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.,

Petitioners,

v.

ANNE E. LOPEZ, ATTORNEY GENERAL OF HAWAII,

Respondent.

__________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________________________________

BRIEF OF AMICUS CURIAE

FIREARMS POLICY COALITION

IN SUPPORT OF PETITIONERS

__________________________________________

CODY J. WISNIEWSKI

FPC ACTION

FOUNDATION

5550 Painted Mirage

Road, Suite 320

Las Vegas, NV 89149

(615) 955-4306

cwi@fpcafhq.org

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

WILLIAM V. BERGSTROM

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae

November 24, 2025

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ..................................................... 1

ARGUMENT ............................................................... 4

I.

The Founding era is the critical period of history

for understanding the contours of the Second

Amendment. ........................................................ 5

II.

There is no historical tradition that supports

presumptively banning the carrying of firearms

on private property held open to the public. ...... 9

A.

During the Founding, the American view of

private property and hunting diverged

meaningfully from the English view. ....... 11

B.

Leading up to the Founding, the only laws

restricting the rights of Americans to carry

firearms on private property were hunting

regulations................................................. 14

C.

After the Civil War, some former-Confederate states enacted prohibitions on carrying

firearms on some types of private property

in an effort to subjugate former slaves .... 22

III. Hawaii’s law is a modern deviation from our nation’s historical traditions. ................................ 27

CONCLUSION .......................................................... 30

ii

TABLE OF AUTHORITIES

CASES

PAGE

District of Columbia v. Heller,

554 U.S. 570 (2008)....................... 6, 8, 9, 12, 15

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020)..................................... 7, 27

Gamble v. United States,

587 U.S. 678 (2019)........................................... 7

Kipke v. Moore,

695 F. Supp. 3d 638 (D. Md. 2023)................. 26

Koons v. Att’y Gen. N.J.,

156 F.4th 210 (3d Cir. 2025) .................... 20, 21

Marsh v. Chambers,

463 U.S. 783 (1983)........................................... 6

McDonald v. Chicago,

561 U.S. 742 (2010)........................................... 7

McKee v. Gratz,

260 U.S. 127 (1922)................................... 13, 14

New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ............... 1, 2, 5, 6, 7, 8, 9, 10,

21, 22, 27

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................ 7

Timbs v. Indiana,

586 U.S. 146 (2019)................................... 26, 27

United States v. Rahimi,

602 U.S. 680 (2024)....................................... 1, 6

iii

CONSTITUTIONAL AND STATUTORY PROVISIONS

1715 Md. Laws 90, ch. 26 § 7 .............................. 16, 17

1722 N.J. Laws 141–42 ............................................. 16

1865 La. Acts 14–16, § 1 (Extra Sess.) ............... 23, 24

1893 Or. Gen. Laws 79 .............................................. 23

Act of Dec. 20, 1763, 1763 N.Y. Laws 441, 442 ........ 18

Act of Dec. 6, 1769, § 3, 1769 N.J. Laws 319, 320 .... 19

CAL. PENAL CODE § 26230(a)(26) .............................. 28

HAW. REV. STAT

§ 134-9.1(a)(4) ................................................. 29

§ 134-9.5(a)...................................................... 28

MD. CODE ANN. CRIM. LAW § 6-411(d) ....................... 28

N.J. STAT. ANN. § 2C:58-4.6(a)(24) ............................ 28

N.Y. PENAL LAW § 265.01-d(1) ................................... 28

VT. CONST. ch. 2, § 39 (1777),

https://perma.cc/93C8-XPVN ......................... 12

OTHER AUTHORITIES

1 WEBSTER’S AMERICAN DICTIONARY OF THE ENGLISH

LANGUAGE (1828) ............................................ 15

2 A DIGEST OF THE LAWS OF TEXAS CONTAINING THE

LAWS IN FORCE AND THE REPEALED LAWS ON

WHICH RIGHTS REST, FROM 1864 TO 1872 (3d

ed. 1873) .......................................................... 25

2 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND (1803) ......................... 11, 12

3 THE STATUTES AT LARGE OF PENNSYLVANIA, FROM

1682 TO 1801 (1896) .................................. 14, 15

iv

3 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND (1803) ................................ 11

A Test Case for the President, N.Y. TRIB. (Mar. 7,

1866) ................................................................ 25

Act of Jan. 30, 1790, in 1 PRIVATE AND SPECIAL STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS (1805) .................................................... 20

ALBANY WEEKLY HERALD (Sep. 28, 1893),

https://perma.cc/H5AC-ENC8 ........................ 23

Ian Ayres & Spurthi Jonnalagadda, Guests with

Guns: Public Support for ‘No carry’ Defaults

and Private Land, 48 J.L., MED. & ETHICS 183

(2020)......................................................... 27, 28

Nathaniel Breading et al., The Address and reasons

of dissent of the minority of the convention, of

the state of Pennsylvania, to their constituents

(1787), https://perma.cc/HD7R-U7WN .......... 13

ALLEN BUSH, A DIGEST OF THE STATUTE LAW OF FLORIDA (1872), https://perma.cc/VWF8-98W6 ...... 26

Catie Carberry, What’s in a name? The Evolution of

the Term “Gun,” DUKE CTR. FOR FIREARMS L.

(July 24, 2019), https://perma.cc/W9M8-MYPY

................................................................... 15, 16

Florida Constitution of 1868 in BENJAMIN PERLEY

POORE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS (2d ed. 1878),

https://perma.cc/L24Q-Q8DC ................... 25, 26

LAWS OF THE STATE OF NEW JERSEY 25 (Trenton

1821) ................................................................ 19

v

Thomas A. Lund, Early American Wildlife Law, 51

N.Y.U. L. REV. 703 (1976) .............................. 11

WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF

THE UNITED STATES OF AMERICA (1829) ......... 12

Report of George F. Hoar, W. A. Wheeler, Wm. P.

Frye, reprinted in CHARLES H. JONES, AN

ABRIDGMENT OF THE DEBATES OF CONGRESS

(H. Holt & Co. 1875) ................................. 24, 25

Brian Sawers, Keeping Up with the Joneses: Making

Sure Your History Is Just as Wrong as Everyone Else’s, 111 MICH. L. REV. FIRST IMPRESSIONS 21 (2013) ......................................... 13, 19

Brian Sawers, Race and Property After the Civil War:

Creating the Right to Exclude, 87 MISS. L. J.

