Reply 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 A ppeals for the Ninth Circuit

REPLY BRIEF OF PETITIONERS

Kevin O’Grady

Attorney at Law

1164 Bishop Street,

Suite 1605

Honolulu, HI 96813

(808) 521-3367

kevin@kevinogradylaw.com

A lan A lexander Beck

Counsel of Record

Attorney at Law

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

alan.alexander.beck@gmail.com

Mark W. Pennak

Maryland Shall Issue, Inc.

9613 Harford Road,

Ste C #1015

Baltimore, MD 21234

(301) 873-3671

m.pennak@me.com

Counsel for Petitioners

January 9, 2026

131845

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

ARGUMENT .............................................................. 3

I. CARRYING OUTSIDE THE HOME

FALLS WITHIN THE TEXT OF THE

SECOND AMENDMENT .................................. 3

A. The Default Rule Regulates ArmsBearing Conduct ........................................... 3

B. National Traditions Are Controlling ............ 6

II. HAWAII HAS NOT MET ITS BURDEN OF

PROVING

THAT

ITS

LAW

IS

CONSISTENT WITH OUR NATION’S

HISTORICAL

TRADITION

OF

FIREARMS REGULATION ............................ 10

A. Any Law That Effectively Negates The

Right Is Not Enacted For A “Permissible

Reason” ........................................................ 10

B. The Implied License To Enter Does Not

Exclude Firearms ........................................ 17

C. Anti-Poaching Laws Are Not Analogous.... 18

D. Black Codes Cannot Be Proper

Analogues .................................................... 23

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Antonyuk v. James,

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

cert. denied, 145 S.Ct. 1900 (2025) ........... 18, 20, 22

Baird v. Bonta,

No. 24-565, --- F.4th ---,

2026 WL 17404 (9th Cir. Jan. 2, 2026) ................ 23

Barrett v. United States,

423 U.S. 212 (1976) ............................................... 16

Bittner v. United States,

598 U.S. 85 (2023) ................................................. 16

Breard v. City of Alexandria,

341 U.S. 622 (1951) ................................................. 5

Choda v. Hawaii Cnty.,

1:21-cv-00384-DKW-RT Doc. No. [14] .................. 11

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ............................................... 13

Commonwealth of Puerto Rico v. Sanchez Valle,

579 U.S. 59 (2016) ................................................... 9

Coyle v. Smith,

221 U.S. 559 (1911) ................................................. 9

Day v. Cnty. of Hawaii,

1:23-cv-00576-LEK-RT Doc. No. [19] ................... 12

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................... 7, 8, 13, 15, 20

iii

Doe v. Dynamic Physical Therapy, LLC,

No. 25–180, ---- S.Ct. ----,

2025 WL 3506945 (Dec. 8, 2025) ............................ 9

Espinoza v. Mont. Dep’t of Rev.,

591 U.S. 464 (2020) ................................................. 8

Florida v. Jardines,

569 U.S. 1 (2013) ..................................................... 4

Fotoudis v. City and Cnty. of Honolulu,

54 F. Supp. 3d 1136 (D. Haw. 2014) ..................... 11

Gamble v. United States,

587 U.S. 678 (2019) ................................................. 8

Grell v. County of Hawaii,

CV 23-00328 JAO-RT Doc. No. [20] ..................... 12

Hardaway v. Nigrelli,

639 F. Supp. 3d 422 (W.D.N.Y. 2022)................... 18

Kealoha v. Cnty. of Hawaii,

1:25-cv-00281 Doc. No. [14] .................................. 11

Koons v. Attorney Gen. N.J.,

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

rehearing en banc granted, Nos. 23-1900,

23-2043, --- F.4th ----, 2025 WL 3552513

(Dec. 11, 2025) .................................................. 20-22

Lara v. Comm’r Pa. State Police,

125 F.4th 428 (3d Cir. 2025) ........................... 19, 20

Lloyd Corp. v. Tanner,

407 U.S. 551 (1972) ................................................. 6

Lynce v. Mathis,

519 U.S. 433 (1997) ............................................... 13

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) ................................................... 9

iv

Maui Ammo & Gun Supply v. Maui Cnty.,

1:22CV00138 ......................................................... 11

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................. 8

McKee v. Gratz,

260 U.S. 127 (1922) ........................................... 4, 19

Moore v. Harper,

600 U.S. 1 (2023) ..................................................... 8

Muscarello v. United States,

524 U.S. 125 (1998) ............................................... 15

Nelson v. City and Cnty. of Honolulu,

1:24-cv-00100-MWJS-RT Doc. No. [25] ................ 11

New York State Rifle & Pistol

Association, Inc. v. Bruen,

597 U.S. 1 (2022)..... 1-4, 6-8, 10, 12-14, 17, 18, 20-23

Nickel v. Connors,

1:20-cv-00330-JMS-RT Doc. No. [22] ................... 11

Pagba v. City and Cnty. of Honolulu,

1:22CV00521 ................................................... 11, 12

Peter v. Lopez,

1:24-cv-00508-MWJS-RT Doc. No [18] ................. 12

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................... 8

Roa v. City and Cnty. of Honolulu,

1:21-cv-00333-DKW-KJM Doc. No. [14] ............... 11

Roa v. Lopez,

1:23-cv-00079-MWJS-RT ...................................... 12

Roberts v. Ballard,

1:18CV00125 ......................................................... 12

v

Roberts v. City and Cnty. of Honolulu,

1:15CV00467 ......................................................... 11

Roberts v. Connors,

1:19CV00165 Doc. No. [25] ................................... 11

Rowan v. USPO,

397 U.S. 728 (1970) ................................................. 5

Santucci v. City and Cnty. of Honolulu,

No. 22-CV-00142-DKW-KJM,

2022 WL 17176902 (D. Haw. Nov. 23, 2022) ....... 11

Shelby County v. Holder,

570 U.S. 529 (2013) ............................................. 8, 9

Shiroma v. Hawaii Cnty,

1:25-CV-00181 JAO-WRP Doc. No. [23] ............... 11

State v. Foster,

128 Haw. 18, 282 P.3d 560 (2012) ........................ 15

State v. Hoshijo ex rel. White,

102 Haw. 307, 76 P.3d 550 (2003) ........................ 14

Teter v. Lopez,

125 F.4th 1301 (9th Cir. 2025) ............................. 12

Thompson v. Hawaii,

1:24-cv-00333-DKW-WRP ..................................... 12

Timbs v. Indiana,

586 U.S. 146 (2019) ................................................. 8

Tyler v. Hennepin County,

598 U.S. 631 (2023) ................................................. 8

United States v. Rahimi,

602 U.S. 680 (2024) ............ 1-4, 7, 10, 17, 18, 22, 23

Village of Schaumburg v.

