The Supreme Court recently heard oral argument in Wolford v. Lopez, a case involving the clash of gun rights and property rights. One reason I was interested in the case is that the plaintiffs are making the argument that their Second Amendment rights are infringed if they can’t bring their weapons onto private property that is otherwise open to the public. Unions have made similar arguments regarding speech on private property that is open to the public. But, more than fifty years ago in Lloyd Corp. v. Tanner, the Supreme Court rejected the argument that the First Amendment prevents shopping mall owners from banning leafletting and similar free speech activities. The plaintiffs in Wolford insist that their case is different from Lloyd, which it both is and isn’t.

At issue in Wolford is a Hawaii law passed as a response to the Supreme Court’s 2022 opinion in New York State Rifle & Pistol Assn. v. Bruen, where the Court greatly expanded the right to carry firearms. Hawaii had a long tradition of sharply limiting the right to carry firearms, and polling indicated that the vast majority of Hawaiians did not want people to bring their firearms into retail stores or other businesses. The Hawaii legislature responded by passing a law providing that, instead of simply assuming that firearms are welcome on private property, anyone wishing to bring a firearm onto private property must first obtain express authorization from the owner, lessee, operator, or manager of the property, or their agent. In other words, this is a case about default rules, something that matters a lot in labor law, as Ben has explained.

The six Republican appointees on the Court can usually be counted on to rule in favor of property owners over others seeking to utilize private property for their own purposes. In fact, just a few years ago in Cedar Point Nursery v. Hassid, the Court majority included this paean to private property in its opinion:  

As John Adams tersely put it, “property must be secured, or liberty cannot exist.” This Court agrees, having noted that protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” 

Yet, those same six Justices seem less concerned about protecting private property owners when the intruders are carrying firearms.

Of course, the right-wing Justices insist they are doing no such thing. Instead, Justices Barrett and Roberts suggested that Hawaii is treating the right to carry a firearm as a disfavored right because, according to them, you don’t need a property owner’s permission to engage in free speech on private property. But, this is true only in the narrowest possible sense. While Hawaii may not have a statute saying that you need express authorization from a property owner before you may distribute leaflets on private property, if the property owner asks you to stop and you don’t, you risk arrest and imprisonment.

A majority of Supreme Court Justices seem poised to issue an opinion stating that members of the public are free to bring their firearms into private businesses unless the business owner posts an unmissable sign forbidding the practice, or unless the owner or agent tells them not to. But an opinion like that would elevate formalism to an absurd level. There are some very significant differences between leafletting and carrying firearms that a majority of the Justices seem to be missing. First of all, there is no such thing as concealed leafletting. If I start handing out leaflets inside a store, it won’t take long before a manager finds out and asks me to leave. But, if you bring a concealed firearm, no one will know about it until you start brandishing it, at which point an unarmed property owner would probably be reluctant to give you any orders. And while some gun owners may believe that there is nothing threatening about openly carrying a holstered weapon, it’s hard to understand why someone would insist on openly carrying their firearm if they didn’t think it conveyed a message of “don’t mess with me.”

The gun rights advocates insist that requiring people to ask permission before bringing their firearms onto private property infringes on their right to bear arms. What good is the right to carry an AR-15 on a public street if I can’t take it with me as I go in and out of stores on my daily errands? But, the same thing is true about other rights. I may have a right to stand on a street corner carrying a banner with a message, but that doesn’t mean I can walk inside a store displaying the same banner. And, the Court does not believe that my right to access public beaches includes a right to walk across private property even if that’s the most convenient way to get to the beach.

But the most interesting thing about Wolford is its potential to constitutionalize the debate over the power of default rules. The individuals challenging the Hawaii law concede that property owners have the right to decide whether people may bring guns onto their property, yet they insist that requiring property owners to act affirmatively before people may bring firearms onto their property effectively “eviscerates” the right to carry firearms. Their theory is that most property owners will simply adopt whatever the default rule is. Supporting the challengers to the law, the Trump Administration’s lawyer even conceded that there would be no problem under the Second Amendment if the legislature had mailed “No Guns” signs to every property owner in the state even if posting the “No Guns” sign meant that no one could bring a firearm onto the property.

The default rules in labor and employment laws don’t typically rise to the level of constitutional significance, but they still have major consequences. The late Professor Paul Weiler years ago proposed a thought experiment where all workplaces start out with union representation unless the workers affirmatively act to decertify the union. As he pointed out, under that regime the workers’ freedom of choice would be same as it is now, only the starting line would change. Similarly, in every state but Montana the default is that workers are employed “at-will,” meaning that they can be fired for no reason. This default rule is often taken for granted, yet it did not come about through legislatures enacting statutes giving employers the right to fire workers without cause. Instead, courts relied on pre-industrial case law to rule that at-will is the default. State legislatures could modestly alter that default so that workers enjoy “for cause” protection against firing unless they agree to something else. If a state did that, it would be interesting to see how easy it would be for employers to overcome that default.

Firearms pose a clear and present danger that handbills don’t. It shouldn’t be that hard for the Republican Justices to uphold the Hawaii law on the grounds that it is easier for a property owner to tell a visitor to stop leafletting than it is to tell an armed stranger to leave the premises.