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.

Petitioners,

ANNE E. LOPEZ, Attorney General of Hawaii,

________________

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

________________

BRIEF FOR AMICUS CURIAE NATIONAL

SHOOTING SPORTS FOUNDATION IN

SUPPORT OF PETITIONERS

________________

LAWRENCE G. KEANE

SHELBY BAIRD SMITH

NATIONAL

SHOOTING SPORTS

FOUNDATION, INC.

400 N. Capital St., NW

Washington, DC 20001

(202) 220-1340

ERIN E. MURPHY

Counsel of Record

MATTHEW D. ROWEN

JULIA R. GRANT*

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

erin.murphy@clementmurphy.com

* Supervised by principals of the firm

who are members of the Virginia bar

Counsel for Amicus Curiae

November 24, 2025

CORPORATE DISCLOSURE STATEMENT

Amicus is a Connecticut non-profit, tax-exempt,

non-stock corporation with its principal place of

business in Connecticut. Amicus certifies that it has

no parent corporation and no publicly traded entity

owns 10% or more of its stock.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............. i

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

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 6

I.

Hawaii’s Sweeping Prohibition On Carrying

Firearms On Private Property Plainly

Regulates Arms-Bearing Conduct ...................... 6

A. The Threshold Textual Analysis Looks to

the Text—and Nothing But the Text........... 6

B. Section 134-9.5 Plainly Regulates

Conduct Covered by the Plain Text ............. 8

C. The Fact That Hawaiians Can Carry If

Proprietors Grant Express Permission

Does Not Absolve the State of Its

Historical-Tradition Burden ........................ 9

D. Whether a Restriction on Arms-Bearing

Imposes a “Meaningful” Constraint

Makes No Difference at the Threshold ...... 12

II. Hawaii’s Sweeping Default Prohibition On

Carrying Firearms On Private Property Is

Irreconcilable With Historical Tradition .......... 14

A. Our Nation’s Historical Tradition

Broadly Protects the Carrying of

Firearms in Places Open to the Public ...... 14

B. There Is No Exception to That Broad

Carry Right for Public Places That Are

Privately Owned ......................................... 17

CONCLUSION ......................................................... 28

iii

TABLE OF AUTHORITIES

Cases

Antonyuk v. James,

120 F.4th 941 (2d Cir. 2024)............................ 21, 23

B & L Prods., Inc. v. Newsom,

104 F.4th 108 (9th Cir. 2024) ................................ 12

Beckwith v. Frey,

766 F.Supp.3d 123 (D. Me. 2025) .......................... 13

Brown v. Entm’t Merchants Ass’n,

564 U.S. 786 (2011) .......................................... 10, 11

Cockrum v. State,

24 Tex. 394 (1859) .................................................. 25

District of Columbia v. Heller,

554 U.S. 570 (2008) .................................. 3, 6, 7, 8, 9

English v. State,

35 Tex. 473 (1872) .................................................. 25

Florida v. Jardines,

569 U.S. 1 (2013) .................................................... 19

Koons v. Att’y Gen. N.J.,

156 F.4th 210 (3d Cir. 2025).................................. 27

McDonald v. City of Chicago,

561 U.S. 742 (2010) .......................................... 12, 26

McKee v. Gratz,

260 U.S. 127 (1922) ................................................ 19

N.Y. State Firearms Ass’n v. James,

157 F.4th 232 (2d Cir. 2025).................................. 13

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

597 U.S. 1 (2022) ................. 2, 3, 4, 5, 6, 7, 9, 12, 13,

14, 15, 17, 18, 28

iv

NAACP v. Button,

371 U.S. 415 (1963) ................................................ 11

Ortega v. Grisham,

148 F.4th 1134 (10th Cir. 2025) ............................ 13

Speiser v. Randall,

357 U.S. 513 (1958) ................................................ 11

State v. Hopping,

18 N.J.L. 423 (N.J. 1842) ....................................... 21

United States v. Rahimi,

602 U.S. 680 (2024) ........ 2, 4, 6, 8, 13, 15, 17, 24, 27

United States v. Vereen,

152 F.4th 89 (2d Cir. 2025).................................... 13

United States v. Vlha,

142 F.4th 1194 (9th Cir. 2025) .............................. 12

Constitutional Provision

U.S. Const. amend. II ................................................. 6

Statutes

Haw. Rev. Stat. §134-9.5(a)........................................ 8

Haw. Rev. Stat. §134-9.5(d) ....................................... 8

Haw. Rev. Stat. §134-11(a)......................................... 8

1865 La. Acts 14 ........................................... 25, 26, 27

1865 La. Acts 16 ....................................................... 27

1715 Md. Laws 89 ..................................................... 22

1715 Md. Laws 90 ..................................................... 21

1722 N.J. Laws 141 ............................................ 21, 22

1763 N.Y. Laws, ch.1233 .......................................... 21

1771 N.J. Laws 344 ...................................... 22, 23, 24

v

1721 Pa. Laws, ch.246, reprinted in The

Statutes at Large of Pennsylvania from

1682-1801 (James T. Mitchell & Henry

Flanders, eds. 1896) ......................................... 20, 22

1893 Or. Laws 79 ...................................................... 22

1866 Tex. L. 90 ......................................................... 26

Other Authorities

Nathan Bailey, Dictionary Britannicum

(1736) ...................................................................... 21

Thomas M. Cooley, A Treatise on the Law of

Torts (Chicago, Callaghan & Co. 1879)................. 19

William Horace Corbin, A Book of Forms of

Contracts and Conveyancing; and of Legal

Proceedings under the Laws of the State of

New Jersey (1882) .................................................. 23

Clayton E. Cramer, The Racist Roots of Gun

Control, Kan. J.L. & Pub. Pol’y 17 (1995) ............. 25

Barry A. Crouch, “All the Vile Passions”:

The Texas Black Code of 1866,

97 Sw. Hist. Q. 13 (1993) ....................................... 26

Samuel Johnson, A Dictionary of the English

Language (1756) .............................................. 21, 23

Bill Quigley, The Continuing Significance of

Race: Official Legislative Racial

Discrimination in Louisiana 1861 to 1974,

47 S.U. L. Rev. 1 (2019) ......................................... 26

Frederick E. Vars, Weapon of Choice:

Fighting Gun Violence While Respecting

Gun Rights (2020) .................................................. 19

vi

Webster’s American Dictionary of the English

Language (1828),

https://tinyurl.com/psm7954j ................................ 21

STATEMENT OF INTEREST1

The National Shooting Sports Foundation

(“NSSF”) is the firearm industry’s trade association.

