starting with the why, the court found that the

proffered analogues “were explicitly motivated by a

substantially different reason (deterring unlicensed

hunting) than the restricted location regulation (preventing gun violence).” Id. at 1046. As to the how,

“none of the State’s proffered analogues burdened Second Amendment rights in the same way as [the provision at issue]. All of the State’s analogues appear to,

by their own terms, have created a default presumption against carriage only on private lands not open to

the public.” Id. at 1046.

Because “the State’s analogues fail[ed] to establish

a national tradition motivated by a similar ‘how’ or

‘why’ of regulating firearms in property open to the

public,” the law violated the Second Amendment. Id.

at 1047.

This makes sense. Reversing the traditional presumption that carrying firearms into businesses open

to the public would effectively “exempt [states] from

the Second Amendment” and “eviscerate the general

right to publicly carry arms for self-defense.” Bruen,

597 U.S. at 31. By doing so, New York’s law would

have “practically accomplish[ed] close to the same

thing rejected in Bruen.” Pet.App.171a.

9

B. Considering a similar law and identical historical regulations, the Ninth Circuit’s decision explicitly creates a circuit split.

Around the same time, the Ninth Circuit decided

this case, reviewing a nearly identical Hawaii law. See

Pet.App.5a. To its credit, it correctly held that if a law

falls within the plain text of the Second Amendment,

then it falls within the plain text of the Second Amendment, Pet.App.58a—a notion that has not commanded

the universal judicial assent one would hope for. See,

e.g., Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024)

(holding that arms are not necessarily arms under the

Second Amendment); Bevis v. City of Naperville, Ill.,

85 F.4th 1175 (7th Cir. 2023), cert. denied sub nom.

Harrel v. Raoul, 144 S. Ct. 2491 (2024) (same); Duncan v. Bonta, No. 23-55805, 2025 WL 867583 (9th Cir.

Mar. 20, 2025) (holding that necessary parts of a firearm are not necessarily protected by the plain text

Second Amendment). But as Bruen requires, the

Ninth Circuit correctly held that “[t]he government

must then justify its regulation by demonstrating that

it is consistent with the Nation’s historical tradition of

firearm regulation.” Pet.App.20a (citation omitted).

But after that the Ninth Circuit split with the Second Circuit (and Bruen). While it rightly discounted a

smattering of anti-poaching laws, the Ninth Circuit

upheld the law on the basis of two historical regulations the Second Circuit considered and rejected: the

1771 New Jersey law and the 1865 Louisiana law.

Pet.App.61a. The court found that these laws purportedly “bann[ed] the carrying of firearms onto any

10

private property without the owner’s consent”—just

like Hawaii’s law. Pet.App.61a. And that was enough.

As both the Second Circuit and Judge VanDyke’s

dissent from the Ninth Circuit denial of rehearing en

banc noted, New Jersey’s law “was an antipoaching

and antitrespassing ordinance—not a broad disarmament statute.” Pet.App.186a; Antonyuk, 120 F.4th at

1046. And Judge VanDyke observed that Louisiana’s

law “was enacted as part of Louisiana’s notorious

Black Codes that sought to deprive African Americans

of their rights, including the right to keep and bear

arms.” Pet.App.187a. In short, neither law’s purpose

remotely resembled the “why” of Hawaii’s law: a general reduction in gun violence.

Beyond missing the laws’ purpose, the Ninth Circuit also split with the Second Circuit on whether the

relevant laws even covered the same acts. The Second

Circuit found that both Louisiana’s and New Jersey’s

law only prohibited carrying firearms on private lands

not open to the public. Antonyuk, 120 F.4th at 1046.

But that prohibition is materially different from restricting public carrying of firearms. Id. at 1047.

Finally, contrary to the Second Circuit and Judge

VanDyke’s dissental and the dictates of this Court, the

Ninth Circuit did not consider that these two laws,

passed nearly a century apart, could be anything but

idiosyncratic “outliers that our founders would never

have accepted.” Bruen, 597 U.S. at 30 (cleaned up);

PetApp.182a; Antonyuk, 120 F.4th at 1044.

