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Hawaiian Supreme Court: “Spirit of Aloha” Supersedes State Individual Carry Rights

Hawaiian Supreme Court: “Spirit of Aloha” Supersedes State Individual Carry Rights

Court holds that Hawaii gun statutes requiring permitted carry do not violate the Hawaii Constitution nor the Second Amendment

In an interesting opinion out of the State of Hawaii, the State’s highest court has ruled that Hawaii’s citizens do not have a right to carry firearms: “”We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.”

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.

CBS News has the background:

The ruling stems from a 2017 case against Christopher Wilson, who had a loaded pistol in his front waistband when police were called after a Maui landowner reported seeing a group of men on his property at night.

The handgun was unregistered in Hawaii, and Wilson had not obtained or applied for a permit to own the gun, the ruling said. Wilson told police he legally bought the gun in Florida in 2013.

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.

The State, per Hawaii procedure, appealed straight to the Hawaii Supreme Court, which took the case, and has now ruled that the dismissal of the criminal charges against Wilson was improper:

We hold that 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. We conclude that HRS § 134-25 (“place to keep” a pistol or revolver) and § 134-27 (“place to keep” ammunition) do not violate Wilson’s right to keep and bear arms under article I, section 17 of the Hawaiʻi Constitution and the Second Amendment to the United States Constitution.

The Hawaii Supreme Court reached this result through several steps of logic.

Federalism

First, it held that since a basic principle of federalism is that a state’s constitution may afford state citizens more protection of civil liberties than the federal constitution, “the proper sequence to consider matching constitutional text is to interpret the Hawaiʻi Constitution before its federal counterpart. Only if the Hawaiʻi Constitution does not reach the minimum protection provided by a parallel federal constitutional  right should this court construe the federal analogue.”

Thus, we interpret the Hawaiʻi Constitution first. And may not get to the United States Constitution….

The Hawaiʻi Constitution often offers greater protections than the federal constitution. When the two contain look-alike provisions, Hawaiʻi has chosen not to lockstep with the Supreme Court’s interpretation of the federal constitution.

Rather, this court frequently walks another way. Long ago, the Hawaiʻi Supreme Court announced that an “opinion of the United States Supreme Court . . . is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by . . . the Hawaiʻi Constitution.” Further, “this court has not hesitated to adopt the dissents in U.S. Supreme Court cases when it was believed the dissent was better reasoned than the majority opinion.”

[citations omitted for clarity]

Constitutional text

Second, the court held that “[b]ecause the text of article I, section 17 (i.e. the Hawaii constitutional provision mirroring the federal Second Amendment), its purpose, and Hawaiʻi’s historical tradition of weapons regulation support a collective, militia meaning, we hold that the Hawaiʻi Constitution does not afford a right to carry firearms in public places for self-defense…Both clauses of article I, section 17 and the Second Amendment use military-tinged language – “well regulated militia” and “bear arms” – to limit the use of deadly weapons to a military purpose.”

The court believed that the omission of any words describing an individual right to carry arms was intentional:

The Hawaiʻi Constitution leaves out an individual right to bear arms. Our framers had options. They could have worded the constitution to plainly secure an individual right to possess deadly weapons for self-defense. But they didn’t. The Pennsylvania Constitution of 1776 did: “the people have a right to bear arms for the defence of themselves and the state.” Pa. Const. of 1776, article XIII (emphasis added). The Vermont Constitution, too: “the people have a right to bear arms for the defence of themselves and the State.” Vt. Const. ch. 1, art. 16 (enacted 1777, ch. 1, art. 15).

The court also noted that only five state constitutions, Hawaii’s and four others, had the language “well regulated militia,” which the court found significant. The court also noted that “Unlike article I, section 17, nearly all state constitutions that recognize a right to keep and bear arms, expressly identify it as a civilian right for personal self defense, [and] [o]verwhelmingly, state constitutions use individual centric language. They recognize a right to bear arms for “any person” or “every citizen.” Hawaii’s constitution, the court noted, does not have this type of language.

The court summed up:

“Hawaiʻi chose to use civic-minded language. Article I, section 17 textually cements the right to bear arms to a well regulated militia. Its words confer a right to “keep and bear arms” only in the context of a “well regulated militia.”

