In Wolford v. Lopez, the Supreme Court is examining how far states may go in regulating licensed concealed-carry firearms after New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The case challenges Hawaii and California laws that restrict concealed carry in numerous “sensitive places” and, more significantly, prohibit licensed individuals from carrying firearms onto private property open to the public unless the owner gives express permission. The case places front and center a fundamental question: when does a state’s definition of property rights impermissibly burden Second Amendment rights?
In 2023, Hawaii enacted Act 52, which criminalizes concealed carry in a variety of designated locations and reverses the default rule for private property by prohibiting licensed carry absent affirmative consent from the property owner. California adopted a similar approach through Senate Bill 2, which likewise restricts concealed carry across a broad set of locations.
Licensed concealed-carry holders in both states sought injunctive relief, arguing that the laws violate the Second Amendment under the history-and-tradition framework established in Bruen. The district courts largely agreed, issuing preliminary injunctions. On appeal, the Ninth Circuit affirmed in part and reversed in part, evaluating individual categories of restricted locations and acknowledging the difficulty of applying Bruen’s historical-analogue test to modern regulations. The Supreme Court granted certiorari to address those questions.
Argument before the Court revealed two competing ways of viewing the challenged laws. On one hand, several Justices explored whether the statutes merely clarify background property-law principles—defining when consent exists—rather than restricting Second Amendment conduct directly. Justice Jackson repeatedly pressed this point, questioning whether the regulations truly implicate the constitutional right at all. On the other hand, Justice Gorsuch, along with other Justices, questioned whether a state may redefine property rules in a way that effectively limits constitutional rights, suggesting that formal reliance on property law cannot be used to evade constitutional constraints. The discussion returned repeatedly to Bruen and the difficulty of identifying appropriate historical analogues. Justice Alito focused on the level of generality courts should use when comparing modern regulations to historical practice. That inquiry prompted debate over historical firearm restrictions cited by the states, including post-Civil War era laws sometimes described as the Black Codes. Several Justices questioned whether laws enacted in discriminatory contexts provide reliable guidance for modern constitutional analysis.
Taken together, the Court’s questioning reflected ongoing uncertainty about the scope of state authority to regulate licensed carry in places open to the public and about how rigorously Bruen’s historical inquiry should be applied. The Court’s eventual decision could clarify both the relationship between property rights and the Second Amendment and the practical limits of Bruen’s history-and-tradition framework. Relatedly, the Court is set to hear argument on March 2 in United States v. Hemani, a Second Amendment challenge to 18 U.S. § 922(g)(3)’s prohibition on firearm possession by users of controlled substances—another case that, like Wolford, will test how Bruen applies to modern firearm restrictions.
A decision in Wolford is expected later this term. Stay tuned for Dykema’s decision alert analyzing the Court’s opinion and its implications for Second Amendment litigation nationwide, as well as coverage of Hemani.
For more information, please contact Chantel Febus, James Azadian, Mark Magyar, or Sadie Betting.