On June 25, the U.S. Supreme Court decided Wolford v. Lopez. The case involved a Hawaii law that presumptively banned carry permit holders from carrying their arms onto publicly accessible private property, unless the carrier obtained affirmative permission from the property owner. The law was nicknamed 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.
Hawaii’s law was enacted in the wake of the Court’s decision in New York State Rifle & Pistol Association v. Bruen (2022) as a blatant attempt to undermine the Right-to-Carry after the state’s may-issue (nearly nonexistent) permitting regime was invalidated.
In their attempt to defend the ill-fated statute, Hawaii tried to characterize the policy as a state property law issue. The Court was unpersuaded. In his opinion, Justice Samuel Alito wrote, “Hawaii’s law severely hampers the ability of a law-abiding citizen to exercise the right Bruen recognized.”
What was not under dispute was whether private property owners retained the right to exclude those carrying firearms from their premises. Rather, the case concerned whether a jurisdiction could create a default rule banning lawfully carried firearms from all private property open to the public.
In perhaps a gambit to prey on the public’s ignorance, or in an unwitting admission of their own ignorance, some have attempted to portray the Court’s ruling as some sort of assault on property rights.
Consider a recent piece by Dean of the University of California Berkeley School of Law Erwin Chemerinsky for the Sacramento Bee titled, “The Supreme Court favors gun rights over all other rights.” The title alone might come as a surprise to those familiar with the concept of “prior restraint,” or anyone who has gone through the perfunctory process of registering to vote as juxtaposed with the often lengthy, costly, and intrusive process of obtaining a Right-to-Carry permit – to say nothing of states like Massachusetts or Illinois that require an onerous licensing procedure just to possess any firearm whatsoever.
In lamenting the Court’s respect for the Second Amendment, Dean Chemerinsky wrote,
Conservative justices, for example, have consistently stressed the importance of protecting property rights. The Hawaii law is about just that: It gives private property owners the right to decide whether to allow guns on their premises.
and,
the six conservative justices showed no deference at all to Hawaii’s choice to give private property owners the ability to prevent guns on their premises.
In less than 20 years, our society has gone from having a government that allows unchecked constitutional authority to regulate guns to protect the public, to now not even being able to allow private property owners to decide for themselves whether to permit guns on their property.
This misleads the reader into believing that the Court has stripped private property owners of their right to exclude those carrying firearms from their premises. That is not the case.
Justice Alito’s opinion was explicit that the right to exclude was not at issue in Wolford. It acknowledged “the undisputed principle that the owner of private property is generally free to exclude anyone from entering without consent.”
Justice Amy Coney Barrett’s concurrence is even clearer, noting,
It is irrelevant, for purposes of the [Second] Amendment’s plain text, that a property owner has the right to exclude anyone who wishes to enter her property with firearms. No one doubts that all property owners in Hawaii could bar the carry of arms on their respective premises, if they wanted to.
In fact, even gun control organization Everytown for Gun Safety gave a more accurate description of this aspect of the Wolford decision than Berkeley’s longtime constitutional law professor. In a post-Wolford Q&A-style summary, the gun control group explained,
Does this ruling mean that private businesses always have to permit guns on their private property?
No. Hawaii property owners still have complete authority over who brings guns onto their land. If you have a business, you can still stop your customers from bringing firearms onto your property, including by posting a sign at the door.
Of course, NRA-ILA encourages all private property owners to allow carry on their premises. Right-to-Carry permit holders, and law-abiding gun owners who exercise the Right-to-Carry without a permit, where legal, have proven themselves exceptionally trustworthy.
Examining permit revocation data for his annual “Concealed Carry Permit Holders Across the United States” report, Economist John Lott determined, “Even given the low conviction rate for police, concealed carry permit holders are even more law-abiding than police.”
This demonstrates the absurdity of Dean Chemerinsky’s claim that the High Court, with Wolford, “continued to greatly limit the ability of the government to protect public safety and save lives by regulating firearms.” There is absolutely no evidence that the vampire rule’s short career in American law ever prevented a single death. The criminals carrying guns for nefarious purposes aren’t asking for permission to do so, much less to enter a business before they commit an armed robbery of it.
Indeed, with the Right-to-Carry recognized constitutional law and 29 states now implementing this right with permitless carry, the murder rate is at a 125-year low. U.S. Department of Justice statistics (2024) show the state with the lowest homicide rate, New Hampshire, and a majority of the top ten lowest have Constitutional Carry. The same goes for state rankings on violent crime, with Constitutional Carry Maine sneaking just past Constitutional Carry New Hampshire for the lowest violent crime rate.
The Court’s decision in Wolford did not restrict a property owner’s right to exclude a person carrying a firearm from their premises. Attempts to characterize the Court’s defense of Second Amendment rights as at odds with some justices’ longstanding commitments to property rights should be dismissed. Nor was the vampire rule an important “gun safety regulation” so much as a defiant middle finger to the U.S. Supreme Court for upholding the right to keep and bear arms.
One might expect better from the dean of California’s flagship public law school than to parrot lame political talking points, but then the Golden State isn’t known for applying its best legal thinking to questions of the Second Amendment.
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