Article I, section 17 traces the language of the Second Amendment. Those words do not support a right to possess lethal weapons in public for possible self-defense.

Purpose

The court further held that the purpose of the Hawaii constitutional drafters was not to provide for an individual right to carry:

This court construes the Hawaiʻi Constitution “with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent.” Hanabusa v. Lingle, 105 Hawaiʻi 28, 31, 93 P.3d 670, 673 (2004). We conclude that the authors and ratifiers of the Hawaiʻi Constitution imagined a collective right. Our understanding aligns with what the Second Amendment meant in 1950 when Hawaiʻi copied the federal constitution’s language. And in 1968 and 1978 when Hawaiʻi’s people kept those words….

When the Hawaiʻi Constitution was first ratified, courts throughout the nation’s history had always interpreted and applied the Second Amendment with the militia-centric view….

This was what everyone thought. A 1969 law dictionary explained: the “right to bear arms” refers to the militia, “[n]ot a constitutional right to carry weapons on one’s person as a civilian.” Right to bear arms, Ballentine’s Law Dictionary (3d ed. 1969).

The court went further and argued that this was true back to the time of the framers:

Like article I, section 17, the Second Amendment’s original purpose protects a state’s right to have a militia. The framers included the right to keep and bear arms in the federal constitution in response to their fear that the government might disarm the militia, not restrict the common law right of self-defense. Madison’s writings suggest that the Second Amendment originated from fear of a federal government power grab. The Second Amendment quelled alarm that the national government might disarm and disband state militias. Those militias could oppose a federal army, Madison wrote, and would be able to repel the danger of the federal government.

Finally, the court took a swipe at Bruen, arguing that its “history only standard,” and its “new” finding of a right to carry in public, “unravels durable law.” Regarding Bruen’s focus on history and how the Second Amendment was regarded when enacted, the court held:

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.

[citations omitted]

The court summed up this section, with reference to “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).

History and Tradition in Hawaii

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.

Opinion Summary

Finally, the court found that “There is no individual right to keep and bear arms under article I, section 17 [of the Hawaii constitution]. So there is no constitutional right to carry a firearm in public for possible self-defense. We hold that HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s rights under the Hawaiʻi Constitution.”

And, the court also held that the Second Amendment was not violated in this case:

We also hold that HRS § 134-25(a) and § 134-27(a) do not violate the Second Amendment to the United States Constitution. “[T]he right secured by the Second Amendment is not unlimited. . . . [T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, 597 U.S. at 21. States retain the authority to require that individuals have a license before carrying firearms in public. Id. at 79-80 (Kavanaugh, J., concurring) (“[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for selfdefense.”); Antonyuk v. Chiumento, 89 F.4th 271, 312 (2d Cir. 2023) (“Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this nation’s history and tradition of firearm regulation and therefore in compliance with the Second Amendment.”).

HRS § 134-25(a) and § 134-27(a) allow a person to carry a handgun for self-defense outside the home if they have a license issued per HRS § 134-9. See HRS § 134-25(a) (“Except as provided in sections 134-5 and 134-9, all firearms shall be confined to the possessor’s place of business, residence, or sojourn” (emphasis added)); HRS § 134-27(a) (restricting the possession of ammunition based on HRS § 134-5 and § 134-9).

HRS § 134-25(a) and § 134-27(a) do not graze Wilson’s Second Amendment right…The circuit court erred by dismissing the place to keep offenses, HRS § 134-25 and § 134-27. Those laws do not violate Wilson’s constitutional rights under article I, section 17 or the Second Amendment.

Reaction

Some of the reaction to this opinion has been swift and pointed:

The ruling, has also, of course, seen some reaction on X. As Charlie Kirk posted, “This is far more of a rebellion than anything that happened on January 6.”:

Analysis

The point of this report is not to endorse the Hawaii Supreme Court’s opinion. In particular, the court’s reference to federalism and a state constitution’s ability to grant more rights to a citizen likely has the law backwards. For example, if a state wants to grant more rights to  privacy for its citizens in the unreasonable search and seizure realm under the Fourth Amendment, it is free to do so. Here, the court seems to be arguing that it needs to interpret the Hawaii constitution first, and finds it acceptable even though its interpretation removes individual rights rather than augmenting them. And the opinion says that Bruen is wrong for concentrating on history, and yet makes the same mistake by interpreting Hawaii’s history as supporting its holdings.

