Maureen E. Brady, Harvard Law School, has posted Property v. Guns: The Level-of-Generality Problem in Wolford:
Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent.
This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.”
Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.
--Dan Ernst