The Ninth Circuit just ignored these issues.

Pet.App.61a-62a. After skipping most of the inquiry

Bruen demanded, the court was able to not only find

11

that the historical regulations are “relevantly similar”

to Hawaii’s law, but that they were “dead ringers.”

Pet.App.62a. With this, the court found an established

historical tradition directly at odds with the text of the

Second Amendment and upheld the law. Pet.App.62a.

*

*

*

Despite relying on the same precedent, the same

historical regulations, and interpreting nearly identical laws as the Second Circuit, the Ninth Circuit

reached the wrong conclusion. Even if a “historical

twin” isn’t required, the historical regulations the

Ninth Circuit relied on aren’t even distant relatives to

relevantly similar analogues.

The Court should reject this latest attempt to give

a critical constitutional right “second-class” status.

McDonald, 561 U.S. at 780. Without swift correction,

the Ninth Circuit’s decision will muddle the clear Second Amendment standards this Court has adopted.

And its decision will encourage other states to erode

Americans’ essential right to keep and bear arms.

II.

The Ninth Circuit’s “sensitive places” analysis deepens an existing split on the relevant historical era and improperly applied

Bruen’s analogical inquiry.

On top of creating a split on the default rule, the

Ninth Circuit deepened an existing split over the relevant era (i.e., Founding or Reconstruction) to rely on

for Bruen’s historical inquiry, see Pet.20-27, an independent basis for this Court to grant Wolford’s petition. Rather than retreading that ground, Amici

12

States instead focus on the analogical inquiry the

Ninth Circuit should have conducted below.

After Bruen, courts must determine whether “the

Second Amendment’s plain text covers an individual’s

conduct.” 597 U.S. at 17. If it does, “the Constitution

presumptively protects that conduct.” Id. And here,

the Amendment’s plain text “protects [Wolford’s] proposed course of conduct—carrying handguns publicly

for self-defense.” Id. at 32. To justify its sensitive-place

restrictions, Hawaii must show that its regulations

are “consistent with this Nation’s historical tradition

of firearm regulation”—only then “may a court conclude that [Wolford’s proposed] conduct falls outside

the Second Amendment’s ‘unqualified command.’” Id.

at 17 (quoting Konigsberg v. State Bar of Cal., 366 U.S.

36, 50 n.10 (1961)).

Bruen’s historical inquiry varies based on whether

a challenged regulation addresses a longstanding or

new “societal problem.” Id. at 27-28. Whether the “societal problem” is old or new, courts must compare

modern regulations with similar historical regulations. the only difference is the fit necessary to show

that a modern regulation aligns with our Nation’s historical tradition of firearm regulation. See id. When a

modern regulation addresses a longstanding issue

that traces back to the Founding era or earlier, the

modern and historical regulations should be a close fit.

See id. at 26-27 (in “straightforward” cases, the “lack

of … distinctly similar historical regulation[s]” addressing the same problem or regulations addressing

13

it “through materially different means” is evidence

that the modern regulation is unconstitutional).

When evaluating modern regulations addressing

new problems “that were unimaginable at the founding,” courts must employ “a more nuanced approach.”

See id. at 27-28. In these cases, the fit need not be so

close: the government must identify a “well-established and representative historical analogue, not a

historical twin.” Id. at 30. Bruen’s analogical inquiry

requires courts to determine that a modern regulation

is “relevantly similar” to a proposed historical analogue—that is, that the “modern and historical regulations impose a comparable burden on the right of

armed self-defense and … [are] comparably justified.”

Id. at 29 (emphasis added). Whether the modern regulation addresses longstanding or new societal problems, discerning “the original meaning of the Constitution” remains the guiding light of Bruen’s analogical

inquiry. See id. at 81 (Barrett, J., concurring); see also

id. at 83 (“[T]oday’s decision should not be understood

to endorse freewheeling reliance on historical practice

from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.”).

