Patriot Brief

• Alvin Bragg backs Hawaii’s default carry ban by reframing gun rights as disruptive conduct.

• Critics argue there is no historical tradition supporting a blanket prohibition on lawful carry.

• The rule directly conflicts with modern Second Amendment standards set by the Supreme Court.

What’s being sold here as a neutral “property rights” argument is really just the same anti-gun playbook with a new coat of paint. Hawaii’s so-called vampire rule flips the presumption of the Second Amendment on its head by treating lawful concealed carry as forbidden everywhere unless explicitly allowed. That’s not historical tradition — that’s policy laundering.

Alvin Bragg’s argument hinges on pretending that carrying a firearm is comparable to disruptive conduct like brawling in a tavern. That comparison collapses instantly under even mild scrutiny. At no point in American history was the mere bearing of arms treated as inherently dangerous behavior. In fact, for most of this country’s existence, armed citizens in public spaces were the norm, not the exception.

This matters because the Supreme Court has already made the rules clear. When evaluating gun laws, courts don’t get to cherry-pick unrelated property doctrines and call it history. They’re required to look at the text of the Second Amendment and the nation’s actual tradition of gun ownership. And there is no tradition — none — of states imposing a universal carry ban on all private property open to the public.

What we do have a long record of is lawful gun owners quietly going about their lives without incident. Grocery stores, malls, restaurants — millions of people carry every day and nobody notices because nothing happens. The only places that reliably become dangerous are the ones politicians proudly label “gun-free.”

Bragg’s position isn’t grounded in law or history. It’s grounded in hostility to the right itself. Dressing that hostility up as concern for property owners doesn’t make it any less unconstitutional — it just makes it more dishonest.

From Bearing Arms:

The amicus briefs authored in support of Hawaii’s “vampire rule” forbidding lawful concealed carry on all private property without explicit permission from the property owner come from a rogue’s gallery of anti-2A voices, including Manhattan District Attorney Alvin Bragg, who’s name appears first on the amicus brief submitted by an outfit called Prosecutors Against Gun Violence in Wolford v. Lopez.

The brief makes a number of outlandish claims, starting with the premise that exercising our fundamental right to bear arms is dangerous and disruptive conduct.

This type of property rule has a long historical tradition. During the Founding Era, a business owner’s right to exclude was protected through custom-based default rules that removed any need for an owner to give his customers advanced notice that their implied license to enter his shop or tavern did not entitle them to engage in dangerous or disruptive conduct on the premises. Default rules forbidding certain behaviors within the property are essential to protect the owner’s right to exclude those behaviors because it is often impractical for owners to communicate their preferences to any and all strangers who happen to step inside the premises. And starting in the nineteenth century, criminal trespass laws incorporated custom-based default rules in identifying misconduct that triggers criminal liability when someone lawfully enters a property but then exceeds the scope of his license to be there.

The first problem with Bragg’s argument is that, whatever default rules might have existed during the Founding Era, there wasn’t any default rule forbidding the bearing of arms in all publicly accessible but privately-owned spaces.

Even today there are laws on the books that criminalize bearing arms in a place where the property owner has notified gun owners that they’re not allowed to carry on the premises, but that’s not the issue in Wolford. The question is whether the state can impose that default ban with the intent of limiting lawful carry without violating our right to keep and bear arms.

In order to answer that question, the Court is going to look at the text of the Second Amendment as well as the historical tradition of gun ownership, and the justices aren’t going to find any evidence of a tradition that bears the slightest resemblance to Hawaii’s “vampire rule.” That’s because bearing arms, in and of itself, has never been seen as dangerous or disruptive behavior by a majority of the American people. Up until the aftermath of the Civil War, any bans on bearing arms were few and far between, and many of the laws that were put in place after the Civil War’s conclusion were implemented by southern states with an eye towards keeping the population of freed slaves as disarmed and subjugated as possible.

Bragg argues that “[p]roperly understood, these laws [like Hawaii’s vampire rule] draw their historical lineage not from restrictions on gun ownership, but rather from a long tradition under both the common law and criminal law of enforcing private property owners’ preferences.”

The problem with Bragg’s argument is that we are talking about a restriction on gun possession, which directly implicates our Second Amendment rights. And as SCOTUS has explicitly stated, when deciding whether a modern gun control law is constitutionally sound, courts have to look at both the text of the Second Amendment and the historical tradition of gun ownership, not laws that applied to other facets of life or property ownership.

Even before Bruen, “shall issue” concealed carry or permitless carry was the standard in most U.S. states, and tens of millions of gun owners are regularly carrying in places like grocery stores, shopping malls, restaurants, and other retail establishments with being disruptive or dangerous. In fact, the vast majority of folks will never even realize they’re standing next to someone exercising their Second Amendment rights in a concealed fashion.

It’s restrictive “gun-free zones” that are actually disruptive and dangerous; disruptive to our right to publicly carry by preventing folks from doing so in a wide variety of locations, and dangerous because these policies don’t disarm individuals with evil intentions and a plan to put them into action.

Bragg only has to look at the shootings in Times Square or the violence committed against riders on the “gun-free” buses and trains of the Chicago Transit Authority to see the fundamental flaw in his reasoning, but that would require pulling his head of his rear-end, and it appears he prefers that view to reality.

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Photo Credit: AP Photo/Seth Wenig, File