Why Second Amendment Decisions Aren’t Just About Guns

The anti-gunners are still more than a little upset about the Wolford decision. They’re still trying to claim it’s a property rights issue, all while ignoring how the decision didn’t actually say property owners couldn’t bar guns from their own property.

That’s because they want to cloud the issue. They decided to change the status quo, then got slapped down for it, and are now pretending they never changed anything and that the Court is completely out of line.

Yet, the truth of the matter is that the decision may have been about gun rights, but the ramifications of the decision go well beyond the Second Amendment.

Over the last few years, many states have grappled with the right approach to firearms policy. In particular, states that had historically been skeptical toward, even hostile to, firearms ownership or carrying have had to grapple with the Supreme Court’s more rigorous enforcement of the Second Amendment’s protection for the right to keep and bear arms.

Hawaii tried a novel approach: playing with the background rules of property law in order to make it harder to carry firearms. In June, the Supreme Court said that it had gone too far, and the judgment came in the case Wolford v. Lopez. Cases involving the Second Amendment tend to get headlines for their connection with firearms policy. But the Supreme Court’s decision here has larger implications for the protection of any constitutionally protected right, not just the Second Amendment.

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Hawaii knew that its firearm carry laws would also fall afoul of the Supreme Court’s standard. To fix this litigation risk, Hawaii passed legislation that permitted its citizens to obtain concealed-carry permits after filing an application, passing a background check, and undergoing specified training. But Hawaii’s legislature thought that it had found a workaround that would take away with the left hand much of what it had given with the right. More Hawaiians would be able to obtain concealed-carry licenses, but the legislature would change the rules of property law in such a way that those carrying firearms would rarely be able to exercise their rights.

The new law changed the background rules about when one carrying a firearm needs to get permission to go onto the property of another.

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Zoom out from the historical debate, though, and the broader importance of this case should not be difficult to see. If states can simply play with the basic rules of property or contract in order to disadvantage the exercise of certain constitutional rights, that is problematic not only for the Second Amendment. It is bad for the exercise of any constitutional right. Amid all the debates about firearm regulation, this larger principle is essential to keep in view.

The author, Lael Weinberger, is a law professor at George Mason University Antonin Scalia Law School. If he’s teaching the next generation of attorneys, then things might be fine, at least based on this.

He’s absolutely right about what happened. Hawaii decided to change the assumption about the right to keep and bear arms on private property open to the public. Whereas we’ve always been free to presume that our rights are retained on private property that doesn’t belong to us, Hawaii decided to “alter the deal” in the Darth Vader sense of the phrase.

If they can alter that “deal,” then what else would they decide to change?

Perhaps of more importance to anti-gunners, what would their opponents do later on? Could a conservative state find a way to change the assumptions about the First Amendment’s protection of the free exercise of religion in order to ban mosques? I know plenty of people who would love to do just that, if I’m being honest, and I’m pretty sure anti-gunners would oppose it.

Yet had Wolford been decided differently, there’s a very good chance someone would have at least tried it.

I’ve long argued that the Second Amendment is the insurance policy of the Bill of Rights, and I believe it. However, the attacks on the Second Amendment also open the door to attacks on every other right preserved. If Hawaii had been allowed to “alter the deal” then, at some point, the deal would be altered further.

That’s bad for freedom. That’s bad for everyone.

Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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