State v. Wilson.State v. Wilson.
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I.
Article I, section 17 of the Hawaiʻi Constitution mirrors the Second Amendment to the United States Constitution. We read those words differently than the current United States Supreme
The State appeals an order dismissing two “place to keep” offenses,
The State challenges Wilson’s standing. The State says Wilson did not bother to apply for a carry license and thereby satisfy
Wilson believes otherwise. He says
Because the State charged Wilson with place to keep offenses, we conclude that Wilson has standing to challenge the constitutionality of those laws. A criminal defendant has standing to level a constitutional attack against the charged
Wilson though lacks standing to confront
We reject Wilson’s constitutional challenges. 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. In Hawaiʻi, there is no state constitutional right to carry a firearm in public.
Bruen snubs federalism principles. Still, the United States Supreme Court does not strip states of all sovereignty to pass traditional police power laws designed to protect people. Wilson has standing to challenge
II.
A. Charges and Alleged Facts
In December 2017, the County of Maui Department of the Prosecuting Attorney charged Christopher Wilson by felony information. He allegedly violated: (1)
The facts are slim. Declarations and police reports submitted to support the parties’ position for the motion to dismiss comprise the factual record.
In December 2017, at about 11:00 p.m., Flyin Hawaiian Zipline owner Duane Ting saw men on his fenced-in property via video surveillance. Ting reported the matter to the Maui Police Department. Officers headed to Ting’s property. Meanwhile Ting, driving an all-terrain vehicle, corralled Wilson and his three companions. Armed with an AR-15 assault rifle, he detained them until the police arrived. Then Wilson volunteered to the officers: “I have a weapon in my front waist band.” The police lifted his shirt. Wilson had a Phoenix Arms .22 LR caliber pistol, loaded with ten rounds of .22 caliber ammunition. A records check reported that the pistol was unregistered in Hawaiʻi, and Wilson had not obtained or applied for a permit to own a handgun. Wilson told the police that he legally bought the gun in Florida in 2013.
B. Wilson’s Motions to Dismiss
In May 2021, Wilson moved to dismiss counts 1 and 2. Citing District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), Wilson argued that prosecuting him for possessing a firearm for self-
The State opposed the motion. It presented records from Florida and the Department of Justice Bureau of Alcohol, Tobacco, Firearms, and Explosives to refute Wilson’s remark about when and where he had purchased the gun. The records showed: (1) Wilson had not applied for or been issued a concealed weapon or firearm license pursuant to Florida law, and (2) in April 2011 someone not named Christopher Wilson purchased the pistol from a licensed firearms dealer in Florida.
The circuit court denied Wilson’s motion to dismiss in July 2021. It relied on Young v. Hawaiʻi. There, the Ninth Circuit Court of Appeals held that the Second Amendment does not provide a right to openly carry a firearm for self-defense. Young v. Hawaiʻi, 992 F.3d 765, 821 (9th Cir. 2021), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and abrogated by New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
In July 2022, Wilson filed a second motion to dismiss counts 1 and 2. Bruen had just come out.
Wilson again challenged the constitutionality of
The Maui Department of the Prosecuting Attorney (State) countered.
First, the Second Amendment allows for some restrictions per Heller and Bruen. For instance, registration and permitting are constitutional. Second, unlike the Bruen plaintiffs, Wilson illegally possessed a handgun because he never tried to follow Hawaiʻi’s firearm registration and license to carry law. Because he didn’t apply for a permit, he lacks standing to raise a Second Amendment challenge.
Circuit Court Judge Kirstin Hamman granted Wilson’s second motion to dismiss in August 2022.
The court dismissed counts 1 and 2 with prejudice.
The State moved to reconsider. Then the Department of the Attorney General got involved. The court granted its request to file an amicus brief in support of the Maui Prosecuting Attorney’s motion. The Attorney General argued that Bruen does not stop states from requiring a license before bringing a firearm to a public place. The circuit court denied the motion to reconsider.
The State appealed. Then it filed an application for transfer. We granted the transfer.
