Supreme Court discovers the hardships of gun ownership

Pity the poor gun owner. According to the US Supreme Court’s decision Thursday in Wolford v. Lopez, it’s tough to navigate daily life when one has to constantly stop to figure out where one’s legally permitted weapon can be carried. So tough, in fact, that the judiciary must step in. In Wolford, the court voted 6-3 to strike down a Hawaii statute that bans carrying legal firearms on private property that’s otherwise open to the public unless the owner gives express permission. The outcome is no surprise. The method, though, is unusual.

Before we go any further, let’s be clear. The case was limited to the rights of gun owners with permits who can carry their weapons onto private property that is otherwise open to the public — an amusement park, say, or a movie theater. It has nothing to do with their right to carry onto other private property: your house or apartment, for example.

Which brings us to the statute in question. Everyone agrees that the owner of private property otherwise open to the public may refuse entry to customers who bring weapons. A store owner who posts a NO GUNS ALLOWED sign is not violating the rights of gun owners; he is exercising his own property rights. The question the justices had to decide was whether the owner must post that sign to keep guns out, or whether the state can, in effect, do it for him, by adopting a law that denies permission unless the owner expressly says otherwise.

Much of the argument, as always in Second Amendment cases these days, involves historical references, but more interesting to the general reader — and, I think, more troubling — is the role played by potential inconvenience. From the start, Justice Samuel Alito’s majority opinion evinces solicitude for lawful gun owners, who, absent judicial intervention, might suffer through anxious days:

When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, “big box” stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats.

I mean, bummer. All that worry! Don’t get me wrong. I do think the Second Amendment has teeth, and I’m not about to say that all government regulations of the right to bear arms should be upheld. The puzzling part, however, is that here, in striking down the Hawaii law, the majority seems concerned mostly about how those anxiety-filled days might go.

Further on, for example, Justice Alito gives us a hypothetical “young woman” who goes armed for self-protection, and, on the way home from work, wants to stop and buy groceries, but “may be unable to shop because she cannot find anyone who has been authorized by management to consent” to her carrying a firearm. She also violates the statute by arriving in the parking lot, and, later, at a restaurant. Yes, she might leave the weapon at work (or at home), but “she will be vulnerable for that period of time.”

One can of course see the point. But I’m not sure that the mere existence of momentary risk entirely persuades. Here’s Justice Ketanji Brown Jackson in dissent: The majority simply equates the ability to carry a gun with the right to carry anywhere and everywhere. On the other hand, Justice Alito’s opinion demonstrates with some force that at least in the case of Hawaii, the web of laws restricting where one might carry a lawful firearm is so thick that it is hard for a citizen with a legal permit to keep from violating them. Perhaps the better argument, then, is not against this particular statute, but against the state’s impenetrable Tholian web. Otherwise, given that all these hypothetical stores and restaurants are free to ban guns by saying so, it’s not quite clear what burden, besides the inconvenience, justifies the conclusion that Hawaii’s default rule violates the Second Amendment.

That said, there’s another contentious issue that the majority got right. It is past time for gun control advocates to stop citing the anti-Black statutes of Jim Crow as evidence of historical restrictions on gun ownership or use. In Wolford, Hawaii pointed to a Louisiana law adopted during Reconstruction that created a presumptive rule that an owner could not carry a firearm onto someone else’s property. The law’s purpose was to make it harder for Black residents to hunt. Here we can put aside Justice Alito’s response that the citation is offensive. Justice Amy Coney Barrett, in her concurring opinion, gets to the heart of the matter: The citation is irrelevant. A statute adopted in order to subordinate a particular racial group is no precedent for a statute adopted in pursuit of public safety.