This case may well end up moving to the U.S. Supreme Court, but our prediction is that the the Supreme Court may very well decline to take this case, not only because of the few cases they accept for review each year, but also because this is a criminal case, and the Court will likely be reluctant to hold that a state’s criminal statutes are unconstitutional under the U.S. Constitution. And, Hawaii does seem to have a unique history as regards firearm regulation and was not even a state until 1959.

Moreover, as the opinion correctly notes, the Supreme Court has stated that reasonable regulations in the firearms realm are not necessarily unconstitutional:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” District of Columbia v. heller, 554 U.S. 570, 626-27 (2008).

We will keep you updated should this case progress further.

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Comments


 
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Dathurtz | February 11, 2024 at 4:13 pm

Actual constitutional crisis?


     
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    jhkrischel in reply to Dathurtz. | February 11, 2024 at 6:44 pm

    Honestly, those justices need to be impeached immediately. Won’t happen since Hawaii has suffered under 1 party rule since the 1950s, and the government there is corrupt from top to bottom, but as the money runs out, bad things are going to happen.

    They already lost their senior senators who used to be able to funnel tons of military cash their way, costa rica and other countries have eaten their lunch on agriculture due to high labor costs in the islands, and the last pillar of the Hawaiian economy, tourism, suffers greatly when you have a local culture that is anti-white, and cloaks itself in a culture of victimhood and resentment.

    I’m afraid that the repentance and atonement will only come once they’ve split off from the United States, and become a vassal of the chicoms who will have no compunctions about enslaving and abusing them, just as the Hawaiian Kingdom monarchy did with the population during the sandalwood trade, before eventually the reformer Kamehameha III came to the throne and voluntarily gave up supreme power in return for a constitutional monarchy.


       
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      henrybowman in reply to jhkrischel. | February 11, 2024 at 10:58 pm

      “Hawaii has suffered under 1 party rule since the 1950s, and the government there is corrupt from top to bottom”

      When Democrats bleat about “restoring and strengthening our precious Democracy,” this is precisely the Muh Democracy they are talking about. They want to restore their ascendant days of slavery, and they want to protect democracy against your rights..


       
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      Milhouse in reply to jhkrischel. | February 12, 2024 at 12:35 am

      Honestly, those justices need to be impeached immediately.

      Impeached for what? They correctly interpreted the state constitution.


     
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    fscarn in reply to Dathurtz. | February 11, 2024 at 6:56 pm

    Doesn’t Article 6 of the federal constitution provide the answer, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    Read that that last phrase again.


       
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      fscarn in reply to fscarn. | February 11, 2024 at 7:04 pm

      I did a word search of the opinion for any reference to Article VI. Came up with butkus.


       
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      Subotai Bahadur in reply to fscarn. | February 11, 2024 at 8:05 pm

      Any Democrat polity considers itself above the Constitution. And functionally they are so long as the Left holds power in DC. What, if anything, can or will they do to make Hawaii subject to the Constitution? Especially when they rule that the “Spirit of Aloha” as interpreted by the Left also supersedes the rest of the Bill of Rights.

      Subotai Bahadur


       
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      Milhouse in reply to fscarn. | February 12, 2024 at 12:37 am

      Of course you wouldn’t find it in the decision. Because nobody disputes it. The HI court knows very well that the 2A, as interpreted by SCOTUS, is the law of the land. It has no problem with that. It disagrees with SCOTUS’s interpretation, but acknowledges that until SCOTUS changes its mind that is the law. So it has no reason to mention Article 6.

    Why not cite the “Brady Family shouldn’t mess with Hawaiian Tiki” rule?


     
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    Milhouse in reply to Dathurtz. | February 12, 2024 at 12:34 am

    Actual constitutional crisis?