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
A. Standing
Wilson has standing. His standing though, is confined to challenging
1. Wilson has standing to challenge HRS § 134-25 and § 134-27
The State argues Wilson has no standing to challenge Hawaiʻi’s place to keep crimes,
The State relies on California and New York cases where courts denied standing to criminal defendants who did not try to get a license to carry. They could not bring Bruen-based
Hawaiʻi law offers criminal defendants broad standing to challenge the constitutionality of criminal laws they are charged with violating. State v. Grahovac, 52 Haw. 527, 532, 480 P.2d 148, 152 (1971). It allows challenges “[w]here restraints imposed act directly on an individual or entity and a claim of specific present objective harm is presented.” State v. Bloss, 64 Haw. 148, 151, 637 P.2d 1117, 1121 (1981).
Here, the State charges place to keep crimes. Because Wilson faces serious consequences, he has a claim of spеcific present objective harm. And this gives him standing to challenge the constitutionality of
2. Wilson lacks standing to challenge HRS § 134-9
Unlike his challenges to
Wilson says
We disagree. Wilson has no standing to challenge
First, the State has not charged Wilson with violating
Last, Wilson did not bother to follow
Wilson cannot show a specific present objective harm based on
HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s right to keep and bear arms under article I, section 17
1. Our Sequence of State Constitutional Interpretation
Wilson invokes both the Hawaiʻi and United States Constitutions.
This court has yet to explain how we interpret matching state and federal constitutional provisions when both are in play. Do we look at the state constitution first? The federal constitution first? Both? If we interpret our constitution to provide more protection, do we even take up the federal constitution?
We believe that 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. See State v. Kono, 152 A.3d 1, 29 n.29 (Conn. 2016) (“If we address the state constitutional claim first and decide it in favor of the defendant, there is no reason to address the federal constitutional claim; for purposes of that case, the defendant is entitled to prevail under the state constitution, and it
The Hawaiʻi Constitution often offers “greater protections” than the federal constitution. State v. Santiago, 53 Haw. 254, 265, 492 P.2d 657, 664 (1971). When the two contain look-alike prоvisions, 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.” State v. Kaluna, 55 Haw. 361, 369 n.6, 520 P.2d 51, 58 n.6 (1974). 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.” State v. Mundon, 129 Hawaiʻi 1, 18 n.25, 292 P.3d 205, 222 n.25 (2012).
Interpreting the Hawaiʻi Constitution is this court’s #1 responsibility. So we reason independently, untethered from the
State constitutions have a distinct role under our nation’s system of federalism. Deciding a case first on state constitutional grounds respects state sovеreignty and aligns with a key constitutional design feature – subnational governance. As the Oregon Supreme Court put it:
The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.
Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981) (en banc).
The state-constitution-first approach recognizes the states as the cradle of rights. State constitutions predated the Constitution as the original sources of constitutional rights. Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379, 380 (1980) (“State bills of rights are first in two senses: first in time and first
State constitutions provide a “double security” for the people’s liberty. The Federalist No. 51, at 321 (James Madison) (Isaac Kramnick ed., 1987). Per the Constitution’s design, the Hawaiʻi Constitution supplies an additional guarantеe of individual rights. See, e.g., State v. Tanaka, 67 Haw. 658, 661, 701 P.2d 1274, 1276 (1985) (“We have not hesitated in the past to extend the protections of the Hawaiʻi Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and a sound regard for the purposes of those protections have so warranted.“).
But federalism is about more than just the relationship between state and federal governments. “[W]e must not forget that the virtue of federalism lies not in the means of permitting state experimentation but in the ends of expanded liberty, equality, and human dignity.” State v. Short, 851 N.W.2d 474, 507 (Iowa 2014) (Cady, C.J., concurring specially).
We honor the Hawaiʻi Constitution’s freestanding vitality. We interpret the Hawaiʻi Constitution first.
