Wolford v. Lopez

Mr. Chief Justice may please the court.

Brewn holds, second amendment protects the right publicly carried firearms. By banning

people and carrying firearms, on private property that has opened the public, let's say first

“obtain affirmative permission, why has run roughshod over that constitutional right?”

The presumptive ban fairly inflates the second amendment. It's plain tax because it regulates arms bearing conduct. As such, the burden is on why it's justified, the presumptive ban with relatively similar historic way of laws, reflecting a national, historical tradition of firearms regulation. Why comes door closed carrying the burden? If presumptive

ban defies a national tradition of allowing people to carry on to private property, open

the public unless they own objects. Why is a threshold position that this court should adopt a state-by-state, community standard? Lack support in this court's precedent, and

“why is argument the laws of the kingdom of Hawaii? Determined petitioner, second amendment”

rights is completely without merit. The presumptive ban is inconsistent with our national historical tradition of firearms regulation. Why attempts to show a national tradition by relying on black codes, expressly pasted scripting against African Americans, and anti-poaching laws? These types of laws are nowhere near relevantly similar, because nothing on our nation's historical tradition begins to port Hawaii's effort to thwart the exercise of a fundamental

right, Hawaii's law cannot stand. I welcome this court's questions. We argue that this law prevents access to about 97% of public areas. How do you arrive at that? We're not arguing this specific law is banning 97% the honor. The overall package of laws passed by Act 52, ban is presumptively banned, carry on 96.4% and we arrive at that figure by having an architecture firm go through the public records of the County of Maui to

“determine which areas were regulated by this package of laws. I think it was 94. 97% and 96.4”

are you justice? That includes all the areas, the law bans. Correct? Yes, justice. I understood that much of Hawaii is state parks and state property. Correct? A portion of it. Pretty sizable portion. That 94 is over inclusive of private property. Correct? It includes parks and beaches. Now there are other areas, sensitive government areas, etc. Correct? That's correct, justice. So you say that there is a constitutional right to carry a gun on private

property? Yes, I'll just as. I've never seen that right. I mean, I understand that there

is a right to carry a gun on private property with an owner's consent, express or implicit correct? The second question is very simple. Is there a constitutional right to enter private property without an owner's express or implicit consent? The answer has to be simply no. You can't enter an owner's property without their consent. Correct? Express or implicit? Correct because I would be a trespass. All right. So if we start from there, then I start from the simple

proposition. You want to say that there is a custom that permits you to go on private property without the owner's express consent. Correct? Yes, you are. All right. So Justice Scalia said that every statement at the founding knew that you could not enter private property without permission to trespass, correct? It is, you're not allowed to come on private property that where you don't have permission to go to. All right. So if we're looking at a custom,

I thought under McKee, Justice Cones looked for evidence, quote, that a practice had prevailed in Missouri where the suit originated, whether you could collect shells in Missouri depended

what McKee holds, y'all. It didn't. It looked at the custom of Missouri where the suit

originated. McKee, it's definitely talked about the laws of the nation as being what's filed. McKee, Justice Scalia did in hard deans, but McKee, Justice Home, wasn't talking about the tradition of the nation. He was looking at whether the tradition of Missouri permitted

“people to go on to land to collect seashells. How to describe the words nation appears in that?”

It looks at that. All right. Well, I'll look at it more closely. But at the time of the founding or about the time, 71, 1721, 1722, up until the founding, there were at least three states who prohibited hunting, as you called it, or trespassing on private property with a done, correct? So, there was not a uniform national practice. There was, rather, of carrying on private property that's open to the public. Every case that you're every law that you're assigned to deals with

prohibitions on enclosed lands. And closed lands, there was a, those laws deal with, those lands were closed to the public. You can not necessarily look at, look at Mount Vernon, where George Washington lived, there was a county shop there. By definition, if, if, that's a closed land. In closed lands, I had referenced the Amika Spring for the United States. They referenced a larvae article by Sigmund, and it goes into expressed detail that in closed lands were closed to the public.

Council, do you agree picking up on that that who I could pass a law that prohibited the carry without the express consent of the owner on lands that were closed to the public on private residences? I do not, you're on her. Really? Like, so I couldn't, who I can't have that law about, you know, my house, or just the score such as house? Step one of the plain text would be

“complicated, because we're talking about carry, and then why would need to justify that with an actual tradition?”

And even assuming the three laws, I don't think three laws is sufficient to demonstrate national traditions. But do you agree that all of the business owners and maybe also private property owners in who I could get together and say, we don't want this, and they could not give consent. Let's say the law is flipped. It's illegal to enter if you have been denied permission to carry a gun on the property. You agree that all property owners could get together and say, we're denying

permission and they could put such, you know, placards up in their window, and then you would still not be able to carry a gun on 97% of the property in Hawaii. Yes, Justice, everyone, every private property

“on it has the right to affirmally put up a side otherwise it's not given permission for people to enter”

the property with fire. The crux of our argument is that Hawaii is flipped that historical default from them having to affirmably say guns are not allowed here to the current law. But I guess my question isn't that historical default that you're referencing really a default

that is rooted in property law and not constitutional law, not in the second amendment. I mean,

the argument that some have put forward is that this is really a property case, not a second amendment case. Yes, it is about guns, but the argument goes, what's really going on here is how states treat a private property owners consent under circumstances in which everyone agrees that consent is required. You just agreed that consent is required and so fine, there are many states and perhaps even most states that say we're going to imply that a property owner who opens his property to the

public is giving consent for people to carry a gun. Hawaii has said no, what we're going to do is we're going to say even if you've opened your property up to the public, you still have to have express consent. We are not going to make our own our property owners put up signs or be the one that has to affirmatively express the person who comes on has to have consent is everybody agreed and in Hawaii that consent is expressed. Why isn't that and all the cases that speak to it in the

historical record really about the property interest and property rights and not about the second

implicates. What I'm suggesting is that it might affect and the United States was here just

“last term talking or sitting talking about how you could have rights and regulations that”

affect someone's interests, but they actually don't implicate their constitutional rights. And so here I'm saying yes, gun owners are going to be affected because the property owners says no, I don't want you to bring your gun on unless you come to me and I give you express consent.

But that doesn't mean it implicates their second amendment rights for the purpose of ruin.

Well, in the brune, the court said there's a general right to carry it. General right to carry on public property. Just to spare it, just explore with you the fact that you don't have a general right to carry on private property. It's a right to carry in public, your honor, and not like to carry on public property. But but but but you do agree that there is no

“right to carry on private property without someone's without the owners consent, right?”

Here the second amendment is encade, especially when you can't, anywhere you carry in public. And here this lawsuit deals with private property that's open to the public. I understand, but what what what I'm suggesting is that let's let's suppose this lawsuit dealt with

someone's house and it's not open to the public. Do you concede that there is no second

amendment right to carry a gun into someone else's house? I do not, you do not, I can say. You, you would still be dealing with carry. If someone gives me an invitation, a general invitation to enter into their home. And there's a historical presumption that you're allowed to carry a firearm with you. Then if the government passed a law that says that flips that historical presumption. But I'm just suggesting that the historical presumption is about the consent,

not about your rights. We agreed at the beginning, I thought, I thought there was a general consensus that your right to carry is limited to the permission of the owner when you're talking about

private property. Like you've, you've already agreed that the second amendment right is,

I would say, subordinate. But you know, in the, in the panoply of rights, the right to exclude is superior because the owner can say no, you can't bring this gun in here. And so once you've done that, these laws that are about licensing or, you know, implying that the owner has consented

“are all in the realm of property law, I think, and not in the realm of the second amendment anymore.”

I don't see it that way. It's a great. All right. Yes, Your Honor. Thank you. Council, do you agree that the state as property owner could exclude someone, not not this implied consent law, but let's say that the state as property owner put aside the fact that the sensitive places here include state owned property. Assume that that's not so. Could the state as a property owner say that you can't carry a gun onto state owned property as a matter of consent

and a property law? No, Your Honor. I think that's a different analysis because of how we're dealing with direct state action. And the state doesn't have the right as a property owner to limit who carries a gun say into the governor's mansion. I think that there are certain locations that where it's all a matter of sensitive place. Yes, Your Honor. Council, you make an argument that why effectively destroys the right to bear arms. You discussed

that a little bit with Justice Thomas and with Justice Sotomayor. And I'm wondering where you fit think that that analysis fits into the two step, Bruin Framework Court announced. In this case, step one merely deals with the fact that the state of why that the carry is uncalled here. And once we go past, once we accept that carry is bearing a arms and issue here. Everything else is dealt with under step two, the historical analysis portion of this analysis

drawer. So it really doesn't matter whether it was actually 96% which we know it's not because you're dealing with the law as a whole. There's no means and scrutiny permitted by Bruin, correct? Interest balancing has been abrogate by Bruin. So there's no interest there. So if in fact, if Hawaii has a right to regulate a custom as opposed to a constitutional right to bear an arm on private property, then tough luck, correct? We have established an

that's irrelevant. Is there a right to carry a gun? As we know from Rahimi,

“there's a general principle that dictates that you have a general right to carry.”

