Multi-Organizational Amicus in Wolford Approaches Analogues

New Jersey, New York, and Massachusetts gun rights organizations teamed up as amici in the Wolford case. Their filing points out an oft-ignored fact; analogues are supposed to be close.

Wolford v. Lopez is a Hawaii man’s challenge to the Aloha State’s so-called “vampire rule.” Coined by the acclaimed and celebrated Second Amendment scholar and guru, Rob Romano, the vampire rule pertains to the need for permission prior to being able to carry a firearm on private property. Wolford targets private property that’s open to the public — a prohibition that essentially nullifies licenses to carry in Hawaii. The amicus brief is asking the court to no longer allow for broad analogues to stand when interpreting the law.

“Unfortunately, ‘level of generality’ is the new ‘interest balancing,’” the filing states. “No longer able to engage in explicit interest balancing through the application of intermediate scrutiny, lower courts can now embrace high levels of analogical generality to uphold nearly any law. In light of this, clear guidance from this Court now on level of generality would serve to avoid years of potential lower court error such as prevailed in the years prior to Bruen.”

The amicus brief was filed by a coalition of gun rights groups: The Association of New Jersey Rifle and Pistol Cubs, Inc., New Jersey Firearms Owners Syndicate, New York State Rifle and Pistol Association, Inc., and Gun Owners’ Action League, Inc. The council of record for the filing is the esteemed Second Amendment attorney Daniel L. Schmutter from Hartman & Winnicki.

Schmutter’s brief lays out three areas the court needs to offer guidance on. The “level of generality” referenced, the brief claims, has been erroneously adopted at a higher level by lower courts. While a direct carbon copy analogue needn’t be made — or “historical twin,” as was stated in Bruen, some of the laws accepted as appropriate proof of a tradition of a firearm regulation aren’t exactly close enough.

The areas noted from the brief are:

1. Courts should use close firearm-specific analogs first instead of general law provisions.

2. Only if close analogues are lacking should courts abstract. But not to global doctrines (like general contract voidability) that merely had incidental spillover effects on all purchases. Abstraction should preserve Bruen’s “how and why” focus: comparable burdens for comparable reasons.

3. In pulling “principle” from historical tradition, courts should rely on only lines of historical law that are themselves each “well-established and representative,” as the Court did in Rahimi with surety laws and going armed laws, rather than stitching together disparate outliers and calling the result a historical tradition, as the Ninth Circuit did below and the Third Circuit did in Koons.

“In 2022, the Supreme Court put an end to interest balancing in Second Amendment cases in the landmark case NYSRPA v. Bruen,” New Jersey FIrearms Owners Syndicate said in a release. “In the years since, more activist judges in places like the 9th Circuit in the captioned matter, and more recently in the 3rd Circuit in the consolidated cases of Koons v. Platkin and Siegel v. Platkin, have twisted the clear guidance from the Supreme Court in Bruen.

“The Supreme Court, in striking down Hawaii’s vampire rule, can right the ship and squarely address the procedural error that many lower courts in the U.S. are committing. Our brief hopes to help draw the Court’s attention to this major issue.”

The level of generality that should be adopted, the brief argues, was highlighted in Justice Barrett’s concurring opinion in the Rahimi case.

“To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right,” Barret wrote. “Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”

Within the arguments of the amicus brief, Schmutter cites numerous examples where a more generalized approach is utilized in legal citations. This lack of a need for a historical twin seems to overshadow the core concept of what “a well-established and representative historical analogue” actually is. Schmutter explains why the court needs to specify what’s appropriate.

“So-called ‘sensitive places’ restrictions already fly in the face of the arguments for background checks for firearms purchases and background checks for issuing licenses to carry. What is the point of all of these trustworthiness tests if there are still all of these weird restrictions?” asked Mike Harris, director of public policy for Gun Owners’ Action League. “I’m thrilled we are supporting this case. The vampire rule is one of the most egregious misunderstandings of the spirit of the structure of the law in the United States I’ve ever seen. In this country you get all of your God-given rights until you prove you shouldn’t have them; not the other way around.”

“The time has come for NRA State Associations in Blue States to join together to overturn the onerous unconstitutional laws being imposed on us by anti gun anti American Democratic politicians,” New York State Rifle and Pistol Association President and Executive Director Tom King said.

Tackling this issue through the vampire rule is a solid strategy. With the High Court getting to hear from Jason Wolford’s attorney, Alan Beck, in January, the court applying and noting the correct lens to use will be paramount. Jason Wolford, et al. v. Anne E. Lopez is scheduled for oral arguments on Tuesday, January 20, 2026 at the Supreme Court of the United States.

Editor’s Note: Second Amendment groups across the country are fighting to drive a stake through the heart of Hawaii’s “vampire rule.”

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