Amicus Curiae Brief — Jason Wolford, et al., Petitioners v. Anne E. Lopez, Attorney General of Hawaii
Supreme Court briefNov 24, 2025
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No. 24-1046
In the
Supreme Court of the United States
_____________
JASON WOLFORD, ALISON WOLFORD, ATOM KASPRZYCKI,
AND THE HAWAII FIREARMS COALITION, et al.,
Petitioners,
v.
ANNE E. LOPEZ, IN HER OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE STATE OF HAWAI‘I,
Respondent.
_____________
On Writ of Certiorari to the
United States Court of Appeals
For the Ninth Circuit
_____________
BRIEF OF CALIFORNIA GUN RIGHTS
FOUNDATION AND CENTER FOR HUMAN
LIBERTY AS AMICI CURIAE IN SUPPORT OF
PETITIONERS
_____________
BRADLEY A. BENBROOK
Counsel of Record
STEPHEN M. DUVERNAY
Benbrook Law Group, PC
701 University Ave., Ste. 106
Sacramento, California 95825
(916) 447-4900
brad@benbrooklawgroup.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Table of Authorities .............................................................. ii
Interest of Amici Curiae ...................................................... 1
Summary of Argument ........................................................ 2
Argument .............................................................................. 4
I. Because Default Rules Are “Sticky,” States That
Switch The Customary Private Proper-ty Default
Rule Do So In Hopes Of Drastically Reducing The
Exercise Of Second Amendment Protected Rights .. 4
A. Before Bruen, Gun Control Advocates Called For
Flipping Default Carry Rules To “Radically”
Reduce The Opportunities To Carry And, They
Hoped, To Deter Gun Ownership Generally ........ 4
B. B.Social Science Confirms That Changing Default
Rules Will Prompt Changes In Outcomes Due To
The Behavioral Tendency To Favor The Default,
Regardless Of Its Content ...................................... 7
II. The Five States That Flipped Their Default Rules
Did So To Defy Bruen, Not To Vindi-cate Property
Rights............................................................................. 12
A. The States Express Distaste For Bruen And
Overhaul Their Concealed-Carry Regimes ........ 13
B. At The Same Time, These States Desig-nated
Huge Portions Of Their Physical Spaces As
“Sensitive” Places Where Carrying Firearms Has
Been Criminalized .................................................. 16
III. California Bears Special Mention For Leading The
Massive Resistance To Heller and Bruen ................ 20
Conclusion ........................................................................... 24
ii
TABLE OF AUTHORITIES
Cases
Antonyuk v. James,
120 F.4th 941 (2d Cir. 2024) .......................................... 18
Chavez v. Bonta,
773 F. Supp. 3d 1028 (S.D. Cal. 2025) .......................... 23
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................................2, 7, 23, 24
Duncan v. Bonta,
133 F.4th 852 (9th Cir. 2025) ......................................... 22
Kipke v. Moore,
No. 23-1293, 2024 WL 3638025 (D. Md. Aug. 2,
2024) ................................................................................. 19
Koons v. Att’y Gen. New Jersey,
156 F.4th 210 (3d Cir. 2025) .......................................... 19
Miller v. Bonta,
646 F. Supp. 3d 1218 (S.D. Cal. 2022) .......................... 23
Miller v. Bonta,
699 F. Supp. 3d 956 (S.D. Cal. 2023) ............................ 22
New York State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) ............................1, 3, 5, 7, 13, 16, 17, 24
Pena v. Lindley,
898 F.3d 969 (9th Cir. 2018) .......................................... 21
Renna v. Bonta,
667 F. Supp. 3d 1048 (S.D. Cal. 2023) .......................... 21
Silvester v. Becerra,
583 U.S. 1139 (2018) ....................................................... 20
Silvester v. Harris,
41 F. Supp. 3d 927 (E.D. Cal. 2014) ............................. 20
iii
Silvester v. Harris,
843 F.3d 816 (9th Cir. 2016) .......................................... 20
Wolford v. Lopez,
116 F.4th 959 (9th Cir. 2024) ................................1, 13, 18
Statutes
2022 N.Y. Sess. Laws ch. 371 ............................................ 14
2023 Md. Laws, ch. 680 ...................................................... 14
Cal. Code Civ. Proc. § 1021.11 .......................................... 22
Cal. Penal Code § 26230 .............................................. 12, 17
Cal. Penal Code § 27510 .................................................... 23
Cal. Penal Code §§ 16740, 32310 ...................................... 22
Cal. Penal Code §§ 26815(a), 27540 .................................. 20
Cal. Penal Code §§ 27595(a), 16885(b) ............................. 23
Cal. Penal Code §§ 30600(a), 30605(a) ............................. 22
Cal. Penal Code §§ 32015(a), 32000, 31900 ...................... 21
Cal. Stat. 2023, ch. 249, § 1(a)–(m) ................................... 13
Haw. Stat. § 134-9.1(a) ....................................................... 18
Md. Code Crim. Law § 4-111(a)(8), (e) ............................ 19
Md. Code Crim. Law § 6-411(d) ....................................... 12
N.J. Stat. § 2C:58-4.6(a)............................................... 12, 19
N.Y. Penal Law § 265.01-d(1) ........................................... 12
N.Y. Penal Law § 265.01-e(2)............................................ 18
Other Authorities
Ayres & Gertner, Filling Gaps in Incomplete
Contracts: An Economic Theory of Default
Rules, 99 YALE L.J. 87 (1989) ....................................... 10
Ayres & Gertner, Majoritarian vs. Minoritarian
Defaults, 51 STAN. L. REV. 1591 (1999) ....................... 10
iv
Ayres & Gertner, Strategic Contractual
Inefficiency and the Optimal Choice of Legal
Rules, 101 YALE L.J. 729 (1992) ................................... 10
Ayres & Jonnalagadda, Guests with Guns: Public
Support for “No Carry” Defaults on Private
Land, 48 J.L. MED. & ETHICS 183 (2020) ................ 6, 10
Ayres & Vars, Weapon of Choice: Fighting Gun
Violence While Respecting Gun Rights (Harvard
Univ. Press 2020) ..........................................4, 5, 6, 7, 8, 9
Ayres, Preliminary Thoughts on Optimal Tailoring
of Contractual Rules, 3 S. CAL. INTERDISC. L.J. 1
(1993)................................................................................ 10
Ayres, Regulating Opt-Out: An Economic Theory
of Altering Rules, 121 YALE L.J. 2032 (2012) ............. 10
Ayres, Ya-HUH: There Are and Should Be Penalty
Defaults, 33 FLA. ST. U. L. REV. 589 (2006) ................ 10
Ben-Shahar & Pottow, On the Stickiness of Default
Rules, 33 FLA. ST. U. L. REV. 651 (2006)............... 10, 11
Blocher & Miller, What is Gun Control? Direct
Burdens, Incidental Burdens, and the
Boundaries of the Second Amendment, 83 U.