And when a the government violates that rights, then because it violates that principle,

then the second. That's the interesting part. There certainly was a principle

of the stage regulating hunting on private and closed property. There was a history of in that least New York in 1763, just before the founding, that prohibited trespassing and hunting on other people's lands because trampling on the land was destroying it. So you don't need under Rahimi an exact duplicate historically. You just need an analogous principle. If the states could regulate there, why can't they regulate here?

Well, very simply, those laws deal with just are not anywhere close to the law issue here.

The state has pointed to a number of anti-pouching laws on property that was not open to the public, whereas here, there are regulate and Pacific type of carry for self-defense on private property, open to the public. I mean, these laws are just about not. What's open to the public

“and the license that you have to use that land is subject to custom? It's subject to an”

national tradition that we had at the time of the founding, you are. It's not specific custom that exists right now. It means in ends is not a part of our equation. I don't understand what pertinent that has. Because in order to do the brewed analysis, we look to see whether

a laws implicated by the Second Amendment right, then we look to see what the historical tradition

was in its contract. But that's simple. If you could regulate to not trespass, trample the ground, if you could regulate not to hunt, if it's not means in ends, why can't you regulate simply to switch a presumption that gives the owner the right it has to give you expressed consent to say you're nay to carry the good. Of two reasons, because that violates our nation's historical tradition, a firearms carry, and two it violates a principle. But we didn't actually see that

your red light is on. We've been talking about private property and public property. A gas station on the side of the highway is private property, it's owned by the gas company or whatever. Do you assume that you have the right to go on that private property, even without an expressed permission? Yes, John, even though it's private property? Yes, absolutely, you're all right. Is it a different analysis or the same analysis when you're talking about a dwelling

“along the side of the road? That's a different analysis, John, right? You have to see whether”

there's some sort of invitation to come in there. Is there under our law and invitation for example for people solicitating for people who want to drop off pamphlets about a particular restaurant? Yes, John, up until up to the door knob or the car, yeah, there is. Even though it's private property? Yes, stranger can walk off the sidewalk and go up to the door. Yes, up to the door, you are. Thank you. Justice Thomas?

Justice Indiana? Under Hawaii law, are there any other objects besides guns that a person may not possess when that person enters private property that is open to the public? Not my knowledge, John. Thank you. Just so there. In Hawaii for 200 years, there's been no custom of carrying weapons, Greg. Up until, ruin and, how in? Up until, ruin, you could not get a licensed carrier fire arm error. So, 78% of Hawaii residents and 64% of Hawaii gun owners do not think that loaded concealed

I wasn't aware of your 96% number either. Nothing about Hawaii's customs tradition

“or culture creates an expectation that the general public carries guns wherever they go, correct?”

Hawaii's part of the United States and as part of the United States, our national tradition is that people are allowed to carry on private property that's open to the public. This law is not banning you from doing that. It's just requiring you to get the owner's permission, correct?

And here, the law has always been, they had to imply right, enter on to, not Hawaii.

As, Hawaii's part of the United States, you know, and as, but if it's a local custom that controls, it's not a local custom that controls. We also send the law, have we permitted local custom to create a constitutionally protected right? Brune was very clear here that we're dealing with our national tradition here, is not local custom that controls it in the area of law. Does this, Kagan? Mr. Beck, the various statutes that Hawaii has cited

is going to the Brune's step two question. You say they're not close enough, and I guess I want to know why. I mean, I was struck by the fact that there are quite a number of statutes. The do exactly what the law does. They flip a default rule as to how explicit consent has to be. You know, they recognize that you don't have a right to go in without consent.

“You do have a right to go in with consent, and then the question is, how do we determine consent?”

And what default rule do we start with? And I guess what struck me about these statutes and about how close they are is that that's exactly what each of these statutes did. So why isn't that pretty good evidence under Brune's step two that this is something that states historically have done? The state is not sired to a single case that is wrongly similar to the wide issue here.

We've got basically two sets of laws. One of the anti-pulsion laws that dealt with private

property that was not open to the public, one, and part of that also is there are exceptions for people to be able to carry firearms onto those lands that for a purpose of self-defense. So land that's not open to the public where you still have a self-defense right, is it relevant when similar to the law that you're here? And the other sets of laws that that have been sired to are black codes. And those can't be relevant when similar as just

Cavanoz and Rahimi, we've moved away from that history. And in addition, it dealt with very you know discriminating, that's a very small sub-sexual society rather than prohibitions on the general right to carry. So, let me go back to the first thing. The idea that these are anti-pulsion laws. I mean, okay, Hawaii is not an anti-pulsion law, but I suppose I'm sort of stuck on the fact that that doesn't seem to be the relevant similarity. And where he may, we said, you know,

you can go up a level of generality. You don't have to have a historical twin. There can be

differences in Rahimi, the essential similarity that we thought controlled was just that the guns

were being used to protect against people who would be violent with their guns. And, you know, that's pretty general principle. And here the general principle is sort of similar. We think that there is a danger of various injuries occurring when you go on to private property with a gun. It might have been in the old days' poaching. It might be something else now, but because that that's so, we are going to use a default rule that says to the property owner if you want this,

“okay, but you have to say you want it. That's, you know, it seems to me the same. It's a different”

injury. It's not poaching anymore, but it seems to me the same state mechanism, the same kind of state regulation. Yes, Robert. One dealt with private property that was not open to the public, whereas this law is dealing with private property that's open to the public. And addition to that,

I just simply don't see how the liberal generality there, which simply swallowed the rule, if the

“squad were to accept those anti-poaching laws, has been relatively similar here at your order. Thank you.”

Yes, of course, it's. Your friends on the other side of the night circuit relied on two statutes in particular. One was a 1771 New Jersey law that you were just discussing with Justice Kagan. But the other one that was left on mention was in 1865 Louisiana statute. It was adopted immediately after the Civil War as part of an effort. It appears to disarm black people. Reconstruction Governor later explained that this law, of course, was aimed at the freedom.

Do you think the black codes, as they're called, should inform this court's decision-making

when trying to discern what is this nation's traditions? I do not, got her. Well, your friend on the other side says it should, and that the 1865 statutes are called dead ringer for this statute. The 1865 laws expressly passed its scribinating against African Americans or newly-fraid slaves. And I just don't see how it law like that can be used to be analogized to a modern-day

“law, this modern-day law, your order. Does Kavla, this is fair?”

Do you agree with everything in the government's brief? No, I do not, yeah. It's the United States government. The government, that's on. Yes, I understand. I agree with that. I'm not asking you to throw your case away. I fully endorse the United States' brief y'all. Okay, and then I just have one clarifying question. When Justice Kagan was pressing you on the analogies between the anti-poaching laws

and Hawaii's law, one of the things that you used to distinguish it was that the anti-poaching laws applied to private property and these applied to property that's open to the public. I'll be at private, but I thought you had initially told me that Hawaii couldn't do this with respect to property that was like a dwelling, a private residence, either, that was not open to the public. Well, what I'm saying is that that would simply, that's a different historical analysis.

And if they were to muster enough historical analysis to justify law, that might be true. I just don't think that they've developed enough history on this record to be able to justify that law, you are. Justice Jackson. The Chief Justice asked you about a gas station on the side of the highway, which is private property. It's open to the public, and you said that we presume that a person can go in under those circumstances. Is that right? That's right, right? All right, I guess what

I'm positing is that the reason we presume that a person can go in is not because they have a

constitutional right to go in under the Second Amendment or anything else. The reason we presume

they can go in is because property law implies that a gas station owner who has private gas station and opens it to the public has consented for people to come in. So it really is a function of property law and the extent to which the consent is being implied or, you know, expressed in the state law governing that, right? I mean, it's not, you don't have a right to go into private property. You're only there because the owner has either implicitly or expressly consented.

You have a constitutional right to carry your firearm onto that specific gas station. You do. Where is that? I thought the reason why this was all here and is because you had an implied license. I thought the historical tradition required you to have a license because you don't have a right to go on to private property and the tradition was we're going to imply that you have a license under these circumstances. The basis is lawsuit is that we're only discussing

private property where you have a right to enter onto and has opened to the public and we're saying that that property is open to the public. We have a right to carry a firearm onto it.

“Okay. Okay. Okay. I think I understand. Let me just ask you about the black codes,”

Justice Gorsuch raised it. And I guess what I'm wondering, your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the brew and test that to the extent that we have a test that relates to historical regulation.

with the test. So can you speak to that? There's nothing wrong with the brew and test, right?

I just want to find a male level. The black codes can't be used because it dealt to distribute agencies. Well, I understand why you're saying they can't be used, but it's because we've moved away from that history, not because that history didn't exist. And so to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And if we start taking pieces off, whether it's because we've moved away from it or we don't

“agree with it anymore, I think there's there's going to be a problem with respect to the accuracy”

of our test. It's not just because we don't agree with it anymore. It's that the 1865 law is not relatively similar because it dealt with a very small, segments of society. Those would be discriminations. Whereas here, laws of law generally have ability. So the two two people other than the people in this small segment that you're talking about, who were a part of society, but I guess you're saying that for the purpose of this test, we're not going to consider what happened to them.

No, I'm saying is that the black codes dealt with a very, it wasn't a law generally, at the ability. It was designed to discriminate against, it was a racist law designed to discriminate against African Americans. Whereas here, the law, it is here, is a law that applies to everyone. We can't use a racist discriminatory law to justify a modern day law that applies to the general public. Thank you. Thank you, Council. Thank you, Chief Francis.