703 (2018) ............................................ 23, 24, 26

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS

(2012)............................................................... 17

Mark W. Smith, Attention Originalists: The Second

Amendment Was Adopted in 1791, not 1868,

HARV. J. L. & PUB. POL’Y PER CURIAM (Dec. 7,

2022), https://perma.cc/7U25-GY86 ................. 6

Testimony of the Department of the Attorney General on H.B. No. 984, H.D. 1 (Feb. 24, 2023),

https://perma.cc/6QEF-ST9K ................... 28, 29

THE ACTS AND RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY OF FLORIDA, AT ITS FOURTEENTH SESSION 27, § 19 (1866) ................ 25, 26

THE EUGENE GUARD (May 15, 1893),

https://perma.cc/7MHJ-QC4A ........................ 23

vi

THE FRAME OF THE GOVERNMENT OF THE PROVINCE OF

PENNSYLVANIA (1683),

https://perma.cc/538U-PR2N.......................... 12

THE PENAL CODE OF THE STATE OF TEXAS 1879 (1887),

https://perma.cc/Z54D-WEBY ........................ 25

ST. GEORGE TUCKER, View of the Constitution of the

United States, in 1 BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE

CONSTITUTION AND LAWS, OF THE FEDERAL

GOVERNMENT OF THE UNITED STATE; AND OF

THE COMMONWEALTH OF VIRGINIA (1803) ....... 12

1

INTEREST OF AMICUS CURIAE 1

Firearms Policy Coalition, Inc. (FPC) is a nonprofit membership organization that works to create

a world of maximal human liberty and freedom. It

seeks to protect, defend, and advance the People’s

rights, especially but not limited to the inalienable,

fundamental, and individual right to keep and bear

arms. FPC accomplishes its mission through legislative and grassroots advocacy, legal and historical research, litigation, education, and outreach programs.

FPC’s legislative and grassroots advocacy programs

promote constitutionally based public policy. Since its

founding in 2014, FPC has emerged as a leading advocate for individual liberty in state and federal

courts, regularly participating as a party or amicus

curiae.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Hawaii has presumptively banned carrying firearms for self-defense on all private property held open

to the public. Hawaii’s law implicates the Second

Amendment because it directly “regulates arms-bearing conduct.” United States v. Rahimi, 602 U.S. 680,

691 (2024). And it is unconstitutional because it is utterly without grounding in this Nation’s history of

firearms regulation. Indeed, laws of its type are exclusively the product of former “may-issue” states seeking to minimize the practical significance this Court’s

Pursuant to SUP. CT. R. 37.6, amicus certifies that no

counsel for any party authored this brief in whole or in part, no

party or party’s counsel made a monetary contribution to fund

its preparation or submission, and no person other than amici or

their counsel made such a monetary contribution.

1

2

decision in New York State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022).

Under Bruen, this case is straightforward. Hawaii’s law should be declared unconstitutional, consistent with decisions of the Second and Third Circuits addressing similar laws. The Ninth Circuit below, however, reached a different result. It held California’s similar law likely unconstitutional because it

required proprietors to post a sign to override the presumption. But it concluded the opposite for Hawaii’s

law, because it gave proprietors the ability to override

through written or verbal means. The Ninth Circuit

itself acknowledged the “seemingly arbitrary” distinctions it drew in this case, but it blamed them on the

“historical analysis required by” this Court.

Pet.App.80a. As this brief seeks to demonstrate, the

panel’s blame is misdirected. History does not countenance a state requiring members of the general public

to obtain advance permission to carry firearms for

self-defense in locations held open to them, regardless

of the means by which that permission is obtained.

The Ninth Circuit’s decision blessing Hawaii’s

presumptive carry ban is marked by several errors.

First, the court primarily relied on two statutes, one

from 1771 and the other from 1865. While two statutes is too few to show a consistent national tradition

with respect to arms bearing conduct, even that is

overcounting, as the court was wrong to accord a law

from as late as 1865 effectively dispositive weight. Under this Court’s precedents, Founding-era evidence is

primary, and later history has only confirmatory

value.

3

Second, the Ninth Circuit erred in concluding

that either of the laws it primarily relied on were

proper historical analogues.

In the century leading up to the Founding, American property law underwent major changes, as the

balance struck in England between private property

rights of landholders and hunting rights was adjusted

to accommodate a new country where game and land

were both plentiful. Whereas in England hunting was

restricted to men of a certain class and all land was

considered enclosed by an invisible boundary, in

America, the rule developed that hunting should be a

much more democratic pursuit. Indeed, even on land

owned by another, animals were fair game for everyone unless the landowner took steps to make the land

productive or to keep hunters out.

The 18th-century regulations on which the court

below rested its analysis, including the 1771 New Jersey statute that it accorded particular weight, are consistent with this history. These were laws aimed at

restricting unlawful hunting, and they sought to do so

by prohibiting trespassing with guns on land not held

open to the public.

The laws enacted immediately after the Civil

War, which are frequently cited to support laws like

Hawaii’s, including the 1865 Louisiana statute relied

on by the panel below, are even less apt analogues.

Given their historical backdrop, if they could be considered part of the same historical tradition of hunting

regulations as the colonial laws, their place in that

tradition would be similar to that of the fugitive slave

laws in the tradition of laws facilitating the return of

property to an owner. These laws were part of the

4

“Black Codes” of states like Louisiana and Texas. The

Black Codes were a suite of regulations adopted by

former Confederate states, before formal readmission

to the Union, which sought as much as possible to recreate the economic conditions that had existed before

the Civil War. Presumptively banning the carrying of

firearms served the purposes of this system by reducing the opportunities for newly freed persons to engage in subsistence hunting, therefore making it more

likely that they would have to return for employment

to the plantations from which they had just been

freed.

The true origins for Hawaii’s presumptive carry

ban lie neither in colonial hunting regulations nor in

postbellum Black Codes. Instead, the inspiration

came from a 2020 social science paper suggesting a

novel way in which to drastically reduce the number

of ordinary, law-abiding Americans who carry firearms in public. Hawaii’s desire for such a law only

arose after this Court vindicated public carry rights in

Bruen. It is precisely the sort of change that the Second Amendment was included in the Bill of Rights to

prevent. The decision below must be reversed.