    No, it is not a constitutional crisis. The decision was about the state constitution, and it is probably 100% correct. The HI state constitution’s gun rights clause does not mean an individual right, as the 2A does. It copies the 2A’s language, but everyone agrees that in 1959 the 2A was generally misunderstood as protecting only the rights of those in an organized militia. The HI constitutional convention explicitly said that was what they intended.

    So the HI constitution has no individual RKBA. That’s OK, the US constitution does. This decision doesn’t dispute that. It criticizes SCOTUS’s view, but doesn’t challenge it, because it can’t.


       
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      Dathurtz in reply to Milhouse. | February 12, 2024 at 7:30 am

      Does it not also knowingly fail to protect the rights of an individual as interpreted by the SCOTUS? It seems quite the issue for a state to make a decision that includes any version of “We know the SCOTUS says government must permit X, but we see it differently so X need not be permitted by our state government.”

      I am not a lawyer or constitutional scholar or anything of the sort. Still, it seems fairly self-evident that if this type of decision is allowed, then we have state governments that need not protect many of our rights. A country can’t survive like that.


         
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        Milhouse in reply to Dathurtz. | February 12, 2024 at 8:48 am

        No, it does not. It is a ruling on the state constitution, no more and no less. It deals very briefly with the 2A, on one page at the very end, and does not dispute that the 2A, as interpreted by SCOTUS, is binding.


           
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          henrybowman in reply to Milhouse. | February 12, 2024 at 11:48 am

          This sounds like pure BS to me. From the article:

          “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.

          [In other words, Wilson appealed directly to the US Constitution’s Bill of RIghts.]

          The State, per Hawaii procedure, appealed straight to the Hawaii Supreme Court, which took the case, and has now ruled that the dismissal of the criminal charges against Wilson was improper:

          We hold that 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. We conclude that HRS § 134-25 (“place to keep” a pistol or revolver) and § 134-27 (“place to keep” ammunition) do not violate Wilson’s right to keep and bear arms under article I, section 17 of the Hawaiʻi Constitution and the Second Amendment to the United States Constitution.

          The judges are not just appealing to their state constitution, they’re interpreting the federal one, and that puts them above their pay grade.


           
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          Milhouse in reply to Milhouse. | February 12, 2024 at 11:30 pm

          Wilson appealed to both the state and federal constitutions. The court dealt with the state constitutional issue first, and all the quotes you are looking at are from that discussion and relate only to the state constitution. It’s a 53-page decision, of which only the last page deals with the federal constitutional issue.

          The one page, very brief discussion of the federal constitution does not in any way deny that it is binding, or that it is to be understood as SCOTUS says it is. It fully accepts that, and therefore has very little to say about it. It simply makes the point that SCOTUS has explicitly said that states are allowed to have licensing laws, and that Wilson has no standing to challenge them because he never applied for a license. Had he applied and been denied, he could have challenged the denial, but he didn’t so he couldn’t. That is the sum total of the 2A discussion.


 
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CountMontyC | February 11, 2024 at 4:27 pm

Sounds insurrectiony to me.


     
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    Milhouse in reply to CountMontyC. | February 12, 2024 at 12:45 am

    How does it sound insurrectiony? The state supreme court interprets the state constitution. SCOTUS has no authority to interpret it.


       
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      Virginia42 in reply to Milhouse. | February 12, 2024 at 4:31 pm

      The State doesn’t get to supercede the Constitution. But it seems to happen more frequently than it should.


         
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        Milhouse in reply to Virginia42. | February 12, 2024 at 11:32 pm

        Nothing in this decision in any way claims to supercede the US constitution. The 2A, as interpreted by SCOTUS, is fully binding on HI, and the court accepts that. It expresses its disagreement with SCOTUS’s interpretation, but accepts that its disagreement is irrelevant.

Ty James.. great summary..
Even I shook my head at this.. Hawaii > SCOTUS?

I don’t think so.. but these are dark times.


 
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E Howard Hunt | February 11, 2024 at 4:46 pm

Strange ways in Hawaii. They even issue original birth certificates 50 years after the date of birth.


 
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TargaGTS | February 11, 2024 at 4:52 pm

Imagine if a state court held that there was no right to vote…particularly for black people. Let’s say the Alabama or Mississippi Supreme Court said last week that black people not only couldn’t vote, but could be enslaved? What are the chances the DoJ would have opened up a CRIMINAL investigation into those Justices?


