The Supreme Court is deciding whether the state of Hawaii can require permission from gun owners before carrying concealed guns onto private property open to the public, such as stores.
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WASHINGTON – In Bram Stoker’s 1897 Gothic horror novel, Dracula could not enter a room without being invited.
In a Supreme Court case the justices will hear on Jan. 20, gun rights advocates are accusing Hawaii and other states of enacting the “Vampire Rule,” a law that requires gun owners to get verbal, written or posted permission before taking concealed guns onto private property open to the public, such as stores.
They argue that the default assumption should be that handgun possession is allowed on private property that is open to the public unless the owner explicitly prohibits it.
Their challenge (which the Trump administration took the unusual step of encouraging the Supreme Court to hear before waiting for the government’s opinion) does not require the justices to delve into 19th-century literature. However, this would require reviewing laws from the colonial and reconstruction eras.
That’s because the Supreme Court, in a landmark 2022 decision, said that for gun laws to be constitutional, they must be consistent with the country’s historical tradition of gun control.
Supreme Court expands gun rights
The court’s 6-3 decision in New York State Rifle and Pistol Association v. Bruen also significantly expanded the Second Amendment right to bear arms outside the home.
After a court struck down a New York law restricting who can carry guns in public, Hawaii and other Democratic-led states focused instead on where guns can be carried.
The Trump administration urged the Supreme Court to get involved, arguing that Hawaii, California, Maryland, New York and New Jersey are fleeing to avoid complying with the Supreme Court’s 2022 ruling.
“Because most owners do not post signs allowing or prohibiting guns, and because it is virtually impossible to act in public without setting foot on private property that is open to the public, Hawaii law operates as a near-total ban on carrying in public,” the Justice Department said in a court filing.
Hawaii said its law passed in 2023 supports both the right to bear arms and the right of property owners to keep guns away.
“Congress enacted this default rule based on ample evidence that Hawaii property owners do not want people to bring guns onto their property without their explicit consent,” lawyers for the state said in written arguments, referring to the state’s long tradition of restricting weapons, even before Hawaii became a state.
For example, in 1833, the Hawaiian king prohibited anyone from possessing knives, sword canes, and other dangerous weapons, the Hawaii attorney general said in court.
Gun rights lawsuits are on the rise.
The gun rights case the Supreme Court will hear this term is not the only challenge to Hawaii’s law.
Justices will consider in March whether a federal law that prohibits drug users from owning guns applies to a man who was not using drugs at the time of his arrest.
The justices are also deciding whether to challenge a state law banning AR-15s and high-capacity magazines, and a federal ban on gun possession by convicted felons.
Lawsuits over gun control soared after the court ruled in 2022 that gun control must be based on historical tradition.
Lower courts have struggled to apply that standard.
Lower courts were divided over Hawaii law.
In the Hawaii case, the district court judge’s preliminary opinion was that the state law failed.
When Hawaii appealed, the San Francisco-based Ninth Circuit Court of Appeals sided with the state and ruled that Hawaii’s law was constitutional.
The appeals court pointed to several historic regulations, particularly one enacted in New Jersey in 1771 and one enacted in Louisiana in 1865, both of which required a permit before bringing firearms onto private property. These laws, the court said, were “destructive” to Hawaii’s regulations.
Three Maui residents and the state’s gun owners’ group, which are challenging Hawaii’s rules, say those laws don’t apply to the facts in this case. New Jersey law prohibited poachers from hunting on private land not open to the public. And Louisiana’s law was aimed at keeping guns out of the hands of formerly enslaved people.
Hawaii also completely bans guns in some public areas, including beaches, parks, bars and restaurants that serve alcohol (the Supreme Court has not considered this regulation), effectively banning gun owners from carrying guns in public almost anywhere, they argue.
Hawaii counters by saying, for example, gun owners only need permission from employees to bring guns into stores or convenience stores.
“Certainly, the employee may say no, but that possibility does not make this law unconstitutional, since we all agree that property owners have the right to remove guns if they wish,” state attorneys said in a filing.
Gun owners say they are treated like ‘monsters’
Gun rights groups argue that Hawaii’s law is not motivated by a desire to protect private property rights, but rather because Hawaii wants to go after gun owners.
Like the novel “Dracula,” several gun rights groups wrote in a letter supporting the challenge that Hawaii “treats people with carry permits as if they were monsters that must be exorcised.”
In a separate brief, the National Gun Rights Association said the state’s “vampire rule” requires store owners to take public positions on highly controversial issues.
“Employees who support the constitutional right to bear arms for self-defense face a Hobsonian choice,” the group wrote. “He can make his opinions public and risk offending many would-be customers, or he can suppress his preferences so that people can exercise their right to own property.”
“The Foundations of American Identity”
Groups working to reduce gun violence are concerned that the conservative court could not only strike down Hawaii’s law, but do so in a way that increases scrutiny of the historic tradition it created to evaluate gun control. All of the justices except Justice Clarence Thomas, who authored the 2022 decision, made that standard clear in their 2024 decision, explaining that gun control does not need to be historically accurate to uphold modern rules.
Billy Clark, an attorney with the Giffords Law Center, said if the court upholds the change, it would allow Hawaii to argue that its law fits within the nation’s long history of regulating private property in general.
“Historically, states have always set default rules for the use of property,” Clark said. “So you can’t simply assume it’s okay to bring your dog to a restaurant.”
Douglas Letter, chief legal officer of the Brady Gun Control Advocacy Group, said private property rights are “foundational to our American identity and embedded in our entire system of government.”
“It’s absolutely clear that the wealthy white men who created the U.S. Constitution and the Bill of Rights had one of the main things in mind: protecting property,” he said.