ARGUMENT

The Ninth Circuit below concluded “that a national tradition likely exists of prohibiting the carrying of firearms on private property,” including property held open to the public, “without the owner’s oral

or written consent.” Pet.App.64a. This historical conclusion was wrong, and the Ninth Circuit reached it

by failing to properly apply the method of analysis this

Court laid out in Bruen and Rahimi. Broadly

5

speaking, it was the product of two types of error, both

unfortunately common in the lower courts.

First, the Ninth Circuit accorded equal weight to

laws from the just before the Founding and laws from

the latter half of the 19th century. It should not have.

Constitutional rights have the meaning they had

when they were adopted, and the Second Amendment’s meaning was set in 1791.

Second, in assessing “how” and “why” historical

laws impacted the right to keep and bear arms, the

Ninth Circuit failed to consider the historical context

of the laws that it uncritically assumed were similarly

sweeping prohibitions to Hawaii’s default-flipping

statute. Placing those laws in context shows that at no

period in our history has a restriction like Hawaii’s

been accepted as consistent with the rights of Americans.

I.

The Founding era is the critical period of

history for understanding the contours of

the Second Amendment.

Though the Ninth Circuit reviewed laws ranging

from 1721 to 1893 in assessing the constitutionality of

Hawaii’s no-carry default restriction, it rested its conclusion that the law was constitutional primarily on

two statutes, one from 1771 in New Jersey and one

from 1865 in Louisiana. Id. at 62a. Because a law from

1865 is too late to be of primary importance under

Bruen, properly analyzed, the Ninth Circuit’s case

rests entirely on the 1771 New Jersey statute.

Although this Court acknowledged a “scholarly

debate” on this issue in Bruen, it nevertheless held

that when it comes to understanding the meaning of

the Bill of Rights, “not all history is created equal.”

6

597 U.S. at 34, 37. And that must be true. “Constitutional rights are enshrined with the scope they were

understood to have when the people adopted them.”

District of Columbia v. Heller, 554 U.S. 570, 634–35

(2008). The people adopted the Second Amendment in

1791, so the public understanding of the right at that

time is crucial to understanding the contours of the

right. Bruen, 597 U.S. at 37; see also Rahimi, 602 U.S.

at 739 (Barrett, J., concurring) (“Call this ‘original

contours’ history: It looks at historical gun regulations

to identify the contours of the right.”). The best evidence of that understanding will necessarily come

from that period, not from later history. See Mark W.

Smith, Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868, HARV. J. L. &

PUB. POL’Y PER CURIAM (Dec. 7, 2022),

https://perma.cc/7U25-GY86; see also Rahimi, 602

U.S. at 738 (Barrett, J., concurring) (“[E]vidence of

‘tradition’ unmoored from original meaning is not

binding law.”). Thus, in Bruen, the focal point of this

Court’s analysis of the understanding of the Second

Amendment when it was adopted in 1791 was on the

“history of the Colonies and early Republic,” culminating with a law enacted in 1801. Bruen, 597 U.S. at 46–

50. This tight temporal focus is consistent with the

special solicitude this Court has shown to the acts of

the First Congress, the body that drafted the Bill of

Rights. See, e.g., Marsh v. Chambers, 463 U.S. 783,

790 (1983). At a minimum, evidence postdating the

mid-1830s can only be confirmatory, as by then the

Nation had entered a new era with the election of Andrew Jackson (1828), the end of the Marshall Court

(1835), and the death of James Madison (1836).

7

That the Second Amendment applies to Hawaii

through the Fourteenth Amendment does not alter

the analysis. The Fourteenth Amendment expanded

the jurisdictional reach of the Bill of Rights, it did not

purport to change the content of incorporated Bill of

Rights provisions or “water[] [them] down.” Ramos v.

Louisiana, 590 U.S. 83, 93–96 (2020). To the contrary,

this Court has repeatedly and “decisively held that incorporated Bill of Rights protections are all to be enforced against the States under the Fourteenth

Amendment according to the same standards that

protect those personal rights against federal encroachment.” McDonald v. Chicago, 561 U.S. 742, 765

(2010) (quotation marks omitted). Bruen reiterated

these holdings. Bruen, 597 U.S. at 37 (collecting

cases). In light of these holdings, it should follow that

the proper, singular meaning of incorporated rights

was established in 1791. While adoption of the 14th

Amendment may have extended the reach of those

rights, it did not change their substantive meaning.

This Court accordingly has treated Founding-era

history as dispositive and relied on later, 19th-century

sources only to confirm what earlier sources had already established. Gamble v. United States, 587 U.S.

678, 702 (2019). Indeed, this Court expressly has held

that while evidence from “the second half of the 19th

century” can serve to “reinforce” “an early American

tradition,” it cannot “by itself establish one.” Espinoza

v. Mont. Dep’t of Revenue, 591 U.S. 464, 482 (2020).

That is especially true for historical evidence that significantly post-dates the ratification of the Fourteenth

Amendment in 1868—regardless of whether the controlling date is 1791 or 1868. Therefore, laws beyond

the end of Reconstruction should be given little if any

8

weight. This is consistent with Bruen, where, even assuming 1868 could be the proper date for understanding the Second Amendment’s scope, this Court accorded “late-19th century” evidence post-dating the

“Reconstruction-era” little weight when it “contradicts

earlier evidence,” putting such evidence on the same

plane as 20th-century evidence. See Bruen, 597 U.S.

at 64, 66–67 & n.28.

Heller is exemplary of the Court’s established

practice in focusing primarily on historical sources

from around the Founding to define the scope of a constitutional right. Heller relied heavily in its analysis

on colonial and Founding-era sources, which it treated

as the primary evidence of the scope of the Second

Amendment’s protections. Heller, 554 U.S. at 581–86,

600–03. Heller turned to “how the Second Amendment

was interpreted from immediately after its ratification through the end of the 19th century” only after

completing its review of these earlier periods. Id. at

605. Heller did not give these later sources equal

weight. For instance, while Heller addressed the “outpouring of discussion of the Second Amendment in

Congress and in public discourse” following the Civil

War, it made clear that “[s]ince those discussions took

place 75 years after the ratification of the Second

Amendment, they do not provide as much insight into

its original meaning as earlier sources.” Id. at 614.

And Heller displayed a significant skepticism toward

the laws of that period, noting that much of the discourse arose in the context of efforts to disarm newly

freed blacks in the South. Id. Ultimately, when it

came time to describe what firearms, if any, could be

banned consistent with the Second Amendment, the

historical tradition Heller identified, that of

9

“prohibiting the carrying of ‘dangerous and unusual

weapons,’ ” was supported by reference to treatises

dating as far back as 1769. Id. at 627. Nothing in Heller suggests that evidence from the 1860s should take

primary importance, or that evidence from after Reconstruction should be accorded any weight at all. See

also Bruen, 597 U.S. at 66 (“As we suggested in Heller,

however, late-19th-century evidence cannot provide

much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”).