Bruen assumed that “it [was] settled” that certain

locations—including schools, government buildings,

and polling places—were “sensitive places” where carrying a firearm “could be prohibited consistent with

the Second Amendment.” Id. at 30. But Bruen’s list of

“settled” sensitive places omits public parks, beaches,

and bars and restaurants serving alcohol, so Hawaii

must show that its modern sensitive-place regulations

are sufficiently analogous to the locations Bruen and

Heller assumed were settled. And Bruen’s (and

14

Heller’s) omission of these locations from the list of

“settled” sensitive places strongly suggests that they

haven’t historically been viewed as sensitive places.

Bruen cautioned courts “against giving postenactment history more weight than it can rightly bear.” Id.

at 35. A regular course of conduct can sometimes “liquidate and settle the meaning of disputed or indeterminate terms and phrases in the Constitution,” id.

(cleaned up), but “postratification adoption or acceptance of laws that are inconsistent with the original

meaning of the constitutional text obviously cannot

overcome or alter that text,” id. at 36 (quoting Heller

v. District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C.

Cir. 2011) (Kavanaugh, J., dissenting)); see also William Baude, Constitutional Liquidation, 71 STAN. L.

REV. 1, 13-14 (2019).

Viewed through the proper lens—both in timing

and fit—Hawaii failed to carry its burden to show that

its restrictions on public carry in public parks and

beaches and bars and restaurants serving alcohol are

“part of the historical tradition that delimits the outer

bounds of the right to keep and bear arms,” Bruen,

597 U.S. at 19. Yet “the panel distorted Bruen’s texthistory-and-tradition analysis” by “extracting overbroad principles from strained analogies to unrelated

laws” and blessed Hawaii’s laws. Pet.App.171a.

A. Hawaii’s late-nineteenth century analogues

fail to show a historical tradition of publiccarry bans in public parks and beaches.

1. Heller found that the Second Amendment, ratified in 1791, “codified a preexisting right” that is

“rooted in ‘the natural right of resistance and self-

15

preservation.’” Bruen, 597 U.S. at 71 (Alito, J., concurring) (quoting Heller, 554 U.S. at 594). So historical

evidence close in time to the Amendment’s adoption

provides the most relevant insight into its original

meaning. Id. at 36 (quoting Heller, 554 U.S. at 614).

Yet Hawaii offers only limited evidence of historical

regulations of public parks between 1791 and 1868.

Because Hawaii bears the burden to rebut Wolford’s

constitutional right to bear arms in public, including

at public parks and beaches, its failure to produce adequate evidence of relevantly similar laws during this

period strongly suggests no such tradition existed. Cf.

id. at 60 (not courts’ burden “to sift the historical materials for evidence to sustain” the regulation).

Hawaii only pointed to two pre-1868 local ordinances banning public carry in two New York public

parks—Central Park in 1857 and Prospect Park in

1866. Pet.App.33a-34a. And it points to one 1868

Pennsylvania state law prohibiting public carry in

Fairmont Park. Pet.App.34a But “the bare existence

of [three] localized restrictions” between 1791 and

1868 “cannot overcome the overwhelming evidence of

an otherwise enduring American tradition permitting

public carry.” Bruen, 597 U.S. at 67. Hawaii’s failure

to point to more than three local restrictions during

this time “should be dispositive.” Pet.App.193a.

2. Even if Reconstruction-era historical evidence is

as probative of the scope of the Second Amendment’s

right to bear arms as Founding-era evidence, 3 Hawaii

3 This is a shaky proposition at best. Bruen, 597 U.S. at 36 (ex-

plaining that “because post-Civil War discussions of the right to

keep and bear arms ‘took place 75 years after the ratification of

16

still failed to show a historical tradition of relevantly

similar public-park restrictions. 4 Bruen directs courts

to canvas the period from the founding through Reconstruction for similar regulations, always with an eye

to “what the Founders understood the Second Amendment to mean.” Atkinson v. Garland, 70 F.4th 1018,

1020 (7th Cir. 2023). Because public parks have existed since the founding, see Koons v. Platkin,

