The Supreme Court of the United States heard oral argument on January 20, 2026, in Wolford v. Lopez, No. 24-1046 — the case that asks whether Hawaii can force licensed concealed carry holders to obtain the express permission of every private property owner before stepping foot on premises open to the public. From what I heard at argument, Hawaii’s law is finished. My prediction holds: 6–3 for the Second Amendment, with the opinion expected in June.
The “Vampire Rule” and Why It Flips American History on Its Head
Hawaii Act 52 (2023), codified at HRS § 134-9.5, created what I’ve been calling the “vampire rule”: you cannot carry your lawfully permitted firearm onto private property open to the public unless the owner or operator expressly invites you in. Pull into a gas station you’ve never visited before? You’re a criminal unless you’ve somehow obtained prior written permission. This is exactly backwards from how American constitutional law has worked from the founding forward.
Under Bruen, 597 U.S. 1 (2022), and confirmed in Heller, 554 U.S. 570 (2008), the default is that law-abiding citizens have the right to keep and bear arms. The government bears the burden of demonstrating a historical tradition of firearms regulation to restrict that right. Hawaii’s law inverts the presumption entirely — carry is forbidden everywhere unless you affirmatively prove it is allowed. The Ninth Circuit, predictably, upheld the law (No. 23-16164, Sept. 6, 2024). The Supreme Court took the case, and after Monday’s argument, it is clear the Court has no patience for what Hawaii has done.
Roberts’ First Amendment Analogy Exposes the Absurdity
The most significant moment came from Chief Justice John Roberts. Under settled First Amendment doctrine, a political candidate has the right to walk up the private driveway of a residence — someone’s home — and knock on the door to campaign. No prior permission required.
If the First Amendment protects that right on purely private residential property, how does Hawaii claim the Second Amendment permits banning a licensed carrier from a gas station open to the public by design? Roberts was openly incredulous, and that kind of pointed skepticism from the Chief Justice is about as reliable a signal as you get at oral argument. The Court finds this law constitutionally untenable.
Justice Gorsuch Dismantles the Black Code Reliance
Hawaii came to argument with two categories of historical laws. The first were founding-era anti-poaching statutes that prohibited carrying firearms onto improved private land — meaning cultivated fields and buildings. Those laws were about hunting trespass, not about banning licensed carriers from entering businesses open to the general public. They are not analogous, and I don’t think the Court will credit them.
The second category is where the real action was: a Louisiana Black Code enacted in 1865, before Louisiana had been readmitted to the Union, that prohibited freedmen from carrying firearms onto private property without written permission from employers. Hawaii cited this as evidence of a historical tradition of restricting carry on private property.
Justice Gorsuch was having none of it. His line of attack was precise: how can a law enacted in a single state, passed specifically to disarm freed African Americans after the Civil War, possibly constitute a “longstanding national tradition” of firearms regulation? It fails on every axis. One state, not a national consensus. One marginalized population targeted, not a general principle. Enacted for an expressly discriminatory purpose that the Constitution has long since repudiated. As Justice Brett Kavanaugh made clear in his Rahimi concurrence, 144 S. Ct. 1889 (2024), Black Codes do not constitute valid historical analogues because the Constitution has left those laws behind.
I expect Justice Gorsuch’s opinion — or a major section of the majority opinion he influences — to firmly reject Black Codes as legitimate Bruen historical analogues going forward. That would be a significant methodological victory for Second Amendment litigants in every circuit.
Justice Jackson’s Counterargument Falls Short
Justice Ketanji Brown Jackson pushed back, arguing that rejecting the Black Code evidence amounts to cherry-picking history and proves that Bruen’s text-and-history methodology is unworkable. I understand the structural argument, but it is wrong.
Rejecting discriminatory outlier laws is not ignoring history — it is correctly reading history. The Bruen inquiry asks whether a restriction reflects a genuine national tradition. A law enacted by one former Confederate state, targeting a small subset of the population for explicitly racist purposes, before that state was even readmitted to the Union, does not reflect a national tradition of anything except oppression. Contextualizing that law — understanding what it was designed to do and who it was designed to harm — is exactly the kind of historical analysis Bruen demands. The Black Code argument was Hawaii’s best shot, and it failed at argument.
What We Are Really Watching For in June
Who wins Wolford is already settled in my mind: the petitioners win, Hawaii loses, 6–3. The harder question — the one that matters for every Second Amendment case in the next decade — is what the opinion says about methodology.
A broad ruling rejecting Black Codes as valid Bruen analogues, clarifying the presumption in favor of carry, and confirming that private property open to the public does not constitute a “sensitive place” that eliminates the Second Amendment would be a landmark opinion. A narrow ruling that resolves this case without providing clear guidance to the lower courts would be a missed opportunity.
Attorney Alan Beck argued the case for the petitioners — his first Supreme Court oral argument — and by all accounts acquitted himself well. Acting Solicitor General Sarah Harris argued on behalf of the United States as amicus supporting the petitioners’ position. Both deserve credit for what I expect will be a Second Amendment victory when the opinion drops in June.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.