II.

There is no historical tradition that supports presumptively banning the carrying

of firearms on private property held open

to the public.

The Ninth Circuit divided the relevant historical

record in this case into two sets of laws. It read one set

as having “prohibited the carry of firearms onto subsets of private land, such as plantations or enclosed

lands.” Pet.App.60a. (relying on laws from Pennsylvania (1721), New Jersey (1722), New York (1763), and

Oregon (1893)). “The second set of laws contained

broader prohibitions, banning the carrying of firearms

onto any private property without the owner’s consent.” Id. at 61a (relying on laws from New Jersey

(1771) and Louisiana (1865)). Both sets, in the Ninth

Circuit’s view, comprised laws spanning colonial

America through to the latter half of the 19th century.

The panel recognized that the first set was more limited than the Hawaii statute as those laws were

largely directed at preventing poaching and applied

“to only a subset of private property” that was closed

off from the public. Id. at 61a. But it stressed that

“those limitations did not apply to the second set of

10

laws,” which it called “dead ringers” for the private

property default rule. Id. at 62a.

Even if this were accurate, two laws that departed from the mainstream cannot be used as valid

analogues, as Bruen says that such analogues must be

“well-established and representative.” Bruen, 597 U.S.

at 30 (emphasis added). Laws that depart from the

norm are by no means representative of a tradition.

The Ninth Circuit thus should have discarded the

1771 New Jersey and 1865 Louisiana laws as outliers

even assuming arguendo that its understanding of

them was accurate.

In any event, the Ninth Circuit’s understanding

was not accurate. Neither “set” of laws supports the

historical narrative the Ninth Circuit built up around

them. At most, these scattered trespass laws and

hunting restrictions demonstrate a history of property

rights regulation that runs contrary to Hawaii’s novel

restrictions. The 18th-century restrictions identified

by the Ninth Circuit (even the allegedly broader 1771

New Jersey law), were part of an American rebalancing of the adverse rights of landholders and hunters

to favor hunters, going so far, in some cases, as to permit hunting on private land and against the owner’s

wishes if the land was unenclosed and unimproved.

Nineteenth-century laws (including some not mentioned by the Ninth Circuit below, but which have featured in other courts’ discussion of presumptive bans

like Hawaii’s) both continued, and, in critical respects,

altered this tradition. Former slaveholders in the

South sought to shift the balance in favor of property

rights and against the hunting rights of former slaves

in an effort to circumscribe their liberty, thereby

11

ensuring that they remained practically dependent

upon the landholding class for their livelihood.

No law, from any period, supports upholding Hawaii’s presumptive carry ban.

A.

During the Founding, the American

view of private property and hunting

diverged meaningfully from the English view.

For centuries prior to the Founding, English

game laws had limited hunting and trapping to those

with proper “qualifications,” in terms of wealth and

landholding. Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. REV. 703, 709 (1976). The purpose of these restrictions was to make it so that lower

classes “could neither consume game, nor interfere

with the beasts that ravaged their crops,” thereby ensuring they remained dependent upon their labor for

their food. Id. at 704. In achieving that goal and in

reinforcing a lord’s control over his lands, these restrictions went hand in hand with the English common law’s strong conception of the right to exclude. As

Blackstone explained, “every man’s land is in the eye

of the law inclosed and set apart from his neighbors …

either by a visible and material fence … or, by an ideal

invisible boundary.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 209–10 (1803).

Neither of these views, however—that hunting

was a rich man’s sport or that any landowner could

entirely close his whole property to any intrusion by

means of an invisible barrier—would last long in the

new world. Even in England, by the time of the founding of this country, the English game laws were denigrated for “disarming the bulk of the people.” 2

12

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND 412 (1803). On this side of the Atlantic,

they were denounced as “[a]n arbitrary code” that had

“long disgraced” England, WILLIAM RAWLE, A VIEW OF

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

126 (1829); see Heller, 554 U.S. at 607, by disarming

the English people “under the specious pretext of preserving the game.” ST. GEORGE TUCKER, View of the

Constitution of the United States, in 1 BLACKSTONE’S

COMMENTARIES: WITH NOTES OF REFERENCE, TO THE

CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATE; AND OF THE COMMONWEALTH OF VIRGINIA app. D at 300 (1803).

In addition to eliminating the “qualifications”

that effectively disarmed the English commoners,

Americans also expanded the places where citizens

could hunt. The American rule that developed was

that the people generally were free to carry their arms

and hunt where they pleased, unless the landowner

specifically improved or enclosed his property. In

1683, Pennsylvania’s constitution provided “that the

inhabitants of this province and territories thereof

may be accommodated with such food and sustenance,

as God, in his providence, hath freely afforded … the

inhabitants of this province and territories thereof”

were given “liberty to fowl and hunt upon the lands

they hold, and all other lands therein not inclosed.”

THE FRAME OF THE GOVERNMENT OF THE PROVINCE OF

PENNSYLVANIA, § 22 (1683), https://perma.cc/538UPR2N (emphasis added). Vermont’s 1777 constitution

similarly declared “[t]hat the inhabitants of this

State, shall have liberty to hunt and fowl, in seasonable times, on the lands they hold, and on other lands

(not enclosed).” VT. CONST. ch. 2, § 39 (1777),

13

https://perma.cc/93C8-XPVN (emphasis added). And

Pennsylvania’s antifederalists proposed a similar provision for the federal constitution. See Nathaniel

Breading et al., The Address and reasons of dissent of

the minority of the convention, of the state of Pennsylvania, to their constituents at 1 (1787),

https://perma.cc/HD7R-U7WN (“Eighth. The Inhabitants of the several states shall have liberty to fowl and

hunt in seasonable times, on the lands they hold, and

on all other lands in the United States not inclosed.”)

(emphasis added).

Although it was not ultimately made part of the

Constitution, free hunting on unenclosed lands became, effectively, the universal rule of the time. “At

ratification, only one state granted landowners any

right to exclude hunters from open land, while six

other states authorized hunting on open land, regardless of landowner permission.” Brian Sawers, Keeping

Up with the Joneses: Making Sure Your History Is

Just as Wrong as Everyone Else’s, 111 MICH. L. REV.

