The attorneys defending Hawaii’s “vampire rule” that bans concealed carry on all private property unless property owners choose to specifically allow it don’t have a lot of good options. They’ve pointed to an 18th century New Jersey anti-poaching law that forbade carrying a gun on improved private lands and a 19th century law from Louisiana that prohibited carrying guns on plantation property without the express consent of the plantation owner, but even though the Ninth Circuit Court of Appeals called those laws “dead ringers” for Hawaii’s prohibition, neither of them come close to the scope of the “vampire rule” imposed by the Aloha state.
The dumbest argument of all, though, is one raised by Hawaii Attorney General Anne Lopez; that ““Hawai‘i’s unique history—including its long pre-statehood existence as an independent kingdom—means that its residents never developed a practice of bringing guns into shops, convenience stores, and the like.”
Alan Beck, a San Diego-based attorney who is representing the plaintiffs, says bringing the history of the Hawaiian Kingdom into the argument is invalid.
“What they’re really arguing is that the rights of my clients, who are U.S. citizens, should be dictated by the laws of a monarchy,” he said. “That’s not a position that’s really tenable.”
A monarchy that no longer has any power or authority over Hawaii law, no less.
The Supreme Court laid out its test for determining whether a modern gun control law comports with the Second Amendment in the Bruen decision: judges must first decide whether the regulated activity is protected by the Second Amendment. If so, then it’s up to those defending the statute to prove that it comports with the national tradition of gun ownership. The laws that were in effect when Hawaii was an independent kingdom are utterly meaningless when it comes to determining the constitutionality of the state’s “vampire rule.” As Beck says, it’s the Constitution, not a king’s edict, that controls how Hawaii can regulate gun ownership.
But Chris Marvin, a Hawaiʻi-based gun violence prevention expert, said Hawaiʻi’s history laid the foundation for its current attitude toward guns. Less than 1% of the state population has a license to carry and shootings are still relatively rare.
Marvin said looser gun laws lead to more violence, and he fears overturning Hawaiʻi’s private property law could have negative impacts on the state.
“We still have very low gun violence rates compared to the rest of the country, but that actually just underlines that we do have a gun-free culture,” Marvin said. “Just because there’s a handful of enthusiasts that would like to have their pistol on them while they eat saimin doesn’t mean the rest of us should have to suffer for that.”
Who is suffering because someone else is exercising their fundamental right to bear arms? Marvin won’t even be aware if any of his fellow eaters have a concealed firearm on them. Moreover, the restaurant owner still has the right to ban firearms from their property if that’s what they choose. But in a nation where the right to keep and bear arms is enshrined in the Constitution, the default should be that lawful carry is permitted, not prohibited.
And, in fact, that’s what our national tradition of bearing arms looks like. Prohibitions on lawful carry have been the exception, not the rule, since long before the Second Amendment was ratified in 1791. The “vampire rule” Hawaii is defending is a thoroughly modern invention, and a reaction to the Bruen decision. If Hawaii could no longer turn away virtually everyone who applied for a carry permit, as it did under its “may issue” regime, then it could prohibit anyone who does possess a carry permit from carrying almost everywhere.
I feel confident that at least six justices will find the “vampire rule” a violation of our Second Amendment rights when Wolford v. Lopez is decided later this year, and I’m hopeful that the Court will drive a stake through the heart of the arguments used to defend the law. Not only Hawaii’s insistence that a dethroned king’s attitudes towards gun ownership trumps the Constitution, but the Ninth Circuit’s absurd position that historical statutes that differ in the “how” and “why” of a challenged gun law can still be deemed analogous and used to uphold a modern day infringement on a fundamental right.
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