CHI. L. REV. 295 (2016).................................................... 5
Choi, et al., For Better or for Worse: Default
Effects and 401(k) Savings Behavior, in
PERSPECTIVES ON THE ECONOMICS OF AGING
(2004)................................................................................ 11
Johnson & Goldstein, Do Defaults Save Lives?, 302
SCIENCE 1338 (2003) ...................................................... 11
v
Korobkin, Inertia and Preference in Contract
Negotiation: The Psychological Power of Default
Rules and Form Terms, 51 VAND. L. REV. 1583,
(1998)................................................................................ 11
Korobkin, The Endowment Effect and Legal
Analysis, 97 NW. U. L. REV. 1227 (2003) ..................... 12
Korobkin, The Status Quo Bias and Contract
Default Rules, 83 CORNELL L. REV. 608 (1998) ... 10, 11
Madrian & Shea, The Power of Suggestion: Inertia
in 401(k) Participation and Savings Behavior, 116
Q.J. ECON. 1149 (2001) ................................................... 11
Maryland Gen. Assem., Dep’t of Legis. Servs.,
Fiscal and Policy Note (S.B. 1, 2023 Sess.) ................. 14
News Release, Office of the Governor, Gov. Green
Signs Firearms Legislation (June 2, 2023) ................. 15
Pilkington & Pengelly, US supreme court
overturns New York handgun law in bitter blow
to gun-control push, The Guardian (June 23,
2022) ................................................................................. 14
Press Release, State of New Jersey Governor Phil
Murphy, Governor Murphy Signs Executive
Order Directing State Departments and
Agencies to Identify Gun Violence Prevention
Measures (June 24, 2022) .............................................. 14
Press Release, State of New Jersey Governor Phil
Murphy, Governor Murphy Signs Gun Safety
Bill Strengthening Concealed Carry Laws in
New Jersey in Response to Bruen Decision (Dec.
12, 2022) ........................................................................... 14
Sunstein, Switching the Default Rule, 77 N.Y.U. L.
REV. 106 (2002) ............................................................... 11
vi
Thaler & Sunstein, Nudge: Improving Decisions
About Health, Wealth, and Happiness (Penguin
Books 2008) ................................................................... 7, 8
1
INTEREST OF AMICI CURIAE 1
California Guns Rights Foundation (“CGF”) is a nonprofit organization that serves its members, supporters,
and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related rights.
CGF conducts research, promotes constitutionally-sound
public policy, engages in litigation, educates the public
about federal, state, and local laws, and performs other
charitable programs. This Court’s interpretation of statutes and administrative law principles directly impacts
CGF’s organizational interests and the rights of CGF’s
members and supporters, particularly when it comes to
the Second Amendment’s protection of the “general right
to publicly carry arms for self-defense.” New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 31 (2022). CGF
is actively litigating many of California’s statutory restrictions on the right to carry in Carralero v. Bonta, C.D.
Cal. No. 8:23-cv-1798, 9th Cir. No. 23-4354 (consolidated
with Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024)). That
case includes a challenge to California’s law that, like the
Hawaii law at issue here, flips the default rule to prohibit
carrying on private property open to the public unless the
owner provides express consent.
The Center for Human Liberty is a nonprofit organization dedicated to defending and advancing individual
liberty and freedom, including the rights and liberties
1
No counsel for any party authored this brief in whole or in part, and
no entity or person, aside from amici curiae, their members, and their
counsel, made any monetary contribution toward its preparation or
submission. See Sup. Ct. R. 37.6.
2
protected by the Constitution. Consistent with this purpose, the Center for Human Liberty engages in legal efforts, including the submission of amicus briefs, to promote the protection of liberty. The Center is interested in
this case to ensure that the government’s regulation of
firearm ranges is consistent with the original meaning of
the Second Amendment as the Framers understood it.
SUMMARY OF ARGUMENT
When States take the extraordinary step of changing
longstanding default rules about whether affirmative consent is required to allow carrying firearms on private
property open to the public, they are not agnostic as to
whether citizens will carry more or less under the new regime. Indeed, the entire point of changing the default rule
is to significantly reduce opportunities for carrying in
public. As such, this is simply a new innovation in the Massive Resistance to Second Amendment protected rights
that has persisted since the Court decided District of Columbia v. Heller, 554 U.S. 570 (2008).
