Hawaii Supreme Court insists there is no individual right to arms, rejecting challenge to the state’s strict gun laws and Second Amendment precedents.
by Jacob Sullum
In the landmark 2008 case District of Columbia v. Heller, the U.S. Supreme Court explicitly recognized that the Second Amendment protects an individual right to arms. It reaffirmed that conclusion two years later in McDonald v. Chicago, which applied the Second Amendment to the states via the 14th Amendment. And in the 2022 case New York State Rifle & Pistol Association v. Bruen
The Hawaii Supreme Court thinks all of those cases were wrongly decided. In a ruling issued on Wednesday, the court sides with the Heller dissenters by embracing the view that “the right of the people to keep and bear arms”—unlike “the right of the people peaceably to assemble” (protected by the First Amendment), “the right of the people” to be secure from “unreasonable searches and seizures” (protected by the Fourth Amendment), and the unspecified rights “retained by the people” under the Ninth Amendment—does not refer to an individual right. Rather, the Hawaii Supreme Court says, the Second Amendment involves a “collective right” that is relevant only in the context of militia service.
The court’s unanimous decision in State v. Wilson, which rejects a challenge to Hawaii’s highly restrictive gun regulations, is openly contemptuous of the U.S. Supreme Court’s reasoning in debunking that “collective right” interpretation. The framers of the Second Amendment, the opinion says, aimed to prevent the national government from disarming state militias; they gave no thought to “someone packing a musket to the wigmaker just in case.”
The case involves Christopher Wilson, who was arrested in December 2017 for publicly carrying a .22-caliber pistol in his “front waist band.” Wilson said he was carrying the gun for self-protection while hiking. Maui prosecutors charged him with three firearm offenses.
Section 134-25 of the Hawaii Revised Statutes requires that “all firearms” be “confined to the possessor’s place of business, residence, or sojourn.” It allows only three exceptions: for “unloaded firearms in an enclosed container” under specified circumstances, for hunting or target shooting, and for a gun owner who has a license to carry, which historically has been essentially impossible to obtain. Section 134-27 applies the same restrictions to ammunition, and Section 134-2 requires a permit to “acquire the ownership of a firearm.”
Wilson sought dismissal of the counts under the first two laws, arguing that “prosecuting him for possessing a firearm for self-defense purposes outside his home violated his right to bear arms” under the Second Amendment and the Hawaii Constitution’s corresponding provision. The trial court initially rejected that motion. But after Bruen clarified the constitutional test for gun control laws, Circuit Court Judge Kirstin Hamman dismissed the charges with prejudice.
Under Bruen, Hamman noted, the Second Amendment guarantees a right to carry guns in public for self-defense. She concluded that the state had failed to meet the burden imposed by Bruen, which requires the government to show that a gun law is “consistent with the Nation’s historical tradition of firearm regulation.” In practice, she noted, Hawaii’s restrictions on gun possession made “no exceptions for carrying firearms outside the home for self-defense purposes.”
Hawaii’s attorney general asked Hamman to reconsider, arguing that Bruen “does not stop states from requiring a license before bringing a firearm to a public place.” After Hamman rejected the state’s motion, it appealed to the Hawaii Supreme Court.
“The text and purpose of the Hawaiʻi Constitution, and Hawaiʻi’s historical tradition of firearm regulation, do not support a constitutional right to carry deadly weapons in public,” Justice Todd Eddins writes in the court’s opinion. And he goes further, saying “conventional interpretive modalities and Hawaiʻi’s historical tradition of firearm regulation rule out an individual right to keep and bear arms under the Hawaiʻi Constitution.” As the court sees it, Article I, Section 17, which was adopted in 1950 and mirrors the wording of the Second Amendment, imposes no restrictions on gun control in Hawaii because it does not recognize an individual right.
In reaching that conclusion, Eddins heaps scorn on the U.S. Supreme Court’s Second Amendment precedents. “Until Heller, the Supreme Court had never ruled that the Second Amendment afforded an individual right to keep and bear arms,” he writes. “Heller flipped the nation’s textual and historical understanding of the Second Amendment. The majority insisted there was ‘no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.'”
In Eddins’ telling, that position, which scholars by that point were describing as the “standard model” based on research that Heller described at length, had no historical basis. “History by historians quickly debunked Heller‘s history,” Eddins declares. “In the Second Amendment cases, the Court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”
Bruen, Eddins says, added insult to injury. “Bruen unravels durable law,” he writes. “No longer are there the levels of scrutiny and public safety balancing tests long-used by our nation’s courts to evaluate firearms laws.”
Bruen explicitly rejected those “public safety balancing tests” because lower courts had used them to uphold pretty much any gun regulation that came their way. When judges evaluate a law’s constitutionality by weighing the burdens it imposes against its putative benefits, their analysis easily becomes a cover for their personal policy preferences. But for Eddins and his colleagues, that is a feature, not a bug, because they do not think the Second Amendment imposes any restrictions on gun control legislation.
In Bruen, Eddins complains, “the Court ad-libs a ‘history-only’ standard.” Screw history, he says:
Bruen‘s command to find an old-days “analogue” undercuts the other branches’ responsibility—at the federal, state, and local levels—to preserve public order and solve today’s problems. And it downplays human beings’ aptitude for technological advancement.