Citizens for a Better Env’t,

444 U.S. 620 (1980) ................................................. 5

vi

Virginia v. Moore,

553 U.S. 164 (2008) ................................................. 8

Young v. Hawaii,

No. 12-17808 (9th Cir.) at Dkt. # 16-2

(filed March 27, 2013) ........................................... 21

Young v. Hawaii,

1:12-cv-00336-HG-BMK ........................................ 12

Yukutake v. Conners,

554 F. Supp. 3d 1074 (D. Haw. 2021) ................... 11

Yukutake v. Shikada,

1:22-cv-00323-JAO-KJM Doc. No. [41]................. 12

Constitutional Provisions

U.S. Const. art. VI, cl. 2 ............................................. 9

U.S. Const. amend. I .................................................. 5

U.S. Const. amend. II ............................ 1, 3-11, 13, 22

U.S. Const. amend. IV ................................................ 8

U.S. Const. amend. V ................................................. 8

U.S. Const. amend. VI ................................................ 8

U.S. Const. amend. VIII ............................................. 8

U.S. Const. amend. XIV ........................................... 23

Statutes

18 U.S.C. § 926B....................................................... 14

18 U.S.C. § 962C....................................................... 14

Act of Dec. 21, 1771, preamble, Laws of New

Jersey 25 (1821) .................................................... 19

Act of Feb. 20, 1893, 1893 Or. Laws 79 ................... 22

H.R.S. § 134-5(a)....................................................... 14

vii

H.R.S. § 134-9.1(a).................................................... 16

H.R.S. § 134-9.1(b)(7) ............................................... 16

H.R.S. § 134-9.3 ........................................................ 15

H.R.S. § 134-9.5 .................................................. 14, 16

H.R.S. § 134-9.5(a).................................................... 15

H.R.S. § 134-9.5(b).................................................... 15

H.R.S. § 134-9-5(b)(2) ............................................... 14

H.R.S. § 134-9.5(d) ................................................... 14

H.R.S. § 134-25 ......................................................... 14

Statute of Northampton, 2 Edw. 3 c. 3 (1328) ......... 19

Other Authorities

Cramer & Olson, Pistols, Crime, and Public

Safety in Early America, 44 Willamette L.

Rev. 1-2 (2008) ....................................................... 21

Kopel & Greenlee, The “Sensitive Places”

Doctrine: Locational Limits on the Right to

Bear Arms, 13 Charleston L. Rev. 203, 205

(2018) ..................................................................... 17

Parks, Joint Service Combat Shotgun Program,

The Army Lawyer 17 (Oct. 1997) ......................... 21

Scalia & Gardner, Reading Law: The

Interpretation of Legal Texts, 140-43 (2012) ........ 16

1

INTRODUCTION

New York State Rifle & Pistol Association, Inc. v.

Bruen, 597 U.S. 1, 33 (2022), holds that “the Second

Amendment guarantees a general right to public

carry.” Through the enactment of its default rule,

Hawaii has effectively destroyed that right. That

broad prohibitory regime cannot be justified under

this Nation’s historical tradition and the “balance

struck by the founding generation,” as required by

Bruen and United States v. Rahimi, 602 U.S. 680, 692

(2024). The default rule is incompatible with the text,

history and tradition of the Second Amendment and

is thus unconstitutional.

Hawaii concedes there is a general implied license

to enter private property open to the public but

contends that at the Founding this implied license did

not extend to armed entry onto private property

without the owner’s prior consent. That assertion is

both unsupported and contrary to actual practice

during the Founding era. Undaunted, Hawaii argues

that the scope of this implied license is governed

exclusively by “local law and customs” thus leaving

Hawaii free to define the scope by reference to the

19th century royal decrees of King Kamehameha and

unique Hawaiian traditions. But Bruen and Rahimi

make clear the Second Amendment right is controlled

by this Nation’s historical tradition and the balance

struck by the founding generation, not by the fiats of

King Kamehameha or by historical outliers like

Hawaii. The Ninth Circuit erred in holding that State

law challenges are subject to a different, lesser

standard.

2

Hawaii argues, in the alternative, that this

Nation’s historical traditions support its default rule.

But the analogues on which the State relies all fail the

“how and why” inquiry mandated by Bruen and

Rahimi. Each of those supposed analogues was an

anti-poaching law and was aimed at “trespassing” and

hunting on enclosed lands closed to the public. Worse

still, Hawaii insists that Reconstruction era Black

Code laws, designed to subjugate newly freed slaves,

may be used as proper analogues. This Court should

reject that shameful notion categorically.

Hawaii agrees with Petitioners that the default

rule is not a sensitive places law, but Hawaii

nonetheless seeks to apply the same sort of “sensitive

places” reasoning that the Ninth Circuit followed in

extending the court’s flawed “sensitive places” rulings

to the default rule. Hawaii does not deny that the

court below engaged in impermissible interest

balancing in distinguishing Hawaii’s rule from

California’s. This Court should correct these

erroneous rulings, all of which are in blatant defiance

of this Court’s precedents.

3

ARGUMENT

I.

