After Wolford and Hemani, the Text-History Test Finally Has Teeth

Hawaii's statute prohibited carrying a firearm onto another's property that is open to the public unless the owner affirmatively consented. Framed as a property-rights measure, it functioned as a near-total ban on carry in any commercial district, because the overwhelming majority of proprietors post nothing at all.

Justice Alito's majority opinion, joined by the Chief Justice and Justices Thomas, Gorsuch, Kavanaugh, and Barrett, went to that gap between form and function. A rule that presumes non-consent, the Court held, is not a neutral allocation of the owner's rights; it is the state conscripting private silence into a public prohibition. The historical tradition supports letting owners exclude. It does not support the state excluding on their behalf by default.

The line the Court drew is workable and, for once, easy to advise around. A state may enforce an owner's decision to exclude. It may not manufacture that decision. Statutes in New York and California that share Hawaii's architecture are now on borrowed time, and the Second Circuit's contrary holding has been overtaken.

Eight days earlier, in United States v. Hemani, the Court held that Section 922(g)(3) — the federal prohibition on firearm possession by an unlawful user of a controlled substance — violates the Second Amendment as applied to the respondent. The vote was 9-0.

That number is the story. Wolford's 6-3 split will be read as ideological, and its reasoning will be resisted at the margins by lower courts inclined to resist. A unanimous judgment on an as-applied challenge to a status-based federal prohibition is something else: it establishes that the entire Court accepts the text-and-history framework as the governing method and disagrees only about where particular lines fall.

Practitioners should not overread it. Hemani is as-applied, not facial. The statute survives on its face, and a defendant whose drug use is contemporaneous with armed activity remains squarely within its historical analogues. But the decision opens the door to individualized challenges that the circuits had largely been slamming shut, and it does so with a majority no district judge can characterize as a fringe position.

The Ninth Circuit's rejection of a facial challenge to the National Firearms Act's suppressor provisions in United States v. DeBorba survives both decisions comfortably — facial challenges to regulatory, non-prohibitory measures were never the soft target. The Second Circuit's private-property holding, by contrast, is now aligned with Wolford by accident rather than by reasoning, and its analysis will need to be redone.

The volume problem is at the district level. Every pending Section 922(g)(3) prosecution now carries an as-applied issue that must be briefed, and a meaningful fraction of Section 922(g)(1) felon-in-possession cases will attempt to ride Hemani's reasoning across the categorical line. Most of those attempts should fail — the historical tradition around violent felons is far better documented than the tradition around drug users — but they will be filed, and they will take time.

For institutional clients, the compliance exposure is narrower than the headlines suggest but not zero. Employers with premises open to the public in Hawaii, New York, and California should review posted-notice policies before the fall, because the burden of an express exclusion decision has now shifted onto them.

Bruen was criticized, not unreasonably, for handing lower courts a historical inquiry without the tools to conduct it. Four years of inconsistent circuit output followed. This term's pair of decisions is the Court doing the unglamorous work of showing rather than telling: here is what counts as an analogue, here is how close it must be, here is the difference between a facial and an as-applied failure.

That is how a doctrine matures. It is also a rebuke to the argument, made loudly in 2022, that text-history-and-tradition was unadministrable. It was administrable. It simply required the Court to administer it.

Bennet's constitutional-litigation desk maintains a current map of post-Bruen circuit holdings and the statutes most exposed after Wolford. Clients can request the jurisdiction-level view.