Hawaii Supreme Court Rejects Bruen as Inconsistent With “Aloha Spirit”
by Amy E. Swearer, The Federalist Society, Aug 1, 2024
In a recent opinion, the Supreme Court of Hawaii held that the Hawaii state constitution does not protect an individual’s right to keep and bear arms, and that the state’s “place to keep” gun control laws do not violate the Second Amendment to the United States Constitution.[1] In so doing, the state court may have placed itself on a collision course with the Supreme Court of the United States.
Two Hawaiian statutes—known collectively as the state’s “place to keep” laws—generally limit the possession of loaded handguns and ammunition to a person’s “place of business, residence, or sojourn” unless he or she has obtained a carry license under Haw. Rev. Stat. § 134-9.[2] In 2017, officers from the Maui Police Department detained Christopher Wilson, who admitted to carrying a loaded handgun tucked into his waistband for purposes of self-defense. Wilson did not have a Hawaii-issued public carry permit and was subsequently charged with, among other things, two counts of violating the state’s “place to keep” laws.[3]
In May 2021, the state circuit court denied Wilson’s motion to dismiss the two “place to keep” charges, citing the Ninth Circuit’s then-recent opinion in Young v. Hawaii, which had upheld the state’s discretionary public carry licensure framework while effectively holding that the Second Amendment does not protect a general right of ordinary citizens to carry firearms in public.[4] In June 2022, however, the Supreme Court of the United States granted certiorari in Young, vacated the judgment, and remanded the case to the Ninth Circuit for further consideration in light of its decision in New York State Rifle & Pistol Ass’n v. Bruen.[5] Notably, the Bruen majority pointed to Hawaii as one of a handful of states with restrictive public carry frameworks substantially similar to the New York law it struck down as unconstitutional.[6]
Shortly thereafter, Wilson again moved to dismiss the two “place to keep” charges as infringements on his right to keep and bear arms under the state and federal constitutions. This time, the lower court granted the motion and dismissed both counts with prejudice, finding that the state failed to meet its burden under Bruen of showing that the statutes are consistent with the nation’s historical tradition of firearms regulation.[7] The circuit court denied the state’s motion to reconsider. The state appealed and then filed an application for transfer to the Supreme Court of Hawaii, which granted the transfer.[8]
In a unanimous opinion by Justice Todd Eddins, the Supreme Court of Hawaii vacated the lower court’s order, finding that the relevant statutes did not violate either article 1, section 17 of the state constitution or the Second Amendment to the United States Constitution. The court first determined that Wilson did not have standing to challenge Haw. Rev. Stat. § 134-9 (the law governing licenses to carry), thereby sidestepping his broader challenge to the state’s framework for issuing public carry licenses.[9] It reasoned that Wilson had never applied for a concealed carry license under that framework, and the state had not specifically charged him with violating that statutory provision, so he was not injured by that law.[10]
The court then turned its attention to article 1, section 17 of the Hawaii state constitution (Section 17), which uses language virtually identical to that found in the Second Amendment to the United States Constitution. The court concluded, however, that Section 17 protects only a collective, militia-centric right and does not afford any individual right to carry firearms in public places for self-defense. The court reasoned that Section 17 employs “military-tinged” language and that no part of the text refers to an individual right or expresses a purpose of individual self-defense.[11] Moreover, because “the first clause narrows the right that the second clause confers,” the “people” with a right to keep and bear arms are only those who comprise the militia.[12] The court further pointed to the conclusions of various linguistic experts and contrasted Section 17’s language with provisions found in other state constitutions that “expressly identify [the right to keep and bear arms] as a civilian right for personal self-defense.”[13] The court found this textual analysis to be consistent with Section 17’s original public purpose, which similarly supports a “collective, military interpretation.”[14]
In a direct rebuke of the U.S. Supreme Court’s Second Amendment jurisprudence, the court also insisted that this militia-centric view “was what everyone thought” the Second Amendment meant until very recently, when “interest groups advanced an individual rights interpretation.”[15] It criticized the Supreme Court at great length for its decision in District of Columbia v. Heller (2008), asserting that Heller and its progeny “flipped the nation’s textual and historical understanding of the Second Amendment.”[16] It singled out Bruen, in particular, as creating a “fuzzy” and unworkable test that “disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement.”[17]
Nonetheless, when the Hawaiian court analyzed the state’s historical tradition of firearms regulation, it determined that “never have Hawai’i’s people felt that carrying deadly weapons during daily life is an acceptable or constitutionally protected activity.”[18] Finally, the court considered its statutory privilege to “contemplate and reside with the life force and give consideration to the ‘Aloha Spirit’” when fulfilling its responsibilities.[19] It concluded that “the spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”[20]
In its closing paragraphs, the court also held that the state’s “place to keep” statutes did not violate Wilson’s rights under the Second Amendment to the United States Constitution, noting Bruen’s reiteration that the Second Amendment right is not unlimited and does not protect a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[21] It also cited Justice Brett Kavanaugh’s concurring opinion in that case, which clarified that while restrictive “proper cause” laws were unconstitutional, the opinion “does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense.”[22] The Hawaiian court did not attempt to distinguish the state’s public carry licensure laws as they existed at the time of Wilson’s alleged offense from the public carry licensure laws deemed unconstitutional by the Supreme Court of the United States in Bruen.
---30---
[1] State v. Wilson, 543 P.3d 440 (Haw. 2024).
[2] See Haw. Rev. Stat. §§ 134-25(a), 134-27(a) (2017).
[3] Wilson, 543 P.3d at 442-43.
[4] Young v. Hawaii, 922 F.3d 765 (9th Cir. 2021), vacated 142 S. Ct. 2895 (2022).
[5] 597 U.S. 1 (2022) (striking down New York’s discretionary “proper cause” requirement for concealed carry license applications and holding that the Second Amendment protects a right of ordinary law-abiding Americans to carry handguns in public for self-defense).
[6] Id. at 14–15.
[7] Wilson, 543 P.3d at 443.
[8] Id. at 444.
[9] Id. at 444–45. Neither the opinion nor the currently available public record is clear as to the point at which Wilson first raised this challenge to the state’s general public carry licensure framework.
[10] Id.
[11] Id. at 448.
[12] Id.
[13] Id. at 448–50.
[14] Id. at 450–51.
[15] Id. at 451, 452.
[16] Id. at 452.
[17] Id. at 453–55.
[18] Id. at 454.
[19] Id. at 459 (citing Haw. Rev. Stat. § 5–7.5(b) (2009)).
[20] Id.
[21] Id. (quoting Bruen, 597 U.S. at 21).
[22] Id. (citing Bruen, 597 U.S. at 79–80 (Kavanaugh, J., concurring)).
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.