Founded in 1961, NSSF’s mission is to promote,

protect, and preserve hunting and shooting sports.

NSSF has over 10,000 members—including thousands

of federally licensed manufacturers, distributors, and

sellers of firearms, ammunition, and related products.

NSSF has a clear interest in this case. Its members

engage in the lawful production, distribution, and sale

of constitutionally protected arms. When a state like

Hawaii makes it a crime to carry a firearm on private

property unless proprietors provide express

authorization, that action not only threatens NSSF

members’ businesses, but infringes on their and their

customers’ constitutional rights.

Under Hawaii

Revised Statute §134-9.5, a Hawaiian exercising her

right to carry a firearm for self-defense cannot enter

any privately owned establishment without fear of

criminal sanction. That is not a modest curtailment of

the right to bear arms; it is a defiant nullification of

the fundamental constitutional right to publicly carry

arms for self-defense that the Framers enshrined in

the Second Amendment.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

In New York State Rifle & Pistol Association v.

Bruen, 597 U.S. 1 (2022), and United States v. Rahimi,

602 U.S. 680 (2024), this Court articulated and refined

a methodology for evaluating Second Amendment

challenges that focuses on constitutional text and

historical tradition. The threshold question in a

Second Amendment challenge is whether “the

Government [has] regulate[d] arms-bearing conduct.”

Rahimi, 602 U.S. at 691. If it has, then “the Second

Amendment’s plain text” “covers” the “conduct” in

which the challengers would otherwise engage, and

the government must “demonstrat[e]” that its effort to

restrict that “presumptively protected” conduct “is

consistent with the Nation’s historical tradition of

firearm regulation.” Bruen, 597 U.S. at 24. “Only if”

the government proves that its “firearm regulation is

consistent with this Nation’s historical tradition may

a court conclude that the individual’s conduct falls

outside the Second Amendment’s ‘unqualified

command.’” Id. at 17.

Under any faithful application of that

methodology, Hawaii’s effort to ban carrying firearms

on private property without first securing permission

is plainly unconstitutional. That law unquestionably

restricts conduct covered by the plain text of the

Second Amendment—namely, bearing arms. And it

does so in a way that is fundamentally at odds with

this Nation’s historical tradition of firearm regulation,

which has long respected the right of law-abiding

Americans to carry arms in places open to the public.

Indeed, Hawaii’s law flips the tradition of limited and

well-defined restrictions on the carry right on its head,

3

creating a default rule that law-abiding citizens

cannot carry firearms as they go about their daily lives

unless private property owners expressly override

that state-imposed preference. That kind of blatant

effort to frustrate the exercise of Second Amendment

rights has never been part of our Nation’s historical

tradition—as even two courts that otherwise largely

rejected challenges to other carry restrictions

recognized.

I. There can be no serious dispute that Section

134-9.5 implicates the Second Amendment, as its

whole and sole point is to restrict the bearing of arms.

Plaintiffs wish to bring their firearms with them as

they go about their daily lives—shopping for groceries,

grabbing a cup of coffee, picking up the drycleaning—

so they may be “armed and ready for offensive or

defensive action in a case of conflict with another

person.” District of Columbia v. Heller, 554 U.S. 570,

584 (2008). Bruen already recognized that the Second

Amendment draws no private/public distinction when

it comes to bearing arms. See Bruen, 597 U.S. at 3233. This Court has therefore already (correctly)

answered the threshold question: Section 134-9.5

restricts the ability of law-abiding citizens to carry

arms in public, turning large swaths of the state into

presumptively gun-free zones. That is a restriction of

arms-bearing conduct, full stop.

While Section 134-9.5 effectuates this curtailment

on the right to public carry by default-setting rather

than by outright prohibition, that does not make it any

less of a restriction on arms-bearing conduct. Before

Section 134-9.5 was enacted, petitioners and other

law-abiding Hawaiians could carry their lawful and

4

licensed firearms on all manner of private property

open to the public. After Section 134-9.5 was enacted,

it is now a crime for them to carry their firearms on

any private property they are permitted to enter

(whether open to the public or otherwise) unless the

proprietor expressly overrides the state’s no-carry

preference. A law making it a crime for invitees to

discuss politics or wear religious garb on private

property without first securing the owner’s permission

would plainly implicate the First Amendment. To

hold that Section 134-9.5 does not implicate the

Second Amendment not only would make nonsense of

Bruen’s burden-shifting framework, but would

relegate the right it protects to second-class status.

II. Because the conduct Section 134-9.5 restricts

is “presumptively protect[ed]” by the Constitution,

Hawaii bears the burden to “affirmatively prove” that

its restriction on that conduct is “consistent with this

Nation’s historical tradition of firearm regulation.”

Bruen, 597 U.S. at 17, 19, 28, 33-34. That, in turn,

means that Hawaii must prove that Section 134-9.5

“impos[es] similar restrictions” on the right to keep

and bear arms “for similar reasons” as “laws that our

tradition is understood to permit.” Rahimi, 602 U.S.

at 692. Hawaii cannot do so, or even come close.

Section 134-9.5 plainly does not fit into any historical

tradition this Court has recognized, as it has nothing

to do with who may carry, how they may carry, or the

intent with which they may do so. Nor does it have

anything to do with identifying any “sensitive places”

where firearms can be banned entirely. Indeed, the

Ninth Circuit did not even try to suggest otherwise.