CARRYING OUTSIDE THE HOME FALLS

WITHIN THE TEXT OF THE SECOND

AMENDMENT

A. The Default Rule Regulates Arms-Bearing

Conduct

We start, as always, with the text: “A well

regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II.

Bruen holds that the text “guarantees a general right

to public carry.” 597 U.S. at 33. “When the Second

Amendment’s plain text covers an individual’s

conduct, the Constitution presumptively protects that

conduct.” Id. at 31. In such cases, “the government

must demonstrate that the regulation is consistent

with this Nation’s historical tradition of firearm

regulation.” Id. at 17. The only question at the

threshold, then, is whether a law “regulate[s] armsbearing conduct.” Rahimi, 602 U.S. at 691.

Here, the textual inquiry is simple. Bruen already

unequivocably held that the plain text of the Second

Amendment “presumptively guarantees a general

right to public carry” and that right extends to

“locations frequented by the general community.” 597

U.S. at 33, 56. Hawaii’s default rule is covered by the

text because it prohibits people from carrying

firearms in all manner of places open to the public as

they go about their daily lives. That is the end of the

textual inquiry, for “when the Government regulates

arms-bearing conduct, as when the Government

4

regulates other constitutional rights, it bears the

burden to ‘justify its regulation.’” Rahimi, 602 U.S. at

691, quoting Bruen 597 U.S. at 24.

Hawaii attempts to avoid this commonsense

conclusion by arguing that there is no right to enter

private property while armed without the owner’s

prior consent and thus the default rule does not

regulate conduct protected by the Second

Amendment. Hawaii Br. 13-20. The question before

this Court addresses application of the default rule

with respect to private property held open to the

public. Hawaii does not dispute (nor could it) that the

public has an implied license to enter such property.

See Pet. Br. at 26-27; Brief of Amicus United States

at 25-27. Such property is part of the public space to

which the right applies.1

Nothing in the caselaw on which Hawaii relies is

to the contrary. Florida v. Jardines, 569 U.S. 1, 8

(2013), recognized that “‘[a] license may be implied

from the habits of the country,’” but held such a

license did not include the use by police of a drug

sniffing dog within “the boundaries of the curtilage” of

the home. 569 U.S. at 7-8. Jardines recognized an

“implicit license” for “the visitor to approach the home

by the front path, knock promptly, wait briefly to be

received.” Id. at 8. See also McKee v. Gratz, 260 U.S.

127, 136 (1922) (“[a] license may be implied from the

habits of the country”). Hawaii’s default rule bans all

1

This Court need not address whether carry on private

property not held open to the public falls within the text of

the Second Amendment.

5

entry even for the limited purpose of asking

permission.

Hawaii also errs in its reliance (Br. at 23) on

Breard v. City of Alexandria, 341 U.S. 622 (1951).

Breard held that a locality could prohibit door-to-door

solicitation without the owner’s consent, but Village of

Schaumburg v. Citizens for a Better Env’t, 444 U.S.

620, 631 (1980), cabined Breard to laws regulating

commercial speech. The Court in Village of

Schaumberg thus struck down an ordinance banning

door-to-door solicitation by charities because it was “a

direct and substantial limitation on protected

activity.” Id. at 636. Hawaii’s default rule imposes the

same sort of burden on “activity” protected by the

Second Amendment.

Hawaii’s reliance (Br. at 17) on Rowan v. USPO,

397 U.S. 728 (1970), fails for similar reasons. There,

the Court sustained the constitutionality of a federal

statute authorizing the Post Office to issue an order

banning

senders

from

mailing

pandering

advertisements to a particular addressee where such

restriction had been formally requested by the

addressee. The Court held that the sender’s First

Amendment right was “circumscribed only by an

affirmative act of the addressee giving notice that he

wishes no further mailings from that mailer.” Id. at

737. That holding might help Hawaii if it was

supporting a private owner’s decision to exclude

firearms. But it lends no support to Hawaii’s effort to

prohibit constitutionally protected activity on private

property when the owner has made no such decision.

6

Again, Petitioners do not contest the right of the

private owner to choose to exclude firearms from the

owner’s property. But that right belongs to the owner,

not the State. Private property does not “lose its

private character merely because the public is

generally invited to use it for designated purposes.”

Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Here,

Petitioners seek to enter private property only “for the

designated purposes” for which the property is being

held open to the public (e.g., shopping). Petitioners

merely wish to exercise “the general right to publicly

carry arms for self-defense” while doing so. Bruen, 597

U.S. at 31. The text of the Second Amendment covers

that conduct.

B. National Traditions Are Controlling

Hawaii asserts its default rule does not regulate

the right to keep and bear arms at step one of Bruen

because the scope of the implied license is determined

by “state law and local custom.” Hawaii Br. 20. Hawaii

thus contends there is no implied license in this case

because Hawaii’s “unique history—including its long

pre-statehood existence as an independent kingdom—

means its residents never developed a practice of

bringing guns into shops, convenience stores, and the

like.” Id. at 21. That argument is transparently

wrong.

Again, step one of Bruen turns on whether “the

Second Amendment’s plain text covers an individual’s

conduct” and Bruen squarely holds that the text

includes “the general right to publicly carry arms for

self-defense.” 597 U.S. at 17, 31. The meaning of the

text cannot vary State-by-State. The historical

7

traditions of a particular State are relevant only at

Bruen’s step two and only then to the extent they form

part of “the Nation’s historical tradition of firearm

regulations.” Id. at 24 (emphasis added). See also

Rahimi, at 689 (1924) (same). The “balance by the

founding generation” is controlling. Id. at 692. These

principles preclude Hawaii’s reliance on the unique

history of “the Kingdom of Hawai’i” or the 19th

century royal fiats imposed by King Kamehameha.

Hawaii Br. 21. King Kamehameha was not part of the

“founding generation” and his laws are not part of “the

Nation’s historical tradition.” Hawaii is an historical

outlier.

Hawaii’s attempt to impose a State-by-State

inquiry is akin to the Ninth Circuit’s erroneous

adoption of a special rule for adjudicating State cases.

See Pet. Br. at 42-44. Hawaii does not defend that

ruling and its reliance on Hawaii’s history fails for the

same reasons the Ninth Circuit’s holding fails. Id.

That approach is a direct contravention of Bruen’s

holding that “individual rights enumerated in the Bill

of Rights and made applicable against the States …

have the same scope as against the Federal

Government.” 597 U.S. at 37. Bruen and Heller both

applied a single standard in rejecting outlier State

restrictions. Bruen, 597 U.S. at 30, 65, 70; Heller, 554

U.S. at 629. Whether a given State law is an “outlier”

is judged by reference to National traditions, not

outlier State traditions.

Hawaii claims its reliance on Hawaii’s unique

history at Bruen’s step one “does not mean that the

scope of the Second Amendment varies by state.”

Hawaii Br. 21. But that is exactly what it would mean.

8

“Constitutional rights are enshrined with the scope

they were understood to have when the people

adopted them.” Heller, 554 U.S. at 634-35.2 The

Second Amendment “is not a second-class right

subject to an entirely different body of rules than the

other Bill of Rights guarantees.” Bruen, 597 U.S. at

70, quoting McDonald v. City of Chicago, 561 U.S,

742, 780 (2010) (plurality opinion).

States are not free to gut federal constitutional

rights by redefining well-established property rights.

See, e.g., Tyler v. Hennepin County, 598 U.S. 631, 638

(2023) (“[T]he Takings Clause would be a dead letter

if a state could simply exclude from its definition of

property any interest that the state wished to take.”)

(citation omitted); Moore v. Harper, 600 U.S. 1, 34-35

(2023) (“States ‘may not sidestep the Takings Clause

by disavowing traditional property interests’”)

(citation omitted). Allowing States to do so would

effectively create a special rule for the Second

Amendment, the very result this Court rejected in

Bruen. 597 U.S. at 70.

Hawaii is also not entitled to the special treatment

it seeks. The Constitution embodies “a ‘fundamental

principle of equal sovereignty’ among the States.”

Shelby County v. Holder, 570 U.S. 529, 544 (2013).

The United States “is a union of States, equal in

2

See also Ramos v. Louisiana, 590 U.S. 83, 90-92 (2020)

(Sixth Amendment); Timbs v. Indiana, 586 U.S. 146, 150

(2019) (Eight Amendment); Gamble v. United States, 587

U.S. 678, 702 (2019) (Fifth Amendment); Virginia v. Moore,

553 U.S. 164, 168 (2008) (Fourth Amendment); Espinoza v.

Mont. Dep’t of Rev., 591 U.S. 464, 482 (2020) (Establishment

Clause).

9

power, dignity, and authority.” Coyle v. Smith, 221

U.S. 559, 567 (1911). Under the Supremacy Clause,

U.S. Const. Art. VI, cl. 2, States “are bound to follow

federal law” regardless of their contrary historical

traditions. Doe v. Dynamic Physical Therapy, LLC,

No. 25–180, ---- S.Ct.----, 2025 WL 3506945 (Dec. 8,

2025) (per curiam).

Indeed, “‘the constitutional equality of the States

is essential to the harmonious operation of the scheme

upon which the Republic was organized.’” Shelby Co.,

570 U.S. at 544, quoting Coyle, 221 U.S. at 580. See

also Commonwealth of Puerto Rico v. Sanchez Valle,

579 U.S. 59, 69 n.4 (2016)(“a new State, upon entry,

necessarily becomes vested with all the legal

characteristics and capabilities of the first 13”). The

scope of the Second Amendment in Hawaii is

controlled by the “Nation’s historical tradition” and

“the balance struck by the founding generation” no

less than in any other State. “The public mischiefs

that would attend such a state of things would be truly

deplorable; and it cannot be believed that they would

have escaped the enlightened convention which

formed the [C]onstitution.” Martin v. Hunter’s Lessee,

14 U.S. 304, 348 (1816) (Story, J.).

Finally, Hawaii’s approach is unworkable. On

Hawaii’s theory, the scope of the Second Amendment’s

text in Alaska would be determined by reference to the

laws of the Tsar of Russia from whom Alaska was

purchased in 1867. https://bit.ly/4jgl8iT (last viewed

Jan. 8, 2026). Residents of twelve States west of the

Mississippi would be governed by the traditions of

France from which the United States purchased

828,000 square miles of territory in 1803 in the

10

Louisiana Purchase. https://bit.ly/4q3TjwS (last

viewed Jan. 8, 2026). And Floridians would be

controlled by the traditions of Spain which conveyed

much of modern-day Florida to the United States in

1819

in

the

Adams-Onis

Treaty.

https://bit.ly/44QpnvA (last viewed Jan. 8, 2026).

Bruen rejected reliance on Territorial laws for good

reasons. 597 U.S. at 67-68. Hawaii, which became a

Territory in 1900,3 is no exception.

II. HAWAII HAS NOT MET ITS BURDEN OF

PROVING THAT ITS LAW IS CONSISTENT

WITH

OUR

NATION’S

HISTORICAL

TRADITION OF FIREARMS REGULATION

A. Any Law That Effectively Negates The

Right Is Not Enacted For A “Permissible

Reason”

Hawaii’s default rule is part of Hawaii’s attempt to

nullify Bruen’s holding that the Second Amendment

includes the “general right” to carry in public for selfdefense. Pet. Br. at 17-20; Br. of Amicus United States

at 7-13. Any such nullification is not “a permissible

reason,” Rahimi, 602 U.S. at 692, as it uses

regulations for “abusive ends.” Bruen, 597 U.S. at 38

n.9. Such legislation thus fails at the outset without

more. Id. at 36 (“to the extent later history contradicts

what the text says, the text controls”); Id. at 31

(“exempt[ing] cities from the Second Amendment ...

would eviscerate the general right to publicly carry

arms for self-defense”).

3

See https://bit.ly/49uPKsx (last viewed Jan. 8, 2026).

11

Hawaii’s assertion that it “respects the Second

Amendment right to bear arms” (Br. 39) is risible. In

fact, Hawaii has massively resisted the right at every

turn.4 Hawaii argues the default rule serves the

4

See Nelson v. City and Cnty. of Honolulu, 1:24-cv-00100MWJS-RT Doc. No. [25] (stipulated injunction which

compelled Honolulu to stop its policy of excessive delays of

over one year to issue concealed carry permits); Fotoudis v.

City and Cnty. of Honolulu, 54 F. Supp. 3d 1136 (D. Haw.

2014) (overturning Hawaii’s ban on green card holders

owning firearms); Yukutake v. Conners, 554 F. Supp. 3d 1074

(D. Haw. 2021) (overturned two of Hawaii’s firearm

registration law and via settlement removed two County of

Honolulu firearm policies); Kealoha v Cnty. of Hawaii, 1:25cv-00281 Doc. No. [14] (stipulated injunction prohibiting

County of Hawaii from using police investigations to prohibit

ownership of firearms); Shiroma v. Hawaii Cnty., 1:25-CV00181 JAO-WRP Doc. No. [23] (stipulated injunction

prohibiting County of Hawaii from enforcing a lifetime ban

on firearm ownership for misdemeanor crime); Santucci v.

City and Cnty. of Honolulu, No. 22-CV-00142-DKW-KJM,

2022 WL 17176902 (D. Haw. Nov. 23, 2022) (enjoining

Honolulu’s firearms mental health policy); Choda v. Hawaii

Cnty., 1:21-cv-00384-DKW-RT Doc. No. [14] (stipulated

injunction as to the County of Hawaii’s policy which

prohibited firearms ownership for those convicted of certain

nonviolent crimes); Roa v. City and Cnty. of Honolulu, 1:21cv-00333-DKW-KJM Doc. No. [14] (stipulated injunction

enjoined Honolulu from prohibiting firearms ownership for

certain infractions); Nickel v. Connors, 1:20-cv-00330-JMSRT Doc. No. [22] (stipulated injunction enjoining Hawaii’s

ban on U.S. Nationals owning firearms); Maui Ammo & Gun

Supply v. Maui Cnty., 1:22CV00138 (Maui’s removed its

restrictions on the sale of electric gun after the onset of

litigation); Roberts v. Connors, 1:19CV00165 Doc. No. [25]

(settlement compelling the State to allow green card holder

to apply for a concealed carry license); Roberts v. City and

Cnty. of Honolulu, 1:15CV00467 Doc. No. [11-1] (settlement

compelling Honolulu County to remove its restrictions on

U.S. green card holders owning firearms); Pagba v. City and

12

supposedly legitimate purpose of protecting Hawaii’s

unique “tradition” of banning firearms by “striking a

careful balance designed to protect public safety and

vindicate the rights of private-property owners.” Hawaii

Br. 6. Hawaii contends that purpose “is plainly

legitimate” and that this Court should not “look behind”

this assertion to discern the “mental states” of

individual legislators. Id. at 41-42. That argument fails.

First, Bruen does not permit State legislatures to

“balance” away the general right to carry for selfdefense by reference to its notions of “public safety” or

the “rights of private-property owners.” This Court

Cnty. of Honolulu, 1:22CV00521 (removal of Hawaii’s lifetime

ban on firearm ownership for convictions for misdemeanor

crimes after onset of litigation); Grell v. County of Hawaii CV

23-00328 JAO-RT Doc. No. [20] (stipulated injunction

requiring County of Hawaii to remove its required waiver of

all privileges including attorney client privilege); Day v. Cnty.

of Hawaii, 1:23-cv-00576-LEK-RT Doc. No. [19] (stipulated

injunction regarding County of Hawaii’s concealed carry

permit policies); Yukutake v. Shikada, 1:22-cv-00323-JAOKJM Doc. No. [41] (stipulated injunction which enjoined

Hawaii’s ban on billy club carry); Roa v. Lopez, 1:23-cv-00079MWJS-RT (Hawaii removed its ban on switchblades after the

onset of litigation); Thompson v. Hawaii, 1:24-cv-00333DKW-WRP Doc. No. [20] (stipulated injunction regarding

County of Hawaii’s mental health policy regarding firearms

ownership); Peter v. Lopez, 1:24-cv-00508-MWJS-RT Doc. No

[18] (stipulated injunction enjoining Hawaii’s ban on

possession of firearms by individuals residing in Hawaii

pursuant to the Compact of Free Association); Roberts v.

Ballard, 1:18CV00125 (legalized electric weapons after the

onset of litigation); Teter v. Lopez, 125 F.4th 1301 (9th Cir.

2025) (legalizing possession of butterfly knives after the onset

of litigation); Young v. Hawaii 1:12-cv-00336-HG-BMK

(removing “may issue” concealed carry system after the

onset of litigation).

13

expressly prohibited such balancing in rejecting

“means-ends scrutiny.” 597 U.S. at 24. As the Court

explained, “[t]he Second Amendment ‘is the very

product of an interest balancing by the people’ and it

‘surely elevates above all other interests the right of

law-abiding, responsible citizens to use arms’ for selfdefense.” Id. at 26, quoting District of Columbia v.

Heller, 554 U.S. 570, 635 (2008). Hawaii does not

dispute that the Ninth Circuit used the same kind of

impermissible interest balancing in distinguishing

between California’s default rule, which the court

struck down, and Hawaii’s rule, which it sustained.

Pet. Br. at 38-39. All such resort to interest balancing

is barred by Bruen.

Second, the impermissible purpose of the default

rule is objectively obvious. Faced with Bruen’s

invalidation of Hawaii’s “may issue” licensing regime

that disarmed law-abiding persons everywhere in

public,5 Hawaii objectively accomplished “the same

feat by banning most places where someone may

carry.” Pet.App. at 178a (VanDyke, J., dissenting from

the denial of rehearing en banc). The result is to

exclude carry by licensees “on 96.4% of the publicly

accessible land in Maui County.” Id. at 174a. That

objective reality does not involve any inquiry into the

subjective motivations of Hawaiian legislators. See

Lynce v. Mathis, 519 U.S. 433, 442-43 (1997); Church

of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,

558 (1993) (Scalia, J., concurring in part and

5

See Bruen, 597 U.S. 15 n.2 (listing Hawaii as among the

States imposing “‘proper cause’ analogues” for carry

permits. Hawaii does not dispute that it almost never issued

carry permits prior to Bruen. See Pet. Br. at 1.

14

concurring in the judgment) (noting the difference

between “the object of the laws at issue” and “the

subjective motivation of the lawmakers”).

Hawaii asserts (Br. 42-43) its default rule reflects

property owners’ reasonable expectations. That

argument is both unsupported and fails because

nothing in our Nation’s historical tradition supports

such regulation for that purpose. Section 134-9.5

textually applies only to licensees who may not carry

or possess “a loaded or unloaded firearm” on private

property. Yet, Hawaii allows the possession and

transport of firearms on or through private property

by non-licensed persons, as allowed by H.R.S. §§ 1345(a); 134-25, or by persons exempted from the default

rule under Section 134-9.5(d), or by out-of-state police

officers and retirees who may carry without a State

license under 18 U.S.C. §§ 926B, 926C. This disparate

treatment of licensees makes clear Hawaii’s asserted

justification is pretextual and that the licensing

requirement is being used for “abusive ends.” Bruen,

597 U.S. at 38 n.9.

Hawaii erroneously claims that Petitioners are

“free to bring a gun into any business so long as an

employee gives them the okay.” Hawaii Br. 40.

Permission may only be accorded by “the owner,

lessee, operator, or manager of the property, or agent

thereof,” § 134-9-5(b)(2), not by any “employee” who

may not have authority to act as “agent” for these

purposes. See State v. Hoshijo ex rel. White, 102 Haw.

307, 76 P.3d 550, 562 (2003) (scope of agency is a

factual question). Such individuals are unlikely to be

available at outer edge of the property, particularly

where that property includes an adjoining private

15

parking lot. While authorization may also be given by

signage, Hawaii does not dispute that owners have

little incentive to deviate from the default rule, even

if they have no objection to firearms. As the Ninth

Circuit ruled, “that reality was ‘the impetus’ for

Hawaii’s rule.” Pet.App.57a. That conclusion is

supported by the record, a point Hawaii also does not

dispute. See Pet. Br. at 20; Pet. App. 383a-428a.

Hawaii is also wrong in asserting the licensee

could bring a firearm onto private property if “stored

appropriately in the vehicle.” Hawaii Br. 12. First,

allowing vehicle storage would hardly make the

statute constitutional. To the contrary, Hawaii

requires a “safe storage depository” in a vehicle,

H.R.S. § 134-9.3, which negates the right to have the

firearm “operable for the purpose of immediate selfdefense.” Heller, 554 U.S. at 635.

Second, and in any event, Section 134-9.5(b)

requires prior authorization “to carry or possess a

firearm on private property,” thus prohibiting all

possession, including in a vehicle. (Emphasis added).

See State v. Foster, 128 Haw. 18, 282 P.3d 560, 571

(2012) (applying Hawaii’s law of constructive

possession to include a firearm in a vehicle). Cf.

Muscarello v. United States, 524 U.S. 125, 126-127

(1998) (interpreting “the phrase ‘carries a firearm’” in

a federal statute to cover “convey[ing] firearms in a

vehicle, including in the locked glove compartment or

trunk of a car, which the person accompanies”).

Third, Section 134-9.5(a) provides that a licensee

may not “enter or remain on private property of

another person … unless the person has been given

16

express authorization.” (Emphasis added). That

prohibition bars any entry, even in a vehicle and even

for the purpose of asking permission. The statute’s use

of the present-perfect tense (“has been given”) makes

clear that the person must receive authorization

before “enter[ing]” private property. See Barrett v.

United States, 423 U.S. 212, 216 (1976) (“the present

perfect tense … denot[es] an act that has been

completed”). Grammar matters. See Scalia &

Gardner, Reading Law: The Interpretation of Legal

Texts, 140-43 (2012).

Finally, vehicle storage is addressed in Section

134-9.1(b)(7), as an exception for the “sensitive places”

bans imposed by Section 134-9.1(a) and that exception

is further limited to “carrying a firearm … in the

immediate area surrounding the person’s vehicle

within a parking area.” That exception does not allow

“entry” into “sensitive places” and does not apply at

all to the bans on entering or possessing a firearm on

private property separately imposed by Section 1349.5, which contains no such exception. Where a

legislature “includes particular language in one

section of a statute but omits it from a neighbor, we

normally understand that difference in language to

convey a difference in meaning.” Bittner v. United

States, 598 U.S. 85, 94 (2023) (collecting case law). In

short, even if it made a constitutional difference, there

is no storage or vehicle exception under the default

rule.

17

B. The Implied License To Enter

Does Not Exclude Firearms

Bruen found an “overwhelming evidence of an …

enduring American tradition permitting public carry.”

597 U.S. at 67. Hawaii does not dispute that firearms

were carried in shops and taverns and many other

places open to the public at the Founding. See NRA

Amicus Br. at 5-21; Pet.App.191a-97a (VanDyke, J.,

dissenting from the denial of rehearing en banc).

Instead, Hawaii argues that this tradition does not

apply to places “designed for purposes at odds with the

carry of firearms, such as toy stores, places of worship,

and meditation.” Hawaii Br. 24. That argument is

akin to the Ninth Circuit’s erroneous application of a

patently defective “sensitive places” methodology to

its default rule holding and fails for the same reasons.

See Pet. Br. at 40-42. Hawaii does not address that

ruling.

Bruen recognized an exception for “sensitive

places” such as “legislative assemblies, polling places,

and courthouses,” as well as the possibility of

“analogies to those historical regulations.” 597 U.S. at

30. But the underlying “principle” Rahimi, 602 U.S. at

681, is that such locations are limited to “exceptional

circumstances” Bruen, 597 U.S. at 38, such as where

the deliberative business of governance is conducted.

See Kopel & Greenlee, The “Sensitive Places”

Doctrine: Locational Limits on the Right to Bear Arms,

13 Charleston L. Rev. 203, 205 (2018). See Pet. Br. at

39-40. Hawaii does not deny it. That “principle” is

obviously inapplicable to private property open to the

public. Recent events confirm that violent attacks

necessitating armed self-defense can occur anywhere

18

in public, including in shops and places of worship.

See, e.g., https://bit.ly/4snXLYz (last viewed Jan. 8,

2026). See also Bruen, 597 U.S. at 74-75 (Alito, J.

concurring). Hawaii has no response to this reality.

In particular, the “founding generation,” Rahimi,

602 U.S. at 692, would have been surprised to hear

that it is inappropriate to carry firearms in places of

worship. “[C]olonial-era enactments […] mandated

such carry at places of worship.” Hardaway v.

Nigrelli, 639 F. Supp. 3d 422, 442 (W.D.N.Y. 2022),

affirmed in part, vacated in part, Antonyuk v. James,

120 F.4th 941 (2d Cir. 2024) cert. denied, 145 S.Ct.

1900 (2025).6 The Ninth Circuit below affirmed the

district court’s preliminary injunction in the California

cases on that point, holding that the California

plaintiffs “are likely to succeed” on their challenge to

California’s ban on carry in places of worship.

Pet.App. at 64a-67a. Hawaii ignores that holding.

C. Anti-Poaching Laws Are Not Analogous.

Hawaii relies on a few anti-poaching laws (Br. 35),

but such laws cannot be proper analogues because

they fail the “how and why” inquiry. Bruen, 597 U.S.

at 29. See Pet. Br. at 29. These anti-poaching laws

applied to trespass on enclosed private lands not held

open to the public, not to “unenclosed and

uncultivated land” which was open to the public “until

6

The Second Circuit held in Antonyuk that the challenge to

the original ban on carry in places of worship imposed by

New York in that case was mooted by a subsequent

amendment to the statute under which carry was permitted

in places of worship for “those persons responsible for

security.” 120 F.4th at 1014.

19

the owner sees fit to prohibit it.” McKee, 260 U.S. at

136. See Pet. Br. at 33. Hawaii admits that such

unenclosed private land was historically open to the

public to hunt and treat “as communal.” Hawaii Br.

33-34. “Poaching” or “trespass” cannot take place on

such lands.

Given that undisputed historical understanding, it

is not surprising that nothing in the anti-poaching

laws applied to property open to the public. The New

Jersey 1771 statute focuses on hunting concerns: “for

the Preservation of Deer and other Game and to

prevent trespassing with Guns, Traps, and Dogs.” Act

of Dec. 21, 1771, preamble, Laws of New Jersey 25

(1821). (Emphasis added). The statute contains none

of the usual exceptions for peace officers or those

responding to the hue and cry, exceptions that one

would expect if this were a broad ban on carrying

firearms on any premises for any reason. Cf. Statute

of Northampton, 2 Edw. 3 c. 3 (1328) (excepting “the

King’s servants in his presence, and his ministers in

executing of the King’s precepts ... and also upon a cry

made for arms to keep the peace”).

While Colonial societies may have wished to curb

poaching, nothing suggests that they wanted to ban

firearms carried for self-defense on property open to

the public. As the Third Circuit has explained, “[t]he

1721 statute appears to be primarily focused on

preventing Pennsylvanians from hunting on their

neighbors’ land, not on restricting the right to publicly

carry a gun.” Lara v. Comm’r Pa. State Police, 125

F.4th 428, 443 (3d Cir. 2025). Indeed, that statute was

later repealed and replaced in 1760 with a law that

prevented “‘fir[ing] a gun on or near any of the King’s

20

highways,’ which indicates that carrying a firearm in

public places was generally not restricted.” Id.

(citation omitted).

The State argues that “the 1771 New Jersey law

was enacted ‘to prevent trespassing with guns.’”

Hawaii Br. 36. That argument does not help Hawaii;

a person entering private property open to the public

simply is not “trespassing.” Hawaii claims the 1721

Pennsylvania and 1722 New Jersey laws “were

adopted because carrying firearms on someone else’s

property without their consent caused ‘divers Abuses,

Damages, and Inconveniencies.’” Hawaii Br. 37. These

statutes were all aimed at preventing the “damages

and inconveniencies” caused “by persons carrying

guns and presuming to hunt on other people’s land.”

Antonyuk, 120 F.4th 1046. Similarly, the 1763 New

York law cited by Hawaii (Br. 37) was passed to “‘more

effectually [] punish and prevent’ the ‘Practice of

Great Numbers of idle and disorderly persons ... to

hunt with Fire-Arms.’” Antonyuk, 120 F.4th at 1046.

“These colonial anti-poaching laws were neither

general prohibitions on public carry nor designed to

protect a ‘sensitive place’ in Heller’s and Bruen’s sense

of that term.” Koons v. Attorney Gen. N.J., 156 F.4th

210, 297 (3d Cir. 2025), rehearing en banc granted,

Nos. 23-1900, 23-2043, --- F.4th ----, 2025 WL 3552513

(Dec. 11, 2025) (Porter, J., concurring in the judgment in

part and dissenting in part.) “Colonial anti-poaching

laws shed no light on the constitutional right to carry

21

firearms for reasons unrelated to unlicensed hunting

and poaching, such as self-defense.” Id.7

Hawaii’s contention (Br. 35-36) that the term

“gun” historically included pistols is just wrong. “That

‘gun’ did not include ‘pistol’ is demonstrated by the

number of statutes that include both ‘gun’ and ‘pistol’

on a list of arms.” Cramer & Olson, Pistols, Crime, and

Public Safety in Early America, 44 Willamette L. Rev.

1-2

(2008)

(listing

colonial

statutes

and

advertisements that differentiated between the two).

“The term ‘fire-arm’” was also more restricted in

meaning than today. Contemporary documents from

as early as 1775, and as late as 1806 made clear that

the term “fire-arm” included “muskets, but not pistols,

or blunderbusses.” Id. at 3. Like a pistol, the

blunderbuss was a “close range, antipersonnel

weapon” not suitable for hunting. Parks, Joint Service

Combat Shotgun Program, The Army Lawyer 17 (Oct.

1997).8 Hawaii’s sources do not contradict that point.

Weapons suitable only for self-defense were not

covered by these laws. In short, these laws are not

“relevantly similar.” Bruen, 597 U.S. at 29.

Hawaii also relies on Reconstruction era laws from

Florida and Texas and an 1893 Oregon law. Hawaii

Br. 32-33. The district court below properly rejected

7

The Third Circuit recently granted rehearing en banc in

Koons on plaintiffs’ petitions. Nos. 23-1900, 23-2043, ECF

Dkt ## 158, 159 (Oct. 6, 8, 2025). New Jersey did not seek

rehearing from the panel’s decision striking down New

Jersey’s default rule. See Koons, 156 F.4th at 251-52.

8

Available through PACER in Young v. Hawaii, No. 12-17808

(9th Cir.) at Dkt. # 16-2 (filed March 27, 2013).

22

these laws, Pet. App. at 153a-154a, as did the Ninth

Circuit. Id. at 60a. Like the Second Circuit in

Antonyuk and the Third Circuit in Koons, the Ninth

Circuit held that “those laws likely did not apply to

property that was generally open to the public” and

were aimed at preventing “poaching.” Id. at 61a. See

Antonyuk, 120 F.4th at 1047; Koons, 156 F.4th at 25152; Pet. Br. at 31. Again, such laws do not satisfy the

“how and why” requirement imposed by Bruen and

Rahimi. “To the extent that there are multiple

plausible interpretations” of this history, the

interpretation allowing carry is “more consistent with

the Second Amendment’s command.” Bruen, 597 U.S.

at 44 n.11.

In addition to applying only to “enclosed premises

or lands,”9 the 1893 Oregon law is also far too late.

Bruen acknowledged that the “late-19th century” was

one in which there was an “uptick in gun regulation,”

but stated that “late-19th-century evidence cannot

provide much insight into the meaning of the Second

Amendment when it contradicts earlier evidence.” 597

U.S. at 66. Hawaii argues this Court need not decide

the appropriate time-period for historical analysis.

Hawaii Br. 38. But if Reconstruction era and latter

laws are relevant only where confirmatory of

Founding era practices, as Petitioners contend (Pet.

Br. at 29, 37-38), then Hawaii’s reliance on such laws

is misplaced. By the same token, the Ninth Circuit’s

reasoning is reduced to a flawed reliance on a single

law, the 1771 New Jersey statute that regulated

hunting with “guns” on enclosed lands not held open

to the public. See Pet. Br. at 33-36. Not even Hawaii

9

Act of Feb. 20, 1893, 1893 Or. Laws 79.

23

contends that a single law can be anything other than

an impermissible outlier. Id. at 28-29, 37.

D. Black Codes Cannot Be Proper Analogues

Hawaii acknowledges that the 1865 Louisiana law

is a Black Code but, remarkably, endorses its use as

an historical analogue. Hawaii Br. 37. That view must

be rejected outright. See Pet. Br. at 31-33; Baird v.

Bonta, No. 24-565, --- F.4th ----, 2026 WL 17404 at *15

(9th Cir. Jan. 2, 2026) (“Reliance on such racially

odious laws in this case is both conceptually suspect

and inconsistent with a proper application of Bruen.”).

The whole point of the Black Codes was to suppress

the civil rights of freed slaves. As this Court stated in

Rahimi, “Congress’s desire to enable the newly freed

slaves to defend themselves against former

Confederates helped inspire the passage of the

Fourteenth Amendment, which secured the right to

bear arms against interference by the States.” 602

U.S. at 690. A Black Code cannot be a legitimate

historical analogue. See Amicus Br. of NAAGA at 1031; Amicus Br. of J. Joel Alicea at 25-26; Amicus Br.

of NSSF at 25-26; Amicus Br. of FPC at 26-27.

Particularly misplaced is Hawaii’s reliance on the

Reconstruction era order of General D.E. Sickles.

Hawaii Br. 37-38. That order provided that the “rights

of all loyal and well-disposed inhabitants to keep and

bear arms will not be infringed, nevertheless this

shall not … authorize any person to enter with arms

on the premises of another against his consent.” Id.

Petitioners do not seek to enter private property

“against” the “consent” of any private property owner.

The whole point of an implied license to enter private

24

property open to the public is that the owner has

already given “consent.” General Sickles’ order has no

application to property held open to the public unless

the proprietor has expressly forbidden entry with a

firearm.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

KEVIN O’GRADY

Attorney at Law

1164 Bishop Street

Suite 1605

Honolulu, HI 96813

(808) 521-3367

Kevin@

KevinOGradyLaw.com

ALAN ALEXANDER BECK

*Counsel of Record

Attorney at Law

2692 Harcourt Drive

San Diego, CA 92123

(619) 905-9105

Alan.Alexander.Beck

@gmail.com

MARK W. PENNAK

Maryland Shall Issue, Inc.

9613 Harford Road,

Ste C #1015

Baltimore, MD 21234

(301) 873-3671

M.Pennak@me.com

Counsel for Petitioners

January 9, 2026