On Tuesday, Jan. 20, the U.S. Supreme Court held oral arguments in a Second Amendment case that asked whether handgun carry licensees could be presumptively banned from carrying their arms onto publicly accessible private property. The law has been dubbed the “vampire rule” by its opponents, owing to the literary and cinematic tradition that these mythic ghouls could not enter one’s home or premises unless they were invited to do so. A more apt metaphor from the anti-gun side would have been the Invisible Man, as they tried to argue that the Second Amendment question in the case was nowhere to be seen. Both the NRA and Trump administration, however, pitched in to make sure the constitutional issues in the case were not ghosted by the Court.
The backdrop to this litigation is the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. There, the Court invalidated New York’s discretionary (“may-issue”) licensing scheme for concealed carry of handguns, the only legal way for New Yorkers to exercise their right to carry a handgun in public for self-defense. It also reasserted the standard for resolving Second Amendment cases arising from District of Columbia v. Heller:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
At the time of Bruen, there were a handful of states, including Hawaii, that violated the Second Amendment right to bear handguns in public for self-defense by arbitrarily denying the necessary licenses through may-issue regimes. After the decision was issued, these same states defied the Supreme Court by passing laws that supposedly conformed to the opinion but that made licensure just as difficult, expensive, and impractical as before.
The laws used various subterfuges to accomplish this, the most audacious of which was the vampire rule, which presumptively bans licensed carry where it is most needed, the private companies and properties where people go about their business in public. And this was in addition to the multitude of “sensitive” places in those jurisdictions (most of them publicly administered property) where all carrying of firearms by all private persons was banned under all circumstances.
So, although the Supreme Court had ruled a person had a general right to carry in public, the combined effect of these rules was that a person could not do the ordinary things modern people do in public while exercising that right. They could not pick up or drop off their kids at school or daycare. They could not go to the grocery store. They could not stop for gas or coffee. They could not use public transportation. They could not drive through an automated car wash. They could not take a walk in a park. They could not attend a religious service. They could not even go into a gun store to buy ammunition or a holster.
Defenders of the vampire rule countered that all licensees had to do was convince the property owner or manager to affirmatively consent to their presence with a gun. It doesn’t take much imagination, however, to understand the impracticality of this. As with unconstitutional may-issue licensing, the obvious objective was to make carry the rare exception, rather than the rule.
In most modern locales, people who lawfully carry handguns do so concealed, either because that’s the only option under the law or because it’s the most convenient and unobtrusive way to go about it. Some people, moreover, may not wish to broadcast their choice to carry to the community, including for fear some officious anti-gun activist will make a scene about it or because they don’t want potential criminals to target them for having a gun.
People don’t have to ask permission to carry their Bibles, their voter registration cards, their NRA or ACLU membership cards, their country music or heavy metal CDs, or to display bumper stickers on their cars or political messages on their clothing wherever they go. The default rule is that when a person is invited onto the premises of a private business or landowner, they can enter or remain with whatever lawful articles they happen to have with them. And while private property owners generally enjoy a broad right to exclude people or personal property for whatever reason they choose, it is traditionally incumbent upon the property owner to make these restrictions known.
Meanwhile, business owners likely have no desire to involve themselves in gun politics to the possible detriment of their livelihoods. Being forced to choose a side in a contentious public policy debate that is irrelevant to their own operations is a no-win proposition. Thus, most are unlikely to post signs advertising a position, whether pro- or anti-gun. To invite customers to carry guns would predictably invite the wrath of politically activated firearm prohibitionists for whom “name and shame” campaigns are already an established modus operandi. Starbucks, for example, found out the hard way that gun control extremists can only take no for an answer when it tried to resolve the issue simply by saying it would allow whatever was legal in a given jurisdiction.
Considering that carrying a handgun for self-defense is a constitutional right, that vampire rules are rare, and that Hawaii is a popular destination for out-of-state travelers, it makes even more sense to put nonresidents on affirmative notice of the rules for carry. Hawaii currently does not recognize nonresident permits (another constitutionally dubious regime), but the days of that infringement are likely numbered.
In fact, as NRA’s friend of the court brief made clear, Hawaii’s vampire rule is a historical and contemporary outlier. And every other state with a similar rule – including California, Maryland, New Jersey, and New York – saw it invalidated by a federal appellate court applying Bruen’s historical standard. Common sense does not support the idea that people would think to obtain affirmative permission to do something for which they have a legal or constitutional right and do with little trouble or fanfare in the overwhelming number of U.S. jurisdictions. But make that mistake in Hawaii, and you could lose your gun and go to jail.
Nevertheless, defenders of the law, including some members of the Supreme Court, insisted the case wasn’t even about the Second Amendment. Understanding they had virtually no chance to satisfy the Bruen test, they tried to muddy the waters by making the case about private property rights and forms of consent.
Starting from the premise that private property owners generally have a right to exclude the presence of guns on their property, they argued that the tradition of the jurisdiction should govern what the default assumption should be about that practice. And since Hawaii had, as a primitive monarchy, a 200-year history of generally banning the possession of all deadly weapons, that should be understood as the default.
But as the lawyers for the challengers pointed out, Hawaii is now a U.S. state and has been since 1959. It is therefore subject to the U.S. Constitution, which makes plain that public carry of firearms is a right that has been respected in this country since the founding. And, under Bruen, it is the historical tradition existing in the U.S., not among indigenous subgroups before the country’s founding, that controls the analysis.
Indeed, the issue is that the Hawaii state government is actively suppressing the right to carry under the U.S. Constitution by putting its thumb on the scale against it with an ahistorical, counterintuitive, highly unusual, and intentionally intimidating rule.
Justice Kavanaugh, among other justices, saw through the ruse. “Why are we making it complicated?” he asked. The text of the Second Amendment covers arms.” He continued: “… Heller says there are certain exceptions to that or contours on that which are rooted, but they have to be rooted in history. Here, there's no sufficient history supporting the regulation, end of case.”
Justice Gorsuch followed up with the observation:
[T]here's been some suggestion that this is just, oh, redefining property rights and it has nothing to do with the Second Amendment.
And, of course, we don't allow governments to redefine property rights in other contexts that would infringe other constitutional rights.
Justice Alito further amplified this point, comparing Hawaii’s law to a hypothetical default rule that a person could not wear attire supporting a particular political candidate into a restaurant without first gaining express consent. Hawaii’s lawyer agreed that would be unconstitutional, but he retreated to the position that the First Amendment is not the same as the Second Amendment.
Another thorny issue for the vampire rule’s proponents was the use of an overtly racist and unconstitutional law from antebellum Louisiana as supposedly illustrating that its legal premise had a long-established historical tradition in the U.S. Once again, Justice Alito cut right to the chase: “[I]s it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?” The gun control advocates defending the law – who included Justice Ketanji Brown Jackson, the Court’s first black female member – would not admit it was.
The NRA’s friend of the court brief was mentioned repeatedly during the argument for its research establishing the default understanding at the time of the founding era was that unenclosed lands were open to the carrying of guns. And Sarah Harris, principal deputy solicitor general of the Trump administration, received most of the argument time allotted to those who were challenging the law. Both provided critical support to the petitioners in the case.
Arguing for Hawaii, and the relevance of racist Black Codes for understanding the Second Amendment’s scope, was Neal Katyal, former acting solicitor general under the Obama-Biden administration.
Whether the vampire rule will continue to haunt law-abiding gun owners in Hawaii or elsewhere remains to be seen. Hopefully, when the Supreme Court issues its opinion sometime later this year, firearm prohibitionists will be telling Hawaii, “Fangs for nothing.”
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