5

The court instead purported to divine—from a

grand total of two laws, separated by nearly a century

that encompassed the Civil War—an entirely different

“tradition of arranging the default rules that apply

specifically to the carrying of firearms onto private

property.” Pet.App.62. But even accepting the

dubious proposition that one 1771 law and one 1865

law could suffice to establish “an enduring American

tradition,” Bruen, 597 U.S. at 69, those two laws selfevidently had nothing to do with restricting carrying

firearms on private property that is open the public.

They were instead trespassing laws—one aimed at

quelling the threat poachers posed to “the

Preservation of Deer,” and the other enacted as part of

Black Codes designed to strip Black Americans of the

rights they had just secured. So, too, with the rest of

the laws Hawaii invoked below; all were either antipoaching measures or part of ignominious Black Codes

gerrymandered to impose special trespass and carry

restrictions on Black Americans alone. Those laws

share neither a “how” nor a “why” with Section 1349.5, as they restricted carry in fundamentally different

ways and for fundamentally different—and, in some

cases, virulently racist—reasons.

In short, Hawaii’s effort to impose a default nocarry rule throughout the bulk of the state is both a

historical and even a modern-day outlier, and so is the

Ninth Circuit’s decision sanctioning it. This Court

should reverse.

6

ARGUMENT

I.

Hawaii’s Sweeping Prohibition On Carrying

Firearms On Private Property Plainly

Regulates Arms-Bearing Conduct.

A. The Threshold Textual Analysis Looks

to the Text—and Nothing But the Text.

Under Bruen and Rahimi, the threshold question

for purposes of determining whether a law implicates

the Second Amendment is whether “the Second

Amendment’s plain text covers an individual’s

conduct.” Bruen, 597 U.S. at 17. All a citizen must do

to make that threshold showing is demonstrate that

“the Second Amendment’s plain text covers” the

“conduct” in which she would engage but for the

challenged law. Id. So long as the challenger is among

“the people,” and the challenged law restricts her

ability to “keep” or “bear” an “Arm[],” U.S. Const.

amend. II—i.e., the law “regulates arms-bearing

conduct,” Rahimi, 602 U.S. at 691—“the Constitution

presumptively protects” what the government has

restricted, and the burden shifts to the government to

“demonstrate that the regulation is consistent with

this Nation’s historical tradition,” Bruen, 597 U.S. 17.

To answer whether “the Second Amendment’s

plain text covers” the conduct at issue, courts need not

divine the full historical scope of the right that it

protects. All they must do is look to the ordinary

understanding of the words the Second Amendment

uses at the time they were used. That much is clear

from Heller. “In Heller, [the Court] began with a

‘textual analysis’ focused on the ‘normal and ordinary’

meaning of the Second Amendment’s language.”

Bruen, 597 U.S. at 20 (quoting Heller, 554 U.S. at 576-

7

77). Consistent with that focus, Heller examined

historical dictionaries, thesauruses, and other sources

to determine how the specific words the Second

Amendment uses were defined and understood at the

time. See 554 U.S. at 581. The Court did not

incorporate into its textual analysis evidence about

what kinds of regulations of keeping and bearing arms

did or did not exist at the Founding; it instead focused

only on how the words the Second Amendment uses

were commonly understood and used at that time.

To the extent there were any doubt that the plaintext analysis is focused on the plain text alone, Bruen

eliminated it. Bruen used the phrase “plain text”

three times to describe the threshold inquiry into

whether conduct is presumptively protected. 597 U.S.

at 17, 32, 33. And it dispensed with that inquiry in

just a few short paragraphs. The Court invoked the

definition of “bear” that Heller set forth—i.e., “to

‘wear, bear, or carry … upon the person or in the

clothing or in a pocket, for the purpose … of being

armed and ready for offensive or defensive action in a

case of conflict with another person’”—observed that

“[n]othing in the Second Amendment’s text draws a

home/public distinction with respect to the right to

keep and bear arms,” and noted that “confrontation

can surely take place outside the home.” Id. at 32-33

(quoting Heller, 554 U.S. at 584). The Court did not

ask whether the historical understanding of the right

to bear arms might nonetheless tolerate restrictions

on carrying arms outside the home; that was a

question for the historical-tradition stage. The only

question at the threshold stage is whether a law

implicates the Second Amendment at all.

8

Rahimi dispensed with the threshold textual

inquiry even more expeditiously. All that mattered

there was that Rahimi was one of “the people,” that he

wanted to keep some sort of firearm, and that 18

U.S.C. §922(g)(8) prohibited him from doing so. See

Rahimi, 602 U.S. at 690-91. Again, whether the

historical understanding of the right might permit the

challenged law was a question for the historicaltradition stage. For purposes of the threshold inquiry,

it was enough that the law plainly “regulate[d] armsbearing conduct.” Id. at 691.

B. Section

134-9.5

Plainly

Regulates

Conduct Covered by the Plain Text.

The threshold textual inquiry is just as simple

here as it was in those cases, and as it will be in most.

Hawaii has never disputed that Section 134-9.5 covers

“the people” to whom the Second Amendment refers.

Nor could it: Section 134-9.5 applies to nearly all

private citizens,2 and this Court has made clear that

“the term [‘the people’] unambiguously refers to all

members of the political community, not an

unspecified subset.” Heller, 554 U.S. at 580. Hawaii

likewise has not disputed that Section 134-9.5 applies

to “Arms” that fall within the plain text of the Second

Amendment. That, too, is wise, as Section 134-9.5

applies to all firearms, “whether … operable or not.”

Haw. Rev. Stat. §134-9.5(a).

2 Specifically, it applies to all “person[s],” Haw. Rev. Stat. §134-

9.5(a), except “state and county law enforcement officers” and

various other “persons employed by the State, or subdivisions

thereof, or the United States … if th[eir] duties require them to

be armed,” id. §134-11(a); see id. §134-9.5(d).

9

The only question, then, is whether Section 1349.5 restricts petitioners’ ability to “keep” or “bear”

those arms. It plainly does. As Heller explained, “the

most natural reading of ‘keep Arms’ … is to ‘have

weapons,’” and “the natural meaning of ‘bear arms’ …

implies … the carrying of [a] weapon … for the

purpose of ‘offensive or defensive action.’” 554 U.S. at

582-83. While Section 134-9.5 may not restrict

individuals’ ability to keep (i.e., have) firearms, it

plainly restricts their ability to bear (i.e., carry) them.