     
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    fscarn in reply to TargaGTS. | February 11, 2024 at 6:51 pm

    “Yes, our peculiar institution is part and parcel of the Southern heritage, call it the Spirit of the South.”


     
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    Milhouse in reply to TargaGTS. | February 12, 2024 at 12:41 am

    1. There can’t be a criminal investigation into justices. It is impossible for them to commit a crime in making a ruling.

    2. It may very well be that the AL or MS state constitutions don’t guarantee a right to vote, or ban slavery. I haven’t read those constitutions, so I don’t know. It doesn’t matter, since the US constitution does ban slavery, and while it doesn’t recognize a general right to vote, it does say that states can’t restrict any such right on the basis of race, sex, age over 18, or taxpaying status. They can still restrict it on any other basis.

The “Aloha” spirit, King Kamehameha, and however many grass skirts or Hawaiian shirts you can muster does not override the 2nd Amendment and controlling Supreme Court precedent you aloha morons. Are you trying to outdo Colorado in embarrassingly stupid opinions? Nice try but I still give the prize to Colorado.

The Sc needs to man up and strike these courts where it hurts


 
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LeftWingLock | February 11, 2024 at 5:30 pm

Actually, this makes a lot of sense and follows the lead of other states and cities.

NYC has the “Spirit of Gotham” which says that a person’s personal property rights are invalid when another New Yorker has a greater need for that item.

And SF has the “49er Spirit” which says indoor bathrooms are for wusses.


     
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    Concise in reply to LeftWingLock. | February 11, 2024 at 6:55 pm

    I think Democrats are already invoking their “Grand Wizard” spirit with their segregationist DEI agenda.


       
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      Eagle1 in reply to Concise. | February 11, 2024 at 7:07 pm

      Missing from the opinion is the fact tha Hawaii has never issued a private run of the mill citizen a concealed carry permit.

      This run headlong into another part of bruen, where the court heard that it was not ruling on permits in general, but questioned thier constitutionality if the were onerous or effectively dead paper.

      I’m not so sure SCOTUS declines in this case for those reasons.


         
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        Milhouse in reply to Eagle1. | February 12, 2024 at 12:44 am

        That’s not in the opinion because the court ruled that the plaintiff has no standing to challenge the licensing laws, since he never bothered applying for one. Any challenge will have to come from someone who applied and was turned down.


 
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ThePrimordialOrderedPair | February 11, 2024 at 5:30 pm

Hawaiʻi’s historical tradition of firearm regulation

I wonder how that affects other law, given Ha’w”ai’i”i’s historical affinity for incest?

    What about head hunting? cannibalism?

    That is an interesting statement. Mississippi has a historical tradition of lynching. Massachusetts has a historical tradition of whaling. Nevada has a historical tradition of leaching gold from rock with open pits of acid and arsenic. Texas traditionally murdered every indian they could get their hands on. Utah for polygamy. How far should we follow this “historical tradition” thing?


       
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      Milhouse in reply to diver64. | February 12, 2024 at 8:59 am

      Exactly as far as the Supreme Court said we should in Bruen. We use historical tradition to learn what a constitutional provision means. The second amendment forbids infringement of the right to keep and bear arms, but what exactly is that right, and what kind of law infringes it? Nearly 250 years on, how are we to know whether a newly-proposed law is an infringement? SCOTUS said we have to look to historical practices from a time when people knew this; if the same people who ratified the 2A accepted a similar restriction without objection, then that’s strong evidence that it’s not an infringement — provided that it applied to people whose rights they thought mattered. A restriction that only applied to people they didn’t care about doesn’t prove anything, because they could easily have thought it was an infringement and not objected anyway.

      So when interpreting the Hawaiian provision it’s important to know that Hawaiians never had a tradition of a RKBA, and thus when they adopted the clause in question they would not have understood it to be protecting such a right. That’s in addition to the evidence from the people who actually drafted and ratified the constitution, who explicitly and repeatedly denied that there is any such right.

      None of which is relevant to the 2A, which undoubtedly does protect an individual RKBA.


