In Wolford, the Supreme Court should clarify the facial/as-applied issue.

Stephen Halbrook | 1.15.2026 9:44 PM

As we have been posting, on January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, where the question presented is: "Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?"

Hawaii's Act 52 provides that a licensee may not "enter or remain on private property of another person while carrying a loaded or unloaded firearm … unless the person has been given express authority."  It applies regardless of whether the property is open to the public.  Since the challengers disown contesting the constitutionality of the ban on private property not open to the public, can it be said that the law is not unconstitutional in all applications?  No, because one part of a law may be facially unconstitutional, and another part of the law may not be.

Moreover, although plaintiffs formally state that their challenge is both facial and as applied, is there any real difference here?  "As applied" normally refers to application to specific plaintiffs, and if their claim is valid here, the law is unconstitutional as applied to everyone.  (By contrast, there was a reason Mr. Rahimi, a bad dude, forewent a challenge as applied to himself.)

In Respondent's Brief, Hawaii argues that the petitioners have "made an all-or-nothing argument akin to a facial challenge and, having done so, they cannot succeed unless 'no set of circumstances........

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