Hawaii's "default no-carry" rule for private property is being defended with a familiar move in Second Amendment litigation: describing history and any underlying principles at such a high altitude that almost any modern restriction can be made to look "analogous." In his amicus brief in Wolford v. Lopez, Professor Joel Alicea argues that this is nothing less than the fulcrum on which Bruen either stands as a real constraint on government power, or collapses into a Rorschach test where judges can always find a historical "tradition" of firearm regulation by choosing the right level of abstraction.
The brief's core claim is simple: under Bruen, courts must identify whether a modern gun regulation is "relevantly similar" to historical firearm regulations in both how it burdens the right and why it does so. But "how" and "why" are infinitely malleable if courts are free to redescribe historical laws at whatever level of generality they want. If you characterize an old statute with maximal specificity, few modern laws could match. If you characterize it as "regulating arms in the public interest," everything matches. The entire enterprise turns on a threshold question: which features of the historical laws are essential and which are incidental?
Alicea's proposed solution is a return to first principles. The point of Bruen's history-and-tradition test is to illuminate the original contours of the pre-existing right the Second Amendment was codified to protect. So, the relevant "level of generality" is the one the ratifying generation would have understood as bearing on the substance of the right. That requires judgment, and even normative reasoning, but not the free-floating interest-balancing that Bruen rejected. The normative premises are supplied by the ratifiers' worldview, and one key "guiderail" is nonnegotiable: courts cannot define a historical "tradition" in a way that effectively nullifies the constitutional text's protection of the right to "bear Arms."
