Permission to enter, with a gun? Justices look to defang Hawaii’s ‘Vampire Rule’ 

WASHINGTON (CN) — Fearing Second Amendment discrimination, the Supreme Court appeared likely on Tuesday to strike down default prohibitions requiring gun owners to receive permission to carry on private property.

Hawaii’s so-called “Vampire Rule” was implemented in the wake of the conservative majority’s landmark ruling in NYSRPA v. Bruen, requiring modern gun laws to have historical analogs. Several justices appeared concerned about states using default laws like Hawaii’s to circumvent the high court’s expansion on gun rights.

“What our precedents talk about in this area is that the Second Amendment has been treated as sort of a second level right,” Chief Justice John Roberts, a George W. Bush appointee, said, claiming that Hawaiian gun owners wouldn’t have the same rights on private property as political candidates using their First Amendment right to ask someone for their vote. “I don’t see the basis for the distinction.”

The justices loosened Bruen’s strict history test to allow domestic abusers to be disarmed in 2024, ruling that modern firearm regulations did not need an exact historical twin. But the court seemed to think Hawaii’s law still didn’t meet muster.

“The court’s cases have started with the text, which declares an individual right,” Justice Brett Kavanaugh, a Donald Trump appointee, said. “Of course there are some exceptions … but those exceptions to be recognized must be historically rooted, deep tradition, broad tradition, widely recognized, commonly recognized, not isolated examples.”

“I just don’t see the kind of broad tradition of the regulation here,” Kavanaugh said.

Hawaii tried to strike a balance between its strict firearm laws prior to 2022 and Bruen’s new requirements by implementing new rules for how license holders may carry their weapons.

Senate Bill 1230, or Act 52, prohibits individuals from intentionally carrying a firearm on private property without permission. Authorization can be written or verbal, including signage or a verbal “OK” from the owner or their agents.

Three Maui gun owners claim that Hawaii — and four other states with similar laws — implemented its default rule in defiance of Bruen.

Hawaii argued that its law has more to do with property rights than gun rights, noting that the rule doesn’t regulate conduct within the scope of the Second Amendment. During the 1700s, the state said that the right to bear arms did not include the right to bring weapons onto private property without consent.

“In some places it’s reasonable to think that guns are welcome,” Neal Katyal, an attorney with Milbank representing Hawaii, said. “In others, it’s pretty clear that an invitation to shop is not an invitation to bring your glock.”

The Ninth Circuit upheld Hawaii’s law, finding six examples of states enforcing similar laws. An analog involving an 1865 Louisiana law that was adopted as part of race-based restrictions sparked sharp arguments across the bench.

Justice Neil Gorsuch, a Trump appointee, said that a lot of people who promote gun restrictions like to cite so-called “Black codes” — 19th-century laws targeting Black people for minor infractions — only in Second Amendment cases when otherwise such laws are “like garlic in front of a vampire.”

“It’s the height of irony,” Justice Samuel Alito, a George W. Bush appointee, said to cite such laws as an example of what the Second Amendment protects when they were enacted to disarm Black individuals who were facing violence from groups like the Ku Klux Klan.

Justice Ketanji Brown Jackson, a Joe Biden appointee, said the problem wasn’t Hawaii’s citation of such laws, but the conservative majority’s history test.

“To the extent that we have a test that relates to historical regulation but all the history of regulation is not taken into account, I think there might be something wrong with the test,” Jackson said.

Justice Sonia Sotomayor, a Barack Obama appointee, noted other past laws besides Louisiana’s, citing analogous statutes in New Jersey, New York, Maryland and Pennsylvania.

“It seems to me that you can’t call all of these outliers,” Sotomayor said, rebutting her conservative colleagues’ arguments.

Justice Elena Kagan, also an Obama appointee, said that Hawaii’s law seemed to fit the high court’s ruling in Rahimi v. United States because it was similar — but not exactly the same — as historical gun regulations.

Her conservative colleagues disagreed.

“Why are we making it complicated?” Kavanaugh asked. “The text of the Second Amendment covers arms … There are certain exceptions on that but they have to be rooted in history. Here there is no sufficient history supporting the regulation end of case.”

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