Second Amendment Roundup: Four Points on the Wolford Argument |
Comments by Akhil and Vikram Amar in Scotusblog.com are off base.
Stephen Halbrook | 1.25.2026 10:17 PM
In a recent article in Scotusblog.com, Akhil and Vikram Amar attempt to answer four concerns raised in the Justices' questioning in oral argument in Wolford v. Lopez. However, at each turn in their defense of the Hawaii law, their answers fall flat.
First, the Amars address the concern that Hawaii treats the Second Amendment as a second-class right. The Justices probed Neal Katyal's position, questioning whether the government could presumptively ban speech on private property without the property owner's express approval. The Amars respond that the First and Second Amendments are simply different. They state that violent felons may be stripped of Second Amendment rights, but they retain their First Amendment rights. But this answer ignores the fact that after Bruen, any difference between the First and Second Amendments must be rooted in history. While disarming violent felons may have that pedigree, Hawaii's law does not.
Furthermore, there are examples of people losing all their rights, both to free speech and to bear arms, based on a determination of physical danger. Violent felons have both their speech and firearm rights curtailed while in prison, for example, and probation conditions may limit their freedom of association with certain people, such as gang members. So that example, if anything, proves that Hawaii treats the Second Amendment as a second-class right.
The Amars' claim also makes a faulty assumption that the mere carrying of a firearm is dangerous, while speaking can never be. Speech that incites a riot or other violence certainly is. They state that "obviously, an activist sporting a campaign button while seated at a restaurant table – or while standing on a homeowner's front porch, for that matter – is utterly different from an activist toting a gun in these very same privately owned spaces."
But Hawaii only presumptively bans carrying by a concealed carry permit holder. These are people that the state has already determined to be peaceful, law-abiding citizens who should be able to carry a concealed firearm. There is nothing inherently dangerous about carrying a........