673 F.Supp.3d 515 639-42 (D.N.J. 2023) (tracing historical evidence for parks, or their analogues, to the

establishment of Boston Common in 1634), Hawaii

must point to “distinctly similar regulation[s] addressing that problem.” Atkinson, 70 F.4th at 1021 (emphasis added); see also Pet.App.193a (“When the same locations that existed at the Founding still exist today,

and there is no historical tradition of banning carry in

those locations at the Founding, that lack of historical

regulation must count for something.”).

the Second Amendment, they do not provide as much insight into

its original meaning as earlier sources’” (quoting Heller, 554 U.S.

at 614)); see also Atkinson v. Garland, 70 F.4th 1018, 1020 (7th

Cir. 2023) (“[T]he pertinent question … is what the Founders understood the Second Amendment to mean” and noting that Bruen

“cautioned against giving too much weight to laws passed [long]

before or after the Founding.”).

4 To sidestep this problem, the panel considered when historical

“parks”—which “existed well before the Founding” and had no

firearm bans during that time, see Pet.App.194—began to resemble “modern parks.” Pet.App.33a. But that “historical detour” is

highly “suspect.” Pet.App.194. While parks may have been

“use[d] … differently,” there is ample evidence dating back to

Boston Common in 1634 that parks have long been used for recreational purposes. Pet.App.194. This Court should reject the

panel’s “feint to ignore the lack of [analogous] historical regulations.” Pet.App.193.

17

Hawaii’s post-1868 evidence fails to establish a historical tradition of “relevantly similar regulations for

at least two reasons. First, Hawaii’s evidence isn’t entitled to much weight because nearly all of the local

ordinances and state laws it identifies were enacted

well after Reconstruction. It identified only a handful

of local ordinances passed in the decade after 1868—

Golden Gate and Buena Vista Parks (San Francisco,

1872), and all public parks in Chicago (1872), South

Park, Illinois (1875), and Phoenixville, Pennsylvania

(1878). Pet.App.34a. Beyond those laws, Hawaii identified 19 more local ordinances enacted between 1881

and 1899. See Pet.App.34a. But three pre-1868 and

five more pre-1878 local ordinances are insufficient to

show a national historical tradition of regulating firearms in public parks. See Bruen, 597 U.S. at 27-28.

And the 19 local ordinances between 1881 and 1899

fare no better—indeed, this court rejected “freewheeling reliance on historical practice from the mid-to-late

19th century to establish the original meaning of the

Bill of Rights.” Bruen, 597 U.S. at 83 (Barrett, J., concurring); see also id. at 35.

Second, many of these state laws and local ordinances either didn’t impose a comparable burden on

the public-carry right or weren’t comparably justified.

See Bruen, 597 U.S. at 29. Start with the burden.

Some restrictions allowed citizens to carry firearms in

parks if they obtained permission beforehand. See,

e.g., 2-Add-389 (1891 Springfield, Massachusetts ordinance banning public carry in public parks “except

with prior consent of the Board”); 2-Add-417 (1895

Michigan law banning public carry in Detroit parks

“without the permission of said commissioners”); 2Add-423–24 (1896 Rochester, New York ordinance

18

banning public carry in parks “without the consent of

[the] Board”). 5 So these restrictions imposed less of

burden than §134-9.1(a)(9)’s complete ban.

Consider the justifications. Many of the other restrictions were justified on different grounds than the

public safety interest that §134-9.1(a)(9) targets. For

example, some restrictions appear tailored to prevent

unlawful hunting in public parks or to protect wildlife.

See, e.g., 1-Add-300 (1881 St. Louis ordinance) (section

entitled “protection of birds” prohibits the use or possession of “air gun[s] or other contrivance[s] for ejecting” certain items capable of inflicting injury); 2-Add379 (1888 St. Paul, Minnesota ordinance) (shall not

“carry firearms or shoot birds in any Park” or “kill any

animal kept by the direction of the Board”); 2-Add-398

(1893 Pittsburgh ordinance) (shall not “carry firearms,” “shoot or … set snares for birds, rabbits, squirrels, or fish”); 2-Add-400 (1893 Wilmington, Delaware

ordinance) (shall not “carry fire-arms or shoot birds or

other animals within the Park”).

