The Right to Carry, Unless the State Says No

Xylee Alvarez

January 2026

The Court must decide whether states can nullify the right to public carry by declaring most places off-limits. 

Few Supreme Court decisions have been as loudly proclaimed or as quietly resisted as New York State Rifle & Pistol Association v. Bruen. In Wolford v. Lopez, the Court now faced a stark question this week: Did Bruen actually change Second Amendment law, or can states undo it by regulation? 

At the core of this case is a Hawaii law that makes it a crime for even licensed concealed carry permit holders to carry a handgun on private property open to the public, unless the property owner has given express permission. In other words, the default rule is prohibition, not permission. The Ninth Circuit upheld that scheme, concluding that Hawaii may presume that gun is forbidden almost everywhere unless explicitly allowed. 

That holding places the Ninth Circuit in direct conflict with the Second Circuit, which struck down an identical law in Antonyuk v. James. It also deepens a broader rift among the circuits over how courts are supposed to apply Bruen’s “text, history, and tradition” test. 

And that is exactly the kind of split the Supreme Court is not supposed to ignore. 

The Ninth Circuit’s reasoning is quite striking for how it did so. Rather than grounding its analysis in Founding-era history, the court relied heavily on post-Reconstruction and modern era laws to justify Hawaii’s restrictions. That approach directly conflicts with decisions from the Third, Fifth, Eighth, and Eleventh Circuits, all of which have emphasized that Bruen demands a primary focus on the founding generation tradition. 

If courts are allowed to rely on late 19th and 20th century laws to define the scope of the Second Amendment, Bruen's historical test becomes malleable and far less constraining. Several Justices have already expressed concern about this exact issue. In prior Second Amendment cases, Justice Thomas has made clear that Bruen was meant to impose discipline on lower courts, not invite creative circumvention. Justice Alito has also criticized what he sees as open defiance of the Court’s holdings under the guise of historical analysis. 

I feel that the most controversial aspect of Hawaii’s law is its private property rule. By requiring express permission to carry on property open to the public, the state effectively flips Bruen on its head. Public carry may be “guaranteed”  but technically only in theory, because nearly everywhere a person might go becomes a prohibited zone by default! 

The Second Circuit rejected that logic outright. The Ninth Circuit, however, embraced it. 

If Hawaii’s approach stands, states can comply with Bruen on paper while nullifying it in practice. Licensed citizens would retain the right to carry, but it would never actually matter. 

The Court is likely to grant review and rule 6-3 in favor of the challengers, reversing the Ninth Circuit. The conservative Justices appeared poised to reaffirm that Bruen means what it says! Justices Sotomayor, Kagan, and Jackson are likely to dissent warning that the court is constraining states' ability to address gun violence in the modern context, but for the majority, this case is about enforcement if Bruen is to remain the law. Wolford v. Lopez may be where the court insists that lower courts and States finally listen.