Ms. Harris? Mr. Chief Justice, and may it please the court. Brewing a held that states can't refuse to license public carry. Hawaii can't got brewing by presumptively banning everyone licensed to carry from doing so at retail establishments or other private property, open to the public, absent the owner's express consent. That novel law offends our history and tradition.

First, pre-textual restrictions are by definition unconstitutional in why they regulate.

Here, the law's text belies Hawaii's claim to protect property rights. Hawaii's subjects just one right, the second amendment, and one class of people, the people Hawaii had to license to carry after brewing, to its presumptive ban. Hawaii lets everyone else, including target shooters and hunters, bring firearms, machetes, and other things absent the owner's objection. Second, pre-text aside, Hawaii can show no tradition behind its law. It's best analog is an unconstitutional black code.

That's because from the founding, the tradition has been the opening property of the public authorizes carrying and welcome the court's questions. What's your best support for

“what appears to be the argument that a pre-textual regulation is per se unconstitutional?”

I would start historically with blackstone and the meaning of the word infringed in the text of

the second amendment. If you look to blackstone, which is one of the main sources,

underpinning what the pre-existing second amendment meant. The canonical example of a law that burdened impermissively, the right to bear arms, was the English game laws, which under the pretext of trying to preserve game, where it designed to prevent commoners from hunting. We know that was one of the animating premises of the second amendment from people like St. George Tucker from Justice story. Again, the very meaning of the word infringed in the second amendment shows

this is part of the history and tradition underlining. Let's say that your suggestion is Harris, is this part of the Brown test? Or is it something separate from the Brown test? It is part in part of the Brown test. It goes to why the law is regulating the way it does and ruins words. You are in the word of tahini. It goes to whether there is a permissible reason. It helps you tell whether the analog is step two of the Brown test. Do you think about pretext? Is that what

“you're saying? I think that's fair because step one is are you regulating arms bearing contact?”

And so one of the parts of whether you tell is this part of the history and tradition and are of the potential analogs really analogs, as you say, why is this modern law regulating the way it is? And if it's pretextual, by definition, you're not going to have analogs because there is not a history and tradition of pretextual laws and negate the right. Why do we need to make it good?

Mostly in our constitutional law. There are exceptions here and there, but mostly in our constitutional law. We've steered clear from trying to evaluate motive purpose directly. We create rules that maybe are meant to ferrite out bad motive, but we kind of think it's a bad road to go down. If we're going to ask about every state, whether the state is acted textually, in doing one thing or another, and I'm just wondering why we would have a different thought

think about what's on people's minds if you have bad motives just bad law. What we're saying is look at the text and see if there is a fundamental mismatch. If a law is gerrymandered textually, which is the case here, in such a way that belies the assertive motive. That seems fair, but then it seems as though that's classic means and scrutiny. You know, look at over-inclusion, look at under-inclusion is the state really regulating

what its interests would suggest ought to be regulated. So that's me and Zen scrutiny, which I thought, Brune was supposed to get us away from. Two points on this. Respectfully, no, we don't think so. We think just as churchable,

it could be, and the first amendment context is a case about pretext and not sort of means,

and it's about how do you tell from the text of the law is gerrymandered in an impromisive

“away. That's what we're asking for here. And the second amendment of all places, in terms of history”

and tradition, is where this test would apply. Because again, the original meaning of the word in French in 1791, and they would point you to the Daniel Slate article on this in French, what included the black stony in concept, that if you are regulating for a pretextual purpose that is belied by the design of the law, that is a classic means of infringement. Why are we sorry? Why are we making it complicated? The text of the second amendment covers arms.

Part three of Heller says, that means what it says, it means what it says, says what it means. Part three of Heller says there are certain exceptions to that, or contours on that, which are rooted, but if they have to be rooted in history, here, there's no sufficient history supporting the regulation end of case. Isn't that kind of the straightforward way rather than getting into this whole new elaborate pretext analysis, which is just as Cagan says,

sounds like what we moved away from? So absolutely the case could rise in the fall on the lack of

“history and tradition. I think the one pretty simple, right? Your position is there no,”

there's no sufficient analog. Usually when, as Heller says in Part three, when you're looking for a historical tradition that justifies an exception to the textually expressed right, it's got to be a deeply rooted tradition, broadly consistent over time and brought among a lot of states. You know, I'm anything like that here. So it's just kind of from your perspective, I'm, you know, pretty simple. From our perspective, it's an over-determined case. I think the

reason you might want to go like that. Why, I mean, why didn't you lead with that? I don't understand why you led with the other argument and maybe neither here nor there on the end of the day, but I was trying to figure out why. I think two reasons. One is because it would be a shame, I think, if the brewing inquiry discounts the idea that or just doesn't account for pretextual laws, given how rooted it, how antithetical they are. What do you mean by pretext? Because a government

often, we'll look at one of our presidents and say, "Well, we don't agree with that, press simple. We want to regulate right up to the line of that precedent. There might be some gray area there." I mean, that, we don't call that pretext every time when a state government

does that in the first amendment. No, and I understand, I don't want to fight this too hard,

“because I think we are an agreement that this is an easy case at the end of the day. And”

every single way you look at it, there's no history and tradition. There isn't. There isn't. There isn't. There isn't. There isn't. There isn't. There isn't. There's been some suggestion. This is just a redefining property rights and has nothing to do with the second amendment. And of course, we don't allow governments to redefine property rights and other contexts that would infringe other constitutional rights, something year of the takings clause and

Tyler versus Hennepin County. But I'd like you to respond to that argument. That is exactly correct. In no other context, could you say that there's an exemption to constitutional restrictions just because you're trying to redefine the laws of trespass.

The state cannot, in the first amendment, another example, beyond the takings clause. I think

the font for instance is an all force. You could have very easily said in that case, no material. Federal statute is just flipping the presumption. Normally, the default rule is recipients of mail, get the mail unless they say no. Just flipping the presumption. Now, you don't get your mail if it's on a certain topic unless you affirmatively consent and send it a very easy to send postcard. The court absolutely rejected that reasoning in the course. Can we just be a little bit more

specific about the second amendment right that you say is being infringed here? This is the point that I guess I'm still stuck on is whether or not in a world in which we all concede and I think the United States is on board with this, that the second amendment yields to the property interests of a private property owner. Such that the private property owner gets to consent as to whether or not you can carry a gun on his property. When we're in that world, what second amendment

right is being infringed when the property owner says no or when the state says the property owner's

ultimate answer. I think when you collapse the whole inquiry into a specific question of what happens vis-a-vis property rights, you're backing away from the proven framework. The two steps are

adding. I'm breaking away because the brewing framework only applies where the second amendment

is implicated and what I'm suggesting is that the second amendment right is not being implicated when the regulation is about the property owner's consent, the form of it. Can it be implicit or must it be expressed? In a world in which we've said that consent already takes precedent over the second amendment right. So what we're answering here is what is the scope of the right to publicly carry under the second amendment and I don't think states can get out of constitutional

scrutiny by trivializing what they're doing. There's only agreed that the second amendment right yields to the property owner's consent. Of course we're not saying that you override what property owners are saying but what we're saying is when he restriction parts ways, when it redefines the concept of trespass to essentially save for this one category of people, people license a carry, you are no longer presumptively allowed to carry at gas stations,

which are only presumptively allowed because the presumption goes to the consent, not to your right. I understand. You're presumptively allowed because we're presuming that in this situation, the owner is consenting. And this goes back to the colloquial justice course, which is when the states are trying to redefine property concepts, that doesn't take them out

of constitutional scrutiny quite the contrary in both a first amendment context and the taking

clause context. The rule is when the states are departing from the default in a way that implicates other constitutional rights, they can't do that. The taking clause may be an outer limit in sort of what exactly states can do. But I mean, just the flood dates would open if the position were all that's going on here is just tweaking how you consent. Just think about and I think in the first amendment context, you would say no big deal, you are now going from a

“real where candidates can go door to door and for a campaign speech, but now you have to have”

a big sign in your guard that says political speech, welcome for some as you go in. Or in the second amendment context, Hawaii say reason would lead to a rule that it's fine to ban tenets

from owning guns in self-defense unless the landlord and the contract expressly consents to doing

so it. I really think the concept that this is just tweaking and sent a lie to the burden that Hawaii is imposing here of presumptively banning open carry, banning public trade. Would you explain why the anti-poaching laws that Justice Cagan was talked about are not in your view and appropriate analog? Absolutely. Those poaching laws as the segment article on other sources and the text of the laws themselves exemplify show the opposite of the tradition

Hawaii is trying to show. They show that for property, close the public, the people have taken steps to enclose for improvements to protect the fields from being trampled by hunters.

“For that special category, there were laws that said you have to get a formative consent,”

sort of like Justice Barrett's questions about, you do need a formative consent to go into dwellings. The rule for other property, property, open to the public, open fields was the exact opposite. There's a conscious decision at the founding because hunting was an incredibly important issue that if you did not enclose our lands, it was an open invitation to carry and that's consistent with the tradition at the founding of public carry that the NRA and Mika's for instance details.