Other restrictions were tailored to preserving the

physical condition of the public parks. See, e.g., 2-Add398 (1893 Pittsburgh ordinance) (ordinance providing

for the “control, maintenance, supervision and preservation of the public parks”); 2-Add-368 (1878 Phoenixville ordinance) (prohibition appears alongside restrictions that prohibit defacing trees, plants, property, signs, and that otherwise preserve or protect the

5 Citations to “Add” are to the addendum included in Respond-

ent’s opening brief before the Ninth Circuit. Addendum, Dkt. 62, Wolford, et al. v. Lopez, No. 23-16164 (9th Cir. Oct. 5, 2023).

19

park’s physical condition). These distinct justifications

diminish the weight of Hawaii’s evidence.

All told, Hawaii identifies three arguably similar

pre-1868 restrictions that may help clarify the Second

Amendment’s original meaning. Atkinson, 70 F.4th at

1020; but see Pet.App.195a (“Despite the undeniable

presence of recreational-use parks at the Founding,”

the panel failed to provide “any Founding-era laws

prohibiting firearms in those places”—“their failure to

do so should be dispositive.”). But Hawaii’s remaining

evidence warrants little weight in Bruen’s inquiry, so

the Ninth Circuit should have held that Hawaii failed

to meet its burden. This Court should grant the petition and demonstrate the proper inquiry.

B. Hawaii’s historical evidence fails to show a

historical tradition of public-carry bans in

bars and restaurants serving alcohol.

1. Taverns and firearms have existed since the

Founding, Pet.App.191—Hawaii even identified several pre-Founding laws that regulated militia members and taverns. 1-Add-90 (1746 New Jersey law); 1Add-97 (1756 Delaware law); 1-Add-112 (1756 Maryland law); 1-Add-151, -154 (1780 Pennsylvania law).

So the panel should have required a close fit between

§134-9.1(a)(4) and Hawaii’s proposed analogues.

Bruen, 597 U.S. at 26-27; see also Pet.App.193 (“lack

of historical regulations must count for something”).

2. Hawaii identified some similar historical regulations, but it still failed to show a national historical

tradition of regulating public-carry in bars or restaurants that serve alcohol. See Bruen, 597 U.S. at 67. To

start, Hawaii identified three state laws, enacted

20

between 1853 and 1890 in Louisiana and New Mexico,

banning firearms in places where alcohol was sold—

restrictions that largely mirror §134-9.1(a)(4). Even if

these laws are “relevantly similar” to §134-9.1(a)(4)—

and they at least facially appear to be 6—three local restrictions cannot, on their own, “overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.” Id.

To bolster its deficient historical record, Hawaii

proposed four more categories of historical analogues,

but each category fails to support a tradition of regulation similar to §134-9.1(a)(4). First, Hawaii identified four state laws that it claimed broadly restricted

public carry in places where people regularly assembled for commercial or social purposes. Those four

state laws—passed between 1817 and 1889—banned

firearms in ballrooms, social gatherings, or similar

places of public assembly. 1-Add-316 (1817 New Orleans law); 1-Add-325 (1870 Texas law); 1-Add-327

(1875 Missouri law); 1-Add-333 (1889 Arizona law).

Only the New Orleans law pre-dates Reconstruction.

And the “panel’s principle of banning firearms in

‘crowded places’ … runs squarely into Bruen’s rejection of Manhattan’s designation as a sensitive place

‘simply because it is crowded and protected’” by the

police. Pet.App.193a (citation omitted).

Second, Hawaii leaned on several laws regulating

the use of and access to alcohol by members of the

6 1-Add-262 (1853 New Orleans law prohibiting firearms in “Ball

or Fandango … or room adjoining said ball where Liquors are

sold”); 1-Add-265 (1879 New Orleans ordinance banning firearms

in taverns); 1-Add-253 (1890 Oklahoma territorial law banning

firearms in “any place where intoxicating liquors are sold”).

