What Part Of The 2nd Amendment Don’t Blue States Understand?

The Supreme Court should not have had to say it again. Yet on Thursday, in Wolford v. Lopez, the court once more reminded state officials that the Second Amendment is part of the Constitution, not an inconvenient policy preference to be circumvented whenever a legislature dislikes the result.

The court held that Hawaii’s attempt to forbid licensed citizens from carrying firearms onto virtually all private property open to the public, unless the owner had affirmatively granted permission, violated the Second and 14th Amendments. In practical effect, Hawaii had tried to accomplish indirectly what New York State Rifle & Pistol Association v. Bruen said it could not do directly: make the right to bear arms largely meaningless.

One cannot read Wolford without noticing a troubling pattern.

When the Supreme Court decided District of Columbia v. Heller in 2008, it held that the Second Amendment protects an individual right to possess firearms for self-defense. Two years later, McDonald v. Chicago made clear that this right limits state and local governments as well.

Then came Bruen in 2022, rejecting New York’s discretionary licensing regime and insisting that modern gun regulations must be consistent with this nation’s historical tradition of firearm regulation.

One might have expected those decisions to settle the matter. Instead, several states responded not by respecting the court’s rulings, but by searching for creative ways around them.

New York enacted its so-called “Concealed Carry Improvement Act,” declaring vast swaths of public life to be “sensitive places” where firearms were prohibited. Hawaii copied much of New York’s playbook while adding its own extraordinary rule that licensed citizens could not carry firearms on private property open to the public unless the owner expressly invited them to do so. Illinois has likewise pursued increasingly aggressive restrictions that repeatedly test the outer boundaries of Heller and Bruen. The message has often seemed less like faithful constitutional compliance than legislative resistance.

Wolford is therefore about more than one Hawaii statute. It is about whether states may effectively nullify constitutional rights through clever drafting after losing in court.

Justice Samuel Alito’s opinion properly and forcefully answered no. The Constitution does not guarantee merely the appearance of a right. It guarantees the right itself. A constitutional liberty cannot be transformed into an empty promise simply because legislators devise new mechanisms for producing substantially the same forbidden result. As the court explained, Hawaii had replaced one unconstitutional barrier with another that sharply departed from the traditional common-law rule governing access to private property open to the public.

But there is another aspect of Justice Alito’s opinion that deserves even greater attention. Throughout the modern Second Amendment cases, Justice Clarence Thomas has argued that the court has been relying on the wrong provision of the 14th Amendment. Rather than incorporating the Second Amendment against the states through substantive due process, Thomas has consistently maintained that the privileges or immunities clause supplies the proper constitutional foundation. His separate opinion in McDonald traced that clause to one of the central abuses Reconstruction sought to eliminate: southern states’ systematic disarmament of newly freed slaves through the infamous “Black Codes.”

That history is impossible to ignore. Following the Civil War, many southern governments recognized that freedmen who possessed firearms would be far more capable of defending themselves against racial violence and intimidation. The solution was not to outlaw self-defense outright. Instead, they enacted laws that made firearm ownership practically impossible for black citizens.

Congress responded by adopting the 14th Amendment, including the privileges or immunities clause, precisely because state governments could no longer be trusted to respect fundamental rights on their own.

Justice Alito’s opinion notes that Justice Thomas reached the incorporation question in McDonald through the privileges or immunities clause, not substantive due process. That acknowledgment may seem modest, but it signals increasing recognition that Thomas’ historical account cannot simply be ignored.

The timing is especially noteworthy. Only days after Americans celebrated Juneteenth, a holiday commemorating the final enforcement of emancipation, we received a reminder that one of Reconstruction’s principal constitutional achievements was protecting the right of newly freed Americans to possess arms for their own defense. The 14th Amendment was not adopted in the abstract. It was written in response to concrete efforts by state governments to deprive former slaves of fundamental civil rights, including the right to keep and bear arms.

That historical reality often disappears from modern political debate. Many of the same voices that rightly celebrate Reconstruction’s promise of equal citizenship are remarkably reluctant to acknowledge that one of its principal guarantees was an enforceable individual right to armed self-defense.

History, however, is stubborn. The Reconstruction Congress understood that constitutional rights mean little if hostile state governments may evade them through legislative ingenuity. That lesson remains just as true today.

Reasonable people will continue to disagree about background checks, prohibited possessors, or particular safety regulations. Nothing in Wolford prevents states from enacting constitutionally permissible firearm regulations.

What they may not do is pretend that the Supreme Court’s decisions affirming the individual right to keep and bear arms never happened. The Constitution is not optional. Neither is the Second Amendment.

One might ask: Just what part of the right to keep and bear arms do states not understand? But the truth is, they clearly understand. Their persistent refusal to accept authoritative decisions of the Supreme Court therefore raises an even more troubling issue that extends well beyond the Second Amendment. If states may simply enact new statutes every time the Supreme Court strikes down the old ones — each designed to accomplish essentially the same unconstitutional objective — then judicial review itself becomes little more than an advisory opinion. Constitutional rights become rights in theory but not in practice.

Our constitutional system has confronted this problem before. Southern states resisted Brown v. Board of Education for years. A governor stood in the schoolhouse doors. Federal courts issued injunctions. Ultimately, presidents of both parties demonstrated that Supreme Court decisions are not suggestions but the supreme law of the land. When Gov. Orval Faubus attempted to block the integration of Little Rock Central High School in 1957, President Eisenhower federalized the Arkansas National Guard and sent the 101st Airborne Division to enforce the Constitution and the Supreme Court’s decision in Brown. And after the violence at the Edmund Pettus Bridge in Selma, Alabama, Congress reinforced the constitutional guarantees recognized by the courts by enacting the Voting Rights Act of 1965, ensuring those rights could be effectively exercised. 

The lesson is neither partisan nor ideological. It is constitutional. The rule of law cannot survive if states are free to nullify constitutional decisions they happen to dislike. Whether the right at issue is free speech, equal protection, religious liberty, or the right to keep and bear arms, absent some extraordinary error such as the Dred Scott decision, constitutional guarantees mean what the Supreme Court says they mean until the Constitution itself is amended or the court itself overturns its precedent.

That is the principle Wolford reaffirms. The real question now is whether those states that have spent years searching for ways around Heller, McDonald, Bruen, and now Wolford will finally accept the answer — or whether they will continue their efforts to nullify constitutional rights and proceed down a path fraught with so much historical peril. 

Dr. John Eastman is a senior fellow at the Claremont Institute and director of the Institute’s Center for Constitutional Jurisprudence. On behalf of the institute, he filed an amicus curiae brief in the Wolford v. Lopez case, urging the court to invalidate, as it did, Hawaii’s restrictions on carrying firearms on private property open to the public without prior express permission from the property owner.