As I always say to my students, you may or may not like a Supreme Court decision as a matter of policy, but you need to understand it. It is impossible to effectively argue for or against anything with that crucial first step. Accordingly, the key to truly comprehending the Supreme Court’s big Second Amendment decision this week is reading Justice Amy Coney Barrett’s concurrence. 

This week the Court voted 6-3 in Wolford v. Lopez to strike down a Hawaii law that placed new limits on concealed-carry permit holders. Simply put, the law required that gun owners seek permission from private property owners before exercising their Second Amendment right to bear arms in places like hotels and restaurants. With Justice Samuel Alito’s majority opinion, the four other states that similar laws will now also see theirs’ fall.  

Given the Court’s recent rulings on gun control measures, Hawaii’s law was almost certainly doomed. Four years ago in New York v. Bruen the Court held that there is a Constitutional right to bear arms in public for self-defense. It also created a new, more stringent, standard for evaluating gun control measures. Justice Clarence Thomas’ majority opinion ruled that gun control laws will only be upheld if they are “consistent with the Nation’s historical tradition of firearm regulation.” This is a much more difficult test for the government to satisfy than the previous standard, which balanced public safety needs against the right to bear arms. 

In the wake of that decision, Hawaii sought a way to reduce the number of guns carried in public that fit within the new legal landscape. The resulting law turned the default rule in most states on its head. In most cases, people who have concealed-carry permits can enter private property open to the public unless they are specifically prohibited from doing so. 

Hawaii argued that this was a case primarily about the rights of property owners, not the Second Amendment. Justice Ketanji Brown Jackson, in her dissent, argued that “Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.” This argument has initial appeal. 

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But Barrett’s concurrence lays bare the legal problems with Jackson’s argument. Barrett notes private property owners are free to prohibit gun owners from carrying guns onto their property. But this case doesn’t address the ability of a hotel owner to kick a gun owner off his property, it deals with a state action, bringing it squarely under the second amendment’s purview.  

Jessica Levinson

Jessica Levinson is a Loyola Law School professor and MS NOW columnist.