 
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CommoChief | February 11, 2024 at 6:03 pm

If SCOTUS lets this stand by not granting cert they should be prepared to accept a whole lot more nullification from States who decide to view the US Constitution as a buffet. ‘Oh well you see here in State X our view is that Z part of the US Constitution doesn’t apply b/c reasons so STFU’.

I didn’t have the HI Supreme Court marked as John C Calhoun on my 2024 bingo card but cool beans. Texas and other Red States could start deporting illegal immigrants on their own using similar tortured logic as HI is using here. Then there are all the mere federal regulations the States could toss overboard, it isn’t as if those are directly in text of the Constitution so no whining.


     
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    Milhouse in reply to CommoChief. | February 12, 2024 at 12:48 am

    There are no grounds for cert. SCOTUS has no power to interpret the state constitution.

    And no, Texas and other red states could not start deporting illegal immigrants on their own. Federal law prevents it, just as the 2A prevents HI from restricting the RKBA, even though its state constitution allows it.


       
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      diver64 in reply to Milhouse. | February 12, 2024 at 4:27 am

      Yes, they do when State Law or a State Constitution conflicts or is in outright disagreement with the Federal Constitution. Hawaii is a State and as such is bound by Federal Law where it conflicts with State law. Supremacy is a thing.


         
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        Milhouse in reply to diver64. | February 12, 2024 at 9:02 am

        No, they cannot. This is basic fundamental stuff. Federal courts, including SCOTUS, cannot interpret state law. Ever.

        Supremacy is irrelevant. Of course federal law overrides the state constitution. Nobody disputes that. How does that give SCOTUS any power to weigh in on the interpretation of a state constitution?


       
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      CommoChief in reply to Milhouse. | February 12, 2024 at 7:03 am

      Milhouse,

      Suggesting that SCOTUS can not review the impact of State laws and State Constitutional provisions doesn’t seem historically accurate.


         
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        Milhouse in reply to CommoChief. | February 12, 2024 at 9:03 am

        SCOTUS cannot interpret state laws, and MUST defer to the state courts. Whenever a question of state law comes up in a federal case, the federal court cannot answer it, but must refer the question to a state court for an interpretation. SCOTUS does this routinely. If it needs to know what a state law means, it asks that state’s supreme court.


           
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          CommoChief in reply to Milhouse. | February 12, 2024 at 12:38 pm

          Milhouse,

          I didn’t hang my hat on the word ‘interpretation’.

          Throughout history SCOTUS has ruled all sorts of State Laws and practices as not Constitutional under the US Constitution. You seem to be arguing that history didn’t happen.

          Here the HI CT is rejecting the application of the Bruen decision by applying it’s own reasoning as a substitute. That is a form of nullification. If this stands then CT of other States can do the same for their own hobby horse issues.


           
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          Milhouse in reply to Milhouse. | February 12, 2024 at 11:40 pm

          No, CommChief, that is just not true. The HI court did not reject the application of the Bruen decision at all.

          This decision is not about the second amendment to the US constitution, it is about a provision in the state constitution, to which Bruen does not apply. SCOTUS has no authority to interpret the HI constitution, and has never attempted to do so.

          If Hawaii’s laws violate the 2A, as interpreted by SCOTUS, then of course they are invalid. This decision does not in any way imply otherwise. But that doesn’t magically create an individual RKBA in the state constitution, which is what the appellant claimed. There is one in the US constitution, but not in the state one. That’s all.

          His federal claim was dismissed almost as an afterthought, because he never applied for a license.

So striking off the 2nd Amendment from Hawaii citizens what other Amendments are they going to cancel?


     
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    Milhouse in reply to Skip. | February 12, 2024 at 12:49 am

    Sheesh. Nobody has struck off the 2nd amendment from Hawaii citizens. Any claim you have read otherwise is fake news. The Federalist is fake news. People are flying off the handle over a decision about a state constitution.


       
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      diver64 in reply to Milhouse. | February 12, 2024 at 4:31 am

      Because the State Supreme Court has issued a ruling in direct conflict with SCOTUS and done so in a long winded and odd way. If the Hawaii Constitution and “historic tradition” supported slavery then what? According to you then tough luck. Once SCOTUS stepped in and issued a ruling on the Supreme Law Of The Land and one of it’s Amendments that is a wrap no matter what the state thinks. Enforcing it, however, is a different thing.


