A lower court ruled that unless a gun owner is currently high, past drug use doesn't violate the Second Amendment. The Justice Department disagrees.
WASHINGTON - In the 1897 Gothic horror novel by Bram Stoker, Dracula couldn't enter a room without being invited.
In a Supreme Court case the justices will hear on Jan. 20, gun rights advocates charge Hawaii and other states with creating "Vampire Rules," laws requiring gun owners to get permission - verbally, in writing or through a posted sign - before carrying a concealed firearm onto private property that's open to the public, such as a store.
The default presumption, they argue, should be that handguns are permitted on publicly open private property unless the owner explicitly bans them.
Their challenge - which the Trump administration took the unusual step of encouraging the Supreme Court to hear before waiting for the court to ask for the government's views - won't require the justices to delve into 19th-century literature. But it will necessitate a review of laws from the colonial and Reconstruction eras.
That's because the Supreme Court, in a landmark 2022 decision, said gun regulations have to be consistent with the nation's historical tradition of firearm regulation to be constitutional.
The court's 6-3 decision in New York State Rifle & Pistol Association v. Bruen also significantly expanded the Second Amendment right to bear arms outside the home.
After the court struck down New York's law restricting who can carry a gun in public, Hawaii - and several other Democrat-led states - focused instead on where the guns could be brought.
The Trump administration urged the Supreme Court to get involved, arguing those states - Hawaii, California, Maryland, New York and New Jersey - are doing an end-run to avoid complying with the court's 2022 ruling.
"Because most owners do not post signs either allowing or forbidding guns - and because it is virtually impossible to go about publicly without setting foot on private property open to the public - Hawaii's law functions as a near-total ban on public carry," the Justice Department told the court in a filing.
Hawaii says its law, passed in 2023, upholds both the right to bear arms and a property owner's right to keep out guns.
"The Legislature enacted this default rule in light of ample evidence that property owners in Hawai'i do not want people to carry guns onto their property without express consent," the state's attorneys said, in written arguments, about the state's long tradition of restricting weapons, including before Hawaii became a state.
In 1833, for example, Hawaii's king prohibited anyone from having a knife, sword cane or other dangerous weapon, Hawaii's attorney general told the court.
Gun rights cases have increased
The challenge to Hawaii's law is not the only gun rights case the Supreme Court will hear this term.
In March, the justices will debate whether a federal law that prohibits drug users from having a gun applies to a man who was not on drugs at the time of his arrest.
The justices are also deciding whether to take up challenges to state laws banning AR-15s and high-capacity magazines, and challenges to the federal ban on convicted felons owning guns.
Lawsuits over gun laws exploded after the court ruled, in the 2022 decision, that gun rules must be grounded in historical tradition.
Lower courts have struggled to apply that standard.
In the Hawaii challenge, the district court judge's preliminary view was that the state's law failed the test.
When Hawaii appealed, the San Francisco-based 9th U.S. Circuit Court of Appeals sided with the state, ruling that its law is constitutional.
The appeals court pointed to several historical rules, particularly one from New Jersey in 1771 and another from Louisiana in 1865, both of which required a person have permission before carrying firearms onto private property. Those laws are "dead ringers" for Hawaii's rules, the court said.
The three Maui residents and a state gun owners group challenging Hawaii’s rules argue that those statutes do not apply to the facts in this case. New Jersey’s law prevented poachers from hunting on private land closed to the public. And Louisiana’s law was aimed at keeping guns out of the hands of formerly enslaved people.
Because Hawaii also bans guns outright from some public areas, including beaches, parks, bars and restaurants serving alcohol—restrictions which the Supreme Court is not reviewing—gun owners are effectively banned from publicly carrying guns nearly everywhere, they argue.
Hawaii counters that to bring a gun into a shop or convenience store, for example, the gun owner must only ask an employee for permission.
"To be sure, the employee might say no,"
the state's attorneys said in a filing, "but that possibility cannot render the law unconstitutional because all agree that property owners have the right to exclude guns if they wish."
Gun owners say they're being treated like 'monsters'
Gun rights groups say Hawaii's law is motivated not by a desire to protect private property rights but because Hawaii wants to go after gun owners.
As in the novel "Dracula," several gun rights groups wrote in a filing supporting the challenge, Hawaii is "treating those with carry permits as if they were monsters that must be warded off."
In another brief, the National Association for Gun Rights said the state's "Vampire Rule" requires store owners to take a public stand on a highly controversial issue.
"A business owner who supports the constitutional right to carry arms for self-defense faces a Hobson's choice,"
the group wrote."He can make his views public and risk offending many of his would-be customers, or he can suppress his preference to allow people to exercise their right to carry on his property."
'Foundational to American identity'
Groups working to reduce gun violence worry that the conservative court may not just throw out Hawaii's law but may do so in a way that tightens the historical tradition test it created for assessing gun laws. All of the justices except Justice Clarence Thomas - who authored the 2022 decision - clarified that standard in a 2024 decision that explained there doesn't need to be an exact historical match to a modern-day rule to uphold that gun restriction.
That change, if the court sticks with it, allows Hawaii to argue that its law fits within the nation's long history of regulating private property generally,Billy Clark, an attorney at Giffords Law Center,said.
"States historically have always set default rules about the use of property,"
Clarksaid. “That’s why you can’t just assume you can bring your dog with you to a restaurant.”
Douglas Letter,the chief legal officer for Brady gun control advocacy group,calledprivate property rights“foundational to American identity and embedded throughout our system of government.”
“It is absolutely clear,”
he said,“that wealthy White men who created United States Constitution and Bill of Rights—one major thing they had mind was protecting property.”