The idea that Hawaii's law is irrelevant analog would just extract, just take away the love, take the love of generality, just justify the opposite of the tradition. It would have been profoundly disturbing to the founding generation to hear that in order to travel it in or taverns or anywhere else people commonly carried arms that they had to like get the affirmative consent of each sort of tavern and hope that they weren't trespassing if they were traveling

and their carriage had to stop somewhere. In order to determine whether an analog is adequate for

“ruin purposes, is it possible to disregard that how do you choose the level of generality?”

What is the principle that tells you what is the the relevant level of generality? I think here the relevant level of generality does reverge to some property law concepts. If you're talking about property, open to the public, the relevant computer is property open to the public because there is a relevant common law tradition of certain permissions to go there and when the state is essentially presumptively banning or switching the tradition,

I think that is an issue. So I think that's relevant and to disregard the clear text of the statutes which are focused on property that distinction between property close to the public and open to the public and a specific question of hunting would allow you to abstract out everything. It's the same thing the court rejection and ruin that just because some places for instance might

of a level of generality. What do you think is the purpose of the second amendment, right?

The purpose of this second amendment, right, is to allow citizens to bear arms for self-defense and other lawful purposes.

“Yes. Not just self-defense. Did hell ever say that?”

I don't think hell are exclusive and I don't think the court has to decide is it self-defense and other things but it would be again sort of strange to think that you cannot use arms for any other purposes when the founding generation used considered arms important not just for self-defense but for instance for having, for making sure that people are proficient in arms to be able to defend the country. So I don't think that there is sort of necessary, but I don't think the case presents.

Do you think it's possible to ignore the purpose of the second amendment in determining a

level of generality that's appropriate? I think that it depends on a case. For this particular case, I don't think the court has to resolve it because the point here is Hawaii is saying it's laws opposed to protect private property rights and it's essentially trying to negate people's rights

“to publicly agree everywhere. This is so mere? There's been a number of church shootings recently.”

This is state or the federal government. Is it far from saying you can't go into a church without a gun without the owner's permission, the church's permission? Is that illegal? The answer to that question would go into the sensitive places inquiry, which is different from this case because that is sort of police specific. So the question will be if there is history and tradition of allowing restrictions on people carrying and churches? I suspect there isn't. So I suspect that could be wrong.

I've never read about that, but if we're not looking at property rights in a government's

right to regulate a presumption, then what would give the government the right to think that flipping the presumption in that case is reasonable? Again, I just just hear where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people. So two points on that. One with respect to the presumption of the Hawaiian people. As petitioner notes, there is no second amendment for every single state in the

unit that's different. It is a national tradition and states cannot retain their pre-state hood traditions as sort of a veto for the second amendment national traditions. It's not a veto. No one's vetoing an owner's right explicitly or expressly to consent to carrying guns. The owner's the one with the right. So to be clear what I mean by that is you can't use local customs to say that each state gets its own second amendment. The court has rejected that very type of analysis in the taking

clause for instance, and it hadn't been county. In Cedar Point where the court said, even if California has a kind of unusual way of defining easements or Minnesota has a strange way of defining property interest, that doesn't mean that there's nothing unusual about this. This is simply a presumption. Respectfully, this is highly unusual as the era's article itself acknowledges in all 50 states into the district of Columbia up until brewing the universal rule. This does trade to the founding

is that when you have property open to the public, you are inviting people to go on with arms unless the owner says otherwise. We think that implicates the Constitution, the second amendment for the same reasons it implicates other amendments. It doesn't change that. The presumption lets the owner choose. The presumption is the earth crest passing. It treats just for one class of people. It turns essentially property open to the public like a gas station, and if they

equivalent to someone's house where you're committing a crime under Hawaii law, if you actually go on to it without consent. This is Kagu. Can you imagine Miss Harris any modern analogs of these anti-pulture laws? I guess what I'm asking you to do is to say, are there any modern laws that sort of use this kind of authority over consent and licensing and so forth? But they don't have to do with hunting. That would be permissible because they are very much like

these anti-pulture laws. So two answers. One is obviously these laws themselves have endured

“throughout, which is why I think can maintain you the distinction's important. And important,”

but two, you could say it's not that distant, but there is a separate tradition with respect to property close to the public like your house. What are the relevant permissions? What's the default for property close to the public setting aside hunting? And I think that's consistent

talking about enclosed property like orchards or gardens or other stuff and saying if you carry arms

on that land, that's a trespass, but it's also saying you can't trespass generally in these places.

“So I think it's getting to the idea of if you have particular property that's close to the public,”

you might not and people with arms on it that is what these sort of founding era laws say. You don't want them trampling your cornfield and disuring your improvements because it's close to the public. Similarly to you might be able to say, you know, if I, and again, this is a matter of like what the history would actually show. So if I can, your objection to the use of these old laws really is just that the Hawaii law applies to all, although it's private property and

applies to property that is entirely open to the public for, you know, for all other purposes

and with respect to all other activities. And that's your view of why Hawaii is different.

And if the Hawaii law was narrower than that or if some other states were, then you would have a different question. I think it would present different questions and yes, that is our main objection and the reason is why is trying to use laws that actually show the opposite tradition, which is laws close to the public, you might need affirmative consent in order to be able to hunt on them. Property opened to the public, though, is the exact opposite rule from the founding

on otherwise in order to ensure that people could publicly carry absent objection. And so yes,

“I think that that is the most critical point about these laws, the fact that they concern hunting.”

I think is a relevant additional factor that goes into what was the point of the presumptions,

but the fact that it's hunting and also sort of other forms of trespass, I think, is the bottom line.

Thank you. That's a source. There's been the suggestion that this is just flipping a presumption about the implied license and that that's just a matter of property law, not the second amendment, but how do we think about that given the flips of presumption on the longstanding implied license only with respect to firearms? And not knives, not solicitation, not politicking, not anything else. That's exactly right. I think there's two ways to think about it.

One is we do think that that makes it much more like the kind of pretextual laws that the founding generation thought were anathema to the to this that kind of amendment, because you're singling out a particular right in a particular group who's committing trespass when everyone else isn't, but to just going back to this concept, you can't just say, you know, you're tweaking how to give consent and you're out of the Constitution. When a state is saying you're

presumptively banned, you're committing a crime, unless you get consent, that is a much bigger deal than just sort of tweaking the edges of property law. And in no other context, has the court said, no big deal, the Constitution doesn't apply. This doesn't even implicate the relevant constitutional inquiry. What are the implications? Why allows oral consent to be sufficient? California had a law requiring a posted sign. The nine circuits struck that down while allowing

a Hawaii's law, but I'm not sure I understand the distinction between the two. Why couldn't the state require affirmative signs? Why couldn't it perhaps create an irrobotable presumption against consent? I think that is exactly where Hawaii's position leads. I don't think there's any principle distinction between those two things. And again, it's not just sort of, oh, is it easy to get one person's consent? How hard is it? That's kind of interest balancing at the outset. But as a

“practical matter, in order to run your errands, you have to run the table of knowing you're not”

trespassing on private property to pick up your dry cleaning and catch a cup of coffee. And if you run enough gas and you're trying to find a gas station, you can't get gas unless you know, you're in your car, you have, you have your gun in your purse, and you're not actually committing a crime by stepping on the gas station property. Now Hawaii is trying to say, it's a little easier than that, but the text of its laws is just entering the property without permission is a crime.

And then lastly, there's been some discussion about the black codes, and maybe they should be relevant, and maybe we really should consider them as significant here. In fact, there are dead rare thoughts. It is 2026, and it is somewhat astonishing that black codes, which are unconstitutional, are being offered as evidence of what our tradition of constitutionally permissible fire on regulation looks like. Though those laws are dead-ringers only in the sense that this law too is an unconstitutional

pretext. The black codes were offered, as you mentioned, by states before their readmission to the union, it is not an indictment of the brewing framework to say that unconstitutional laws do not count in an illuminating a valid tradition. As Bruin and Rikini themselves say, you're looking for laws that illustrate aren't outliers, the illustrate what the national tradition entails. And so it is no indictment, but frankly an endorsement of our history and

and that these black codes themselves are complete departures from what the laws and Louisiana and other states were like before, which was to allow people to presentively go about in public on property, open to the public without consent, thinking. Just Kevin. For purposes of the textual and historical tradition analysis specified by Heller and elaborated upon by Bruin,

“Heller's part three on exceptions remains very important, I think, in my view, at least do you agree”

with part three of Heller, except part three of Heller? Yes, we do are not trying to depart from

anything that this court has said with respect to its second amendment presence. And then in part

three of Heller, the court said that nothing in our opinion should be taken to cast out on walls for bidding the caring of firearms and sensitive places such as schools and government buildings, do you agree with that? We agree with that, and I think as elaborated by Bruin, I think the question is, how do you define relevant sensitive places at the correct level of generality so that not every place is a sensitive place, and so that you are looking to the right

historical analogs? Understood, but you agree with the principle as stated there. We agree with the principle as stated that there are obviously sensitive places, you determine them with respect to the history of firearm regulation. Thank you. Just spirit?

