The oral argument in Wolford v. Lopez, No. 24-1046 (argued Jan. 20, 2026), sent a clear signal: Hawaii’s so-called vampire rule is in serious trouble. The case challenges Hawaii Revised Statutes § 134-9.5 — enacted as Act 52 in 2023 — which bars licensed concealed-carry holders from carrying on private property open to the public unless the owner or manager gives express advance permission. The name fits: like Dracula who cannot cross a threshold without an invitation, Hawaii gun owners are frozen outside every Starbucks, grocery store, and gas station until someone in a back office says they can enter. Based on what I heard on January 20, that law is not long for this world.
Roberts and Barrett Put the Fundamental Question on the Table
Chief Justice John G. Roberts, Jr. went straight to the core defect in Hawaii’s position. He noted that under the First Amendment, a candidate for office can walk up to your door on private property and knock without advance permission — because that’s a constitutional right being exercised. Hawaii’s lawyer argued the Second Amendment is different. Chief Justice Roberts wasn’t having it. “Part of what our precedents talk about in this area,” he said, “is that the Second Amendment has been treated as a sort of second-level right — and that’s one area where, given this law, I don’t really see the basis for the distinction.”
Associate Justice Amy Coney Barrett pressed the point by stripping the First Amendment wrapper off entirely. She offered a hypothetical: a state that, absent public accommodation laws, flipped the default so that property owners had to affirmatively consent before Black individuals could enter. Her point was precise — if you wouldn’t tolerate that default for race, you cannot justify it for the Second Amendment. The prohibition is the problem, regardless of which right it burdens.
Alito Makes the Disfavored-Right Argument Explicit
Associate Justice Samuel A. Alito, Jr. was more blunt. He walked through a restaurant hypothetical: the owner has the right to exclude customers wearing political attire — that’s the owner’s prerogative. But could Hawaii enact a statute requiring political-attire wearers to get express consent before entering any restaurant? No — that’s viewpoint discrimination, a First Amendment violation on day one. Yet Hawaii has done exactly that for the Second Amendment.
“You’re just relegating the Second Amendment to second-class status. I don’t see how you can get away from that.”
Justice Alito put the constitutional principle plainly. Bruen, 597 U.S. 1, held that law-abiding citizens have a right to carry a firearm outside the home for self-defense. A default prohibition on carrying — applicable to virtually every commercial establishment a person visits in a day — is not a sensitive-place carve-out. It is a near-total ban dressed up as a property-rights rule.
The Black Codes Gambit Backfires
Hawaii’s lawyer, Neal Katyal, made a historical-tradition argument that did not land well. He pointed to an 1865 Louisiana statute — part of the Black Codes — as a historical analogue supporting the default-prohibition structure. His theory: Louisiana was readmitted to the Union under the Reconstruction Congress without that law being struck, so the Reconstruction Congress implicitly blessed it.
Associate Justice Neil M. Gorsuch was direct in response. Bruen instructs courts to look at the mainstream of the American historical tradition — not to outlier statutes that were unconstitutional the moment they were enacted. Justice Alito went further, pointing out what the Black Codes actually were: laws designed to strip recently freed African-American slaves of their right to keep and bear arms, to leave them defenseless against the Klan and complicit law enforcement. He called it “the height of irony” to cite laws enacted specifically to prevent people from exercising the Second Amendment as evidence of what the Second Amendment permits.
Katyal’s concession — that parts of the Black Codes “were motivated by and had exactly that operation” — effectively surrendered the historical analogue he came to defend.
The Bruen Burden-Shifting Battle
Hawaii also argued that the Bruen burden-shift — requiring the government to affirmatively justify a gun regulation against the historical record — should not apply because the law merely “affects” gun owners without “implicating” their Second Amendment rights. Associate Justice Ketanji Brown Jackson articulated this theory: the property owner’s decision to deny entry doesn’t trigger a constitutional violation, it just affects the gun owner’s interests.
My read is that this argument is a stretch. When a state statute creates a default prohibition on exercising a constitutional right across all private commercial property, the state has done the implicating. The private owner becomes the mechanism of the state’s default rule. Bruen does not let the government outsource the burden of its restrictions to property owners and then disclaim constitutional responsibility.
The more significant tell came from Katyal himself, who essentially admitted that if Bruen’s burden-shifting applies, Hawaii loses — because finding historical analogues for the vampire rule’s default-prohibition structure is, in his words, a problem for “all sorts” of modern gun regulations. That is not an argument for why Hawaii’s law is constitutional. That is an argument to gut Bruen to save it. The court did not appear receptive.
What Comes Next
The decision is expected by June 2026. Based on what I heard in the argument, a majority of the justices — including the Chief Justice — appear to understand that Hawaii’s vampire rule is precisely the kind of second-class treatment of the Second Amendment that Bruen and Heller, 554 U.S. 570 (2008), were written to stop. The Ninth Circuit’s decision in Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), upholding the law, appears headed for reversal.
For licensed concealed-carry holders in Hawaii and the handful of other states with copycat laws, this case matters enormously. The right to carry outside the home — confirmed in Bruen — cannot survive if every coffee shop and grocery store is off-limits by default. I expect the court to say exactly that.
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.