FIRST IMPRESSIONS 21, 25 (2013); see also id. at 24

(“[U]nfettered public access to open land was the

norm, even if it did not receive constitutional protection.”). And it continued to be the de facto rule for long

after. In 1922, this Court recognized that American

law had long since deviated from the Blackstonian

conception of an invisible boundary enclosing all private lands when it explained that:

[t]he strict rule of the English common

law as to entry upon a close must be

taken to be mitigated by common understanding with regard to the large expanses of unenclosed and uncultivated

land in many parts at least of this

14

country. Over these it is customary to

wander, shoot and fish at will until the

owner sees fit to prohibit it.

McKee v. Gratz, 260 U.S. 127, 136 (1922) (Holmes, J.).

B.

Leading up to the Founding, the only

laws restricting the rights of Americans to carry firearms on private property were hunting regulations.

The 18th-century laws discussed by the Ninth

Circuit were all part of this process of redefining and

clarifying societal norms about the freedom to hunt

and the rights of property holders to exclude hunters

from their lands. They are, therefore, entirely unsupportive of Hawaii’s position.

Begin with those 18th-century laws that the

Ninth Circuit recognized as limited to only “subsets of

private land, such as plantations or enclosed lands.”

Pet.App.60a. Each one was still more limited than the

Ninth Circuit recognized.

1721 Pennsylvania. The panel pointed first to

a 1721 Pennsylvania law which prohibited a person

from “ ‘carry[ing] any gun or hunt[ing] on the improved or inclosed lands of any plantation other than

his own, unless he have license or permission from the

owner of such lands or plantation.’ ” Id. (quoting 3 THE

STATUTES AT LARGE OF PENNSYLVANIA, FROM 1682 TO

1801 at 255 (1896)). Lest the phrase “carry[ing] any

gun” be read out of context and given broader meaning

(as it apparently was, by the Ninth Circuit) this law is

properly understood as an anti-poaching measure and

nothing more. Contra Pet.App.61a (“[T]he primary

aim of some of those laws was to prevent poaching.”

(emphasis added)). Remember that Pennsylvania had,

15

in 1683, acknowledged a constitutional right of its citizens to hunt on unenclosed lands. The statute, limiting its restrictions to “improved or inclosed lands” is

consistent with that history and unambiguously

aimed at places where a hunter had no right to be in

the first place. And while it may have applied to a person simply carrying a gun while trespassing on another’s plantation, the evident purpose was to avoid

difficulties of proof with respect to a poacher who was

caught before he had taken game.

Other evidence confirms that this law was aimed

at unlawful hunting. The statute is entitled “An Act

to Prevent the Killing of Deer Out of Season, and

Against Carrying of Guns or Hunting By Persons Not

Qualified.” And the specific section of the statute

quoted by the Ninth Circuit is prefaced with the note

that it is aimed at remedying “divers abuses, damages

and inconveniencies [that] have arose by persons carrying guns and presuming to hunt on other people’s

lands.” 3 PENNSYLVANIA STATUTES, supra at 254–55.

Moreover, the use of the word “gun” in the statute itself suggests that this restriction was aimed at hunting. While today that term is understood broadly to

encompass all firearms, that has not historically been

the case. Noah Webster’s 1828 dictionary, cited by the

majority in Heller for its definition of the terms

“arms,” “keep,” “carry,” and “militia,” see 554 U.S. at

581–84, 595, defined gun as encompassing both large

arms like cannon and “smaller species” such as “muskets, carbines, fowling pieces, etc.,” but it warned that

“one species of fire-arms, the pistol, is never called a

gun,” Gun, 1 WEBSTER’S AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (1828); see generally Catie Carberry, What’s in a name? The Evolution of the Term

16

“Gun,” DUKE CTR. FOR FIREARMS L. (July 24, 2019),

https://perma.cc/W9M8-MYPY. Pennsylvania’s law

applied only to those types of arms that would be used

in hunting, not to smaller weapons that might be carried for self-defense.

1722 New Jersey. The 1722 New Jersey law, see

Pet.App.60a, is irrelevant for the same reasons as the

Pennsylvania law. See 1722 N.J. Laws 141–42. The

New Jersey law replicates the Pennsylvania law’s title

and statement of purpose, both of which directly tie it

to hunting. And it describes the relevant restriction—

prohibiting anyone “to carry any Gun, or hunt on the

improved or inclosed Lands in any Plantation, other

than his own”—in materially identical language that

identifies it as a part of the tradition of defining the

right to hunt on unenclosed lands and the countervailing right to exclude from those enclosed lands. Id.

1715 Maryland. In its brief opposing certiorari,

Hawaii identified an additional law from this early period which it asserts further supports a broad reading

of these laws because it “precluded persons from

‘carry[ing] a gun upon any persons land, * * * without

the owner’s leave.’ ” Br. in Opp. at 22 (June 4, 2025)

(quoting 1715 Md. Laws 88–91) (brackets and ellipsis

in brief). But this brief quotation omits important context that places this law, too, squarely in the tradition

of laws defining the countervailing rights of hunters

and landowners, and operating to bar illegal poaching

(in this case, of livestock).

The law’s plain text refutes any reading that

would extend its provisions to cover the peaceable

carry of firearms in a place that a person had any right

to be. First and foremost, the law did not apply at all

17

to most people. Its prohibition applied to “any person

or persons whatsoever, that have been convicted of

any of the crimes aforesaid,” (which included, for example, stealing hogs or other livestock or disfiguring

the brand on hogs to disguise their true ownership) or

any person convicted of “other crimes, or that shall be

of evil fame, or a vagrant, or dissolute liver.” 1715 Md.

Laws. 90, ch. 26, § 7. And even for the narrow group

of criminals to whom it did apply, it did not cover ordinary carrying of firearms, but rather forbade them

to “shoot, kill or hunt, or be seen to carry a gun.” Id.