“This chair I'd like to talk about the relevant analog in these anti-poaching laws,”

and one question that I have is along the same lines as Justice Kagan, which is when you're

thinking about these anti-poaching laws, you're thinking about a problem that arose at the time. So at the time, poaching was a problem, and so legislatures enacted this regulation to address the problem in an agrarian area and agrarian society, you know, that was it. Let's imagine that who I rather than just flipping this default categorically instead is experiencing say a rash of gas station robberies, and you know, it doesn't want to make the argument that gas stations are sensitive places,

that would be a tough one. So instead flips the presumption like the anti-poaching laws just with respect to gas stations, is that okay? Not okay, and it still runs up in the basic distinction that we're seeing, which is when the history and tradition is for the type of property, property, open to the public to have an implied license to go into the property. When the state is trying to load the dice, when it's trying to say you generally can't go there, it has to point to

relevantly similar analogs that are doing the same for the how and why. The anti-poaching laws, it's not just that they're about hunting. It's about that they're at this specific part of land. It's almost like they're the exception to the general rule that on property, open to the public, you can generally carry on property close to the public. How do you know that's the relevant distinction? I mean, it could just be that, well, that is an incidental of the problem.

I mean, that just happens to be where the problem of poaching arose, which was on enclosed lands, because those are the people who were trying to protect themselves from poachers. But I mean, there might have been poaching on open lands too, and then the legislature might have responded differently. I think this is this problem of just because the legislature didn't address the problem, because it didn't exist at the time. Why does that mean that the analog ties the legislature's hands now?

And I think the answer is that is, you look to the broader articles, and I think history of

what was going on with the anti-poaching laws. It's not that, you know, poaching on or hunting on open lands, open the public wasn't a problem. It was actually at the founding. It was a hugely politically salient and highly debated issue, so important is on seed constitutions. That this was a sort of elemental distinction to the founding generation that's carried on our property law. The property opened to the public is not, you're not trespassing if you're hunting on that land.

And property closed the public, you want to protect the improvements, and so you are allowed to

“risk-rated with by changing the rules so that you have to affirmatively consent. And I think you know”

that from the laws themselves, actually. I think the laws themselves make that distinction. I appoint you to the New York 1763 law. The 1771 New Jersey law is of a piece with that. And this segment article is sort of cannabis, cannabis is the history, but like I think this is not just well, it's sort of strange. They were focused on this particular type of land. What do you draw from it? It is, they were extremely focused on this because it was a huge political topic.

But Matt Harris, then, that raises this question for me and footnote one of your brief, you say this case does not concern property close to the public. So the court need not address state laws that prohibit carrying a firearm into a private residence without the owner's affirmative consent. But both you and Mr. Beck are drawing this distinction and the anti-poaching laws between property that is open to the public and property that is

closed to the public. So I guess I don't understand how, if you win this case and we do the history and tradition analysis and you win, how is the court supposed to distinguish that analog

deciding. So I think two things are important. One is when you're deciding whether the analogs are on or for us, it's inescapable and it runs throughout the position that there are different permissions, different common law traditions applicable to property. Open to the public and property close to the public. I don't think that is a complete answer and the reason we're seeing it's just not presented. It's not the question presented. It's you whether property close to

the public what the range of permissions is for instance if I invite someone to my house. What is what is the tradition with respect to? So maybe the state could flip the presumption in the way who I is done here but just with respect to private residences and your back said no to that. We're leaving that open because we're thinking of this as again different property traditions

“and so they would have to show a relevant history in tradition. Again, I think that would be”

likely easier for them because the rules regarding property close to the public have always been

different than property open to the public. Okay, last question. On your broader argument, you state the rule pretty broadly. I'm looking at page 11 of your brief. You say a laws per say unconstitutional if it broadly prevents ordinary Americans from carrying protected firearms in public. Who is an ordinary American and why? It's kind of throughout your brief you use that formulation but as I recall in hell or it says ordinary law-biting Americans, why not the law-biting

and what is an ordinary American? I don't think we're trying to suggest any difference between ourselves and hell or in our position here. I think we're wrinkly using a visual hand. Okay, thanks. Justice Jackson. So I guess I really don't understand your response to Justice Gorsuch on the black codes. I mean I thought the black codes were being offered here under the brewing test to determine the constitutionality of this regulation and it's because we have a test

that asks us to look at the history and tradition. The fact that the black codes were at some later point determined themselves to be unconstitutional doesn't seem to me to be relevant to the assessment that brewing is asking us to make. So can you say more about that? Absolutely. Black codes were unconstitutional for the moment of their inception because of the our pretextual laws that are designed to ensure that newly freed slaves are returned to a condition of sheer

crap. Okay, let me stop you there. They were not deemed unconstitutional at the time that they were enacted. They were part of the history and tradition of the country and when we have a test now that's asking us to look at what people were doing back then. I don't understand why they should be excluded. Because they are outliers. They are by definition unconstitutional. They have found the later, not at the time. And if the test says what's happening at the time tells us what's

constitutional for this purpose why aren't they in? Respectfully, Allah is always unconstitutional.

When it's from its inception, it's when it's so the history doesn't matter. We should care about the history then. We should deeply care about the history, but the whole point of the brewing framework is as follows. The history and tradition of the Second Amendment are particularly

“important because it is codifying a pre-existing right. To figure out in sort of common law fashion,”

what the national history and tradition are, you throw out outliers. And I can think of no greater outlier than blatantly unconstitutional laws that flipped had been the tradition in states like Louisiana. And during the period before, those states were read omitted to the union for the purpose of trying to reduce newly free slaves, back to conditions of servitude, made a new crime, new trespass in order to go about armed on private property. Those are obvious outliers.

All right, so the whole point of brewing. Mr. Tatyal will address it. I just have one more question.

I'm trying to understand whether there is a Second Amendment problem in the following circumstance.

So what if a state that's trying and hoping to dissuade gun rights? So it fits your view of like a state acting in a contextual way passes a law providing for free no gun signs to every business. And they're really very invested in this so much so that their law offers to send these signs to every business, offers to send someone out to put the signs up at the business owners request. Do we have a Second Amendment problem in that situation? If you're just,

no, I don't think so. You're not having a law that's regulating arms bearing conduct. You're,

“I think the premise of the hypothetical has your retainer. But it affects arms bearing conduct,”

perhaps in even a more egregious way than what you're talking about here today. I think we go back to the words of ruin over here. And their purpose is to dissuade. That was part of the hypothetical. So your test was about the purpose of the state. We have the purpose here. We have the effect here. 97% of the businesses, let's say, in a way under the test that I'm, or the law that I'm positing, accepts this offer.

what we're not doing, which is a bad legislative motive's purpose and sort of effects test, whereas what we're saying is our pretext argument is very firmly rooted in the IT.

“Right. I just want to know is the Second Amendment implicated, and I think you're saying no,”

and I don't understand why it wouldn't be in this situation if it is in the situation here. Because in the law, the Hawaii is enacting it is regulating arms bearing conduct by saying, if I carry my gun to a gas station, I am presumptively committing a crime. That is a direct regulation of where and how you can bear arms under what circumstances. You are hypothesizing a situation in which the state is merely subsidizing certain types of speech.

That might have other constitutional problems, but the problem is not going to be

with respect to regulating arms bearing conduct, in a way that we think ruin is talking about. Thank you, Council. Thank you, Mr. Chief Justice, and may please the court. This case is about two fundamental rights, the right to bear arms and the property right to exclude, and there's lots of agreement among how among the parties about how those rights interact.

Everyone agrees with the right to carry and private property if the owner wants guns on his property. That was elicited by Joseph Zotomy or to my friends. And everyone also agrees. There's also no such right if the owner doesn't want guns.

The only question is whether there's a second amendment right to assume

the owner wants guns on his property when he's been silent. There is not. There is no constitutional right to assume that every invitation to enter private property includes an invitation to bring a gun. The Constitution protects the right to keep and bear arms. It doesn't create implied consent to bring those arms onto another's property. At bottom that is petitioner's theory and yet they have zero support for this.

Zero support from the founding or for the next 200 years. No treatis, no commentator, no court. Not only is there zero a furnace support, it runs counter to our traditions of implied consent from the founding and federalist paper 45 on. States have used law and custom to clarify the rules around consent. In some states, it's natural to say when a homeowner invites you in. They're fine with you bringing your gun

unless they say otherwise. But another is it's pretty obvious that if you bring your gun to

“someone's house, you have to ask. And the same is true for stores. And some places it's reasonable”

to assume guns are welcome. And others it's pretty clear and invitation to shop is not an invitation to bring your clock. It's reasonable for a state to clarify these defaults. Passing laws that say you can't assume that you can assume consent absent permission or is here that you can't assume it. The Constitution permits this type of democratic flexibility in states functioning as laboratories before originally constitutionalizing one type of property

to fall rule. This courts should insist on at least some evidence that the second amendment so requires it. I welcome the courts questions. Are there any other constitutional rights that you could place on which you could place similar limitations? Sure. I think the general proposition

of the law is that property rights are open to the public. Always add that part. We're not talking

about private homes. We're talking about restaurants. We're talking about malls. Things like that.