Section I of this brief recounts how prominent gun
control scholars encouraged States to switch their default
rules in pursuit of “disarmament.” Because social science
teaches that default rules are “sticky” in the sense that
people tend to adhere to the default (whatever it may be),
these scholars predicted that requiring affirmative consent for carrying would have a powerful disarming effect.
Indeed, the stated goal was not just to reduce carrying in
these public spaces, but also to make carrying so inconvenient that many would be deterred from bothering to
own a firearm at all.
3
This section also surveys prominent studies explaining
some of the reasons why human behavior makes default
rules so “sticky.” Most prominent for these purposes is
the powerful force of inertia. Remarkably, studies consistently demonstrate that humans prefer to stick with the
default rule even when it changes, regardless of whether
the new rule is more or less favorable to them than the old
rule.
Section II explains that, to the extent there is any
doubt in light of the social science, other circumstances
demonstrate that the five States changing their default
rules did so to thwart this Court’s recognition that “the
Second Amendment guarantees a general right to public
carry.” Bruen, 597 U.S. at 33. Each of these States included their default rule changes in their so-called “Bruen
response” bills soon after that case was decided. And each
State likewise decided that, after Bruen, huge portions of
their States suddenly needed (for the first time) to be
treated as “sensitive places” where carrying must be
criminalized. In short, it is simply not plausible for Hawaii
to contend, as it did in opposing certiorari, that the point
of switching the default rule was vindicating private property rights.
Finally, Section III addresses California’s many efforts at the vanguard of Second Amendment resistance.
It has imposed a host of statutory roadblocks to prevent
Californians from exercising their fundamental right to
keep and bear arms. Amicus CGF has been on the front
lines fighting back against these unconstitutional incursions: burdensome locational carry restrictions, onerous
waiting periods, prohibitions on the purchase-and-sale of
the Nation’s most popular handguns and rifles, bans on
4
the possession of common magazines, and even punitive
tactics to chill firearms litigation. That States are willing
to go so far to defy this Court’s rulings demonstrates the
urgency of consistent and plain direction for lower courts
considering Second Amendment challenges to recalcitrant States’ laws.
The Court should reverse.
ARGUMENT
I. Because Default Rules Are “Sticky,” States That
Switch The Customary Private Property Default Rule
Do So In Hopes Of Drastically Reducing The Exercise
Of Second Amendment Protected Rights.
States like Hawaii that flip their default rules about
carrying firearms on private property are following a
playbook written by opponents of Second Amendment
rights.
A. Before Bruen, Gun Control Advocates Called For
Flipping Default Carry Rules To “Radically” Reduce The Opportunities To Carry And, They
Hoped, To Deter Gun Ownership Generally.
Two years before Bruen was decided, Professors Ian
Ayres and Fredrick Vars authored Weapon of Choice:
Fighting Gun Violence While Respecting Gun Rights
(Harvard Univ. Press 2020), in which they offered a “todo list” of gun-control proposals. Weapon of Choice at 2.
While some of their proposals involved convincing people
to disarm themselves, they advocated for different legislative changes on the premise that “other people’s choices
can also lead to disarmament.” Id. at 3–4.
5
One such “easy fix” toward disarmament involved
“flip[ping] the default” rule governing carrying firearms
on private property open to the public. Weapon of Choice
at 5. In their view, “our laws have not sufficiently empowered private property owners to render their homes and
businesses gun free,” so “[c]arrying a firearm onto someone else’s property should be criminal trespass unless the
property owner explicitly consents.” Id.
The authors cited and built upon the theory expressed
by Professors Blocher and Miller that “neutral laws of
general applicability in property law, just like in negligence or intentional tort, set baselines that impact the
keeping and bearing of arms.” What is Gun Control? Di-
rect Burdens, Incidental Burdens, and the Boundaries of
the Second Amendment, 83 U. CHI. L. REV. 295, 315
(2016). “For example, requiring gun owners to seek permission to carry their guns on another person’s land, rather than requiring private property owners to identify
and exclude guns, would set a default rule that might well
be outcome determinative.” Id.
While Blocher and Miller considered it a difficult question whether changing such rules implicated the Second
Amendment, id. at 323–47, Ayers and Vars had no such
concerns. Writing before the Court stressed in Bruen that
“the Second Amendment guarantees a general right to
public carry,” 597 U.S. at 33, they asserted that “[n]othing
in the Constitution gives people a right to bear arms on
someone else’s property.” Weapon of Choice at 83. As
such, the authors analogized flipping firearm-carry default rules to rules governing nonprotected activity like
smoking. In a chapter titled “Privatizing Gun-Free
Zones,” they predicted that changing default rules would
6
not just reduce the number of places where Americans
would carry firearms, they would probably lead to a reduction in gun ownership:
Reducing the availability of spaces in which smoking is allowed has made being a smoker more difficult and inconvenient, which has contributed to a
decrease in smoking rates. A similar effect is likely
with gun ownership. If enlightened policy can lead
landowners to ban guns from their property, this
can vastly cut down on the geographic areas where
individuals can bear arms. This can make bearing
guns more inconvenient, which reduces the incentive to possess firearms, just as place restrictions
did with smoking.
Weapon of Choice at 83 (emphasis added).
