In this analysis, I’m not going to be doing as much quoting. There are others that do so. Instead, I’m going to attempt to distill the argument or line of questioning.
Alan A. Beck, lawyer for the good guy
The Second Amendment is implicated. Hawaii has not met its burden to prove there is a historical tradition of firearms regulation that matches this law. This is a presumptive ban on The People’s right to bear arms, even if not stated explicitly.
Thomas: You argue that the law prevents access to about 97% of public areas? how did you arrive at that?
Beck: The entire package of laws is 96.4%, this law is less. We got that value from an architecture firm that went through public records of the County of Maui.
Sotomayor (interrupting Thomas): It’s not really 97%, right? This law is much less than that. People can carry in other places, Right?
All right. So you say that there is a constitutional right to carry a gun on private property?
Beck: Yes.
Sotomayor: I’ve never seen that right. I mean, I understand that there is a right to carry a gun on private property with an owner’s consent, express or implicit, correct?
Me: I did read it in the Constitution: the right of the people to keep and bear arms shall not be infringed. And she just said it, she gave it away. You have that right if you have the right to carry on public property if you have the owner’s express or implicit consent. And that is what property open to the public means: you have explicit consent to enter, and you have the implicit consent to carry.
The state of Hawaii removes that implicit consent to carry.
Sotomayor then goes on to try to conflate carrying where you are legally allowed to go with trespass. It is difficult to follow because she wants it to be difficult to follow. She is attempting to make the case about property rights. Which is not at question.
Nobody is arguing that private property owners can forbid trespass and can set rules for entering their property. “No shoes, no shirt, no service” is exactly that. A “No Guns” sign means I’m shopping somewhere else.
She then goes on to yap about the “custom” of carrying on private property with implied consent. She then pulls a quick one by trying to say that since Hawaii has a 200 year custom of forbidding firearms, this is the custom that should stand now. Beck fires back that it is a “custom of the nation”, not the state. Falling into her verbal trap.
There are no laws in this Nation’s historical tradition of firearms regulation that takes away that implied consent.
Sotomayor and Beck get into a back and forth regarding a previous Supreme Court case, McKee. Sotomayor claims it was talking about the customs of just the state of Missouri, while Beck points out that Justice Scalia used the term “Nation” multiple times. I’ll take Beck’s word over the second dumbest justice to sit on the Supreme Court.
She then tries to bring in laws from 1721, 1722. There’s a huge issue with this. The laws of 1721, 1722 are the laws of England, not this Nation.
Even if the laws were applicable, they all dwelt with closed lands. Lands that were not open to the public.
Barrett and Beck agree that Hawaii could pass a law that prohibited carrying on closed lands as a property right.
Dumber (Jackson) now opens her mouth. Justice Thomas takes off his glasses, leans back in his chair and waits for the magpie to stop making noise.
This is just a property right issue. Property rights trump Second Amendment rights.
Beck calls her BS saying the issue implicates the right to keep and bear arms. Jackson says it doesn’t. It is just property rights.
Gorsuch: This law destroys the right to bear arms in Hawaii. Where does this fit into the Bruen framework?
Beck: Carrying is implicated by this law. The burden must shift to state to prove a match with this Nation’s historical tradition of firearms regulation.
Sotomayor: So the 96% doesn’t really matter? There’s no means end scrutiny? Hawaii has a right to regulate a custom. That means the Second Amendment isn’t implicated.
Using a 1763 for the colony of New York, they banned trespass on private land; that means Hawaii can ban carry on public land.
Sotomayor’s method is to talk over, to interrupt the lawyers she disagrees with. She doesn’t listen to what Beck has to say.
She is actually doing performative art. She and Jackson are both saying things that can be quoted later and which they will quote in their dissent about why this was wrongly decided.
Sotomayor ran this guy out of time. And even when Chief Justice Roberts says he is out of time, Sotomayor talks over Roberts for another paragraph or two. Beck tries to answer; Sotomayor cuts him off before Roberts cuts Sotomayor’s line of questioning off.
Roberts uses a gas station and a home on the side of the road to highlight that there is a difference between private property closed to the public and private property open to the public. Beck does a fantastic job of pointing out that all other rights extend to the door. As Roberts says, “A stranger can walk off the sidewalk and go up to the door?” Beck, “Yes, up to the door, Your Honor”
Alito asks if there are any other objects besides guns that a person may not possess when they enter private property open to the public.
Sotomayor goes back to the Hawaii custom of denying rights to prove that they should still be able to deny The People the right to keep and bear arms.