Indeed, Bruen already decided that laws that preclude

the people from carrying firearms in public implicate

the Second Amendment. See Bruen, 597 U.S. at 3233. The same conclusion necessarily follows here.

C. The Fact That Hawaiians Can Carry If

Proprietors Grant Express Permission

Does Not Absolve the State of Its

Historical-Tradition Burden.

The state and its amici argued below that Section

134-9.5 does not implicate the Second Amendment at

all because it merely vindicates the traditional right

of property owners to exclude by preventing people

from carrying firearms onto private property without

consent. That is both wrong and irrelevant.

At the outset, it strains credulity to suggest that

Section 134-9.5 is about protecting private property

rights. Hawaii does not require its residents to obtain

the owner’s permission before they can engage in other

constitutionally protected conduct on private property

that is open to the public. People can discuss politics,

display their faith, or wear clothes with provocative

messages in grocery stores, coffee shops, and

restaurants without having to call up the owner first

10

and ask permission. It is only when they want to

engage in conduct protected by the Second

Amendment that the state’s newfound concern for the

prerogatives of private property owners kicks in. Even

then, moreover, the state’s respect for what it

presumes to be the preference of private property

owners only goes so far, as Hawaii exempts from its

default rule all manner of state employees (not just

police officers) who may continue to enter all manner

of private property while armed without securing the

proprietor’s advance consent. All of that raises

“serious doubts about whether the government is in

fact pursuing the interest it invokes, rather than

disfavoring” the exercise of a constitutional right.

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 802

(2011).

It also dooms any claim that the state can evade

Second Amendment scrutiny by labeling this law a

regulation of private property rights. Petitioners are

not claiming “a constitutional right to carry onto

another owner’s property over their objection.” Contra

CA9.Dkt.11 at 11. Petitioners have no problem

respecting rules that private property owners

themselves impose on those invited onto their

property. Petitioners’ issue is with Hawaii’s decision

to impose a default rule that prohibits the carrying of

firearms on private property even when owners have

not imposed any such rule. No one would seriously

think that a state could make it a crime to wear

religious garb on private property open to the public

without first confirming that the proprietor is

comfortable with outward displays of faith—let alone

think that such a law would not even implicate the

First Amendment.

11

To the contrary, this Court has long held that “a

constitutional prohibition cannot be transgressed

indirectly by the creation of a statutory presumption

any more than it can be violated by direct enactment.”

Speiser v. Randall, 357 U.S. 513, 526 (1958). And it

has already held that efforts to “impose governmental

authority” to restrict the exercise of constitutional

rights, “subject only to a [private party’s] veto,” cannot

be justified “in the absence of any precedent for [such]

state control.” Brown, 564 U.S. at 795 n.3. That rule

applies with every bit as much force when a state uses

its governmental authority to impose a default

preference barring the exercise of Second Amendment

rights.

In short, Hawaii’s “attempt to equate the

activities of [petitioners] with common-law [trespass],

and to outlaw them accordingly, cannot obscure the

serious encroachment worked by [Section 134-9.5]

upon protected freedoms” under the Second

Amendment. NAACP v. Button, 371 U.S. 415, 438

(1963). Section 134-9.5 shrinks the number of places

in which people can exercise their right to bear arms.

Whether Hawaii purports to be doing so in service of

protecting private property owners, or public safety, or

whatever other excuse it may try to conjure up, does

not change the fact that it has singled out the carrying

of arms for a special, disfavored rule that does not

apply to any other conduct on private property. That

alone should suffice to demonstrate that Section 1349.5 is unconstitutional, but at the very least it plainly

suffices to show that Section 134-9.5 restricts armsbearing conduct. Indeed, any suggestion that the

Second Amendment has nothing to say about such a

law would run head-on into this Court’s repeated

12

admonition that the Second Amendment “is not a

second-class right.” Bruen, 597 U.S. at 70 (quoting

McDonald v. City of Chicago, 561 U.S. 742, 780 (2010)

(plurality op.)).

D. Whether a Restriction on Arms-Bearing

Imposes a “Meaningful” Constraint

Makes No Difference at the Threshold.

Some lower courts, including the Ninth Circuit,

have held that a restriction on arms-bearing conduct

need not be proven consistent with historical tradition

unless it imposes a “meaningful” constraint on the

exercise of the right. While Section 134-9.5 would

implicate the Second Amendment even under that

deeply misguided view, this Court should take the

opportunity to make clear—again—that this sort of

judicial interest-balancing has no role to play in

Second Amendment analysis, and certainly no role to

play in the threshold textual analysis.

The Ninth Circuit “ha[s] interpreted” “the text of

the Second Amendment” to cover only “meaningful

constraints” on the right to keep and bear arms, and it

“appl[ies] the meaningful-constraint test at step one of

the Bruen analysis to determine whether the conduct

at issue is presumptively protected.” United States v.

Vlha, 142 F.4th 1194, 1198 (9th Cir. 2025) (quoting B

& L Prods., Inc. v. Newsom, 104 F.4th 108, 118 (9th

Cir. 2024)). The Second Circuit has likewise held that,

while laws that directly restrict keeping or bearing

arms always require historical scrutiny, “regulations

on the means of acquiring, transporting, and storing

firearms only implicate the text of the Second

Amendment if they meaningfully constrain the right

to possess and carry arms.” N.Y. State Firearms Ass’n

13

v. James, 157 F.4th 232, 244 (2d Cir. 2025) (quoting

United States v. Vereen, 152 F.4th 89, 94 (2d Cir.

2025)).

None of that is consistent with Heller, Bruen, or

Rahimi. First and foremost, considerations that find

no purchase in the plain text have no role in the plaintext analysis. To be sure, “how [a law] burdens the

Second Amendment right” certainly matters—at the

historical-tradition stage. See Rahimi, 602 U.S. at

698; Bruen, 597 U.S. at 29. Even then, however, what

matters is whether that burden is comparable to the

burdens imposed by historical laws directed at the

same concerns, not whether a modern-day court

considers the burden sufficiently “meaningful.” But

none of that matters at the plain-text stage. “[T]he

threshold inquiry is whether the Second Amendment

covers the conduct curtailed by the Act, not a

qualitative assessment of how modest the imposition

on the right happens to be.” Ortega v. Grisham, 148

F.4th 1134, 1144 (10th Cir. 2025) (quoting Beckwith v.