21

militia. Some of these laws forbid the sale of alcohol to

members of the militia or prohibited militia members

from getting drunk. See, e.g., 1-Add-90 (1746 New Jersey law forbidding sale of “any strong Liquor” to militia members); 1-Add-112 (1756 Maryland law prohibiting militia members from getting “drunk on any

Muster-day”). Others prohibited setting meeting locations near taverns or other locations that sold alcohol.

See, e.g., 1-Add-97 (1756 Delaware law). And others

excluded “common drunkards” from the militia. See,

e.g., 1-Add-191 (1837 Massachusetts law providing

measures to exclude “common drunkards” from the

militia). The most that can be said about these laws is

that they support a historical tradition of regulating

the use of or access to alcohol by militia members. But

they don’t support the existence of a historical tradition of regulating members of the public from carrying

firearms in bars and restaurants, without regard for

whether they are consuming alcohol. Pet.App.192a193a (quoting United States v. Connelly, 117 F.4th

269, 282 (5th Cir. 2024) (analogues “support, at most,

a ban on carrying firearms while an individual is presently under the influence”)).

Third, Hawaii identified other state laws that regulated the interaction of firearms and alcohol. But

these other laws are not remotely analogous to §1349.1(a)(4). Hawaii pointed to an 1851 Chicago law and

an 1858 St. Paul ordinance that forbid granting liquor

retailers permits to keep or sell gunpowder. See 1-Add237 (Chicago law); 1-Add-242 (St. Paul ordinance).

22

Regulating permits for liquor retailers to store gunpowder is not similar at all to §134-9.1(a)(4).

Fourth, Hawaii identified state laws prohibiting

public carry while intoxicated and selling firearms to

intoxicated persons. See 1-Add-244 (1867 Kansas law

prohibiting carry of firearms while intoxicated); 1Add-246 (1883 Missouri law) (same); 1-Add-248 (1883

Wisconsin law) (same); 1-Add-255 (1878 Mississippi

law banning sale of firearms to intoxicated persons).

But §134-9.1(a)(4) completely restricts the publiccarry right in bars and restaurants that serve alcohol,

even if the person isn’t consuming alcohol. so §1349.1(a)(4) doesn’t impose a comparable burden to Hawaii’s proposed analogues. Bruen, 597 U.S. at 29.

All told, Hawaii identified three arguably similar

state laws, but the remaining laws it relies on either

imposed different burdens or were justified on different grounds. When states address an issue that has

persisted since the Founding, like the public carry of

firearms in bars and restaurants serving alcohol,

three state laws of questionable relevance fail to establish the national historical tradition Hawaii needs

to meet its burden. Bruen, 597 U.S. at 26-27; see also

Pet.App.193a (“[P]anel stretched to draw principles

from unrelated laws that simply do not support its

stated regulatory principle.”). Given the absence of arguably similar restrictions, “panel should not have felt

licensed to extract principles from these unrelated

laws in the first place.” Pet.App.193a.

*

*

*

Bruen explained that “when it comes to interpreting the Constitution, not all history is created equal.”

23

597 U.S. at 34. Rather, “[c]onstitutional rights are enshrined with the scope they were understood to have

when the people adopted them.” Id. (quoting Heller,

554 U.S. at 634-35). So evidence closer in time to the

Second Amendment’s adoption is most relevant for understanding the Amendment’s scope. Of course, evidence of historical regulations through the end of the

nineteenth century could be relevant, but only to the

extent that it confirms what prior evidence “already … established.” Id. at 37 (quoting Gamble v.

United States, 139 S. Ct. 1960, 1976 (2019)).

The Second Amendment protects the right to possess handguns—at home and in public—for self-defense. McDonald, 561 U.S. at 767; Bruen, 597 U.S. at

70-71. With few exceptions, Hawaii relies on out-ofdate historical analogues passed well after Reconstruction—“surely too slender a reed on which to hang

a historical tradition of restricting the right to public

carry” in the locations challenged here. See Bruen,

597 U.S. at 58. Even if Reconstruction-era statutes

and local ordinances can provide probative evidence of

the Second Amendment’s original meaning, Hawaii’s

evidence still fails to identify relevantly similar historical analogues for Act 52’s sensitive-place restrictions

discussed above. Sweeping aside Hawaii’s irrelevant

evidence leaves little remaining historical support for

Act 52’s sensitive-place restrictions, but the Ninth Circuit instead “bless[ed] Hawaii’s “creative” attempt to

strip away the public carry right Bruen secured “on

96.4% of the publicly accessible land in Maui County.”