And she is snarky about it; it looks like she yanks some number out of her ass: So 78 percent of Hawaii residents and 64 percent of Hawaii gun owners do not think that loaded concealed weapons should be allowed into businesses at all, correct?
Beck: I’m unaware of that statistic, Your Honor.
Sotomayor: “I wasn’t aware of your 97 — 96 point — percent number”
She would have been aware of his numbers if she had read the fillings. Thomas knew. Thomas mentioned it, not Beck.
Kagan: Hasn’t the state met its burden with the many historical regulations it has cited? And they have multiple references to legislation that flipped the default.
Beck: No. The poaching laws limited carrying on private lands for poaching, not for self-defense. The other laws cited are black code laws. Laws designed to discriminate against blacks. We’ve moved past that.
Kagan: Well, yes, they are anti-pouching laws, and yes, they did allow people to carry for self-defense, but that is close enough to banning armed self-defense on private property, right?
Kagan: You see, the anti-poaching laws were about preventing injuries to private property, and Hawaii’s law is about preventing injuries also.
Me: No, anti-poaching laws were to stop people from stealing food on the hoof.
Beck: This entire line of questioning is irrelevant. The laws you are referring to were closed property; Hawaii’s law is for property open to the public.
Gorsuch: The laws being referenced are a New Jersey 1771 anti-poaching law. The other is an 1865 Louisiana law that a Reconstruction governor explained was aimed at the freedmen. A black code law. Do you think that black codes should inform our decision-making?
Beck: Hell no.
Gorsuch: Well, the state claims it is a dead ringer for this statute.
Beck: The 1865 law was expressly passed to discriminate against African Americans that were newly freed slaves. And I just don’t see how a law like that can be used to be analogized to a modern-day law, this modern-day law, Your Honor.
Barrett asks if Beck agrees with everything the government said in their brief. Beck thinks she is talking about the state of Hawaii. Barrett clarifies that she is speaking of the US federal government, which filed supporting The People and will be arguing next. Beck corrects himself and there is a bunch of laughter.
Barrett: The government that’s on your same side.
Beck: Yes, I understand.
(Laughter.)
Beck: I agree with every —
Barrett: I’m not asking you to throw your case away.
(Laughter.)
Beck: I fully endorse the United States’ brief, Your Honor.
Barrett asks for clarification regarding “open to public” and “closed to public” and the 1865 black code law. Beck replies that there might be something to discuss there, but the fact that it is a black code law means it is not part of this Nation’s historical tradition of firearms regulation.
Jackson is back for another whiff at bat: Chief Justice Roberts asked about a gas station on the side of the road. We don’t get to enter that gas station because of a Constitutional right but because the owner of the gas station has given us consent. That consent has limits, and the owner can set those limits, and the state can set limits, right?
Beck: You have a constitutional right to carry your firearm onto that specific gas station.
Good going, Mr. Beck. Don’t let Jackson distract you.
Goodness, is Jackson dumb or just incompetent? She is attempting to set a word trap, and she’s nowhere near as good as Sotomayor, and Sotomayor is bad at it. She denies there is a constitutional right to carry on private property. She then says that there is an implied license
. Then claims that there is a historical tradition of requiring a license to enter private property.
This is so convoluted. Nowhere do you need a “license” to enter private property. She is using an obsolete definition where “license” is the same as “permission”. She then continues to use the term “license” to say that you require a license to enter. This type of language will be used in the dissent to justify Hawaii’s licensing (permission) scheme.
Cringe warning
Jackson:
And I guess I’m wondering whether that doesn’t signal a problem with the Bruen test, that to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I — I think there might be something wrong with the test. So can you speak to that?
(I had to take a break after that.)
She goes on, saying that when Thomas wrote “this Nation’s historical tradition of firearms regulations” he said that we were bound by history. Since 1865 is part of our history, then that should be part of the Bruen test. Which also means that any law ever passed becomes part of our history and thus becomes justification for all future infringements, even if that law is later struck down.
Ms. Harris is the Principal Deputy Solicitor General for the Federal DOJ. She was acting solicitor general before D. John Sauer was confirmed as solicitor general. She is now the second in command of the office of the solicitor general. John Sauer was presenting on a different case the day this case was argued.
In other words, she’s way the heck up there. Trump->Pam Bondi->John Sauer->Ms. Harris. And she’s arguing for us!
Harris: Hawaii is lying about why they passed this law. It is aimed at only legal gun owners with CCWs. There are no other items these laws affect. Besides, the only law they can use to support their current law is an unconstitutional black code.
There is back and forth regarding pretextual laws. The example given is of English game laws. These laws were to “preserve game” but were designed to prevent commoners from hunting.