In 1715, as today, it was understood that associated

words in a single statute are to be read as informing

one another’s meaning (noscitur a sociis), and similarly that catch-all phrases that conclude lists should

be read as limited by the listed items that preceded

them (ejusdem generis). ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 195–213 (2012); see also id. at 200 (noting

that ejusdem generis has been a recognized canon of

statutory construction since at least 1596). Hawaii’s

quoting of the prohibition on “carry[ing] a gun” without this statutory context obscures the fact that it was

not a general prohibition on going armed in public. Finally, the law did not even apply generally to prohibit

carrying arms, for purposes of using them to hunt or

steal livestock, but only applied “upon any person’s

land, whereon there shall be a seated plantation,

without the owner’s leave, having been once before

warned.” 1715 Md. Laws 90, ch. 26, § 7. The law therefore permitted carrying firearms even under these dubious circumstances unless the person doing so had

been specifically warned not to, and the statute was

limited to land “whereon there shall be seated a plantation.” Id. That is a clear reference to the division,

18

outlined above, between the lands that were understood to be open to the public for hunting at the

Founding, and those that were closed off or improved.

1763 New York. Moving on to the New York restriction from 1763, Wolford, Pet.App.60a, the story is

much the same. The statute was aimed at hunting on

enclosed lands. Its title proves this: “An ACT to prevent hunting with Fire-Arms in the City of New-York,

and the Liberties thereof,” as does its preface: bemoaning the practice of “disorderly persons … to hunt

with Fire-Arms, and to tread down the Grass, and

Corn, and other Grain standing and growing in the

fields and inclosures [in New York City].” Act of Dec.

20, 1763, 1763 N.Y. Laws 441, 442. And its proscription was similarly limited, criminalizing “carry[ing],

shoot[ing], or discharg[ing] any Musket, FowlingPiece, or other Fire-Arm whatsoever, into, upon, or

through any Orchard, Garden, Corn-Field, or other inclosed land whatsoever.” Id. § 1. That this law, like

the others, was part of the effort to redefine the contours of property law and to clarify where individuals

had no right to go in the first place is made all the

more clear by the fact that the same section of the

statute criminalizes merely “enter[ing] into, or

pass[ing] through … any of the aforesaid places” without fire-arms. Id.

1771 New Jersey. A 1771 New Jersey statute

was especially important to the panel’s conclusion

that Hawaii’s law comported with historical limits on

carrying firearms on private property. The panel

stressed that this law was broader than the other examples from the period and “bann[ed] the carrying of

firearms onto any private property without the

owner’s consent.” Pet.App.61a. In fact, the law was

19

just as limited as the others and was focused on curtailing hunting on land closed to the public. Several

interpretive cues in the statute are very similar to

those in the other enactments reviewed so far. It began with a statement of purpose that focused entirely

on hunting, recognizing that earlier New Jersey laws

“for the preservation of deer and other game, and to

prevent trespassing with guns, traps and dogs, have,

by experience, been found insufficient.” LAWS OF THE

STATE OF NEW JERSEY 25 (Trenton 1821). Several of

the other sections of the law were explicitly focused on

hunting. Id. at 26, § 5 (providing for punishment of

those “in whose custody shall be found … any green

deer-skins or fresh venison” killed out of season). And

the portion of the law the Ninth Circuit quoted, which

forbid anyone “to carry any gun on any lands not his

own, and for which the owner pays taxes, or is in his

lawful possession, unless he hath license or permission in writing from the owner,” also referred specifically to a “gun,” which, as discussed above, meant a

long gun, not any firearm. Id. at 26, § 1.

The Ninth Circuit ignored that evidence, because

in its view, the plain text of the operative provision

was otherwise much broader than the other laws. But

on that front, the Ninth Circuit missed a critical limitation in the text—rather than banning carry on “all

private property” as the panel thought, Pet.App.61a,

the law was limited to private property “for which the

owner pays taxes.” LAWS OF THE STATE OF NEW JERSEY,

supra at 25, § 1 (emphasis added). That is precisely

the same as saying the land was improved or enclosed

as the other laws do, because, at the time New Jersey

taxed only improved land. See Act of Dec. 6, 1769, § 3,

1769 N.J. Laws 319, 320; see also Sawers, Keeping Up

20

with the Joneses, supra at 25–26. That Section 6 of the

statute went on to set property qualifications for hunting on “waste and unimproved Lands” confirms that

the earlier provision did not bar hunting there—and

further solidifies the New Jersey statute as part of the

tradition of apportioning between property and hunting rights in America.

1790 Massachusetts. Amicus is aware of just

one other law from the 1700s that, although not mentioned below, has been referenced in litigation over

similar “default rule” statutes in other states, a 1790

Massachusetts enactment. See Koons v. Att’y Gen.

N.J., 156 F.4th 210, 252 n.105 (3d Cir. 2025) (discussing the law). It was well that the Ninth Circuit did not

discuss it, because it too is irrelevant. The law sets

forth its purpose to respond to “great depredations

made by gunners and hunters on Tarpaulin Cove, or

[several islands in Duke County], by which great

numbers of sheep and deer have been killed, and other

damages sustained,” and its first prohibition, like the

1715 Maryland law that was concerned with the stealing of hogs, makes it a crime to “unlawfully take away,

shoot, kill or destroy … any sheep or other stock creatures.” Act of Jan. 30, 1790, in 1 PRIVATE AND SPECIAL

STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS

258–59 (1805). The provision which has been argued

to support laws like Hawaii’s is the second section,

which provides for the seizure of the firearm of any

person who “shall be seen with any gun or guns upon

either of [certain] islands” and further provides for liability for anyone caught “ with any skin, limb or carcass.” Id. In addition to the by-now familiar reference

to a “gun,” this reading of the statute is bolstered by

the fact that the islands at issue were all the property

21

of the Bowdoins, a prominent Massachusetts family,

making it “a classic poaching ban, applied to the property of one influential landowner,” where hunters had

no right to be in the first place. Koons, 156 F.4th at

297 n.80 (Porter, J., concurring in the judgment in

part and dissenting in part). The whole context of the

statute makes clear that the prohibition merely seeks

to restrict unlawful killing of stock animals—either by

disarming poachers before they commit the crime, or

seizing the implements of the crime thereafter.

*

*

*

In sum, not one of the 18th century laws courts

have relied upon (either below or in any other case) to

justify a presumptive carry ban on private property

open to the public applied to such land at all. They

instead were limited to plantations and other similar

lands where people would have been trespassing without permission whether they were carrying a gun or

not.