Frey, 766 F.Supp.3d 123, 129 (D. Me. 2025)).

These courts’ contrary view—that laws restricting

arms-bearing conduct escape scrutiny unless they are

so burdensome as to effectively prohibit the keeping or

carrying of arms entirely—would leave the threshold,

plain-text inquiry covering virtually nothing, as

nearly all laws restricting arms-bearing conduct (save

a blanket prohibition) will regulate something more

specific than keeping and bearing arms simpliciter.

And their view conversely would leave the historicaltradition analysis with virtually no work to do, as the

challenger would essentially have to prove that a law

violates the Second Amendment just to shift the

14

burden to the state to justify it. This Court should

make clear that states cannot evade their historicaltradition burden by insisting that the restrictions they

impose on arms-bearing conduct are insufficiently

“meaningful” to count.

*

*

*

In short, it is little wonder that “courts

unanimously have concluded that a law changing the

default rule on private property falls within the text of

the Second Amendment.” Pet.App.58. This Court

should erase any doubt: Section 134-5 restricts armsbearing conduct. Hawaii must therefore demonstrate

that it is consistent with our Nation’s historical

tradition of firearms regulations.

II. Hawaii’s Sweeping Default Prohibition On

Carrying Firearms On Private Property Is

Irreconcilable With Historical Tradition.

A. Our Nation’s Historical Tradition

Broadly Protects the Carrying of

Firearms in Places Open to the Public.

As this Court held in Bruen, this Nation’s

historical tradition is one of broadly protecting, not

broadly prohibiting, the carrying of firearms in public.

Indeed, Bruen exhaustively examined the historical

record in search of evidence of “a tradition of broadly

prohibiting the public carry of commonly used

firearms for self-defense,” Bruen, 597 U.S. at 38, and

it came up far short. As the Court explained,

“[t]hroughout modern Anglo-American history, the

right to keep and bear arms in public has traditionally

been subject to well-defined restrictions governing the

intent for which one could carry arms, the manner of

carry, or the exceptional circumstances under which

15

one could not carry arms,” such as in certain narrowly

defined “sensitive places” where firearms historically

have been off-limits. Id. at 30, 38; see also id. at 5059. “None of these historical limitations on the right

to bear arms,” however, “operated to prevent lawabiding citizens with ordinary self-defense needs from

carrying arms in public for that purpose.” Id. at 60.

In fact, “apart from a handful of late-19th-century

jurisdictions”—which were largely designed to deprive

newly freed Black Americans of their constitutional

rights—“the historical record” simply “does not

demonstrate a tradition of broadly prohibiting the

public carry of commonly used firearms.” Id. at 38.

Hawaii’s sweeping default rule banning the

carrying of firearms on any private property without

advance consent plainly cannot be shoehorned into

any of the narrow limits on the carry right that this

Court recognized in Bruen. Section 134-9.5 does not

make it unlawful to carry a firearm with “evil intent

or malice,” id. at 44, or to carry a firearm in one

manner (i.e., concealed) while leaving another one

(i.e., openly) available, id. at 47-49. And its default

rule is not confined to individuals who have been

found to “pose[] a clear threat of physical violence to

another.” Rahimi, 602 U.S. at 698. Section 134-9.5

instead broadly prohibits anyone from carrying any

firearm in any manner on private property without

first securing the owner’s express permission.

Nor does Section 134-9.5 purport to identify some

narrow set of “sensitive places” where the “carrying of

firearms” may be “altogether prohibited.” Bruen, 597

U.S. at 30. Unlike a “sensitive places” law, which bans

carrying in certain places as an exception to the

16

normal rule that public carry is the default right,

Section 134-9.5 not only bans carrying on all private

property by default, but leaves permit holders free to

carry firearms in all those same places if they do

secure such consent. In effect, then, Section 134-9.5

turns the sensitive-places tradition on its head. That

tradition is premised on the understanding that public

carry is the default, and that “sensitive” (i.e., gun-free)

places are the exception. But under Section 134-9.5,

Hawaiians may not exercise their Second Amendment

rights while going about their daily lives unless they

first get an untold number of their fellow citizens to

expressly override the state’s default rule.

That is no small matter; as the Ninth Circuit

acknowledged, “many property owners will not post

signs of any sort …, regardless of the default

rule.” Pet.App.57. So unless one calls up every

business owner in the neighborhood to solicit their

views on the carrying of firearms, the right to “public”

carry in Hawaii is now effectively confined to “streets

and sidewalks.” Pet.App.38 n.4. Hawaiians who want

to have a firearm at the ready for self-defense while

they shop, grab lunch, or run a load at the laundromat

are not just out of luck; they face criminal penalties

and even imprisonment if they carry arms anywhere

without first securing express permission. Even

Hawaiians “taking [their] dog out for a walk on a city

sidewalk” can confidently carry a firearm only if they

have no intention of entering any convenience store,

coffee shop, or other establishment along the way.

Pet.App.170 (VanDyke, J. dissenting from the denial

of rehearing en banc).

17

That result is impossible to reconcile with Bruen,

which held in no uncertain terms that individuals (and

especially those who, as Hawaii separately requires to

carry anywhere, have passed a background check and

obtained a permit under a shall-issue regime) have a

“right to carry a handgun for self-defense outside the

home,” and that states cannot ban carrying in areas

broad as the entire “island of Manhattan.” Bruen, 597

U.S. at 10. Simply put, our historical tradition does

not countenance efforts to “broadly restrict arms use

by the public generally.” Rahimi, 602 U.S. at 698.

B. There Is No Exception to That Broad

Carry Right for Public Places That Are

Privately Owned.

