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Hawaii’s state supreme court last week gave the finger to recent decisions on firearms by the US Supreme Court, in a unanimous decision which basically said that under Hawaii’s legal history and tradition, there is no state constitutional right to openly carry a weapon without a license.
The decision, written by Justice Todd Eddins, seems likely to get smacked down if it’s appealed in federal court, since it explicitly rejects the US Supreme Court’s decisions in DC v. Heller (2008), which held that the Second Amendment protects an individual right to own a gun, and in New York State Rifle & Pistol Association v. Bruen (2022), which said nobody needs a a permit to carry a pistol in public.
The Hawaii decision says Antonin Scalia’s decision in Heller was flat out wrong from a historical perspective, and that even it had gotten the history right, that’s no reason to pretend that a constitutional rule regulating 18th-century weapons is relevant to the killing machines we have now. So yeah, it’s kind of radical, but only because Scalia’s Heller decision and Clarence Thomas’s Bruen decision were radical departures from precedent. It might even mark a step toward restoring some sanity to jurisprudence about guns.
The case involves a gun-carrying dude, Christopher Wilson, a Hawaii resident who was charged in 2017 with keeping a pistol and ammunition in an improper place when he was found carrying a loaded gun during an arrest for trespassing. Wilson had bought the pistol in Florida and brought it home without getting a permit to carry it, as required by Hawaii law.
After the Bruen decision, Wilson’s attorneys moved to have the charges thrown out, because hooray guns everywhere. A state court tossed out the charges, but the state appealed, taking the case to the Hawaii supreme court, which held that an individual right to carry arms is inconsistent with Hawaii’s constitution.
For a neat discussion of the decision, see this conversation at Slate by Dahlia Lithwick and Mark Joseph Stern, which praises the Hawaii Supremes for “refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law.” (And for more on just how bad Heller’s historical reasoning is, see this outstanding Brennan Center analysis of the actual history of the drafting and interpretation of the Holy Second Amendment.)
Here’s the nitty of the Slate piece: Stern notes that Hawaii’s constitution includes its own provision on guns that’s a verbatim copy of the Second Amendment, but that Eddins ruled that Hawaii won’t interpret its constitution the same way Scalia did, because Scalia blew it:
Justice Eddins then pored over the immense body of scholarship and historical research that has shown, beyond a reasonable doubt, that SCOTUS was catastrophically wrong in Heller. He even quoted this great study that refutes a centerpiece of Justice Antonin Scalia’s analysis in Heller, which was the idea that the phrase “bear arms” typically meant individual use of a weapon in 18th-century parlance. Scholars have analyzed thousands of documents from that era and proved that Scalia was just objectively wrong: The phrase “bear arms” was unfailingly used in a collective context, describing a militia—which makes sense, since the Second Amendment begins by saying its purpose is to protect the militia, not an individual right to own guns.
Then Eddins’ opinion goes on to analyze the real history of guns in Hawaii. And he says: “Never have Hawaii’s people felt that carrying deadly weapons during daily life is an acceptable or constitutionally protected activity. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.”
That said, Eddins went on, “originalism” is a sham anyway, because history shouldn’t be the only consideration in constitutional interpretation, you dicks. Eddins argues that in its Second Amendment cases, the US Supreme Court doesn’t even pretend to provide a full historical context; instead, it “distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”
But wait, that’s not all! As Lithwick points out, Eddins doesn’t stop there, but adds that trying to cram “21st century life” into an 18th or 19th century mold is a terrible idea to start with. Eddins writes:
“History is messy. It’s not straightforward or fair. It’s not made by most. Bruen, McDonald, Heller, and other cases show how the court handpicks history to make its own rules.”
Noting a Pennsylvania court’s ruling in a recent abortion case that accused the Court, in Dobbs, of engaging in “historical fiction” by “disregarding evidence that undermined its view and ignoring the reproductive autonomy that American women originally exercised,” Eddins goes on to say,
“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. […]
“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.”
It’s a direct challenge to Scalia and Thomas’s distorted “history” — and for that matter, Witchfinder-General Alito’s weird claims in Dobbs — and a rejection of the pretense that “originalism” is anything but cherry-picking in the first place. Emperor Scalia has no clothes, and ew, ick, don’t look.
That said, Eddins does go on to consider “Hawai’i’s history of regulating weapons,” which we’ll just note is very different from that of the white colonial men who said they needed guns to keep enslaved people from rising up against them, ahem. He cites King Kamehameha’s 1810 “law of the splintered paddle,” which protected the rights of
men great and humble;
See to it that our aged,
our women, and our children
Lie down to sleep by the roadside
Without fear of harm.
So, not just white male property owners, then. The principle of public safety as the highest good is explicitly restated in Hawaii’s 1978 constitution, even. Those old historic laws uniformly restricted weapons to the military, and did not provide an individual right.
Long story short: Carrying weapons has never been countenanced by the laws of the kingdom, the succeeding republic, or the state, although that last includes accepting the US Constitution’s Supremacy Clause, which is why the state supreme court’s argument will get tossed out.
But even so, the case provides a framework for future reconsiderations of Heller and Bruen, explicitly pointing out where they overstepped. Especially that stupid originalism stuff, which Eddins addressed with a line from another great legal fiction, David Simon’s HBO epic “The Wire”:
“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.’ The Wire: Home Rooms (HBO television broadcast Sept. 24, 2006) (Season Four, Episode Three).”
To which we can only add, you come at King Kamehameha, you best not miss.
PREVIOUSLY!
[Slate / Newsweek (via MSN) / Hawaii v. Wilson / Brennan Center / Photo: William Mahoney, Creative Commons License 4.0]
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