Supreme Court Drives a Stake Through Hawaii’s ‘Vampire Rule’

By Charles C. W. Cooke

Thursday, June 25, 2026

 

In a 6–3 vote, the Supreme Court has struck down Hawaii’s “vampire rule” as a violation of the Second and 14th Amendments to the U.S. Constitution. This was the right result, and, once again, it is a disgrace that the decision was not unanimous.

 

At stake was a Hawaiian statute, Act 52, that inverted the usual presumption that governs public access to generally accessible private property, but only where firearms are concerned. Prior to the passage of Act 52, Hawaiians who were able to obtain carry permits (which, before Bruen, was effectively impossible) were allowed to enter any generally accessible private space while carrying a firearm — unless the property owner explicitly signaled otherwise. After Act 52, Hawaiians with carry permits were allowed to enter any generally accessible private space while carrying a firearm only if the property had signaled that it was acceptable. (Gothic lore holds that vampires must be explicitly invited to enter one’s home before they may cross the threshold. Hence: “vampire rule.”)

 

As the Court correctly noted, this change — which was made directly after Bruen, and which shifted only the rules governing firearms, and no others besides — was explicitly designed to impede “the ability of law-abiding citizens to exercise the right Bruen recognized as they go about their daily lives.” That being so, it fell.

 

Writing for the majority, Justice Alito recorded that:

 

At common law, opening up private property to the general public implies a “license to all persons to enter,” meaning that “no person is a trespasser by merely entering therein” unless the property owner has given “due notice” that such a person is banned.

 

“Hawaii’s shift from the common-law rule,” Alito concluded, “unquestionably imposes a new and significant burden on the exercise of the right recognized in Bruen.”

 

During briefs and at oral argument, Hawaii offered up three main defenses of its law. The first defense was that it has historically had much stricter firearms laws than much of the rest of the United States. Alito dealt with that one quickly:

 

As the plurality explained in McDonald, the Second Amendment has the same meaning in all parts of the United States. 561 U. S., at 784–785. It cannot give way to “the spirit of Aloha” in Hawaii, contra, State v. Wilson, 154 Haw. 8, 27, 543 P. 3d 440, 459 (2024), any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald).

 

Aloha, “spirit of Aloha.”

 

The second defense was that this wasn’t a Second Amendment case at all, but a property rights issue. This idea was picked up by Justice Jackson, who wrote in her dissent that the majority’s

 

bid to invoke the Constitution stumbles out of the gate—at step one of this Court’s Bruen test. There is no constitutional right to enter private property without the owner’s permission, let alone with a firearm.

 

But, as Justice Barrett responded in her concurrence, this cannot be true, given that the presumptive rule in question was passed by the government:

 

It is irrelevant, for purposes of the Amendment’s plain text, that a property owner has the right to exclude anyone who wishes to enter her property with firearms. No one doubts that all property owners in Hawaii could bar the carry of arms on their respective premises, if they wanted to. But the Second Amendment does not apply to private parties. It does apply to the States. See U. S. Const., Amdt. 14, §1. And when a State enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment.

 

(Barrett also asked the obvious question: If a state passed a law presumptively barring the wearing of a hijab on generally accessible private property, absent the owner’s explicit instructions to the contrary, would anyone seriously contend that that was purely a civil matter?)

 

The third defense — and, really, the only conceptually serious one — was that there are enough similar laws in America’s historical record to render Hawaii’s law acceptable under Bruen. But this, too, collapses once one digs into the details. The examples of supposedly comparable laws that Hawaii raised were:

 

1.      That many of the original states had anti-poaching laws that governed the carrying of firearms onto private property;

 

2.      That at the end of the 19th century, Oregon had a law barring the carrying of firearms onto “enclosed premises”;

 

3.      That — yes, this was really offered up — Louisiana’s postbellum Black Code existed.

 

Justice Kagan, who conspicuously declined to join Justice Jackson’s typically overwrought and overconfident dissent, took up the poaching laws in her own dissent, contending that:

 

That the old laws had a special (though by no means exclusive) concern with poaching does not matter. “The regulatory challenges posed by firearms today are not always the same as those that preoccupied” earlier generations. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 27 (2022). The key question is whether the challenged regulation is “consistent with the principles that underpin our regulatory tradition.” United States v. Rahimi, 602 U. S. 680, 692 (2024) (emphasis added). Here, the challenged law is consistent with those principles because it reflects, as the old laws did, the perceived “abuses, damages and inconveniences” that can be caused by persons carrying guns “on other people’s lands.”

 

This is a straightforward and comprehensible argument. But, quite obviously, it does not pass muster. That the poaching laws had a “special concern” is the whole ballgame.

 

As Justice Barrett observed:

 

Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns. In other words, Hawaii is responding to the general danger associated with the presence of firearms, not to any specific, heightened risk of their misuse.

 

Under our constitutional system — as well as every relevant precedent — only one of these regulatory approaches is permissible. If it were otherwise, governments would enjoy carte blanche to ban guns everywhere. It is true, for example, that, since the revolutionary era, governments have banned firearms from polling places. But it does not follow from this that if the government can do that, it can do anything it likes.

 

What the existence of the anti-poaching laws shows is that governments may pass narrowly tailored laws to address particular problems, not that the government may selectively invert common law standards in retaliation against the enforcement of the Bill of Rights.

 

As for the Black Code argument, I can still scarcely believe that Hawaii — or Hawaii’s lawyer, Neal Katyal — brought them up. As Justice Alito pointedly remarked:

 

The statute Hawaii cites was part of Louisiana’s Black Code, and it provided a tool for disarming blacks and thus leaving them defenseless against attacks. See 125 F. 4th, at 1239 (VanDyke, J., dissenting from denial of reh’g en banc). As we laid out in McDonald, the right to keep and bear arms was crucially important for vulnerable blacks during this period. See 561 U. S., at 757, 771, 776–779; id., at 843– 846 (opinion of THOMAS, J.). And this was well-understood by the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment. The Republican Party Platforms of 1856 and 1860 called for protection of the right to keep and bear arms for self-defense. Unless we put history entirely out of our minds, Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.

 

Indeed. “Well, your honor, we used to have a bunch of Jim Crow laws that crushed Reconstruction” is, sadly, true. But it is not an argument against the 14th Amendment or the rights that it applies against the states. How impotent and how peculiar progressive jurisprudence has become.