Wilson argues that
Wilson possessed an unlicensed, concealed, and loaded handgun to, he says, protect himself. Only certain factual circumstances justify shooting another human in Hawaiʻi. Per
The State argues Wilson’s handgun-toting conduct is not saved by the right to bear arms. He trespassed, a crime. He’s not “law abiding.” The State’s position makes sense in the abstract. Neither Bruen, nor any case, protect a right to
The State’s argument about Wilson’s alleged criminal conduct does not apply. Wilson’s criminal trespass charge (count 4) is not before this court. And it’s a trial matter. The parties dispute the facts in declarations attached to their motion to dismiss briefing. These declarations are fair game for now. They comply with
Wilson deniеs trespassing. Wilson says that he and his friends “were hiking that night to look at the moon and Native Hawaiian plants.” They did not see any “No Trespassing” signs. For purposes of the motion to dismiss, Wilson’s alleged criminal
So we go to Wilson’s article I, section 17 constitutional challenge.
This court eyed article I, section 17 before. See State v. Mendoza, 82 Hawaiʻi 143, 920 P.2d 357 (1996). But Mendoza dodged the key question: Does Hawaiʻi’s Constitution afford a personal right or a collective right to keep and bear arms?
Mendoza appealed from his conviction for unlawful firearm possession (then an
Justice Levinson concurred. He concluded that there was no individual right. Article I, section 17 covers conduct with a “reasonаble relationship to the preservation or efficiency of a well regulated militia.” Id. at 155, 920 P.2d at 369 (Levinson,
Because the text of article I, section 17, 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.
3. Article I, section 17’s text
Article I, section 17 reads:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
The Second Amendment is nearly identical. Only two commas and three capital letters separate the two. The Second Amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Since article I, section 17 imitates the Second Amendment, it is helpful to look at what the Second Amendment’s words mean.
A textual approach to constitutional interpretation appreciates that words appear (or do not) for a reason.
Both clauses of article I, section 17 and the Second Amendment use military-tinged language – “well regulated
In contrast, there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense.
First, we examine the prefatory clause to article I, section 17 and the Second Amendment. The opening words carry a military meaning. The “well regulated militia” clause warms up the rest, defining the text. It “sets forth the object of the Amendment and informs the meaning of the remainder of its text.” Heller, 554 U.S. at 643 (Stevens, J., dissenting).
Article I, section 17’s first clause offers context and clarity, like preambles do. “It cannot be presumed that any clause in the constitution is intended to be without effect.” See Marbury v. Madison, 5 U.S. 137, 174 (1803).
The federal constitution deploys “militia” to mean an irregular state military force that may be called up by the federal government to combat outside invasions or internal insurrections. See Silveira v. Lockyer, 312 F.3d 1052, 1070 (9th Cir. 2002); Paul Finkelman, “A Well Regulated Militia“: The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195, 209 (2000). Article I, section 8 gives Congress power to “provide for calling forth the Militia to execute the Laws of the Union, supprеss Insurrections and repel Invasions,” and to
Founding era dictionaries agree. See Thomas Dyche & William Pardon, A New General English Dictionary (1765) (“Militia: the civil defence of a kingdom, who are cantoned into companies, regiments, &c. that are casually raised out of the inhabitants upon extraordinary occasions of riots, tumults, invasions &c. who, as soon as the disturbance is over, return to their respective habitations and employments“); John Ash, The New and Complete Dictionary of the English Language (1775) (“Militia: the train bands, the standing military force of a nation.“).
To English speakers - in 1791, 1868, and now - the first clause narrows the right that the second clause confers. It is “the people” who make up the militia that need to “keep and bear arms” to protect “the free state.”
Centuries ago, the right to keep and bear arms was not universal. It wasn‘t for all. “The people” who had the right to “keep and bear arms” included a discrete subset, one that excluded people based on gender and race. Only able-bodied free
Before
Like the first clause‘s “well regulated militia,” the second clause‘s “bear arms” has a collective, military meaning.
Judges interpret words as part of the job. But judges are not language and speech specialists. Before Bruen, linguists informed the Supreme Court about their research: “[C]orpus linguistics researchers have unearthed a wealth of new evidence over the past decade showing that the phrase ‘keep and bear arms’ overwhelmingly had a collective, militaristic meaning at the Founding.” See Brief for Corpus Linguistics Professors and Experts as Amici Curiae Supporting Respondents at 4, N.Y. State Rifle & Pistol Ass‘n, Inc. v. City of New York, 590 U.S. ____, 140 S. Ct. 1525 (2020) (No. 18-280).
