Supreme Court Justice Amy Coney Barrett opted not to put her name on the majority’s decision as penned by Justice Alito. Instead, she wrote a concurrence.
For the most part, we’ve been focused on Alito’s writing as that’s the one that has the force of law, basically, but we probably shouldn’t ignore Barrett’s contribution.
Because it basically rips apart some of the more inane arguments flying based on Justice Ketanji Brown Jackson’s dissent. Oddly, this was pointed out via a piece at MS Now.
Hawaii argued that this was a case primarily about the rights of property owners, not the Second Amendment. Justice Ketanji Brown Jackson, in her dissent, argued that “Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.” This argument has initial appeal.
But Barrett’s concurrence lays bare the legal problems with Jackson’s argument. Barrett notes private property owners are free to prohibit gun owners from carrying guns onto their property. But this case doesn’t address the ability of a hotel owner to kick a gun owner off his property, it deals with a state action, bringing it squarely under the second amendment’s purview.
Bingo.
No one has really argued that business owners can’t restrict guns on their property. There might be disagreements as to how they should be permitted to do that, such as some will accept a sign at the door and others want those business owners to have to ask them to leave, but few dispute their property right to disallow guns to some degree or another.
Hawaii and other states with so-called vampire rules might try to frame this as a property rights case, but it was the state that made the decision, not the property owners themselves.
To frame this another way, I used the example of the state banning prayer at restaurants unless the owner expressly permits this.
As many of the people who support the vampire rule also aren’t really big on Christianity, that probably doesn’t bother them, so Barrett provided a better example.
As Barrett also pointed out, states can’t be the one prohibiting people from exercising their constitutional rights on private property, even if it’s open to the public. Barrett rhetorically asked: “What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny?” The answer has to be “no,” as this hypothetical law would raise serious First Amendment problems.
The point is not that guns and religious clothing are the same. The point is that a state cannot avoid constitutional scrutiny simply by routing a burden on a constitutional right through property law.
Now, there are reasons that many will claim that this is an example of an argument ad absurdum or something, but the reality is that there are countries where hijabs are restricted, as well as burqas. It’s not as big a stretch as some might want to make it.
But even if it is, it’s not anything of the sort, as it’s about framing the same argument as the vampire rule in a slightly different way. If you think it’s ridiculous to believe any state would restrict something like the hijab from private property without express permission, then how can you stand for the vampire rule?
Unless, of course, you’re ready to admit that you see the Second Amendment as a second-class right. While I’d disagree with you with every fiber of my being, and I’d call you an idiot since there’s nothing in the Constitution to suggest such a thing, I could at least accept the honesty.
But they won’t.
Look, what Hawaii tried to do is act as if the law empowered property owners when, in fact, it did the opposite. It decreed outright that guns weren’t permitted anywhere unless the property owner expressly stated otherwise, which is more than most of them were ever going to do. It wasn’t because they were so outwardly hostile toward concealed carry, but because most people just don’t give a damn, which means the state tried to put people on the spot, then acted like they were doing them a favor.
Now, some are floating ways to try and work around the Wolford decision, but once again, it’s clear that they simply don’t get it. This is a basic civil liberty that should be respected, just as all other rights are respected.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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