Professor Ayers wrote separately to counsel lawmakers that, even if a majority of citizens did not support setting default rules to prohibit carrying on private property,
such “minoritarian defaults might be justified by externality or paternalism concerns.” Ayres & Jonnalagadda,
Guests with Guns: Public Support for “No Carry” Defaults on Private Land, 48 J.L. MED. & ETHICS 183, 183
(2020). And he reiterated his hope that changing the private property default rules would have the “knock-on effects [of] reducing preferences to carry and possess firearms more generally”:
Since many defaults are never altered, “no carry”
defaults are public-regarding by radically expanding the areas that are de jure gun free. Restricting
the places where guns can be possessed can not
only reduce the likelihood of impulsive misuse of
7
firearms …, such restrictions might also on the
margin, reduce overall demand for gun ownership.
While some people purchase guns solely to defend
their homes, others may purchase in part for use in
other contexts. As these contexts for use decrease,
so too might the demand for guns.
Id. at 184, 190 (emphasis added).
The theory, in short, is that “[e]xtending the no-carry
default to cover places of business would preserve property owner rights to permit or exclude guns from their
premises while simultaneously nudging those owners toward a public-regarding outcome.” Weapon of Choice at
88. “Public regarding” in this theory, of course, means
lower regard for the individual right to bear arms protected by the Second Amendment, despite this Court’s rejection of such public-policy interest-balancing in Heller,
554 U.S. at 634–35, and Bruen, 597 U.S. at 18–23.
B. Social Science Confirms That Changing Default
Rules Will Prompt Changes In Outcomes Due To
The Behavioral Tendency To Favor The Default,
Regardless Of Its Content.
The idea that switching default rules will have a
“nudging” effect on human behavior is strongly supported
by social science. Indeed, in Nudge: Improving Decisions
About Health, Wealth, and Happiness (Penguin Books
2008), Professors Thaler and Sunstein synthesized a host
of studies about the “powerful” effects of default rules. Id.
at 85.
Thaler and Sunstein advocated for using “libertarian
paternalism” to structure defaults in a variety of policy
8
contexts, e.g., financial investment, health care, school
choice, and environmental policy, but they did not touch
on setting rules for firearms.2 Nevertheless, their insights
about how “choice architecture” (the construction of rules
that influence choices) should “reflect a good understanding of how humans behave,” id. at 85, underscore why
States like Hawaii and California would flip the carry default rule to enlist property owners to ban carry for them.
Namely, just as Ayres hypothesized, Thaler and Sunstein
confirm that, when presented with a default condition,
“many people will take whatever option requires the least
effort, or the path of least resistance. … [I]f, for a given
choice, there is a default option—an option that will obtain
if the chooser does nothing—then we can expect a large
number of people to end up with that option, whether or
not it is good for them.” Id.3
Importantly, in this context the person choosing the
path of least resistance is the property owner that invites
members of the public onto their property, not the individual members of the public that may wish to exercise
their Second Amendment protected right to carry in pub-
2
Ayers and Vars made the similarly paradoxical claim that their
“choice-enhancing proposals are thus deeply libertarian,” Weapon of
Choice at 2, while also celebrating that property owners’ choices in
the new regime would disarm members of the public hoping to exercise their own freedom to carry.
3
Indeed, Thaler and Sunstein emphasize that many successful businesses and organizations “have discovered the immense power of default options,” and leverage such defaults to their benefit, highlighting as examples automatic product renewals and default settings on
software installation. Nudge at 87.
9
lic. Indeed, Ayres and Vars emphasize that business inviting members of the public often don’t want to be forced to
choose, so, to the extent they think about the issue at all,
they simply say their policy is to “follow the law.” Weapon
of Choice at 89. Yet the outcome is not in doubt when the
underlying default is changed to disallow carry in the absence of affirmative consent:
[I]t is unclear what it means to follow the law in a
jurisdiction that gives landowners the right to either prohibit or allow patrons to carry firearms.
The law gives landowners final say over whether
or not their properties will be gun-free zones. By
stating that they follow state and local laws, these
businesses are not offering any specific answer to
what their actual policy is. … But in practice, these
businesses prefer to stick with the default rule, regardless of what that rule is. Accordingly, there is
every reason to believe that only a small minority
of businesses and employers would actively contract around a no-carry default and allow patrons
to carry concealed weapons onto the premises.
Weapon of Choice at 89 (emphasis added).
There is also the matter of potentially upsetting customers by actually taking a position on whether carry will
be allowed, which further reinforces the inertial tendency
to do nothing: “Retailers may fear customer backlash if
they erect signs restricting or permitting gun carry in
their stores and may be inclined to abide by a state’s default rule regardless of their preferences. Thus, establishments may not be well situated to contract around the
right-to-carry default effectively and efficiently, even if
10
they wish to.” Guests with Guns, 48 J.L. MED. & ETHICS
at 188–89.4
Social scientists thus refer to defaults having “sticky”
qualities for precisely these (and other) reasons. See BenShahar & Pottow, On the Stickiness of Default Rules, 33
FLA. ST. U. L. REV. 651, 655–60 (2006) (summarizing various explanations offered by scholars for stickiness of legal default rules in contracts).
The explanation for stickiness most relevant here is
the so-called “status quo bias” resulting from the powerful
force of inertia. Professor Korobkin, for example, tested
the impact of default contract rules (prescribed by the
state) to determine whether “contracting parties view default terms as part of the status quo, and they prefer the
status quo to alternative states, all other things equal.”