Pet.App.171a, 174a.

24

III. Given the lower courts’ active resistance to

Bruen, this Court’s review is sorely needed.

Bruen reassured law-abiding and licensed gun

owners that the Second Amendment was no longer a

“a second-class right, subject to an entirely different

body of rules than the other Bill of Rights guarantees.”

597 U.S. at 70 (citation omitted).

But lower courts have largely failed to follow

through on that promise, resorting to manipulative en

banc practices, see, e.g., Duncan v. Bonta, No. 2355805, 2025 WL 866011, at *41 (9th Cir. Mar. 20,

2025) (Bumatay, J., dissenting) (arguing that original

en banc panel’s decision to retake possession of the

case—despite a new district court decision under new

Supreme Court precedent, eight new judges, and five

new senior judges on the en banc panel—violated

28 U.S.C. §46(c)), ahistorical interpretations of covered “arms,” see, e.g., Bevis, 85 F.4th at 1220-21, 1222

(Brennan, J., dissenting) (finding AR-15s weren’t

“Arms” by relying on abrogated precedent and holding

that Heller limited covered “Arms” to “those not ‘dedicated to military use’” (citation omitted)), and improper calibration of the level of generality for Bruen’s

analogical inquiry, see, e.g., Pet.App.197a (“panel extracted very broad principles from the historical record that could support the constitutionality of almost

any firearms restriction”). Each of these ploys chips

away at the scope of citizens’ Second Amendment

rights, and if unchecked by this Court, Bruen’s reassurance will be little more than an empty promise.

CONCLUSION

This Court should grant the petition.

25

May 5, 2025

Respectfully submitted,

AUSTIN KNUDSEN

Montana Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.

Deputy Solicitor General

Counsel of Record

MONTANA DEPARTMENT OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

peter.torstensen@mt.gov

(406) 444-2026

RAÚL R. LABRADOR

Idaho Attorney General

ALAN HURST

Solicitor General

SEAN M. CORKERY

Assistant Solicitor General

IDAHO OFFICE OF THE

ATTORNEY GENERAL

700 W. Jefferson St., Suite 210

Boise, ID 83720

(406) 444-2026

Counsel for Amici Curiae

26

ADDITIONAL SIGNATORIES

STEVE MARSHALL

Attorney General of

Alabama

TREG TAYLOR

Attorney General of

Alaska

TIM GRIFFIN

Attorney General of

Arkansas

JAMES UTHMEIER

Attorney General of

Florida

CHRISTOPHER M. CARR

Attorney General of

Georgia

THEODORE E. ROKITA

Attorney General of

Indiana

BRENNA BIRD

Attorney General of

Iowa

KRIS KOBACH

Attorney General of

Kansas

RUSSELL COLEMAN

Attorney General of

Kentucky

LIZ MURRILL

Attorney General of

Louisiana

LYNN FITCH

Attorney General of

Mississippi

ANDREW BAILEY

Attorney General of

Missouri

MICHAEL T. HILGERS

Attorney General of

Nebraska

JOHN M. FORMELLA

Attorney General of

New Hampshire

DREW H. WRIGLEY

Attorney General of

North Dakota

DAVE YOST

Attorney General of

Ohio

27

GENTNER F. DRUMMOND

Attorney General of

Oklahoma

ALAN WILSON

Attorney General of

South Carolina

MARTY J. JACKLEY

Attorney General of

South Dakota

KEN PAXTON

Attorney General of

Texas

DEREK BROWN

Attorney General of

Utah

JOHN B. MCCUSKEY

Attorney General of

West Virginia

BRIDGET HILL

Attorney General of

Wyoming

WARREN PETERSON

President of the

Arizona Senate

STEVE MONTENEGRO

Speaker of the Arizona

House of Representatives