“Yeah, so I do think, first of all, I do think they are talking about private homes. That's what I”

think, ultimately, my friend, conceited to Justice Barrett earlier in the comments. I thought it's made that distinction between private homes versus property. Private property open to the public. It was closed. Justice Thomas is brief made that distinction, but at least I understood what he was saying at argument that his rule would apply even there. I think this is what's so dangerous about his rule because he's saying, look, as long as something has to do with guns,

then we go right to brew and step two where the burden is shifted. Well, that's one of the, I'm not going to argue that point, but I do want to know if there are other constitutional rights in similar circumstances on which you could place similar limitations. I do think that there are. I mean, I think here, you know, this case concerns guns, but sometimes, like, for example, this court's decision in Breard, recognized for some first amendment restrictions, you could

have a change in the default rule, and that was understood as constitutional. Here, we're just following the rules. There were a state that said, we're going to flip the default rules so that you cannot leaflet in shopping centers unless you secure a permission first. Would that be constitutionally problematic or not? The problem there is that oftentimes in the first amendment context, the first amendment rules are different than the second amendment, because they perform

some sort of illicit thumb on the scale for a certain set of viewpoints. Well, but like any leafleting for anybody. Yeah, so in any subject. Right. And that circumstance, you know, it may, it's, this court's precedence on viewpoint and content are so broad and my encompass that, but even if that were, even if you could jump past that, you'd still have to at least have rational basis review this court in free speech coalition versus Pakistan recently said, even for

stuff that has not been encompassing the first amendment, you still have to have at least some rational basis. Your example would flunk that. Here are why it's on the opposite. There have been no guns effectively in Hawaii for 200 years. The underlying, you know, expectations and local custom is just as so to my or was saying, was that nobody had to think about guns. With the Hawaii legislature said here, in the wake of this court's brewing decision,

as brewing's a real game changer. And as a result, some shop owners are going to be caught

unaware. They're not going to realize that someone might have a concealed clock on them and the like. And so to vindicate those expectations, they said, we are placing the default rule there on the property owner to say whether they wanted to affirmatively invite guns in,

“and in choosing where to place that responsibility in that burden. I think it's absolutely”

reasonable for the state to place it with private property owners who said that's not required. Council, I just want to understand, because one of the motivating concerns you can see it in our decisions under the second amendment is that it is a disfavored right. And it strikes me that one of the things that your side of the case has to come to grips with is that it is a very

clear constitutional right under the first amendment. If I, for example, as a candidate for office,

want to walk up to your door on private property and knock on the door and say, here, give me your vote. That's exercising the first amendment right. But you say that it's different when it comes to the second amendment. If you can walk up, the candidates watch the walk up and he's carrying a gun. What exactly is the basis for the distinction? Because part of, again, what our president's talk about in this area is that the second amendment has been treated as a sort of a second level

right. And that's one area where I, given this law, I don't really see the basis for the distinction. So we totally agree, the second amendment is no disfavored right. At the same time, there are rules

“about the second amendment. I think rule that this court laid down in Bruin. And what you've said,”

the relevant question is whether or not the scope of the second amendment's text is informed

by history would say that there is a violation of the right. With the first amendment, you've got burdened tests and all sorts of stuff that this court disclaimed in Bruin at page 22. And so it's just going to apply somewhat differently. But our fundamental point to you is, yes, this is, this is a law that goes which traces back to the founding with other laws like New Jersey in 1721 and 1771. Laws that basically said, look, when you're bringing guns on to property, even property

open to the public, that states are free to flip the default rules. Indeed, that is what happened although going back all the way to all the way to those really examples. And my friend on the other side is, I think, selectively reading those to say, oh, the solicitor general saying, oh, these laws are just about poaching and alike. Absolutely not. They have no answer to what we said in our read brief, which is that these laws dealt with improved lands and improved lands were, as Professor

her talks says, stores, seed stores and things like that. But let me switch gears a little bit. We talked about the tradition in Hawaii. Hawaii given its origins and its admission to the United States, very recently, has a totally different in some areas, tradition and practice. The law property in particular in Hawaii went for a longest time, I'd maybe it still cases, if you don't own property, you get a long-term lease, as if you were a bank and a skyscraper in New York.

That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United States. And do we isolate? Do we have different traditions and different

“states when it comes to applying brewing? No, you're on our, I think my friend on the other side”

is mischaracterized argument. Our argument is that the second amendment means the exact same thing in every state. No second amendment, right, enter private property without an owner's consent. What varies is what the definition of consent is from state to state. And local law and custom help inform that, that's what I think that Justice Holmes opinion and McKee recognize it.

you said part of the history and tradition is there's no right to enter private property without the owner's consent, right? Well, we know that that's not a through line, right? Because you do

“have a right to enter the owner's private property if you want to exercise your first amendment,”

right? So now without their consent, you're on a-- Sure, I don't have to have a sign on the sidewalk before you enter my property saying, okay, to come on if you're going to give me some leaflet or

okay to come on if you're a candidate. The assumption is that there is a first amendment, right?

Yes, you can, you can withdraw it. And again, I'm just trying to figure out exactly what the difference is between the first amendment and the second amendment. What I think what's doing the work in your hypothetical about the leafleting or something is the government is putting its thumb on the scale of some sort of speech and saying they're worried about some type of leaflet or the like. To the extent that they just ban it entirely, it would flunk rational basis review.

The relevant right there is not located in the property property in the place that's spoken, but rather that the government is coming in and affirmatively taking a position on that. Well, Mr. Kai, I don't want to understand why you're resisting the first amendment, why I do understand why you're resisting it. But let's say there's no content discrimination. It's just a ban on leafleting and it's a ban because people don't like solicitation.

So they just don't want people passing out pamphlets. It's not aimed at Jehovah's Witnesses or anything like that, like some of our old cases. Why would that feel rational basis review? So I think it might because as this court said in free speeches as packs and you still have to have some underlying rationale. People find it annoying. They don't like it. They think it affects their businesses and people don't want to go to businesses if they're going to be accosted by pamphlets.

But it may be a rational basis problem, but I don't think it's a first amendment problem.

This court in Rowan said that quote, "the right to engage in expressive activity generally stops at the outer boundary of every person's domain." And that's the point. Let me get one more one more question. So let me take it out of the first amendment for you. I mean, let's pretend that public accommodation laws don't exist. Because the 14th amendment doesn't apply to private action, only state action, let's say that a state in the absence of public accommodation

laws decides to flip the default and say unless the owner of firmatively consents black people cannot enter your home. Yeah, so I think that's one which will be unconstitutionally. Why? Because we violate the equal protection clause because the government on its face

is making a crucial classification. Because there's state action in the way the government is

adjusting its property defaults. Even if there's a long history in traditions say in Louisiana of this kind of discrimination at the doorstep. Right. It would still violate the equal protection. Why isn't their state action here when the state is flipping the default? It's not just a matter of property law. Right. Our point is not that whether there's state action or not, it's that there's no underlying right. It's that my friend assumes is as great as conceited that she said. There is no

right to come on to private property absent consent. And so the only question is whether the state can fill in the conditions? Yeah, there's no right to come on to private property without consent. So my public accommodations example is right. I mean, absent of public accommodations law are in a private residence you could turn someone away on the basis of race. But there is no anti-discrimination component in the second amendment. The way there is with the equal protection

“clause and so that's why it's just you're just relegating the second amendment to second class status.”

I don't see how you can get away from that. If someone owns a store or let's say it's a little restaurant and this person has very strong political opinions and does not want anybody in that restaurant who is wearing a tire that is expressing approval of a particular political candidate. If that person, the owner of that restaurant, has the right to say you can't come in, right? Yes. All right. Now, could Hawaii enact a statute that says that if you were wearing the

tire, a tire expressing approval of a particular political candidate, you can't come in unless you get express consent from the owner of the restaurant. Again, that's a viewpoint discrimination and prohibition of the first amendment. We have the violation of the first amendment and what is and a violation of the right that the court held is protected by the second amendment in Browen, which is the right of law-abiding citizens to carry a firearm for purposes outside

of the home for purposes of self-defense. I quite agree with much of what you're saying. I think what the difference is that the second amendment, it's not a second class, right? It just has doesn't have the same components of viewpoint discrimination or anti-discrimination for the

“14th Amendment. It's just not in the second amendment. I think the key point here is the court,”

if you accept my friend's invitation, you for the first time would be saying there is some sort of

Compare this to Browen, in which you had Saint George Tucker. You had many state decisions in

the 18th and 19th centuries that said laws like the New York one were unconscious. I'm just a sort of my lawyer excited to poll about what the people of Hawaii think about the possession of guns. I'm not aware of the poll, but let's assume it's correct. Let's assume that 78% or whatever the figure was in the poll that she cited really don't like guns. So what then is the big deal about this statute? Why doesn't matter if store owners and owners of private

“property that are generally open to the public, don't like guns? Why is it a big deal to say?”

