Bruen was the last major Second Amendment case to reshape doctrine, and there the Court framed the constitutional inquiry as turning on whether the gun regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Seeing this, several states, including Hawaii, wrote laws saying that it was illegal to bring firearms onto private property open to the public without the owner’s permission. The theory was to use the founding era veneration of private property as a basis for gun regulation. It was a strategy that operated within the Court’s own internal analytical framework, so a priori it would be reasonable to view the Court as possibly upholding the Hawaii law.
The Ninth Circuit upheld the law, following the theory of the legal strategy: they reviewed founding era gun regulation, and concluded that “the Nation has an established tradition of arranging the default rules that apply specifically to the carrying of firearms onto private property … they simply prohibited the carry of firearms on private property without consent.” So far so good.
Argument, however, did not appear to go well for Hawaii. We will see what falls out of this case, but to my eyes several justices moved off the history-only footing. Roberts worried that the Second Amendment was a “disfavored” right. Why, he asked, can you knock on someone’s private-home door to campaign under the First Amendment, but not show up on their property with a gun? I re-phrased his question to make a point, which I take to be plain—but the analytical point is that the basis of Roberts’ argument, whatever its merits, has departed from history and tradition. It’s about some conception of equity among the amendments. Several expressed skepticism about the sufficiency of the history, too.
The Experience Model predicts the Court will reverse the Ninth Circuit with little uncertainty. Interestingly, that was true before argument, too. The most likely dissents are Jackson and Sotomayor. The model thinks it is possible Kagan joins the majority, though I suspect that she will probably join the dissenters. If she joins the majority, it would likely be to narrow the majority position, preserving space for gun regulation outside the specific instances at issue in this case.
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