         
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        Milhouse in reply to diver64. | February 12, 2024 at 9:11 am

        Because the State Supreme Court has issued a ruling in direct conflict with SCOTUS

        No, it has not.

        Hawaiian tradition certainly did support slavery. Its constitution does not, but if it had then that would mean there was no state constitutional protection against it. That’s all. How is this a difficult concept for you to understand?

        Either a state constitution protects a given right, or it does not. There is no a priori reason to suppose it does, just because the US constitution does. The US constitution says there’s a right to a jury trial on civil cases worth over $20. Many (most? all?) state constitutions do not, and the 7A doesn’t apply to the states. Therefore if you are sued in state court you have no such right. If the 7A did apply to the states then you would have such a right anyway, but only under the US constitution, not the state one.

Hawaii has seceded from the union.


     
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    Milhouse in reply to irv. | February 12, 2024 at 12:50 am

    No it has not. Get over yourself and pay attention to what the court decided and what it did NOT decide. The court NEVER claimed that the 2A does not apply in HI, or does not mean in HI the same thing it means in the other 49 states, or that SCOTUS’s current interpretation is not binding.


 
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Uncledave | February 11, 2024 at 8:01 pm

Let them leave the union. Get rid of two loony senators Put the pacific fleet in Guam.

Lots of woke leftists acting like woke leftists.


 
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guyjones | February 11, 2024 at 8:27 pm

This is such transparently lawless stuff. The opinion is the product of a judicial narcissism, arrogance, stupidity and childishness that typify so much of the obnoxious and corrosive agitprop antics of the Dhimmi-crat activist-legislators who occupy undeserved perches on the Federal bench.


     
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    Milhouse in reply to guyjones. | February 12, 2024 at 12:53 am

    No, it is not lawless. It is a decision on a state constitution by the highest court with authority to interpret that constitution. And the evidence is clear that the public meaning of the constitution’s words at the time it was adopted in 1959, as well as both times it was reviewed, were indeed that it doesn’t protect an individual RKBA.

    None of this changes the fact that the 2A to the US constitution does protect an individual RKBA, and that it is binding in HI. The HI court does not dispute that.


       
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      diver64 in reply to Milhouse. | February 12, 2024 at 4:32 am

      Sometimes I get the feeling you argue just for the sake of arguing. Nothing you are saying makes sense in this case. Just stop


         
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        Milhouse in reply to diver64. | February 12, 2024 at 9:14 am

        I am arguing because you are all making claims that are utterly false and make no sense. I am the only one telling the truth here. Because none of you seem to have read the decision, or have any idea what it says. You’re all making up utter bullshit about it and having hysterics. You should be ashamed of yourselves, all of you. Truth is all that matters, and none of you seem to give a shit about it. You care only about getting your way, and not at all about the truth or the law. Outcome-based analysis is the tool of the left, so you’re all exposed as leftists.


 
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alaskabob | February 11, 2024 at 8:28 pm

The best leftist minds have fashioned this opinion for the Hawaii courts to use. As with their judges compromising Trump, so they now compromise whatever the Left needs. Hawaii is bluer than the ocean around them. The”well regulated” is being re-interpreted… again.


     
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    alaskabob in reply to alaskabob. | February 11, 2024 at 8:31 pm

    Like most rights, the right secured by the Second Amendment is not unlimited”…. then it isn’t a right but a privilege .


       
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      alaskabob in reply to alaskabob. | February 11, 2024 at 10:49 pm

      Thinking…. if there are limitations on all rights…. then when is slavery partially reestablished?


       
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      Milhouse in reply to alaskabob. | February 12, 2024 at 12:56 am

      That is wrong. No rights in the constitution are unlimited. For instance the freedom of speech has a whole list of recognized exceptions. And SCOTUS has explicitly said that the same is true for the 2A, but that the exceptions have not yet all been positively identified. That’s why it gave a guideline for figuring out what might be an exception: if there is a history and tradition of a particular restriction being commonly accepted at a time when people took the RKBA seriously, and would have objected had they thought it infringed that right, then that’s pretty good evidence that it doesn’t infringe.