Even if these laws regulated the ordinary carry

of firearms, they would be incapable of supporting Hawaii’s law. But they are even less relevant than that,

as they were not focused on ordinary public carry of

arms at all. They were rather part of a distinctly

American tradition of regulation which sought to settle the rights of landholders to prohibit incursions and

hunting on their enclosed farmland and the countervailing rights of American hunters to access land left

open to the public. To the extent that there is any ambiguity on these points, the laws must be interpreted

as not restricting ordinary public carry, the interpretation most consistent with the text of the Second

Amendment. See Bruen, 597 U.S. at 44 n.11 (“To the

22

extent there are multiple plausible interpretations …

we will favor the one that is more consistent with the

Second Amendment’s command.”). This is especially

true given the lack of evidence Hawaii has mustered

that such laws were actually enforced as broadly as it

contends they could have been, id. at 58 n.25.

If these laws disclose any principle that is relevant to the scope of the Second Amendment, it is no

more than that the Second Amendment permits regulation of the circumstances in which Americans may

hunt on private land—but that principle is irrelevant

here.

C.

After the Civil War, some former-Confederate states enacted prohibitions on

carrying firearms on some types of private property in an effort to subjugate

former slaves.

The Ninth Circuit below cited two laws from the

postbellum 19th century to support its conclusion that

Hawaii’s law is constitutional: one from 1893 in Oregon and one from 1865 in Louisiana. Pet.App.60a–

61a. The panel acknowledged the 1893 restriction was

limited to “subsets of private land” but it placed great

weight on the 1865 Louisiana statute as applying to

all private property. Id. As discussed above, these

laws are simply too late to identify any new historical

principle that could support a limitation on the scope

of the Second Amendment’s plain text. Thus, even if

they supported a tradition of “arranging the default

rules that apply specifically to the carrying of firearms

onto private property,” id. at 62a, they should be disregarded. But in fact, they provide no support for that

rule.

23

1893 Oregon. The 1893 Oregon law can be readily dismissed on the same grounds as the laws from a

century earlier. The law made it a crime for “any person, other than an officer on lawful business, being

armed with a gun, pistol, or other firearm, to go or

trespass upon any enclosed premises or lands without

the consent of the owner or possessor thereof.” 1893

Or. Gen. Laws 79. The references to “trespass” and

“enclosed lands” tie this to the earlier hunting restrictions and make clear that this is a law about a

hunter going somewhere he has no business being.

Although unlike the earlier laws this law does not specifically reference hunting in its text, other historical

evidence demonstrates that it was focused on that activity. See THE EUGENE GUARD at 2 (May 15, 1893),

https://perma.cc/7MHJ-QC4A (“Trespass Law. The

last legislature passed a very stringent hunting law”);

ALBANY WEEKLY HERALD at 3 (Sep. 28, 1893),

https://perma.cc/H5AC-ENC8 (“The Trespass Law.

Hunters Will Find Its Provisions Very Rather Stringent.”).

1865 Louisiana. The panel’s other authority, an

1865 Louisiana statute, which the panel classed as a

“historical dead ringer” for Hawaii’s law, should be repudiated, not used as a basis for defining the scope of

constitutional rights. The Louisiana law provided

“[t]hat it shall not be lawful for any person or persons

to carry fire-arms on the premises or plantations of

any citizen, without the consent of the owner or proprietor, other than in lawful discharge of civil or military order.” 1865 La. Acts 14–15, § 1 (Extra Sess.).

The property rights regime that had developed in

America leading up to the Founding had created a system that “allowed the landless to hunt, fish, forage,

24

and even graze their livestock on private land” so long

as it was not enclosed or improved. Brian Sawers,

Race and Property After the Civil War: Creating the

Right to Exclude, 87 MISS. L. J. 703, 706 (2018). That

national regime continued up to the Civil War, but following the war, the calculus in favor of these free

rights to the land and its animals changed decisively

in the South, as hunting, fishing, and foraging all offered “alternatives to sharecropping [that] would have

allowed many blacks to live somewhat independently,

even without their own land.” Id. That posed an obvious “threat to planters, who had no alternative to

black labor, since planters were unwilling to offer

wages or working conditions that would attract immigrant labor.” Id. As a result, state governments “overturn[ed] centuries of law to prevent black people from

prospering,” “expand[ing] landowner rights at the expense of public rights precisely to deprive blacks of the

essence of freedom.” Id. at 706–07. Though they were

limited in their ability to enact explicitly racial laws,

“legislatures used the pretense of game laws to restrict hunting and fishing by blacks. Laws requiring

landowner permission were the most transparent limits.” Id. at 749.

It is into this shameful tradition that the Louisiana law fits. The law, like many before it, covered land

that was presumptively closed to the public. See 1865

La. Acts 16 (making it unlawful to enter a plantation

without permission). And it was contemporaneously

criticized in a congressional report on the state of racial violence and racial discrimination in Louisiana by

then-Representative George F. Hoar, a Massachusetts

Republican, as part of a “series of laws which must

have been designed to restore the negro to a state of

25

practical servitude.” Report of George F. Hoar, W. A.

Wheeler, Wm. P. Frye, reprinted in CHARLES H. JONES,

AN ABRIDGMENT OF THE DEBATES OF CONGRESS 1369

(H. Holt & Co. 1875). Rep. Hoar specifically noted that

the law had the effect of “depriving the great mass of

the colored laborers of the State of the right to keep

and bear arms, always zealously prized and guarded

by his white employers.” Id.; see also A Test Case for

the President, N.Y. TRIB. (Mar. 7, 1866) (similarly describing Louisiana law as part of “a code of laws”

aimed at “reenacting Slavery in fact”).

Texas & Florida 1866. There were two other

similar laws from this period that went unmentioned

by the Ninth Circuit below, but which could not have

helped its case. A Texas 1866 law read almost identically to the Louisiana law with the distinction that it

was explicitly limited to “inclosed premises or plantations.” 2 A DIGEST OF THE LAWS OF TEXAS CONTAINING THE LAWS IN FORCE AND THE REPEALED LAWS ON

WHICH RIGHTS REST, FROM 1864 TO 1872 1321 (3d ed.

1873) (emphasis added). And an 1866 Florida law was

also narrower, in that it specifically mentioned hunting when it prohibited “any person to hunt or range

with a gun within the enclosed lands or premises of

another without … permission.” THE ACTS AND RESOLUTIONS ADOPTED BY THE GENERAL ASSEMBLY OF FLORIDA, AT ITS FOURTEENTH SESSION 27, § 19 (1866). Unlike the Louisiana statute, neither the Texas nor the

Florida restrictions lasted long. Texas’s was “stricken

out by the legislature” in 1879. THE PENAL CODE OF

THE STATE OF TEXAS 1879 at 90, 114 (1887),

https://perma.cc/Z54D-WEBY. Florida’s was even

more ephemeral; when Florida ratified a new constitution in 1868, it broadly nullified and voided all

26

statutes inconsistent with federal law or the federal

(and new state) constitution, Article XVI, Section 1.