The gist is that when looking for an analog firearm regulation, the real reason is looked at, not the pretext. Hawaii says it is protecting property rights for safety reasons. Just because they say it is for safety and property rights doesn’t mean that laws dealing with property rights and safety are a match to this law.
You have to look for the true reason for the law. In this case, the vampire laws are designed to keep people from carrying because there are too many places where it is illegal.
Kagan opines that The Court doesn’t look at the motives a law was passed. Harris fires back that if the stated purpose and the text show a fundamental mismatch, it belies the asserted motive of the legislature.
Kagan says The Court can’t do that because that would be means-ends scrutiny.
It is clear that the three crones of the Supreme Court are trying to neuter Bruen.
Kavanaugh has had enough of this.
Part 3 of Heller says that means what it — Heller says it means what it says, says what it means. Part 3 of 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.
Isn’t that kind of the straightforward way rather than getting into this whole new elaborate pretext analysis, which, as Justice Kagan says, sounds like what we moved away from?
Harris: Absolutely!
This is a trap that “smart” people fall into. They get distracted by the details. Instead of focusing on the big picture, they get lost in the weeds, and then instead of deciding based on the big picture, they end in a major fight over details.
Harris is fighting a different battle here, though. She is fighting to make it clear that doing an end run around the limits the Supreme Court sets out is not acceptable to the United States. She is clearly targeting New York, California, and the rest of the states that had Bruen tantrum response bills.
Kavanaugh is say to keep it simple. Hawaii didn’t meet their burden. Done and done.
Gorsuch brings up First Amendment case law that addressed a similar issue. Harris uses Lamont as her example. In Lamont they flipped the script on mail delivery. The rule was that you got mail of all sorts unless you explicitly said “no”. The law in question in Lamont flipped it to require a person to explicitly request mail on a “very easy-to-send postcard”. This was firmly rejected by The Court.
Jackson is back with another attempt to make this only about property rights. Harris gives a perfect example of how stupid this argument is. She points out that today a politician can have somebody come to your door to campaign. But if this law was followed in a First Amendment situation, the homeowner would have to post a large sign on their property before that door knock could take place.
Alito sends a soft pitch asking about why antipoaching laws are not an appropriate analogue. Harris knocks it out of the park. You know why.
Alito then asks what is the purpose of the Second Amendment right is. Harris, self-defense, and other lawful purposes.
Alito focuses on Heller, which he wrote, to point out that the wording was about self-defense but that other lawful purposes also existed. Harris does a good job in the answers.
Sotomayor is back. Still attempting to make it all about property rights and the owner’s consent. She tries to use Hawaii’s tradition of screwing over The People’s right to keep and bear arms over the last 200 years as the tradition that allows Hawaii to pass the vampire laws.
Harris fires back, stating clearly that local customs in a state doesn’t allow that state to have its own Second Amendment. The meaning of the Second Amendment doesn’t change as you move from state to state.
Ok, this is good!
Harris:
Those laws are dead ringers only in the sense that this law too is an unconstitutional pretext. The black codes were offered, as you mentioned, by states before their readmission to the union. It is not an indictment of the Bruen framework to say that unconstitutional laws do not count in illuminating a valid tradition.
It is almost as if Harris had this response lined up before it was asked. Great response.
In an interesting exchange between Kavanaugh and Harris, Kavanaugh asks about sensitive places as mentioned in Heller. He attempts to get Harris to agree with Heller as is. Instead, Harris goes with, We agree with the principle as stated that there are obviously sensitive places. You determine them with respect to the history of firearm regulation.
This is a massive statement by the DoJ. It says they are not arguing that sensitive places do exist, but that it isn’t as easy as saying, “That’s a sensitive place,” to get guns banned. You can’t declare the island of Manhattan a sensitive place. So New York declared Times Square a sensitive place.
Barrett asks about anti-poaching regulations. Harris points out that poaching was and is a problem.
In my state, and most states that I know, you have to post your land to keep hunters out. Hunters are presumed to be able to hunt on any land that is not posted. In my state the limit on where you hunt is 100 yards of an occupied dwelling. And they mean occupied as people living in, not that nobody is home.
JUSTICE JACKSON: So I guess I really don’t understand your response to Justice Gorsuch on the black codes.
And here I thought that Jackson had gotten her “I don’t understand” under control. There is so much she doesn’t understand.
She’s arguing that black code laws, laws that have been found unconstitutional, can be used to justify more unconstitutional laws.
More tomorrow.
Given her current line of reasoning; Justice Ketanji Brown-Jackson should argue that indentured servitude is actually legal in the USA.