Faulty reasoning signals

• Confirmation Bias - 10.1% (120 hits)
• Anchoring Bias - 0%
• Availability Heuristic - 7.1% (84 hits)
• Representativeness Heuristic - 7% (83 hits)
• Hindsight Bias - 0%
• Overconfidence Bias - 2% (24 hits)
• Framing Effect - 0%
• Loss Aversion - 0.6% (7 hits)
• Status Quo Bias - 0%
• Sunk Cost Effect - 4.1% (49 hits)
• Optimism Bias - 0%
• Pessimism Bias - 0%

Article text

Hawaii cited a slave code to defend its gun law.

The court didn’t buy it

In Focus delivers deeper coverage of the political, cultural, and ideological issues shaping America.

Published daily by senior writers and experts, these in-depth pieces go beyond the headlines to give readers the full picture.

You can find our full list of In Focus pieces here.

The Supreme Court struck down Hawaii’s concealed carry law last week in Wolford v.

Lopez, and the law’s defenders have been long on outrage, attacking the decision without a care for accuracy or honesty.

Start with the claim that spread fastest online: The ruling is an attack on private property itself.

“The right-wing justices do not actually believe in private property,” wrote Jonathan Cohn, political director for the progressive advocacy group Progressive Mass, in a post that circulated widely after the decision came down.

“They believe in rule of the rich.

This is such a clear attack on private property.”

It’s wrong.

Nothing in the ruling touches a property owner’s authority over their own property.

National Review’s Charles C.W.

Cooke corrected a New York Times post making the same claim: “This is a touch misleading.

The Court didn’t say that the owners of that property can’t deny permission; it said that Hawaii can’t invert the common law presumption, only for guns, in an attempt to undermine the Second Amendment.”

That’s what the opinion says.

Justice Samuel Alito writes that “owners of establishments that are open to the public can admit or exclude persons who are carrying guns for self-defense under either the common-law rule or Hawaii’s law.”

A shop owner in Honolulu can still post “No Firearms” at the door today, and every permit holder in the state has to respect it.

No one’s property rights were stepped on.

What changed is the rule that applies when an owner says nothing, and Hawaii tried to turn that silence into criminal behavior.

This was the state of Hawaii trying to dress up a gun control law as a property rights statute.

Hawaii’s own congressional delegation was just as ridiculous.

Rep.

Jill Tokuda (D-HI) compared the law to a restaurant dress code: “Businesses and property owners set basic rules every day about what is allowed on their property and what is not, no shirt, no shoes, no service.”

Naturally, in reading the decision, that claim doesn’t hold up under scrutiny.

Alito’s opinion spends several pages on it: A permit holder who pulled into a parking lot with a concealed handgun was already violating the statute unless the store had posted a sign or someone with authority had verbally consented and finding that person wasn’t guaranteed.

Disarming meant storing the gun before entering, and if the gun was visible for a second in that time, the law allowed prosecution for “recklessly” alarming someone.

Alito methodically went through a person’s everyday life — going to a gas station, a lunch spot, a drugstore, a dry cleaner, and a grocery store — and found she could rack up six criminal exposures before dinner.

No dress code does that.

Sen.

Mazie Hirono‘s (D-HI) statement was short on specifics but no less misleading, accusing the “out-of-control” court of “expanding the presence of firearms” in Hawaii, when the ruling does nothing more than restore the default rule that every other kind of visitor to private property has operated under since the founding.

The more absurd part is what Hawaii’s own legal team reached for when they tried to defend the law with history.

The Bruen framework requires a state to show a genuine tradition behind a modern gun restriction, not manufacture one after the fact.

Hawaii’s “best” argument rested on 18th-century anti-poaching statutes aimed at stopping people from hunting deer on someone else’s farm, which the court correctly found had nothing to do with a woman buying groceries while legally carrying a pistol.

The one example that actually matched Hawaii’s law — a flat requirement of express consent before entry — was an 1865 Louisiana statute pulled from the state’s Black Codes, the laws southern legislatures passed after the Civil War to keep freed black Americans as close to enslaved as the law would still allow.

That statute barred anyone from carrying a firearm onto another person’s property without the owner’s consent, and it existed, in Alito’s words, “to disarm blacks and leave them defenseless against attacks.”

Hawaii decided to cite it anyway.

The state argued because a slavery-era law used the same mechanics it wanted, courts should treat that as evidence the mechanism is sound.

The majority rejected it outright, writing that “Hawaii’s claim that this tainted artifact from Louisiana’s Black Code illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

In writing for the majority, Justice Amy Coney Barrett called the statute “vile” and took apart the comparison on its own terms.

The Black Codes existed to disarm freed slaves so plantation owners could violently control their labor without fear of retribution.

Hawaii has claimed the law was meant to protect the general public’s discomfort of seeing guns in public.

Barrett made clear that while Hawaii was able to argue “how” the statute was analogous to the Black Codes law, the state did not address “why” it was analogous.

Jackson tried to get around that in a footnote, and it’s worth seeing exactly how.

She argued Louisiana’s law and Hawaii’s shared the same basic “why”: preventing the harms that come from unauthorized armed entry, including poaching, and that Louisiana’s discriminatory motive was a 14th Amendment problem, not a Second Amendment one.

In her telling, the racism is real but irrelevant to whether the law counts as valid history under Bruen.

Barrett wasn’t having it.

She pointed out that Jackson’s version of “why” was pitched at a level of generality that made the whole inquiry meaningless.

The 18th-century hunting laws existed because poachers destroyed crops, killed livestock, and sometimes shot bystanders.

Louisiana’s law existed because white landowners wanted to maintain slavery without calling it slavery.

Cutting off food supplies and preventing them from engaging in self-defense was the ideal way to handle men and women once under their subjugation.

WEAK EUROPEAN NAVIES ARE UNDERMINING AMERICA

Barrett’s closing line on the point cemented the folly of the state’s entire strategy: Hawaii was treating Bruen like “a matching game,” where any old law that shares a simple mechanism counts, regardless of the actual intent.

Finding out its best match was a slavery-era statute, she wrote, is something “most would take as a compliment” to reject.

Hawaii tried to do an end around Bruen and wanted to restrict a constitutional right.

So it went digging through history for cover and came back with a law built to keep black Americans as de facto slaves in everything but name.

That Hawaii’s lawyers (Neal Katyal, specifically) thought that was worth arguing, and that so much of the backlash to the decision has focused on property rights nobody actually threatened, says plenty about how far gun control advocates will reach and without a care in the world about constitutional rights.