This post summarizes two recent decisions by the Supreme Court of the United States.
A state law prohibiting individuals from carrying guns onto private property without the express approval of the property owner violates the Second Amendment.
Wolford v. Lopez, __ U.S. __ (June 25, 2026) (Alito, J.). For years, Hawai’i licensed individuals to carry guns only in exceptional cases. After New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), it became clear that such restrictions violate the Second Amendment. Hawai’i responded by making licenses more readily available – but also by passing a new law prohibiting anyone from carrying a gun onto the private property of another without express permission. This “flipp[ed] the default rule” under the common law that a person may enter private property that is open to the public regardless of whether or not the person is armed.
Three concealed carry permit holders and a gun rights organization sued, challenging the constitutionality of the new law. A district court agreed with the plaintiffs and enjoined enforcement of the measure. The Ninth Circuit reversed. The Supreme Court reversed again, determining that the law contravened the Second Amendment. Justice Alito wrote the majority opinion, which the other five conservative Justices joined. The three liberal Justices dissented.
Following the approach established in Bruen, the majority first considered whether the Hawai’i law actually burdens the right to bear arms. Under either the common law rule or the Hawai’i approach, private property owners may choose to allow, or to prohibit, armed visitors. However, the majority emphasized that the choice of default rule is significant because many property owners will abide by the default out of apathy or out of a reluctance to be seen as favoring or opposing a particular position on a controversial issue. Therefore, the Court reasoned that the law does implicate the Second Amendment.
Still following the methodology of Bruen, the Court then asked whether there are historical analogues to the challenged law that would show that the challenged law is consistent with the history and tradition of firearm regulations at the time the Constitution was adopted. Hawai’i argued that the law was consistent with its own long-standing antipathy towards private ownership of firearms, but the majority rejected the idea that “local attitudes” could determine the “general understanding” of the right to keep and bear arms. Hawai’i then pointed to some potential historical precursors, principally Colonial-era “laws that prohibited unauthorized hunting of deer or small game on someone else’s private property.” The majority highlighted that these laws were focused on unauthorized hunting specifically, which carries risks related to the discharge of firearms and the theft of game animals, not on the mere carrying of guns into businesses and other locations intended to be used by members of the public. Therefore, the early American laws did not provide a historical basis sufficient to bring the Hawai’i law within the scope of the Second Amendment, and the Court struck it down as unconstitutional.
Justice Barrett, joined in part by Justices Thomas and Gorsuch, concurred. She wrote separately to “add a few points” about her understanding of Bruen and how it applied to this case. One item of interest is an analogy she used to illustrate why, in her view, the choice of default rules is so important. She imagined “a State ma[king] it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization,” which she suggested would be a First Amendment problem.
Justice Jackson wrote the principal dissent. She first argued that the Hawai’i law does not burden the right to bear arms at all. All the Justices agree that there is no right to bring weapons onto private property against the wishes of the property owner. The Hawai’i law merely establishes what the background rule is (property owners are presumed not to allow guns) and how exceptions to the rule may be created (clear signage or express oral or written permission). The law says nothing about what choices property owners should make against the background rule, and so directly determines nothing about how widely guns may be carried. Then she reasoned that, even if the law burdens the right to bear arms, the historical analogues offered by Hawai’i demonstrated that the law is consistent with the Second Amendment. She acknowledged that some of the precedents were focused on hunting an open spaces, but noted that others applied more broadly. And some of the proffered measures were animated by concerns about property rights and the dangers of armed trespass, similar to the impetus for the Hawai’i law. The majority’s decision otherwise, in her view, turns Bruen into a “fig leaf.”
Justice Kagan wrote a brief dissent, essentially reasoning that Hawai’i’s historical analogues were sufficient to establish the law’s constitutionality and therefore declining to weigh in on the debate around whether step one of Bruen was satisfied. She also declined to analyze a dispute between the majority and the principal dissent about Hawai’i’s citation to the Louisiana Black Code in connection with step two of Bruen, a debate that I have not attempted to summarize here because it is not crucial to the outcome of the case.
The case may have implications for four other states that reportedly have similar laws: California, Maryland, New Jersey, and New York. It does not appear to have direct, immediate implications for North Carolina, though the Court’s opinion continues to contribute to our understanding of the Bruen test and the Second Amendment rights that it protects.
An appeal waiver in a federal plea agreement is unenforceable when enforcing the waiver would result in a miscarriage of justice.
Hunter v. United States, __ U.S. __ (June 18, 2026) (Kagan, J.). A defendant pled guilty to a federal fraud offense. In his plea agreement, he waived the right to appeal anything except the ineffective assistance of counsel. He was sentenced to 51 months in prison followed by three years of supervised release. As a condition of supervised release, the judge required that the defendant take any mental health medications prescribed by his treating physician. The defendant appealed, arguing that his sentence amounted to forced medication in violation of his due process rights. The Government moved to dismiss his appeal based on the appeal waiver and the Fifth Circuit agreed. The defendant sought review in the Supreme Court.
Justice Kagan wrote the Court’s opinion, which was joined by all the Justices except Justice Thomas. The Court followed a path that several circuit courts had previously established, holding that appeal waivers are unenforceable when they would result in a “miscarriage of justice” – in other words, when they would insulate from review “egregious” errors that would bring the judicial system into disrepute. The Court reasoned that judges are deeply bound up in the use of appeal waivers, both by accepting plea agreements that contain them and by ruling on motions to dismiss appeals, and that judges must be free to preserve the integrity and legitimacy of the court system.
As to which alleged errors amount to miscarriages of justice, the Court provided several examples, such as a sentence exceeding the statutory maximum for the crime, a sentence based on race, a sentence imposing a requirement that the defendant not become pregnant, a sentence imposed without a meaningful hearing, or a sentence pulled out of a hat. It further indicated that only “extreme” errors would qualify, and that it did not expect its ruling to open the floodgates of appeals. It declined to consider whether the alleged error in this case rose to the required level, instead remanding the case to the Fifth Circuit to consider that issue.
Justice Gorsuch concurred, criticizing the prevalence of plea bargaining and suggesting that many errors might fall under the “miscarriage of justice” umbrella. Justice Kavanaugh concurred, saying that he disagreed with Justice Gorsuch’s broad understanding of the concept of a miscarriage of justice. Justice Thomas dissented, arguing that neither contract law nor any supervisory authority of the Court over the lower federal courts provides any basis in law for the majority’s adoption of the miscarriage of justice exception. Justice Barrett wrote a brief concurrence, agreeing to some extent with Justice Thomas but ultimately concluding that “procedural common law” allows for appeal waivers to be disregarded in extreme cases.
As I wrote in this post from long ago, I do not believe that appeal waivers are often included in plea agreements in North Carolina. The impact of Hunter may therefore be slight in the state courts. As to the federal courts, the Fourth Circuit had already adopted the miscarriage of justice standard enshrined by Hunter. See, e.g., United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (“We will refuse to enforce an otherwise valid [appeal] waiver if to do so would result in a miscarriage of justice.”). The main significance of Hunter is likely to be how it informs the debate about which sorts of errors satisfy that standard.