Totally random, but I REALLY cringe at the “Hawai’i” type spelling…. Native Hawaiians didn’t have a written language.


     
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    guyjones in reply to Kalir. | February 11, 2024 at 10:50 pm

    That accented spelling of “Hawaii” reminds me of the trend that’s become common in many Leftist/Dhimmi-crat publications, of late, spelling the state of Turkey’s name as “Turkiye” or something like that, as an utterly pointless, pandering sop to the Muslim supremacists who run that country.


     
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    Milhouse in reply to Kalir. | February 12, 2024 at 1:00 am

    They did from the 1830s. And that is the state’s official spelling, so you can’t object to it, especially in an official government document.


       
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      steves59 in reply to Milhouse. | February 12, 2024 at 7:28 am

      Of COURSE he can object to it if he wants.
      Did your dog snap at you or something, because you really are a pedantic putz who appears to be here today only to be a contrarian.
      It is tiresome.


         
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        Milhouse in reply to steves59. | February 12, 2024 at 9:18 am

        No, he cannot reasonably object. An official state document will of course use the official legal name for the state. It is utterly pig-headed to object to that. It’s exactly like someone, before Rhode Island changed its name, objecting to an official state document referring to the Providence Plantations. That was the state’s name, whether anyone liked it or not. Next someone will object to official Puerto Rican documents being in Spanish!

SCOTUS should take this up, since Hawaii’s licensing is dead letter law. Saying you can do X with a permit, and never issuing a permit, means that X is unconditionally illegal. Several of California’s counties are the same, except they issue to the politically connected. Didn’t SF issue a carry permit to Pelosi, for example? Wealthy actors have them in LA county.


     
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    henrybowman in reply to randian. | February 12, 2024 at 12:33 am

    An ordinance which… makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.
    –SHUTTLESWORTH v. CITY OF BIRMINGHAM AL

    A state may not impose a charge for the enjoyment of a right granted by the federal constitution… The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down… a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’
    –MURDOCK V. PENNSYLVANIA 319 US 105 (1942)


     
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    Milhouse in reply to randian. | February 12, 2024 at 1:02 am

    SCOTUS has already said that state licensing laws are acceptable.

    And the plaintiff in this case has no standing to challenge the operation of the licensing law, since he never bothered applying for one, so he was never turned down. Accordingly SCOTUS should not take this up, but should wait for a case properly challenging it to go through the state courts and the lower federal courts.

After reading all your posts on this article, Milhouse, I have to say: excellent legal sophistry!

You’d be right at home on the Hawai’i Supreme Court.

Sheesh.


 
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Fat_Freddys_Cat | February 12, 2024 at 8:39 am

We conclude that the authors and ratifiers of the Hawaiʻi Constitution imagined a collective right.

They would have to “imagine” it since “collective right” is an oxymoron.


     
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    Milhouse in reply to Fat_Freddys_Cat. | February 12, 2024 at 9:25 am

    No, it isn’t. Groups of people can have collective rights that no individual member has in his own right. These are completely common and everyday occurrences. The shareholders of a company have a collective right to its assets, but no individual shareholder has one. The evidence is clear that when the Hawaiian constitution was adopted in 1959 the public meaning of the relevant clause, as understood by those who drafted it, those who ratified it, and the entire general public, was that it protected a collective right by the state militia, which was understood to be the Hawaiian National Guard, and that it did not protect an individual right possessed by each Hawaiian citizen and resident.

    At the time, it was generally thought that that’s what the 2A meant as well. That general understanding was wrong. We know that now. But that’s what it was, and that’s what everyone had in mind when Hawaii copied the 2A’s language into its own constitution. So although both constitutions have identical language, they mean different things. The US constitution does protect an individual RKBA, but the state constitution does not. Since the US constitution is the supreme law of the land, individual Hawaiians do have an RKBA, and this decision doesn’t dispute that.


 
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not_a_lawyer | February 13, 2024 at 2:49 pm

I particularly like the reference to King Kamehameha.

When Captain Cook sailed to the shores of Hawaii, he found a stone-age people that had neither metallurgy nor gunpowder.

Erronius

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