They want people carrying guns to stay out, just put up a sign. Why does Hawaii have to

have this law? So I think Hawaii has, like all state legislatures, has the right to put a default

rule in that says that tracks the expectations of its people. It's true. Then what's wrong with California's law, which flipped the default rule and said it can only be overcome with a sign? Right. So I do think California's law would probably be constitutional, but our argument doesn't depend on it. So why do you disagree with the Ninth Circuit's decision on that? I do, but I can't deal with it. So a result here, you did met with logically entail permitting California's law

and ones like it to pass. No, you don't have to go that far. I don't have to go that far, but you just said you would go that. I personally would, but I don't think you could do just this course, actually. So the reason I appreciate your candor about the extent of where your argument leads. And so it seems to me that, you know, you could have a state law that doesn't just flip the presumption and require express or old consent, but requires express written consent,

maybe a sign, maybe an irrevitable presumption flipping of the, I appreciate your candor on that. The other question I want to ask you is the black codes. I struggled to see what relevance laws that are outliers, and I'm not supposed to consider outliers, that they're put aside under our test. We're looking for the mainstream and a significant tradition. And you rely very heavily on an 1865 black code law in Louisiana. You say it's a dead ringer and a reason alone to affirm

the judgment. And I really, I really want to understand how that could be. So let me take those

“interns. So first with respect to the California law, I think it's really important to understand”

here. The Hawaii law has a much broader definition of consent. I know it does. That wasn't the question. I want to answer the question posed. About the California law. I know it. I want to understand how you think black codes should inform this court's decision making. It's a great astonished. So it claims to me. So the black codes are undoubtedly a shameful part of our history,

but that doesn't at all mean that this particular law is irrelevant to second to amendment analysis

for two reasons. First, the solicitor general says correctly as she did just now that Louisiana wasn't a state in 1865. The relevant point is what happened in 1868 when Louisiana was admitted to be a state. The active June 22nd, 1868 admitted Louisiana as a state. That was the radical reconstruction Congress. It examined the Louisiana laws, including this specific statute. And Louisiana

“was admitted into the union by the reconstruction Congress. There were many laws that the Louisiana”

industry in the question. The question is, it's an outlier. You just call it a shameful outlier. And I agree with that. And Brun was supposed to look at the mainstream of our tradition and history, not outlying statutes that were unconstitutional in the moment they were passed, and yes, when Louisiana was admitted to the union. So just this course is one I said. I understand a lot of people like to cite the black codes who promote gun restrictions, who would otherwise, they would

be garlic in front of a vampire in front of them. But here they like them, they embrace them. And I'm really interested in why. So Justice Guards, it's when I said it, the black codes were shameful period. There are parts of the black codes like this particular statute, which were race neutral, which the Congress of the United States, the same Congress that ratified the 14th Amendment, implicitly blessed by the middle Louisiana back in. It didn't treat that with the same

with respect to other laws from other states, but it did here. And most importantly, even the opponents of the black codes recognized as the sickle's general order says that you have no right to carry a firearm onto someone's property absent there. You said no, not at all. Wasn't the purpose

from doing what the second amendment is designed to protect, which is to defend yourself against

“attacks. They didn't want that they wanted to disarm the black population in order to help the”

clan terrorize them. And other and law enforcement officers in that period, in that region, they want to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the second amendment right to cite this as an example of what the second amendment is protecting. So Justice Alita, we quite agree with you that parts of the black codes were motivated by and had exactly

that operation. Our point to you is this consent requirement did not operate that way. Indeed, if anything, it protected black churches and black owned businesses in the like by insisting on this consent rule. And that is why the radical reconstruction Congress admitted Louisiana back in. They said

no to various laws, but they never did that with respect to this. And this law stayed on the

books for a long time. For generally, of course, we obviously for good reason taking all this time

“in Louisiana. But remember our argument, if we were to get to the historical analogs in the”

life, we don't think we even need to. But if you got there, you wouldn't just look to Louisiana in 1865. You start with New Jersey in 1771. Well, on Louisiana, in Ramos, on the jury trial rate, the question of whether you had a right to unanimous jury. There were Louisiana and Oregon presidents going way back that allowed non-unanimous juries. And we flatly rejected that historical example for the exact reason that Justice Alito and Justice Coursic have been mentioning.

Those were rooted in racial prejudice designed to prevent black jurors from having their votes counted on juries in the wake of decision like strater in 1880. And we just said, no, that's that's an admissible to account for that as somehow justifying an exception to the Constitution. Right, seems like the same kind of thing here. What's different? Kevin, are we just disagree with the idea that that applies to this particular law from Louisiana in 1865? But regardless, our tradition

goes way back before that. New Jersey in 1771, New 1721, Pennsylvania, the law said, quote, "You cannot carry any gun or hunt on the improved or enclosed lands of any plantation." The 1763 New York law, which the solicitor generally read part of, says that it was unlawful to carry, shoot or discharge any musket or other firearm whatsoever into any orchard garden or other enclosed land whatsoever. And there's other statute after statute, there's no allegation by anyone,

that those were motivated by me sort of racist concerns of the like. And what they've said is "Oh, no, that was just limited to poaching." That's just wrong. There's two parts, for example, to the New Jersey law. Part two is about poaching. And one of those laws a couple of them that you cite seems to me, you're approaching the whole analysis upside down from how the courts cases have approached. The courts cases have started with the text, which declares an individual

right. And then in Heller and in Bruin, the court has elaborated on, of course, there's, as there are with all rights, as Heller said, some exceptions. But those exceptions to be recognized must be historically rooted, deep tradition, broad tradition, widely recognized, commonly recognized, not isolated examples, particularly not once from the black cuts. But even apart from that, not isolated examples, I just don't see the kind of broad tradition of the regulation here that

you see with the other things specified in Heller for example. So I agree with some of what you're saying. So I completely agree that the relevant test under Bruin is text. And then the next words you used were as informed by history. And so the question is, whether or not there is some sort of right at the framing, whether the right to keep in bear arms was understood the right to assume in owners consent to bring arms. That's where we think this case, their case falls apart.

Because for the first time, you'd be saying, if you accept their invitation in the absence of any

affirmative evidence whatsoever, a commentator, a court, anything that said that, there was a right to imply consent. There's just nothing. There is precious zero on that. And here's why it's so

“important. You heard my friend when he stood up. He said, and under questioning from Justice”

Barrett, hey, is your rule going to apply to private homes? Because lots of states, even today,

shifting wouldn't be able to defend the law under the burden shifting of step two of Bruin,

“in which you have to have demonstrated historical analogs in the like. That gets everything”

undone entirely. I mean, this court has a general rule, just as Alito wrote about it in Kennedy versus Louisiana, which is, when you are coming in to challenge a state law, you bury heavy presumption that your challenge is invalid, that there's a presumption of good faith and good presumption of regularity on the part of the legislature. If you just jump to Bruin step two and say, oh, this law deals with guns. Therefore, the burden flips to the government. Then, yeah,

you're going to have a really difficult time defending laws. Every state is like the ones that deal with gun consent on private homes. Well, which is why you don't want to get to step two, because it's a lot harder for you. It's step two. But I think, which Justice Kavanaugh's asking is, I have the same question, is, how can you avoid step two? Because the text encompasses

“it. And that leads you to step two, where you have all the difficulties you were just saying.”

Because if you read Bruin is only about the text, okay, I agree with you. You could say, well, maybe it's the right to keep in bear arms is implicated by these implied default rules. But it is the text is informed by history. And when you ask yourself, text is informed by history, where has anyone ever said there's a right to presume consent of the owner in the absence of

an explicit statement, it just doesn't exist. That's the second step. When you're looking at

the history, I mean, I could see history being relevant at the first step if you're talking about what is the meaning of arms, for example. But when you're talking about things that kind of go to what is the core of the writer, is it included? And you're talking about history and tradition. I guess I don't see how it's the first step. Well, I think it's got to be. Otherwise, I think you run into the problem that you've now flipped the burden for every fire arms regulation.

As long as it deals with guns, then the state has to come in or the federal government has to come in with an affirmative thing. And we have all sorts of things actually what the cases say.

“I mean, I thought that's what the cases say. If it deals with arms, and this is what”

heller part three says, then the government comes in and shows there's a historical tradition. And to get ahead of all this, heller actually went through and specified a number of kinds of regulations that would be permissible because they are so broadly and deeply rooted. At least, I mean, what's wrong with that reading of our precedent? Because that it would really is the every town brief says, threatened gun regulation, more generally in ways this court is so far not

reached because you have all sorts of times in which like, like, 920, the 1922 statute, 11 different categories of things that are singled out as gun regulation. If every single time the state had to defend the burden on each of those things and say, you've got to find, you know, historical analogs that really does undo. I think the much more limited nature of the inquiry that really reminds you about your answer to just bear it and just just have it on, is that really step one is trying

to help us to understand what the scope of the right is. The second amendment right is it really

being implicated here. Correct. And so that when you have a situation like this one in which there is broad consensus, everybody agrees that there is some limit to the second amendment right, and you read a case that said that limit was geography in the sense that you don't have a second amendment right to bring your gun onto someone else's private property. They have to consent for you to be able to do that. We have already limited the scope of the second amendment right

for purposes of this discussion because we're talking about a right that doesn't just freely exist. So in the Chief Justice's leaf-litting example, it's similar like I don't see the second amendment operating differently than say the first amendment because in the leaf-litting example,

the reason why you get to go up to the person's door is not because you have a first amendment

right to do that. You get to go up to the person's door because there is a custom and tradition of implying the person's consent for you to do that in that situation. That all the states, everybody says when you come for the purpose of passing a leaflet, we are going to assume we're going to imply that the owner is allowing you to do that. He doesn't have to put up a sign that says, please come. It's operating around property rights, not that your first amendment

right is what is getting you onto his property. But similarly, the second amendment right is not getting you onto someone's property in this way. If it's a private property, even the property open to the public, it's the implicit consent that many states have allowed that is what is doing

That's exactly right and the one thing I would add is that where I think is doing the work in my friends argument is some sort of insinuation that Hawaii has singled out and has hostile

to guns or the second amendment and the like. And I point you to two reasons why that's wrong.