Florida Constitution of 1868, in BENJAMIN PERLEY

POORE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 359 (2d

ed. 1878), https://perma.cc/L24Q-Q8DC. Amicus is not

aware of any similar law being enacted following the

ratification of Florida’s 1868 constitution, and the law

does not appear to have been included in the first digest of existing Florida statutory law printed after

1868. See generally ALLEN BUSH, A DIGEST OF THE

STATUTE

LAW

OF

FLORIDA

(1872),

https://perma.cc/VWF8-98W6.

The Texas, Florida, and Louisiana laws were

united in a discriminatory purpose. Each was enacted

by legislatures before the creation of integrated governments following the adoption of the 14th Amendment and before the readmission of their respective

states to the Union. See Sawers, Race and Property,

supra at 764 tbl. 1. These statutes were passed “as

part of their discriminatory ‘Black Codes,’ which

sought to deprive African Americans of their rights.”

Kipke v. Moore, 695 F. Supp. 3d 638, 659 (D. Md. 2023)

(citing McDonald, 561 U.S. at 847 (Thomas, J., concurring in part and concurring in the judgment)). Another section of the Florida law, for instance, prohibited “any negro, mulatto, or other person of color, to

own, use or keep in his possession or under his control,

any Bowie-knife, dirk, sword, fire-arms or ammunition of any kind, unless he first obtain a license to do

so from the Judge.” ACTS AND RESOLUTIONS ADOPTED

BY THE GENERAL ASSEMBLY OF FLORIDA, supra at 25, §

12. “The ‘centerpiece’ of the [Black] Codes was their

‘attempt to stabilize the black work force and limit its

27

economic options apart from plantation labor.’ ”

Timbs v. Indiana, 586 U.S. 146, 168 (2019) (Thomas,

J., concurring in the judgment) (quoting E. FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION

1863–1877 at 199 (1988)). Limiting hunting rights

was a key part of this effort.

The context in which these purported analogues

were adopted “hardly evince a tradition that should

inform our understanding of the” Second Amendment.

Espinoza, 591 U.S. at 482; see Bruen, 597 U.S. at 58

(concluding that two discriminatory statutes were

“surely too slender a reed on which to hang a historical

tradition”); see also id. at 63 n.27 (acknowledging that

“Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny” such that even facially neutral laws could empower “local enforcement of [such laws in a way that]

discriminated against blacks”). Indeed, to the extent

that looking to 1868 as a secondary period of historical

relevance is helpful to understand what the ratifiers

of the Fourteenth Amendment intended to protect,

these laws from prior to ratification of that Amendment demonstrate the sorts of evils those ratifiers

sought to end, not the practices they intended to enshrine in our Nation’s foundational charter.

III. Hawaii’s law is a modern deviation from

our nation’s historical traditions.

While Hawaii’s presumptive ban has no grounding in this Nation’s historical tradition of firearm regulation, its true genealogy is straightforward. The

idea was promoted in a 2020 article that appeared in

the Journal of Law, Medicine and Ethics. See Ian

Ayres & Spurthi Jonnalagadda, Guests with Guns:

28

Public Support for ‘No carry’ Defaults and Private

Land, 48 J.L., MED. & ETHICS 183, 183 (2020). The authors noted that their proposal, to presumptively ban

carriage of firearms on private property open to the

public absent the owner’s express permission, was decidedly not the state of the law at the time. With the

exception of some specific rules the authors identified

regarding churches or places selling alcohol, “no state

[had] adopted generalized ‘no carry’ defaults for retail

establishments.” Id. at 184 (emphasis added). And

states often made it burdensome for owners to keep

firearms off their premises “by imposing strict and

specific” rules for how to inform patrons they were not

welcome to carry a firearm or by immunizing retail

establishments from tort liability if they allowed, but

not if they forbid, carrying firearms. Id. & n.20.

The idea was not immediately taken up because,

at the time, states like Hawaii had other options for

limiting the ways their citizens could exercise the

right to keep and bear arms. Then, on June 23, 2022,

this Court struck down New York’s “good cause” requirement to acquire a handgun carry license in

Bruen, and the most significant of those options disappeared. Hawaii passed its bill implementing Ayres’

and Jonnalagadda’s idea less than a year later (as did

four of the other six may-issue states). See HAW. REV.

STAT. § 134-9.5(a); CAL. PENAL CODE § 26230(a)(26);

MD. CODE ANN. CRIM. LAW § 6-411(d); N.J. STAT. ANN.

§ 2C:58-4.6(a)(24); N.Y. PENAL LAW § 265.01-d(1). In

testimony in support of the restriction, Hawaii’s attorney general warned that Bruen “represents a very significant and disruptive change for our State” and commended the bill for “identif[ying] policies that we believe would help address the significant risks

29

presented by the increased public carrying of firearms.” Testimony of the Department of the Attorney

General on H.B. No. 984, H.D. 1 at 2 (Feb. 24, 2023),

https://perma.cc/6QEF-ST9K. With respect to the presumptive ban specifically, the attorney general offered

no historical justification for the law, but did approvingly cite Ayres and Jonnalagadda’s research. Id. at 9.

And giving the lie to the claim that the law was intended to buttress the rights of property owners to

choose whether to allow firearms on their property,

Hawaii’s law included several other restrictions entirely barring carry on categories of private property,

regardless of owner preference. See, e.g., HAW. REV.

STAT § 134-9.1(a)(4) (barring firearms at “[a]ny bar or

restaurant serving alcohol or intoxicating liquor”). It

could hardly be clearer that Hawaii’s law is, far from

firmly rooted in our history, a modern deviation

spurred by a desire to blunt the effect of this Court’s

decision in Bruen.

CONCLUSION

The Court should hold Hawaii’s “no carry default”

rule is unconstitutional under the Second Amendment.

30

November 24, 2025

Respectfully submitted,

CODY J. WISNIEWSKI

FPC ACTION

FOUNDATION

5550 Painted Mirage

Road, Suite 320

Las Vegas, NV 89149

(615) 955-4306

cwi@fpcafhq.org

DAVID H. THOMPSON

Counsel of Record

PETER A. PATTERSON

WILLIAM V. BERGSTROM

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae