On October 3, the Supreme Court agreed to take up Wolford v. Lopez, a case framed around a question that only modern regulatory creativity could conjure: whether Hawaii may presume that licensed concealed-carry holders are forbidden from carrying a handgun on private property open to the public unless the owner practically waves them in with a notarized welcome note. The Ninth Circuit said yes. The Second Circuit, in classic fashion, said absolutely not. The Supreme Court now gets to referee.
After Bruen dared to suggest that states may not deny citizens carry permits on the theory that self-defense is somehow an exotic hobby, several states responded with sweeping location-based restrictions. Hawaii’s version bars permit holders from carrying on publicly accessible private property unless the owner gives “unambiguous written or verbal authorization” or posts signage so clear and conspicuous it could double as modern art. The Ninth Circuit embraced this approach in Wolford v. Lopez (2024), apparently comforted by the idea that permission should be the default rarity.
That position conflicts directly with the Second Circuit’s decision in Antonyuk v. James (2024), which ruled that New York’s similar ban violated the Second Amendment by flipping the historical presumption on its head. Traditionally, carry was permitted unless expressly forbidden—not the other way around. Inventing a brand-new nationwide rule that “no guns unless there’s a sign” had about as much historical support as adding emojis to the Constitution.
To justify Hawaii’s inverted presumption under Bruen’s “text, history, and tradition” test, the state pointed to two historical specimens: a 1771 New Jersey antipoaching law and an 1865 Louisiana statute with the dubious pedigree of the Black Codes. Judge Lawrence VanDyke, dissenting from the Ninth Circuit’s refusal to rehear the case, gently noted that one law targeted armed trespassers hunting on other people’s land and the other was part of a systematic effort to disarm newly freed Black citizens. Not exactly the shining lineage a state usually hopes to parade before the Supreme Court.
Sensing that the situation had begun drifting into the realm of constitutional fan fiction, the United States filed an amicus brief supporting certiorari. The federal government explained that five states, Hawaii among them, have adopted a novel rule allowing carry on private property only if the owner posts an affirmative “guns welcome” sign. The brief noted that resolving this issue would assist courts, legislatures, and — most quaintly — ordinary Americans merely trying to understand whether they may legally step onto a sidewalk café without violating a newly invented historical tradition.
Wolford’s petition also asked the Court to address a second question: whether the Ninth Circuit erred by leaning almost entirely on post-Reconstruction laws to justify modern restrictions, despite several circuits insisting that Bruen requires primary reliance on Founding-era history. The Court declined to take that issue directly, but the briefing all but guarantees it will make an appearance. For those keeping score at home, Mark W. Smith has already written the polite reminder “Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868,” in case anyone needed help remembering which century they’re in.
New Jersey, never one to be left out of a constitutional experiment, enacted its own prohibition on carry across essentially all private property without the owner’s express consent. But on September 10, after briefing in Wolford had wrapped, the Third Circuit in Koons v. Attorney General of New Jersey found the ban likely unconstitutional as applied to property open to the public. That ruling only strengthened Wolford’s challengers and added yet another voice to the growing judicial chorus asking what, exactly, these “reverse presumption” states think history is.
The Supreme Court now steps into familiar territory: an outlier law with no meaningful historical antecedent, much like the handgun bans struck down in Heller and McDonald, or New York’s discretionary licensing scheme in Bruen. However the Court resolves Wolford, its decision will almost certainly shape the fate of the many Second Amendment cases accumulating like snowdrifts in the handful of states still attempting to out-maneuver Bruen. The result promises to offer a clearer view of where constitutional tradition ends and modern improvisation begins — a distinction that has grown increasingly relevant in the post-Bruen era of regulatory invention.
Cartago Delenda Est
An Act For The Preservation Of Deer And Other Game And To Prevent Trespassing With Guns. (1771, December 21). Loc.gov; National Archives. https://tile.loc.gov/storage-services/service/rbc/rbpe/rbpe09/rbpe099/09903000/09903000.pdf
Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024) - Opinion of the Court. (2024, September 6). Justia Law. https://law.justia.com/cases/federal/appellate-courts/ca2/22-2908/22-2908-2024-10-24.html
District of Columbia v. Heller, 554 U.S. 570 (2008). (2008, June 26). Justia Law. https://supreme.justia.com/cases/federal/us/554/570/
Docket for 24-1046 - Wolford v. Lopez. (2025). Supremecourt.gov. https://www.supremecourt.gov/docket/docketfiles/html/public/24-1046.html
Golde, K. (2024, May 29). Antonyuk v. James at SCOTUSblog. SCOTUSblog. https://www.scotusblog.com/cases/case-files/antonyuk-v-james/
Koons v. Attorney General New Jersey, No. 23-1900 (3d Cir. 2025). (2025, September 10). Justia Law. https://law.justia.com/cases/federal/appellate-courts/ca3/23-1900/23-1900-2025-09-10.html
McDonald v. Chicago, 561 U.S. 742 (2010). (2010, June 28). Justia Law. https://supreme.justia.com/cases/federal/us/561/742/
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). (2022, June 23). Justia Law. https://supreme.justia.com/cases/federal/us/597/20-843/
Smith, M. (2022, December 7). Attention Originalists: The Second Amendment was adopted in 1791, not 1868 – Mark Smith. Harvard Journal of Law & Public Policy. https://journals.law.harvard.edu/jlpp/attention-originalists-the-second-amendment-was-adopted-in-1791-not-1868-mark-smith/
The Black Codes, 1865-1868. (2013). Internet Archive. http://archive.org/details/blackcodes18651800good
Wolford v. Lopez, 116 F.4th 959 (9th Cir.) - Opinion of the Court, (Ninth Circuit Court of Appeals September 6, 2024). https://cases.justia.com/federal/appellate-courts/ca9/23-16164/23-16164-2024-09-06.pdf