Number one, Hawaii has these very same laws about implied consent and changing the default rules for other things besides guns. So 445-15 has it for cards and banners and placards akin to the example that you're mentioning before. 339-4 is about litter in bringing you on. What 291c is about

“vehicles and what you're saying I think is that there is no second amendment right to assume implicit”

consent. To the extent we're talking about, is this about consent and I think we are because you don't ever write to go on without consent then is the second amendment doing work with respect

to allowing you to say I have a constitutional right to assume that I'm allowed to be here and

you're saying they have no case, no history, no nothing that establishes that principle. That's exactly right and the other thing I'd point to about this motivation attack by my friend on the other side is that you know the legislature took brew in seriously. This statute's all about making sure the right of brewing is vindicated and just last year for example, Hawaii issued 227 concealed permits for firearms. You know they only denied 119 applications

“in the majority of those were denied because people didn't fill out the application at all”

or they got it out of time. Thank you council. Justice Thomas. If you're going to cite the Louisiana black codes of 1865 don't you also have to cite the subsequent adoption in 14th Amendment that was impart generated because of laws like that. So that is exactly our point that the reconstruction Congress that ratified the 14th Amendment this is the unusual case and what you have those folks saying effectively Louisiana should come in and many of the parts of the black codes

including parts of Justice Alito referring to that were racially discriminatory about firearms were struck from the Louisiana law but this law stayed in effect and so yes we do think it is relevant history we don't think our argument depends on it because there's statute after statute from the founding on and the idea that that the number of statutes we've provided isn't enough I think is is very hard to reconcile when you have zero tradition zero evidence on the other side

saying these statutes were problematic. I mean these statutes were around you would have thought someone if this was an infringement on the right to keep in bear arms would have had a court case a commentator anything like what you had in brewing you've gotten none of that. Well actually there was quite as I said in my McDonald opinion quite a bit of discussion of these sorts of laws and the consideration of some that they thought it would be for a community clause in the 14th

Amendment preempted these. That's simply my point. So Justice Thomas I agree with you about what you said there but I don't think that applied to this specific question which is private property to fall

“rules I think what the evidence who we're talking about there dealt with other aspects of state”

regulation over firearms. Is this a Toledo? Is this on there? Three part question in one or two sentences could you answer in a shanshing the California point that Justice Corps situation. Number two finished your list on where else the state of Hawaii has flipped the presumption you got up to

littering and then you were cut off and then number three I have never quite understood

the court's recent jurisprudence on outliers don't count. I don't know how much outliers mean meaning at the founding there were 13 states I don't know how many territories at the time because I don't remember off the top of my head but there were at least four states that had flipped the presumption you jersey New York Maryland then and Pennsylvania and then later there was Massachusetts in 1790 at least for a group of islands and then you don't have just the black codes you have

Oregon and Florida flipping the presumption a little later on. So it seems to me that you can't call all of these laws out this many outliers outliers and so the custom and tradition that existed was the license you had and whether you presumed or didn't presume permission

thing the one thing I would just add to my prior discussion was just a score such as just I think the overall understand overall history of what the white legislature did here was relevant they weren't

trying to attack a second class ride or something like that they're rather trying to take

ruin seriously by opening up what counts as consent unlike California deviating even from the

“Altestorical laws like New Jersey in 1771 which required written consent and I think what did the”

work and my friends argument in his opening statement was this idea that 96.4% of Hawaii is now encompassed you pointed out that dealt with sensitive places but there's a much more fundamental problem and it's infected this case from the start if you read page one of his brief it says quote it says 96.4% of the publicly accessible land in Hawaii is impacted by this law by it by this law the map he's got isn't even about Hawaii it's about one county in Hawaii not

even the most popular county in Hawaii and it's a map he drew himself so I just caution the

court into saying because if you read these briefs it does sound like oh the government of Hawaii is out to get guns or something like that nothing could be farther from the truth they've taken brewing seriously as the permit statistics I read to you say with respect to Hawaii singling out firearms there's statute after statute I was reading 291 so 112 which is that you can't use a vehicle for a bit for habitation on private property quote without the authorization of the owner there's also

63316 the jacan removed shopping art carts without the written consent of the owner there's statute after statute like this and the amicus briefs from the property law professor goes through and says this is true not just in Hawaii but in state after state they flip default rules all the time

“your last question was about outliers and I think here the our most important point is we don't think”

that there's some sort of mechanistic formula for how many states is enough for anything like that we do think it's relevant that there are a number of states at the founding that do have this this court on the sensitive places part of Bruin said legislative assemblies may be a sensitive place there was only one state in the founding that had that that was Maryland and it passed two separate laws five years apart during the colonial era that was enough to count as an analog we certainly

think the written large larger much larger number here is enough to count as an analog because these laws actually did the same thing is what the Hawaii law does it said for respect to property that is open to the public like plantations like premises like enclosed land professor Hartog says that includes seed stores other retail establishments akin to the kinds of things that my friend is challenging here there is historical precedent for all of that we think that's

certainly enough to make this constitutional just as kagan so just on your last point Mr. Kateel I took Miss Harris to be saying with respect to your analogs at Bruin step two that her principle point was look it's not about like is it about poaching but the difference between those laws and this law is that those laws were about lands that were closed to the public and that was her principle point that's that made that like just a different category and it just blows off the

word improved in the statute it's not just about on fence it's not just about fence land but improved land from proved land the statutes did change the default rule and say you couldn't imply the consent of the owner and as professor Hartog said that applied to stores and applied to plantations indeed that's the definition of plantations and it applied to premises which is another word used in some of these statutes and so the idea that it didn't apply to these types of

things that are just like what my friends are challenging is just wrong okay and on on on this year step one inquiry which I find interesting and difficult I mean I think somebody could say look what these consent flipping default flipping rules do they do burden the carrying of firearms

“and and that's what they are and to incorporate the burden into one's understanding of the”

scope of the right is a kind of category mistake that it's the burden is supposed to be it's step two and these are burdens on the carrying of firearms so two things one factually we just fundamentally disagree that this burdens firearms is just a salida was saying earlier

if people in Hawaii don't want to have the guns anyway they're always going to be able to even

under their rule say you know have signs that say no guns allowed so either way you could have that

ask that burden test here's the language you said quote Haller and McDonald expressly rejected the

“application of any judge empowering interest balancing inquiry that asks whether the statute burdens”

a protected interest in a way and so you know that which my friend is definitely trying to say that this burdens the right that is not a second amendment violation that's going down the road of undue burdens that this court is criticized in a separate number of contexts and saying that's a smoke screen for policy judges preferences rather the inquiry at brewing step one has

always been text is informed by history and when you ask yourself what in the text informed by history

this Hawaii law violates the answer is precious zero no commentator no treatis no court no one's ever said you have a right to imply consent of the private property owner and rather the fundamental tradition which this is what myor was saying earlier at the Justice Scalia recognized

“in the shardines opinion is that there's a fundamental right to exclude and that right to exclude”

has always meant at the time of taverns in the like you can exclude people for violating the terms on which they come in even if your taverns open to the public thank you. The source of yours I can tell the movement to flip the burden in with respect to firearms began in the states in 2020's is that right? The the burden to flip the firearms with with laws like this I think they rose after brewing I think that was when this court's decision in brewing happened and then laws

like the states like Hawaii in which there was no tradition at all of carrying had to deal with

this question for the first time. Thank you. Does cabinet? How many states have laws like Hawaii's

with respect to firearms on property? So I think five states have enacted those laws just in the few short years since the brewing decision I think other states there's one a brief for you from DC saying some other states are considering it our point is the constitution permits both types of rules

“it doesn't it's not constitutionally compelled that you have to use the Hawaii rule states function”

as laboratories they can do I they can pick either default rule neither is an infringement on the second amendment right to keep in bear arms. Thank you. This is spirit. This is Jackson. And it's not an indictment necessarily that this arose after brewing it was in response to brewing because brewing gave rise to the need for clarity about property owners once brewing said you can carry the gun outside of your home and there was an alternative you know well established principle that

private property owners can exclude people. I think the states were trying to make sure that property owners had the opportunity to do that and that only became necessary once brewing allowed people to carry their guns anywhere. That's right. It wasn't like they were necessarily trying to keep people from carrying the guns they were giving property owners the right to exclude by making sure that they were asked do you want this gun in your store. Exactly and I was saying to Justice

Corsuch with respect to California law Hawaii took it far more seriously they said we want to make sure that you have the opportunity to get on the spot oral consent which is why the gas station hypothetical that the chief justice used in the others it is not an issue under the Hawaii law because you do have the ability to go and ask for consent even if there's no postage in those time one way or the other. Thank you council. We're on a Mr. Beck.

You're on up this as that are as Amika Sprief makes very clear is as a store hold tradition of carrying on private property open to the public. This whole legal theory where the presumptive band default rules start off the law of the article that was published in 2020 and the premise that law of the article is put in and presumptive band like why has would less than people from

carrying state of New York adopted that law first and the governor of New York said the

express reason they were doing that was to undermine the ruin opinion. There's no there's a clear body of evidence here that this was done to undermine the ruin and undermine the second member right and thus this law very clearly implicates the second amendment and the state is simply failed as burdened to justify this law through relatively similar historical outlooks therefore this court should rule our family. Thank you council, the case is submitted.