Korobkin, The Status Quo Bias and Contract Default
Rules, 83 CORNELL L. REV. 608, 612 (1998). In a series of
experiments (looking at consequential damages limitations, commercial risk-allocation, and attorney fee recovery) Korobkin found that status-quo-bias exhibited strong
effects even as the default rules themselves were altered
4
Professor Ayres has written extensively about the effect of default
rules in a variety of contexts. See, e.g., Ayres & Gertner, Filling Gaps
in Incomplete Contracts: An Economic Theory of Default Rules, 99
YALE L.J. 87 (1989); Ayres & Gertner, Strategic Contractual Inefficiency and the Optimal Choice of Legal Rules, 101 YALE L.J. 729
(1992); Ayres, Preliminary Thoughts on Optimal Tailoring of Contractual Rules, 3 S. CAL. INTERDISC. L.J. 1 (1993); Ayres & Gertner,
Majoritarian vs. Minoritarian Defaults, 51 STAN. L. REV. 1591 (1999);
Ayres, Ya-HUH: There Are and Should Be Penalty Defaults, 33 FLA.
ST. U. L. REV. 589 (2006); Ayres, Regulating Opt-Out: An Economic
Theory of Altering Rules, 121 YALE L.J. 2032 (2012).
11
in each scenario. Id. at 633–47. In other words, “human
beings are cognitively disposed to prefer a default legal
rule in contractual negotiations, irrespective of the content of that legal rule.” Ben-Shahar & Pottow. 33 FLA. ST.
U. L. REV. at 655.
Korobkin summed up his conclusion: “[C]ontracting
parties are less likely to bargain around background—or
‘default’—contract terms established by the law than the
Coase Theorem would predict because the parties are
likely to view default terms as a constituent part of the
status quo, much like an entitlement.” Korobkin, Inertia
and Preference in Contract Negotiation: The Psychological Power of Default Rules and Form Terms, 51 VAND. L.
REV. 1583, 1585 (1998). After analyzing his experiments in
greater detail and evaluating alternative explanations for
the phenomenon, Korobkin concluded that a driving factor is individual bias in favor of inertia: a general preference for “inaction (which parties generally prefer)” over
“action (which parties prefer to avoid).” Id. at 1586; see
generally id. at 1587–1609.
These conclusions are replicated in multiple studies
and observations. See, e.g., Madrian & Shea, The Power
of Suggestion: Inertia in 401(k) Participation and Savings
Behavior, 116 Q.J. ECON. 1149 (2001); Choi, et al., For
Better or for Worse: Default Effects and 401(k) Savings
Behavior, in PERSPECTIVES ON THE ECONOMICS OF
AGING, pages 81–126 (2004); Johnson & Goldstein, Do Defaults Save Lives?, 302 SCIENCE 1338 (2003) (looking at
the impact of default rules on organ donation agreement
rates); Sunstein, Switching the Default Rule, 77 N.Y.U. L.
REV. 106, 108–09 (2002) (reviewing application of default
12
rules in various employment settings); Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV.
1227 (2003) (collecting examples of how default rules
shape behavior and legal analysis).
In short, changing default legal rules is a potent opportunity for the government to guide behavior by leveraging the powerful force of inertia. These tendencies
guarantee that flipping the longstanding default rule will
significantly reduce opportunities to carry firearms on
property open to the public.
II. The Five States That Flipped Their Default Rules Did
So To Defy Bruen, Not To Vindicate Property Rights.
Hawaii has contended in opposition to the petition for
certiorari that its default-flipping law was merely designed to “protect[] private property,” Br. in Opp. 1, and
“protect its citizens’ right to exclude,” id. at 20. Yet Hawaii
offers no explanation why its interest in protecting property rights suddenly manifested itself soon after Bruen
was decided.
Four states in addition to Hawaii (California, New
York, New Jersey, and Maryland) followed Ayres’ suggestion and enacted laws that switched their default rules
to now provide that carry was disallowed on all private
property, including property open to the public, unless the
property owner consented in some fashion. Cal. Penal
Code § 26230(a)(26); N.Y. Penal Law § 265.01-d(1); N.J.
Stat. § 2C:58-4.6(a)(24); Md. Code Crim. Law § 6-411(d).
There can be no question that all of these new laws were
designed to significantly limit carry in response to Bruen.
Multiple signs in addition to those discussed in Section I
demonstrate that these changes are just a new front in the
13
Massive Resistance to Second Amendment protected
rights following Heller.
A. The States Express Distaste For Bruen And Overhaul Their Concealed-Carry Regimes.
Each of these five states were “may issue” states before Bruen established a general right to carry, see
Bruen, 597 U.S. at 15 (listing states in addition to New
York that had “analogues to the ‘proper cause’ standard”).
They were not happy that Bruen upended their restrictive
regimes. Some of them openly celebrated that their legislative changes, including alteration of their private property default carry rules, were being enacted to resist
Bruen.
For example, California adopted a new private-property default rule—currently subject to a preliminary injunction after the Ninth Circuit’s decision in Carralero
(the companion case to Wolford), 116 F.4th at 995–96—in
2023’s Senate Bill 2. The bill acknowledged Bruen and
then listed a host of legislative “findings” to the effect that
allowing “more people [to] carry firearms in public places”
would, in the Legislature’s view, lead to more crime, violence, and other problems. Cal. Stat. 2023, ch. 249, § 1(a)–
(m). At a press conference announcing the bill, Governor
Newsom called Bruen a “bad ruling,” an “absurdity,” and
mocked the right to carry firearms outside the home.5
See Gov. Gavin Newsom (@CAgovernor), Press Conference on SB2,
TWITTER [X], https://bit.ly/46qMATf (last accessed Nov. 13, 2025)
(timestamps: called Bruen an absurdity at 41:08; used air quotes
while discussing “right” to carry outside home at 41:20; called Bruen
a bad ruling at 1:01:44).
