The Hawaii Supreme Court's Insurrection Over The Second Amendment

 You've probably already seen the news articles about the Hawaii State Supreme Court determining that the 2nd and 14th Amendments do not apply to it in their rejection of U.S. Supreme Court precedent on the right to keep and bear arms. Here are some of the articles I've come across:

• "Hawaiian Supreme Court: 'Spirit of Aloha' Supersedes State Individual Carry Rights"--Legal Insurrection.
• "State Supreme Court Of Hawaii Middle-Fingers U.S. Supreme Court’s 2A Rulings: 'Aloha Oe'"--Ammo Land.
• "Hawaii's Supreme Court declares the Second Amendment clashes with 'the spirit of Aloha' and says 'there is no state constitutional right to carry a firearm in public'"--Daily Mail. 

The background on this is that in 2017, "Flyin Hawaiian Zipline owner Duane Ting spotted men on his fenced-in property and called Maui police." "When officers arrived, Wilson said he had a weapon in his front waistband. Police lifted his shirt and found a Phoenix Arms .22 LR caliber pistol, loaded with ten rounds of .22 caliber ammunition."

    This was a problem for Wilson because, as Legal Insurrection explains:

The case involves a challenge to Hawaii’s unique “place to keep” statutes, Hawaiʻi Revised Statutes (HRS) § 134-25 (2011) (pistol or revolver) and § 134-27 (2011) (ammunition), which regulate where and how firearms may be kept and carried. These statutes reference another Hawaii state law, HRS § 139, which requires firearm owners to apply for and obtain a state license. Failure to do so renders concealed carry of firearms in public a criminal offense.

As the Legal Insurrection article continues:

    Wilson moved to dismiss the charges against him, but a Hawaii state trial-level court originally denied the motion in July 2021.

    After the U.S. Supreme Court New York State Rifle & Pistol Association v. Bruen gun case issued in June of 2022, however, which held that “the Second and Fourteenth Amendments protect an individual’s right to carry a hand gun for self-defense outside the home,” Wilson renewed his motion to dismiss, which the Hawaii trial-level court granted in August 2022.

But upon further appeal, the Hawaii Supreme Court reversed. Now, the court could have based its reversal on fairly simple propositions. For instance, it is not clear but that Wilson was trespassing and so wasn't really carrying in public. The court could have also simply pointed out that the U.S. Supreme Court has not held that carrying a concealed weapon is protected under the Second Amendment and then applied state law. (I think concealed carry is protected, but that is neither here nor there). 

    But the court instead decided to follow a very peculiar tact:

    First, the court noted that it was not bound by U.S. Supreme Court precedent, but that it was persuasive authority. Now that is correct when it comes to state law issues--e.g., common law torts, contract law, etc.--but it is manifestly incorrect when it comes to federal law, including the U.S. Constitution. Moreover, when a state, as here, seeks to limit a right beyond that allowed under the U.S. Constitution, it implicates the 14th Amendment which states, in the relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...". 

    But based on this foundational error in their analysis, the Hawaii court proceeded with an analysis under the Hawaii Constitution, and determined that the right and keep bear arms under the Hawaii Constitution was not an individual right. It is their prerogative to interpret the Hawaii Constitution in such manner, but it is obviously irrelevant to interpreting the Second Amendment.

    Next, however, the Hawaii court stated its disagreement with the U.S. Supreme Court's Second Amendment precedent generally--rejecting originalism--and with its decision in Bruen specifically. That is, the Hawaii court opined that the Second Amendment only pertained to militias, not individuals (showing a deep misunderstanding of militias, how they were formed and how they were supplied with arms) and, in regard to Bruen:

    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….

    The United States Supreme Court disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement. A government by the people works. Hawaiʻi’s legislative branch has passed sensible firearms laws. And Hawaiʻi’s executive branch has enforced those laws. The most recent available data from the Centers for Disease Control shows that Hawaiʻi has the nation’s second-lowest rate of gun deaths per year.

In other words, to them, the Constitution is less a law and more a set of guidelines.

    Next, as Legal Insurrection describes, the court turned to Hawaii's history:

    Finally, the court looked at Hawaii’s own history, and found that the individual right to carry firearms was never a part of Hawaii culture, stretching back to the time of King Kamehameha:

Hawaiʻi’s historical tradition excludes an individual right to possess weapons. Hawaiʻi prohibited the public carry of lethal weapons – with no exceptions for licensed weapons – from 1833-1896. Unlicensed public carry of firearms has been illegal from 1896 to the present. Hawaiʻi has never recognized a right to carry deadly weapons in public; not as a Kingdom, Republic, Territory, or State.

The court then referenced the state’s “Aloha Spirit,” which is actually codified in Hawaii law:

In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation. When this court exercises “power on behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people” we “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’” HRS § 5-7.5(b) (2009).

The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.

Finding there was no right under the Hawaii Constitution to bear arms, the court turned to its analysis of the U.S. Constitution and, ultimately, determined that even under the Second Amendment states have the ability to regulate the concealed carry of firearms. 

    The Second Amendment issue is not the significant factor here. While I might not agree with the Court's ultimate conclusion, it does appear the mirror the current state of Second Amendment jurisprudence.  Rather, I think that the Hawaii court's process and points it made in its reasoning is what is significant: that is, essentially arguing that it could overrule Supreme Court precedent based on state law and a pagan "spirit of Aloha" religious tenet. This sets a precedent for other state courts to ignore SCOTUS under other situations. This is a far more serious insurrection against the federal government than J6, but the Hawaii Supreme Court justices were probably fully aware of that and perhaps intended it. Hawaii is, after all, home to a fairly strong and active secessionist movement.