This blog has done terrific work analyzing the Supreme Court’s pending case, Wolford v. Lopez, which asks a deceptively simple question: may a state require armed persons to obtain affirmative permission before entering private property open to the public? Hawaii says yes. The challengers say no. But as with so many post-Bruen cases, the real dispute is not just over the answer. It is about how to characterize the historical tradition against which the answer is supposed to be measured.
That is the central problem in Wolford. Bruen instructs courts to ask whether modern gun regulations are consistent with the Nation’s historical tradition of firearm regulation, and it tells them to reason by analogy—by comparing the “how” and the “why” of past and present laws. But as many others have observed, the result often turns on the level of generality at which the historical evidence is framed. Describe the tradition too narrowly, and no modern law will have an adequate analogue. Describe it too broadly, and almost anything will.
Wolford puts that difficulty in especially sharp relief because it involves two deeply rooted rights at once: the right to bear arms and the right to exclude others from private property. Hawaii’s law creates a default rule that a person may not carry a firearm onto private property without the owner’s consent. That consent can be given orally, in writing, or by signage. The challengers insist that such a rule impermissibly flips the ordinary presumption in favor of carrying on property open to the public, such as stores, restaurants, and parking lots. Hawaii responds that the law simply gives effect to an owner’s right to control entry onto her land.
So what does history say? The answer depends on what one thinks the relevant historical laws were doing. In recent work, forthcoming shortly in the Stanford Law Review Online, I explore that history in greater depth.
The principal analogues in the case are colonial and early state hunting laws. Many restricted hunting on another person’s land, especially where the land was “enclosed,” “improved,” or otherwise visibly claimed. The challengers characterize these enactments as anti-poaching laws and argue that they are too specific, and too tied to the taking of game, to justify a broader modern rule about armed entry. Hawaii, by contrast, treats them as evidence of a more general tradition: restricting the carrying of guns onto private property without consent.
This is a classic level-of-generality dispute at the level of Bruen’s “why” inquiry. If these laws were only about poaching in the narrow sense—about preventing the theft of deer or other game—then they do indeed seem like a poor fit for modern laws said to be concerned with public safety. But that narrow characterization does not fit well with the historical record. In the eighteenth century, “poaching” was about the taking of game, but people drafting the hunting laws were clearly concerned about trespass, damage to crops and improvements, and the dangers associated with armed strangers moving across private land as well. In other words, even if one insists these were “poaching laws,” that label may itself conceal a bundle of property- and safety-related concerns far broader than theft alone.
The same problem appears on the “how” side of the analogy. Many of the hunting analogs limit hunting on enclosed or improved land, but not on unenclosed or unimproved property. Several courts and advocates have treated the historical distinction between “enclosed” and “unenclosed” land as if it maps neatly onto the modern distinction between private property closed to the public and private property open to the public, but that is deeply anachronistic. “Property open to the public” is largely a modern doctrinal category, sharpened by public-accommodations law and twentieth-century constitutional cases about speech on private land. It is not a stable Founding-era property category.
The older categories did different work. “Enclosed,” “improved,” and similar terms were visible signals of claim, possession, and notice. They told strangers that the land was not common and that entry was governed by the owner’s will. Those signals would have captured a great many places that today we would consider canonically “open to the public,” including inns, taverns, and shops. In the late eighteenth century, commercial and residential uses were deeply intermixed, and many economic activities took place on property that was plainly private even if members of the public were invited onto it for particular purposes. To translate “unenclosed” into “open to the public” is therefore to force modern intuitions onto a society that organized access rights differently.
Hawaii’s law fits easily with another history and tradition, this one from property law: there are myriad historical examples of legislatures clarifying the signals by which owners can communicate their intentions to entrants. Property law has long depended on publicly recognizable conventions of notice. Enclosure, cultivation, posted notices, marked trees, branded animals, recorded claims, and required tavern signs all served as legally meaningful ways legislatures helped define communications around property, for the benefit of both owners and all others. Seen from that perspective, Hawaii’s law is not wholly unfamiliar in form. It adopts a rule about what counts as sufficient indication of owner consent and about when entry with a firearm becomes unlawful.
That does not settle the constitutional question. There is force to the concern that a default no-carry rule on all private property may significantly burden the practical exercise of public carry. And there are interesting First Amendment questions and parallels. A particularly fascinating one for me is Martin v. Struthers, in which the Supreme Court struck down a city ordinance that barred leafletting on all private property. The opinion uses broad language about the First Amendment’s importance relative to property rights, and one could imagine Wolford expressing a similar sentiment. But there are some seemingly important differences between the leafletting ban at issue in Martin and regulations like Hawaii’s. For one thing, the right to leaflet asserted in Martin extended only to the approach to the front door, not to the interior of the property—arguably a more substantial intrusion. More importantly, the Court in Martin emphasized that the ordinance burdened not only the leafleteer’s speech rights, but also “the right of the individual householder to determine whether he is willing to receive her message,” because the leafletting ban provided no opportunity for homeowners to opt out. In other words, the property owners had no way to declare they did want to receive leaflets; the Hawaii gun law provides several ways that a landowner can express contrary preferences.
In either event, those objections should be confronted directly, not smuggled into the historical analysis through an artificially narrow reading of the analogues or an anachronistic account of property categories. That is why Wolford is such an important case. It exposes how much of post-Bruen adjudication depends not on history alone, but on prior choices about how to characterize history. Are the hunting laws about poaching, armed trespass, violence, or all three? Is “enclosed” land best understood as a tiny carveout from a broad liberty to roam, or is it a proxy for claimed property generally? Is Hawaii’s law best viewed as a property-signaling regime or as a substantial restraint on the right to bear arms? The answer to each question depends on the level of generality at which one frames the tradition.
Courts confronting this sort of problem should be candid about what the historical record does and does not resolve. The evidence in Wolford does not produce a single inevitable answer. What it does show, however, is that the case cannot be reduced to the claim that people in the Founding era worried only about game theft and recognized a broad right to carry firearms on any property “open to the public.” That framing rests on a misunderstanding of the record.
If Bruen is going to remain the governing method in Second Amendment cases, courts and legislators deserve more guidance on how to make these framing choices. In Wolford, the hard question is not simply whether history favors the interests of gun owners or property owners. It is whether history can do the work the Court has assigned to it when both rights are substantial and the analogies are contestable. I am coming around to the notion that it may be impossible to avoid balancing when two rights are in tension with one another. We are owed greater clarity from the Court about the considerations that go into that calculus, not pretenses of historical certainty. Time will tell what Wolford brings us.