5
14
New York included its private-property prohibition
within its so-called “Concealed Carry Improvement Act”
adopted barely a week after Bruen was issued. 2022 N.Y.
Sess. Laws ch. 371 (approved July 1, 2022). On June 23,
2022—the day Bruen was published—Governor Hochul
decried the Court’s ruling as “not just reckless [but] reprehensible,” and she vowed “to call the legislature back
into session to deal with this.” Pilkington & Pengelly, US
supreme court overturns New York handgun law in bitter
blow to gun-control push, The Guardian (June 23, 2022).
New Jersey likewise included its private-property restriction in legislation explicitly labeled as a “response” to
Bruen,6 which Governor Murphy referred to as a “mockery” and a “failure[] of the nation’s highest court.” Press
Release, State of New Jersey Governor Phil Murphy,
Governor Murphy Signs Executive Order Directing State
Departments and Agencies to Identify Gun Violence Prevention Measures (June 24, 2022).
Maryland enacted a new private-property default rule
in its so-called Gun Safety Act of 2023, which Governor
Moore signed into law in May 2023. 2023 Md. Laws, ch.
680 (S. Bill 1). This law, too, was prompted by Bruen. See
Maryland Gen. Assem., Dep’t of Legis. Servs., Fiscal and
Policy Note (S.B. 1, 2023 Sess.) at 6, 9 (reviewing impact
of Bruen on Maryland’s then-existing concealed carry li-
Press Release, State of New Jersey Governor Phil Murphy, Governor Murphy Signs Gun Safety Bill Strengthening Concealed Carry
Laws in New Jersey in Response to Bruen Decision (Dec. 12, 2022).
6
15
censing scheme); see also Ford, Gun bill receives preliminary approval in the Senate, Maryland Matters (March 9,
2023).
Hawaii was the last of the five States to act. Governor
Green signed Senate Bill 1230 (Act 52) on June 3, 2023.
Governor Green’s office explained that the law “[wa]s intended to mitigate the harm arising from the Supreme
Court decision [in Bruen], in accordance with the U.S.
Constitution.” News Release, Office of the Governor, Gov.
Green Signs Firearms Legislation (June 2, 2023); cf. Br.
in Opp. at 5 (asserting that “Act 52 was designed to bring
Hawaii’s laws into compliance with Bruen’s limits”).
*
*
*
It is worth emphasizing how far these rules, operating
as bans, will reach if they are upheld. In the likely absence
of consent by property owners, every person that works
at a privately-owned office building or retail establishment would not only be barred from carrying a firearm to
protect themselves in their workplace; they could not even
bring their firearm in their car to the parking lot. And outside of work, they would be stripped of a means to protect
themselves at ordinary (and often dangerous) private
properties like gas stations, grocery store parking lots,
and dimly lit ATMs. That is the goal of these laws—to undermine Bruen’s protection of the “general right” to
carry.
16
B. At The Same Time, These States Designated Huge
Portions Of Their Physical Spaces As “Sensitive”
Places Where Carrying Firearms Has Been Criminalized.
The legislative changes enacted along with switching
the default rules solidify the conclusion that the overall effort was aimed at reducing opportunities to carry firearms in places open to the public. All five States also designated a host of new “sensitive places” where carry
would now become a crime.
It is impossible to take seriously the notion that all of
these places suddenly became “sensitive” only after
Bruen was decided, since carry had been allowed in all of
these places before Bruen. The only thing that changed
was the number of people (potentially) eligible to carry
there given the Court’s explicit recognition that the Second Amendment protects the “general right to publicly
carry arms for self-defense.” Bruen, 597 U.S. at 31. This,
of course, does not change the “sensitive” nature of a location. Cf. id. (warning that “expanding the category of
‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines
the category of ‘sensitive places’ far too broadly”).
Yet these states have now cordoned off so many new
locations as “sensitive” that, when combined with the inevitable effects of changing the default private property
rule, nearly every location where ordinary people might
travel on a day-to-day basis would now be a new gun-free
zone. This effort is a blatant rebuke to the Court’s warning that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive
17
place’ simply because it is crowded … .” Bruen, 597 U.S.
at 31.
1. California’s Senate Bill 2 designated a host of new
“sensitive places” where carry had been allowed before
Bruen. Cal. Penal Code § 26230(a)(1)–(29). California’s
sweeping ban, for example, covers huge swaths of private
property every “building, real party, and parking area”
connected to private medical facilities ((a)(7)); every
“building, real party, and parking area” where a private
business sells “intoxicating liquor … for consumption on
the premises,” including breweries, wineries, and restaurants ((a)(9)); any “building, real property, or parking
area that is or would be used for gambling or gaming of
any kind whatsoever” ((a)(15)); any property or parking
area connected to a stadium or arena ((a)(16)), public library ((a)(17)), amusement park ((a)(19)), or zoo or museum ((a)(20)); every bank or “financial institution” along
with its parking area ((a)(23)); and every place of worship
and its parking area unless—as with the private property
default—the operator posts a uniform State-approved
sign permitting carry on the premises ((a)(22)).
The ban also covers all modes of public transportation
and every public transportation facility (subd. (8)), all
public gatherings open to the public that require a permit,
and every non-federal park (big and small) up and down
the State (subds. (10), (12), and (13)).7
All of these provisions are the subject of ongoing litigation. Carralero v. Bonta, C.D. Cal. No. 8:23-cv-1798; May v. Bonta, C.D. Cal.