1. The Ninth Circuit did not even try to situate

Section 134-9.5 in any historical tradition this Court

has recognized. It instead purported to derive a new

tradition that empowers states to impose sweeping nocarry default rules, under the guise of protecting the

prerogatives of property owners. According to the

Ninth Circuit, history reveals that “colonies and states

freely arranged the relevant default rules” for carrying

firearms on private property, including by “ban[ning]

the carrying of firearms onto any private property

without the owner’s consent.”

Pet.App.61.

Remarkably, the court purported to derive that novel

tradition from a grand total of two laws—one enacted

by New Jersey in 1771 before it entered the Union,

and one enacted by Louisiana in 1865 before it was

readmitted to the union—which the court described as

“dead ringers” for Section 134-9.5. Pet.App.62. That

novel theory fails from top to bottom.

18

At the outset, it is hard to see how two singular

laws enacted nearly a century apart could suffice to

establish “an enduring American tradition.” Bruen,

597 U.S. at 69; see, e.g., id. at 46 (“[W]e doubt that

three colonial regulations could suffice to show a

tradition of public-carry regulation.”); id. at 65-66

(“[W]e will not give disproportionate weight to a single

state statute and a pair of state-court decisions.”); id.

at 67-68 (“[W]e will not stake our interpretation on a

handful of temporary territorial laws that were

enacted nearly a century after the Second

Amendment’s adoption” and “governed less than 1% of

the American population.”). The Ninth Circuit tried

to excuse the paucity of its historical evidence by

positing that “only one or two colonial laws provided

sufficient justification for the [Bruen] Court to

designate several places as sensitive.” Pet.App.27.

That is neither a fair characterization of Bruen nor a

fair comparator to an effort to divine an entirely new

tradition from two laws separated by both the

Revolutionary War and the Civil War. After all, what

it takes to establish which things fell within an

established historical tradition may not necessarily be

the same as what it takes to establish the existence of

a historical tradition in the first place—especially one

at direct odds with Bruen’s conclusion that “American

governments simply have not broadly prohibited the

public carry of commonly used firearms for personal

defense.” 597 U.S. at 70.

It is even harder to see how a mere two laws could

suffice to override the well-established tradition of

implied-license law, which confirms that people

generally could carry arms on private property held

open to the public unless the owner forbade it. The

19

scope of permission to enter private property has long

been determined by a combination of custom and

express allowances given by the owner. Thomas M.

Cooley, A Treatise on the Law of Torts 302-04

(Chicago, Callaghan & Co. 1879). Custom—i.e., the

implied part of the license—is “implied from the habits

of the country.” McKee v. Gratz, 260 U.S. 127, 136

(1922); see also Florida v. Jardines, 569 U.S. 1, 8

(2013).

And in the United States, there is a

longstanding custom of carrying firearms at places

open to the public unless the owner prohibits it. See

Pet.App.173 (VanDyke, J., dissenting from the denial

of rehearing en banc). Indeed, the state’s own amici

have acknowledged in academic writings that “[a]n

implied condition of every invitation [onto another’s

property] is that the invitee is welcome to bring a

firearm.” Ian Ayres & Frederick E. Vars, Weapon of

Choice: Fighting Gun Violence While Respecting Gun

Rights 84 (2020).

It should come as little surprise, then, that the

two laws on which the Ninth Circuit relied had

nothing to do with those invited onto private property.

They instead dealt only with trespassers—and with

trespassers on only a subset of private property, at

that. Indeed, almost all of the laws Hawaii invoked

below were self-described anti-poaching measures, not

efforts to “arrange[] the default rules” for what invitees

could do on private property. Pet.App.62. And the few

that were not anti-poaching measures were part of

Black Codes designed to keep newly freed Black

Americans from bringing firearms onto their former

enslavers’ private property. A proper understanding

of these laws, informed by both their full text and the

historical context surrounding them, thus confirms

20

that they do not begin to establish any historical

tradition that could justify Hawaii’s effort to impose a

broad no-carry default rule.

2. To start with the 1771 New Jersey law, this law

was indeed part of a historical tradition—just not the

one the Ninth Circuit claimed to have identified. It

was instead part of a tradition of laws designed to

prevent uninvited individuals from hunting on private

grounds without the proprietors’ permission. In other

words, it was an anti-poaching measure aimed at

trespassers, not an anti-carry measure aimed at lawabiding citizens frequenting establishments open to

the public (or any other private property onto which

they were invited).

Take, for instance, the 1721 Pennsylvania statute

entitled “An Act to Prevent the Killing of Deer Out of

Season, and Against Carrying of Guns or Hunting Not

Qualified.” 1721 Pa. Laws, ch.246, §3, reprinted in 3

The Statutes at Large of Pennsylvania from 16821801, at 254-55 (James T. Mitchell & Henry Flanders,

eds. 1896) (“1721 Pa. Laws”). To respond to “divers[e]

abuses, damages and inconveniences” that “ha[d]

ar[i]se[n] by persons carrying guns and presuming to

hunt on other people’s lands,” that statute made it

unlawful to “carry any gun or hunt on the improved or

inclosed lands of any plantation other than his own.”

Id. By its terms, it applied only to “lands,” not

commercial establishments where no one was worried

about the unauthorized “Killing of Deer.” And as the

Second Circuit explained in holding New York’s

private-property-default law unconstitutional, at the

time, “‘land,’ ‘improved or inclosed land,’ and ‘premises

or plantations’ would have been understood to refer to

21

private land not open to the public.” Antonyuk v.

James, 120 F.4th 941, 1047 (2d Cir. 2024).3

The 1722 New Jersey law Hawaii cited below used

nearly identical language, confining its scope to those

trespassing on private hunting grounds. See An Act

to prevent the Killing of Deer out of Season, and

against Carrying of Guns or Hunting by Persons not

Qualified, 1722 N.J. Laws 141 (no person shall “carry

any [g]un, or [h]unt on the [i]mproved or [i]nclosed

[l]ands in any [p]lantation[] … other than his own”).

Other colonial laws Hawaii cited, including a 1715

Maryland statute4 and an 1763 New York statute,5

3 See also, e.g., State v. Hopping, 18 N.J.L. 423, 424 (N.J. 1842)

(“improvements is a legal and technical word, and means

inclosures, or inclosed fields: lands fenced in, and thus

withdrawn and separated from the wastes or common lands”);

Plantation, Nathan Bailey, Dictionary Britannicum (1736) (“a

spot of ground, which some planter or person, arrived in a new

colony, pitches on to cultivate and till for his own use”); Premises,

Webster’s American Dictionary of the English Language (1828),

https://tinyurl.com/psm7954j (“In law, land or other things

mentioned in the preceding part of a deed.”); Land, 2 Samuel

Johnson, A Dictionary of the English Language 18 (1756) (“An

estate real and immoveable.”).

4 An Act for the Speedy Trial of Criminals, and Ascertaining

their Punishment, in the County-courts, when Prosecuted there;

and for Payment of Fees due from Criminal persons, 1715 Md.

Laws 90, ch.26, §7 (forbidding convicted criminals and those “of

evil fame, or a vagrant, or dissolute liver” from “shoot[ing],

kill[ing] or hunt[ing], or … carry[ing] a gun, upon any person’s

land, whereon there shall be a seated plantation,” in order “to

prevent the abusing, hurting[,] or worrying of any stock of hogs,

cattle or horses”).

5 An Act to Prevent Hunting with Fire-Arms in the City of NewYork, and the Liberties Thereof, 1763 N.Y. Laws, ch.1233, §1

(making it unlawful to “carry, shoot, or discharge any Musket,

22

likewise were focused on preventing and punishing

poaching on private lands not open to the public. In

addition to banning trespassing with guns on such

lands, several of these laws made it unlawful to hunt

and sell venison out of season,6 and imposed

restrictions on the use of trap guns for hunting,7

confirming their game-protection focus.8

The Ninth Circuit acknowledged (albeit with

considerable understatement) that “the primary aim

of some of those laws was to prevent poaching,” and

that they “likely did not apply to property that was

generally open to the public.” Pet.App.61. But it

posited that New Jersey’s 1771 anti-poaching measure

reached much, much further, prohibiting the carrying

of guns on “all private property”—be it hunting lands

reserved for private use or commercial establishments

held open to the public—without the owner’s advance

permission. Pet.App.61.

Fowling-Piece, or other Firearm whatsoever, into, upon, or

through any Orchard, Garden, Cornfield, or other inclosed Land

whatsoever”).

6 See 1721 Pa. Laws 255, §2 (“[E]very person in whose custody

shall be found, or who shall expose to sale any green deer skins,

fresh venison, or deer’s flesh, at any other time of the year than

what is before excepted … shall be deemed guilty of the said

offense.”); 1722 N.J. Laws 141 (similar); 1771 N.J. Laws 344-45,

ch.540, §1 (similar); see also 1715 Md. Laws 89, §6 (forbidding

persons from “kill[ing] any unmarked swine”).

7 1771 N.J. Laws 345, §7.

8 While Hawaii also cited an 1893 law from Oregon that was

not as obviously aimed at curtailing poaching, this provision was

similarly limited to “enclosed premises or lands” and in any event

comes too late in history to establish any meaningful tradition.

See 1893 Or. Laws 79.

23

In reality, far from reflecting some sharp break

with the anti-poaching restrictions of the time, New

Jersey’s 1771 law is entirely of a piece with them.

After earlier measures had “been found insufficient to

answer” the problems, New Jersey enacted a new “Act

for the Preservation of Deer and other Game, and to

prevent Trespassing with Guns.” 1771 N.J. Laws 34344. But that updated law did not extend New Jersey’s

anti-poaching measures to cover “any private

property,” Pet.App.61, let alone to cover commercial

establishments having nothing to do with the general

assembly’s deer-preservation aims. The law instead

remained sensibly focused on the kinds of lands where

deer were likely be found, making it unlawful to “carry

any Gun on any Lands not his own, and for which the

Owner pays Taxes, or is in his lawful Possession.”

1771 N.J. Laws 344, §1.

Like the term “improved or inclosed lands,” that

phrase would have been understood at the time as

confined to “Lands” (not commercial premises) that

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

1047; see also Land, 2 Samuel Johnson, A Dictionary

of the English Language 18 (1756) (“An estate real and

immoveable.”). That is evident from the facts that the

law continued to describe its aim as preventing

“[t]respassing with [g]uns,” and to separately address

hunting on private lands not closed to the public. See

1771 N.J. Laws 344, 345, §§1, 6 (emphasis added). It

is also evident from how the law was enforced. See,

e.g., 1 William Horace Corbin, A Book of Forms of

Contracts and Conveyancing; and of Legal Proceedings

under the Laws of the State of New Jersey 374 (1882)

(enforcement suit where defendant “hunt[ed] with a

24

gun and dog for birds, and did kill and take three

quail” and “carr[ied] a gun” “on the farm of G.H.”).

Just as with the other anti-poaching measure that

came before (and after) it, then, nothing in New

Jersey’s 1771 law even hints at the notion that the

colony sought to address “the Preservation of Deer”

and “Trespassing with Guns” through the nonsensical

approach of barring people from carrying guns when

they frequented commercial establishments open to

the public or other private property onto which they

were invited. To the contrary, the law made clear that

it was not designed to interfere with the carrying of

guns outside the narrow context of trespassing on

hunting grounds, as it included an express caveat that

“nothing herein contained shall be construed to extend

to prevent any Person carrying a gun upon the King’s

Highway in this Colony.” 1771 N.J. Laws 344, §2.

In short, neither the “how” nor the “[w]hy” of New

Jersey’s 1771 law is “relevantly”—or even remotely—

“similar” to Section 134-9.5. See Rahimi, 602 U.S. at

692. One need not search hard for the “why”; the law

says on its face (twice) that it was designed to address

“the Preservation of Deer” and “Trespassing with

Guns.” Consistent with that purpose, the relevant

restrictions applied only to trespassers on potential

hunting grounds not open to the public. Hawaii’s law

evinces no such restraint—because Hawaii is not

trying to prevent poaching or trespassing. It is trying

to stymie the carrying of firearms at commercial

establishments by those invited to frequent them.

