Blue Brief 2025-2026

of extreme dysfunction suggests that only a rare defendant and/or a rare drug might sustain a future as-applied prosecution under § 922(g)(3).

“to bear” guns. The issue was whether Hawaii could point to a traditional practice analogous to its new law. Hawaii claimed three historical analogues. First, statutes prohibiting trespassing on land with a gun were common historically. For the majority, Justice Alito characterized these as anti-poaching provisions. Their purpose was to prevent shooting animals outdoors, not shooting people indoors. Hawaii relied on two other historical enactments. One was an 1893 Oregon law that prohibited trespassing on enclosed property with a firearm. Leaving aside doubts about whether the Oregon law was anything other than another anti-poaching law, the majority characterized it as at most an isolated example that was not adopted widely elsewhere and therefore didn’t count as well-established. The state also pointed to an 1865 Louisiana statute that prohibited carrying firearms into private premises without the consent of the owner. As with the Oregon statute, the majority characterized the Louisiana act as not “widespread, well-known, and widely accepted.” Justice Alito also noted that the Louisiana law, although facially race-neutral, was part of the infamous Black Codes adopted by Southern states after the Civil War. As the Court discussed in depth in McDonald v. City of Chicago , one of the abuses the Fourteenth Amendment was intended to stop was the disarmament of the former slaves, including many veterans of the Union Army. “Unless we put history entirely out of our minds,” Justice Alito wrote, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

The second case, Wolford v. Lopez , was argued (and won) by Alan Beck, USD Law (JD) ’07. Wolford facially invalidated by a vote of six to three a Hawaii statute that prohibited concealed carry permit holders from entering business premises without the express consent of the owner. None of the justices questioned the right of a property owner to exclude visitors carrying guns. The issue was whether the default rule should be “guns allowed” subject to notice by the owner that guns are not allowed, or “guns not allowed” subject to notice by the owner that guns are allowed. The Hawaii law adopted the second of these default rules. Like Justice Gorsuch’s opinion for the Court in Hemani, Justice Alito’s majority opinion in Wolford followed the Bruen analysis. The Hawaii law prima facie infringed the right The elephant in the room here is the prohibition of gun possession by convicted felons… . Any constitutional limits on these laws would apply … with full retroactivity, even decades after a conviction.

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 12