No. 8:23-cv-1696. In the companion case to Wolford, the Ninth Circuit
7
18
2. Hawaii followed suit, banning carry at property
and parking areas connected to public and private medical
facilities; bars or restaurants that serve alcohol; sporting
and entertainment events; public libraries; all public
beaches, playgrounds, parks, recreation areas; financial
institutions; public transportation; amusement parks,
aquariums, carnivals, circuses, fairs, museums, water
parks, and zoos; and all public gatherings that require a
permit, along with the adjoining sidewalks. Haw. Stat. §
134-9.1(a)(2), (4), (5), (6), (9), (12), (13), (14), (15).
3. The rest of the states took a similar approach. New
York defined 20 “sensitive places” where carry was
banned. N.Y. Penal Law § 265.01-e(2)(a)–(t). These include all places of worship (e(2)(c)); libraries, public playgrounds, public parks, and zoos (e(2)(d)); public transit
(e(2)(n)); every business licensed for on-premises alcohol
consumption (e(2)(o)); all places where art, entertainment,
gaming, sporting, gaming, or similar events take place, including theaters, stadiums, racetracks, museums, amusement parks, concert venues, conference centers, banquet
halls, and similar venues (e(2)(p)); and public gatherings
that require a permit (e(2)(r)).8
upheld a preliminary injunction barring enforcement of the restrictions on carrying in medical facilities, on public transit, at public
gatherings that require a permit, at places of worship, and in financial
institutions. 116 F.4th at 1003.
Many of these provisions are subject to an ongoing challenge. See
Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), cert. denied, 145 S.
8
Ct. 1900 (2025).
19
New Jersey banned firearms at 25 designated locations. N.J. Stat. § 2C:58-4.6(a)(1)–(25). These places overlaps substantially with California’s and New York’s approach: public gatherings that require a permit ((a)(6));
every public park, beach, recreation facility, or playground ((a)10)); public libraries and museums ((a)(12));
every place where alcohol is sold for on-site consumption,
including all bars and restaurants ((a)(15)); all private and
public entertainment facilities ((a)(17)); all casino property, including any associated hotels, retail premises, restaurants, bars, and entertainment and recreational spaces
((a)(18)); public transit facilities ((a)20)); and all health
care facilities ((a)(21)).9
Maryland designated locations licenses to sell alcohol,
stadiums, museums, amusement park, racetracks, and
lottery facilities as “special purposes area[s]” and banned
carry in such locations. Md. Code Crim. Law § 4-111(a)(8),
(e).10
* * *
It is also worth mentioning that, as detailed above,
many of these new alleged “sensitive places” include private businesses. Thus, rather than vindicating property
owners’ rights to choose whether members of the public
9
Several of New Jersey’s locational restrictions are likewise being
challenged. See Koons v. Att’y Gen. New Jersey, 156 F.4th 210 (3d
Cir. 2025).
10
The constitutionality of Maryland’s carry bans is currently on appeal before the Fourth Circuit. Kipke v. Moore, No. 23-1293, 2024 WL
3638025 (D. Md. Aug. 2, 2024), lead appeal pending, No. 24-1799 (4th
Cir.).
20
may exercise Second Amendment rights on their property, these States have taken that decision out of the property owners’ hands. Any carry on their property is now a
crime, regardless of their preferences.
III. California Bears Special Mention For Leading The
Massive Resistance To Heller and Bruen.
It is little secret that California is one of the most hostile regulatory environments in the Nation for the Second
Amendment. The State’s elected leaders have made it a
point of pride to restrict, delay, prohibit, ban, tax, fine,
register, choke out, or otherwise frustrate nearly every
conceivable activity involving a firearm within California’s
borders. Amicus California Gun Rights Foundation
knows all about the State’s disregard of its citizens’ fundamental right to keep and bear arms: It has been
fighting back for well over a decade. Consider just a few
prominent examples:
The 10-Day Waiting Period. California imposes a tenday waiting period on all firearm purchases. Cal. Penal
Code §§ 26815(a), 27540. California is among the small minority of States that impose a waiting period on firearm
transactions, and the State’s 10-day waiting period is the
third-longest in the country; only Hawaii (14 days) and
Minnesota (30 days) impose longer delays. After Heller,
CGF spent most of a decade litigating the constitutionality of the waiting period, winning at trial (Silvester v. Harris, 41 F. Supp. 3d 927 (E.D. Cal. 2014)), before the Ninth
Circuit reversed (Silvester v. Harris, 843 F.3d 816 (9th
Cir. 2016)), with this Court ultimately denying a petition
for a writ of certiorari over Justice Thomas’ dissent (Silvester v. Becerra, 583 U.S. 1139 (2018)). CGF is a plaintiff
21
in a post-Bruen challenge to those same waiting-period
laws as applied to current firearm owners whose eligibility information is already in the California Department of
Justice’s firearm registry and those who are “auto approved” within minutes by the State’s electronic background check system; this case is currently pending at the
trial court. Curtin v. Bonta, S.D. Cal. No. 3:23-cv-793.