Neither New Jersey’s 1771 law nor any of the other

anti-poaching measures it invoked below provides any

25

historical support for the state’s effort to make

virtually all of Hawaii a default no-carry zone.

3. The Ninth Circuit’s effort to convert an 1865

Louisiana statute9 into a law “arrang[ing] the relevant

default rules” for carrying firearms on private

property, Pet.App.62, suffers from the same basic

defects—and more.

At the outset, that law was not part of any

historical tradition that our Constitution tolerates. It

was instead part of the ignominious Black Codes that

pervaded southern states in the wake of the Civil War.

As freedmen obtained firearms, “[t]he former states of

the Confederacy, many of which had recognized the

right to carry arms openly before the Civil War,

developed a greater willingness to qualify that right.”

Clayton E. Cramer, The Racist Roots of Gun Control,

Kan. J.L. & Pub. Pol’y 17, 20 (1995). This led to

curtailments of the right to keep and bear arms that

were largely inconsistent with the way those same

states had treated the right before it was shared by

Black Americans. Compare Cockrum v. State, 24 Tex.

394, 401 (1859) (“The right of a citizen to bear arms,

in the lawful defense of himself or the state, is

absolute.”), with English v. State, 35 Tex. 473, 478

(1872) (“Our constitution … confers upon the

legislature the power to regulate the privilege” of

“keep[ing] and bear[ing] arms.”); see also Cramer,

supra, at 20 (describing English as an “especially

9 An Act to prohibit the carrying of fire-arms on premises or

plantations of any citizens, without the consent of the owner,

1865 La. Acts 14, No.10.

26

absurd example of how far a state was willing to go to

qualify the right to bear arms” after the Civil War.).

The 1865 Louisiana statute on which the Ninth

Circuit relied was part of that reprehensible effort to

deprive Black Americans of their Second Amendment

rights. Indeed, the racist origins of the law are welldocumented. It “was enacted right after the Civil War,

by a former Confederate State, before Louisiana was

even readmitted to the Union,” and was “invidiously

designed to undermine civil rights.” Pet.App.188

(VanDyke, J., dissenting from the denial of rehearing

en banc); see also Bill Quigley, The Continuing

Significance of Race: Official Legislative Racial

Discrimination in Louisiana 1861 to 1974, 47 S.U. L.

Rev. 1, 12 (2019) (acknowledging that the 1865

Louisiana statute was part of the Black Codes). The

law’s carve-outs hint toward its racist origins, too, as

it excused from its prohibitions those acting “in lawful

discharge of a civil or military order.” 1865 La. Acts

14; see McDonald, 561 U.S. at 779 (plurality op.).10

Laws enacted in the immediate wake of the Civil War

to strip Black Americans of the rights they had newly

secured say little, if anything, about the scope of the

rights they sought to strip.

At any rate, Louisiana’s law is not analogous to

Hawaii’s even on its own terms, as it too did not apply

to private property open to the public, let alone to all

10 The same discriminatory purpose motivated and infected the

operation of the Texas law Hawaii invoked below. See An Act to

Prohibit the Carrying of Fire-Arms on Premises or Plantations of

Any Citizen Without the Consent of the Owner, 1866 Tex. L. 90,

ch.91, §1; Barry A. Crouch, “All the Vile Passions”: The Texas

Black Code of 1866, 97 Sw. Hist. Q. 13, 22 (1993).

27

the commercial establishments law-abiding citizens

frequent in their daily lives. It instead just prohibited

carrying firearms on “the premises and plantations of

any citizen,” 1865 La. Acts 14—a group of landowners

that Louisiana at the time still would not have

recognized to include Black Americans. And that

provision was accompanied by “An Act To Prevent

Trespassing,” which made it unlawful to “enter upon

any plantation without the permission of the owner or

agent.” An Act To Prevent Trespassing, 1865 La. Acts

16, No.11. So, like New Jersey’s law, this law applied

only to (certain) trespassers on (certain) private lands,

not to invitees into commercial establishments or any

other private property held open to the public. See

Koons v. Att’y Gen. N.J., 156 F.4th 210, 252-53 (3d Cir.

2025); Antonyuk, 120 F.4th at 1046-47.

Hawaii thus failed to identify even a single

historical law that broadly restricted carrying on any

and all private property open to the public. That

suffices to doom any claim to a tradition that could

justify Section 134-9.5. Hawaii may not need “a

historical twin,” Rahimi, 602 U.S. at 692, but it has

not even managed to identify a distant cousin. To be

sure, business proprietors and other private property

owners have always been free to condition access on

willingness to leave one’s constitutional rights at the

door. But just as with any other constitutional right,

the custom in our country is that they must actually

do so; the government cannot preemptively restrict

the exercise of constitutional rights just because it

thinks that may be the preference of most private

property owners. And it certainly cannot restrict

constitutional rights because it thinks that should be

the preference of private property owners.

28

In short, there is a pronounced historical tradition

at play here:

Americans do not leave their

constitutional rights at the door when entering private

property open to the public, unless the proprietor

makes clear that doing so is a condition of entry.

Section 134-9.5 flouts that “enduring American

tradition.” Bruen, 597 U.S. at 69. Historical tradition

makes clear that it simply is not for the government to

declare all the many public places people frequent in

their daily lives default no-carry zones.

CONCLUSION

For the foregoing reasons, this Court should

reverse.

Respectfully submitted,

LAWRENCE G. KEANE ERIN E. MURPHY

SHELBY BAIRD SMITH Counsel of Record

NATIONAL

MATTHEW D. ROWEN

SHOOTING SPORTS JULIA R. GRANT*

FOUNDATION, INC. CLEMENT & MURPHY, PLLC

400 N. Capital St., NW 706 Duke Street

Washington, DC 20001 Alexandria, VA 22314

(202) 220-1340

(202) 742-8900

erin.murphy@clementmurphy.com

* Supervised by principals of the firm who

are members of the Virginia bar

Counsel for Amicus Curiae

November 24, 2025