Time-traveling to 1791 or 1868 to collar how a state regulates lethal weapons—per the Constitution’s democratic design—is a dangerous way to look at the federal constitution. The Constitution is not a “suicide pact.”
We believe it is a misplaced view to think that today’s public safety laws must look like laws passed long ago. Smoothbore, muzzle-loaded, and powder-and-ramrod muskets were not exactly useful to colonial era mass murderers. And life is a bit different now, in a nation with a lot more people, stretching to islands in the Pacific Ocean….
As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution. “The thing about the old days, they the old days.”
Which respected jurist or scholar made that last observation? Eddins is quoting Slim Charles, a fictional drug gang enforcer in The Wire, which is a great TV show but not necessarily the best guide for judges charged with protecting the rights guaranteed by the Constitution.
Eddins obviously does not credit the Supreme Court’s reading of history. But even if it were correct, Eddins argues, modern-day courts should not be bound by “the founding era’s…understanding of the Constitution.” Why? Because “the Constitution is not a ‘suicide pact.'”
Tellingly, that phrase comes from the 1949 case Terminiello v. Chicago, in which the Supreme Court overturned a “breach of peace” conviction based on an inflammatory speech that provoked a hostile response. Justice Robert H. Jackson dissented, perceiving a danger that “if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” As Jackson saw it, freedom of speech must give way to considerations of public order. Eddins seems to take the same view of civil liberties generally.
Life surely is “a bit different now” than it was when the Bill of Rights was written or when the 14th Amendment made it binding on state and local governments. But that does not mean courts cannot apply the principles it reflects to modern conditions. The Framers did not have radio, TV, or the internet. Courts nevertheless have an obligation to protect freedom of speech and freedom of the press in those new contexts.
Whatever the practical problems with applying the Bruen test, it at least imposes some constraints on judges who otherwise might be inclined to compromise constitutional rights in the name of public safety. The analogical reasoning it requires, which entails asking “how” and “why” firearms were regulated and whether those precedents are “relevantly similar” to contemporary laws, seeks to prevent legislators from violating the right to arms as it was historically understood.
From Eddins’ perspective, that whole exercise is pointless because everyone knows that history was invented by an ideologically motivated Supreme Court. And in any case, he worries, applying old-timey notions of limited government to contemporary policies is highly inconvenient for legislators who are only trying to do what they think best serves the public interest.
“The United States Supreme Court disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement,” Eddins writes. “A government by the people works.”
Eddins complains that “Bruen snubs federalism principles.” By the same reasoning, so does any constraint that the Constitution imposes on state and local governments. Our federalist system leaves states with a broad “police power” that was not granted to the national government. That does not mean states are free to censor newspapers, ban churches, allow searches without probable cause, or throw people in prison without due process. But Eddins perceives a violation of “federalism principles” in the context of Second Amendment rights because he supports gun control and, not incidentally, insists those rights do not exist.
Despite his dismissal of Bruen‘s historical approach, Eddins delves into Hawaii’s long record of tight weapon regulation, going back to restrictions imposed by King Kamehameha III in 1833. The king “promulgated a law prohibiting ‘any person or persons’ on shore from possessing a weapon, including any ‘knife, sword-cane, or any other dangerous weapon,'” Eddins notes. “Violators were subject to arrest and punishment by fine or lashings.”
What do a king’s edicts have to do with the authority of a democratically elected, constitutionally constrained government? Nothing whatsoever, except that the latter is designed to counter the tyrannical tendencies of the former. But for Eddins, that 1833 decree reflects “the Aloha Spirit,” which “inspires constitutional interpretation.” When the Hawaii Supreme Court “exercises ‘power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people,'” he explains, it “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.'” And that spirit, Eddins declares, “clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”
Whatever you make of Eddins’ communion with the Aloha Spirit, it does not give Hawaii a license to violate constitutional rights recognized by the U.S. Supreme Court. Coming back to earth, Eddins ostensibly acknowledges that the Court’s constitutional rulings, however ignorant and wrongheaded he might consider them, are binding on state courts. “Still,” he says, “the United States Supreme Court does not strip states of all sovereignty to pass traditional police power laws designed to protect people.”
Hawaii’s laws “allow a person to carry a handgun for self-defense outside the home if they have a license,” Eddins notes. Never mind whether it is possible in practice to obtain or use that license.
After Bruen invalidated state laws that require residents to demonstrate a “special need” before they are allowed to exercise the right to bear arms, Hawaii legislators changed the criteria for a carry permit. The law now says “the chief of police of a county shall grant a license” to carry a concealed handgun (emphasis added) when the applicant is legally allowed to own guns and “is not found to be lacking the essential character or temperament necessary to be entrusted with a firearm.”
Like several other states that were forced to change their rules for granting carry permits, however, Hawaii imposed new restrictions on their use, declaring a wide range of public places to be “sensitive locations” where guns are prohibited. Last August, a federal judge temporarily barred the state from enforcing several of those new gun-free zones. But those restrictions were not at issue in Wilson’s case, and the Hawaii Supreme Court ruled that he did not have standing to challenge the state’s criteria for carry permits because he had not applied for one. Even if he had, it seems safe to assume that the court would have deemed Hawaii’s obstacles to carrying guns for self-defense consistent with the Aloha Spirit, which evidently trumps whatever the nation’s highest court says about the Second Amendment.
Originally published by the Reason Foundation. Republished with permission.
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