Constricting The Handgun Market Through A “Roster.” California imposes a draconian prohibition on the
purchase of modern semiautomatic handguns through its
process of maintaining a “roster” of handguns that are approved for sale in the State by prescribing a series of rare
(and, in some cases, literally unavailable) features. See
Cal. Penal Code §§ 32015(a), 32000, 31900. The net effect
of the roster is to freeze the State’s commercial market
for handguns to what was available on the market in 2013,
thus depriving Californians of the ability to benefit from
advances in safety and other features associated with
newer models. After Heller, CGF litigated the constitutionality of California’s handgun roster in a case stretching over a decade, culminating in this Court’s denial of a
petition for a writ of certiorari in 2020. Pena v. Lindley,
898 F.3d 969 (9th Cir. 2018), cert. denied sub nom. Pena v.
Horan, 141 S. Ct. 108 (2020). Following Bruen, CGF reinstituted a constitutional challenge to the roster and successfully obtained a preliminary injunction, which is currently on appeal. Renna v. Bonta, 667 F. Supp. 3d 1048
(S.D. Cal. 2023), appeal pending, No. 23-55367 (9th Cir.).
Banning So-Called “Large-Capacity” Magazines. In
2016, California banned the possession of magazines that
hold more than ten rounds of ammunition. Cal. Penal
22
Code §§ 16740, 32310. CGF has litigated the constitutionality of that ban since 2017. Wiese v. Bonta, E.D. Cal. No.
2:17-cv-903. The Ninth Circuit’s en banc decision upholding the magazine ban’s constitutionality is the subject of a
pending petition for a writ of certiorari. Duncan v. Bonta,
133 F.4th 852 (9th Cir. 2025), pet. for cert. docketed, No.
25-198.
Banning So-Called “Assault” Weapons. California
generally bans the manufacture, distribution, transportation, importation, sale, lending, and possession of certain
firearms it designates “assault weapon[s].” Cal. Penal
Code §§ 30600(a), 30605(a). These prohibitions apply to a
wide variety of commonly possessed semiautomatic firearms, most notably modern AR-style semiautomatic rifles. CGF is among the plaintiffs challenging this ban. The
district court held that California’s ban violated the Second Amendment and entered a permanent injunction
against its enforcement. Miller v. Bonta, 699 F. Supp. 3d
956 (S.D. Cal. 2023). That judgment remains on appeal.
No. 23-2979 (9th Cir.).
Imposing One-Way Fee-Shifting On Plaintiffs Bringing Firearms Cases. In 2022, California enacted an unconstitutional scheme to suppress firearms litigation by imposing a one-way fee-shifting penalty that applies only to
those bringing challenges to state or local firearms regulations. Cal. Code Civ. Proc. § 1021.11. Under that statute,
if a plaintiff challenging a firearm regulation loses a single
claim—even if every other claim is successful and all the
relief sought is obtained—the plaintiff and the plaintiff’s
attorneys would be liable for the government’s attorney
fees. CGF was among the plaintiffs who challenged this
23
onerous device. After the California Attorney General declined to defend the law, Governor Newsom intervened to
see that the matter was fully litigated. Ultimately, the district court held that Section 1021.11 violated the First
Amendment right to petition, the Supremacy Clause, and
the Fourteenth Amendment rights to due process and
equal protection. Miller v. Bonta, 646 F. Supp. 3d 1218
(S.D. Cal. 2022) (Miller II). The trial court entered a permanent injunction enjoining State officials from relying
on the fee-shifting law, and California declined to appeal.
Prohibiting 18-to-20-Year-Old Adults From Purchasing Firearms. California generally restricts 18-to-20-year
olds’ right to purchase firearms and entirely prohibits
their ability to purchase handguns or semiautomatic rifles. Cal. Penal Code § 27510. CGF is a plaintiff in ongoing
litigation challenging the constitutionality of the age ban.
As this Court has explained, the “right to possess and
carry weapons in case of confrontation” presumptively
“belongs to all Americans,” not “an unspecified subset.”
Heller, 554 U.S. at 580–81, 592. The district court upheld
the law last spring, and that judgment is currently on appeal. Chavez v. Bonta, 773 F. Supp. 3d 1028 (S.D. Cal.
2025), appeal pending sub nom. PWGG, L.P. v. Bonta, No.
25-2509 (9th Cir.).
Banning All Glock-Style Semiautomatic Handguns.
Earlier this year California enacted a law banning any
semiautomatic pistol with a “cruciform trigger bar”—effectively banning all Glock and Glock-style semiautomatic
handguns, which are among the most popular handguns
in the Nation. Cal. Penal Code §§ 27595(a), 16885(b). This
ban is flagrantly unconstitutional: The Second Amendment “protects the possession and use of weapons that are
24
‘in common use at the time.’” Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 627). A law that bans the sale of—
and correspondingly prevents citizens from acquiring—a
weapon in common use violates the Second Amendment.
CGF has joined a group of plaintiffs to challenge this ban.
Jaymes v. Bonta, S.D. Cal. No. 3:25-cv-2711.
*
*
*
Any list of California’s anti-gun laws could not be exhaustive. But CGF’s experience attests to the State’s unwavering defiance of “the Second Amendment’s ‘unqualified command.’” Bruen, 597 U.S. at 17 (citation omitted).
This case is an important opportunity for the Court to reiterate that the “very enumeration of the [Second Amendment] right takes out of the hands of government … the
power to decide on a case-by-case basis whether the right
is really worth insisting upon.” Heller, 544 U.S. at 634.
CONCLUSION
States like Hawaii and California must not be allowed
to evade the Second Amendment’s protection by enlisting
private property owners to ban the carrying of firearms
in spaces open to the public. The Court should reverse.
Respectfully submitted,
November 24, 2025
BRADLEY A. BENBROOK
Counsel of Record
STEPHEN M. DUVERNAY
Benbrook Law Group, PC
701 University Ave., Ste. 106
Sacramento, California 95825
(916) 447-4900
brad@benbrooklawgroup.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.