WASHINGTON − Four years after expanding theSecond Amendment right to bear armsoutside the home, theSupreme Court'sconservative majority could make it easier to carry a concealed weapon in public, again.
Most of the conservative justices seem likely to rule against aHawaiian lawrequiring gun owners to get permission − verbally, in writing or through a posted sign − before carrying a firearm onto private property that's open to the public, such as most businesses.
"You're just relegating the Second Amendment to second-class status," Justice Samuel Alito, one of the court's six conservative judges, told the attorney defending Hawaii's law on Jan. 20.
Gun rights advocates have nicknamed Hawaii's law a "Vampire Rule," after the 1897 Gothic horror novel by Bram Stoker in which Dracula couldn't enter a room unless invited.
Gun rights vs. property rights
The conservative court has expanded gun rights in recent years, including through a 2022 ruling that struck down New York's law requiring residents to have a good reason to obtain a license to carry a handgun.
But the high court has also backed private-property rights, such as a property owner's right to exclude unwanted visitors.
Justice Ketanji Brown Jackson, one of the court's three liberals, tried to emphasize the latter, asking whether Hawaii's law was more about property rights than gun rights.
"The Constitution protects the right to keep and bear arms," Neal Katyal, the lawyer defending Hawaii's law, told the court. "It doesn't create implied consent to bring those arms onto another's property."
Justice Neil Gorsuch was among the conservative justices who resisted that framing.
"We don't allow governments to redefine property rights in other contexts that would infringe other constitutional rights," he said.
Critics dubbed the law a `Vampire Rule'
Three Maui residents with concealed-carry permits, as well as a local gun-rights group, challenged Hawaii's law and have the support of the Trump administration. They argue the default should be that firearms are allowed unless a property owner specifically bans them.
Four states have similar laws: California, Maryland, New York and New Jersey.
The justices didn't delve into the original "vampire rules" from 19th-century literature during their two hours of oral arguments. But the debate did require a review of laws from the colonial and Reconstruction eras.
That's because theSupreme Court, in the2022 decision striking down New York's law, said gun regulations have to be consistent with the nation's historical tradition of firearm regulation to be constitutional.
Supreme Court to decide:Can pot smokers and other drug users legally own guns?
Lawsuits over gun laws spiked after the court created that test, including challenges to laws like Hawaii's that critics say are an attempt to undermine the expansion of gun rights.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled the law met the historical tradition test.
The appeals court pointed to several historical rules, particularly one from New Jersey in 1771 and another from Louisiana in 1865, both of which required a person have permission before carrying firearms onto private property. Those laws are "dead ringers" for Hawaii's rules, the court said, showing a historical tradition for the law.
The Trump administration and the gun owners challenging the law argued that those laws don't support Hawaii's rule because New Jersey's law prevented poachers from hunting on private land closed to the public, and Louisiana's law was aimed at keeping guns out of the hands of formerly enslaved people.
Justice Brett Kavanaugh suggested this should settle the case.
"Why are we making it complicated?" he asked. "Here, there's no sufficient history supporting the regulation. End of case."
Hawaii has its own anti-gun tradition
Hawaii has also emphasized the state's long tradition of restricting weapons, including before it became a state.
In 1833, for example, Hawaii's king prohibited anyone from having a knife, sword, cane or other dangerous weapon.
But Chief Justice John Roberts seemed to agree with the law's opponents that state traditions aren't how the law is supposed to be evaluated.
Sarah Harris, an attorney for the Justice Department, told the court that Hawaii's pre-state tradition doesn't give the state "a veto for the Second Amendment national tradition."
Barrett asked tough questions of challengers
Justice Amy Coney Barrett, the conservative justice who asked the toughest questions of the lawyers challenging the law, probed whether Hawaii would be able to require gun owners to seek permission before bringing a concealed weapon onto private property that's not open to the public, such as a home.
She seemed surprised when Alan Beck, the lawyer representing the gun owners, indicated that the law would also be unconstitutional.
"Really?" she said. "Hawaii can't have that law about my house or Justice Gorsuch's house?"
Beck said Hawaii would have to find a significant national tradition of such a practice to justify it. Barrett also raised questions about the historical test generally.
"Just because a legislature didn't address a problem because it didn't exist at the time, why does that mean that the analogue ties the legislature's hands now?" she asked.
A decision in Wolford v. Lopez is expected by summer.
The challenge to Hawaii's law is not the only gun rights case theSupreme Courtwill hear this term.
In March, the justices will debate whether a federal law thatprohibits drug users from having a gunapplies to a man who was not on drugs at the time of his arrest.
The justices are also deciding whether to take up challenges to state laws banning AR-15s and high-capacity magazines, and challenges to the federal ban on convicted felons owning guns.
This article originally appeared on USA TODAY:Supreme Court skeptical of Hawaii gun law, dubbed 'Vampire Rule'