The
The
Unlike
Until Heller, the Supreme Court had never ruled that the
Hawaiʻi chose to use civic-minded language.
4. Article I, section 17‘s purpose
The original public purpose of
This court construes the
We conclude that the authors and ratifiers of the
Section 15 incorporates the 2nd Amendment of the Federal Constitution. In adopting this language, it was the intention of the committee that the language should not be construed as to prevent the state legislature from passing legislation imposing reasonable restrictions upon the right of the people to keep and bear arms.
The 1950 Constitutional Convention delegates expressed an intent to preserve the Territory‘s fireаrms regulations. They had foresight, too, reserving the right to later pass laws to ban “modern and excessively lethal weapons . . . .”
This section incorporates the 2nd Amendment to the Federal Constitution. Your Committee wishes to make it clear that this section will not render invalid the existing laws of the Territory, which will be continued in effect by the State Constitution, relating to the registration, possession and carrying of firearms, nor will it prevent the legislature from passing other reasonable restrictions on the right to acquire, keep or bear firearms or other weapons, including the power of the legislature to entirely prohibit the possession of such modern and excessively lethal weapons as machine guns, silencers, bombs, atomic weapons, etc. Upon this understanding, your Committee recommends the adoption of this section.
Comm. of the Whole Rep. No. 5, in 1 Proceedings of the Constitutional Convention of Hawaiʻi of 1950, at 303 (emphases added).
The 1968 Constitutional Convention endorsed the Hawaiʻi Constitution‘s text and original purpose. The introduction to a series of Legislative Reference Bureau studies prepared to aid the Convention‘s delegates explains that article I, sеction 17 was based on the conventional and traditional interpretation of the Second Amendment. “The historical background of the Second Amendment indicates that the central concern in the right to bear arms was the right of the states to maintain a militia.” Hawaiʻi Constitutional Convention Studies: Introduction and
The 1968 Constitutional Convention‘s Standing Committee recommended retaining then-Section 15. The Committee‘s report clarified:
The Committee feels that reference must be made to the report of the 1950 Constitutional Convention in order that the people of this State not misconstrue the intent of this section. The right to bear arms refers explicitly to the militia and is subject to lawful regulation.
Id.
Ten years later, the 1978 Constitutional Convention Studies similarly advised the delegates: “[T]he right to keep and bear arms is one enjoyed collectively by members of a state militia” rather than an individual right. Hawaiʻi Constitutional Convention Studies 1978: Introduction and Article Summaries, at 6 (1978). The study recounts that the “1968 Constitutional Convention, to clear up any confusion left by its predecessor, stressed that section 15 referred only to the collective right to bear arms as a member of the state militia, but did not amend section 15.” Id.
The Hawaiʻi Constitution‘s first framers knew about the United States Supreme Court‘s decision in Miller, 307 U.S. at
[i]n the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
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 expressed in Miller. See, e.g., Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942) (“The right to keep and bear arms is not a right conferred upon the people by the federal constitution.“); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (finding it “abundantly clеar” that the Second Amendment, unlike freedom of speech and freedom of religion, “was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power“).
State and federal courts had also, with few exceptions, upheld laws regulating firearms use and possession.
Like
That‘s what they were thinking about long ago. Not someone packing a musket to the wigmaker just in case.
Until recently, the Second Amendment conferred a collective right to bear arms in service to the militia. See Miller, 307 U.S. at 178; Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897). There was no individual federal constitutional right to carry deadly weapons in public places for self-defense. There were only statutory, common law, or state constitutional rights.
Around Miller‘s time, the state militia was evolving into the National Guard. A 1903 Act created the National Guard. “[T]he regularly enlisted, organized, and uniformed active militia in the several States and Territories . . . whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia.” Act of January 21, 1903, 32 Stat. 775. Then the National Defense Act of 1916 federalized the National Guard. Act of June 3, 1916, 39 Stat. 166. A 1933 amendment to that act established state National Guard units that would simultaneously enlist in the federal National Guard. Act of June 15, 1933, 48 Stat. 153, 159. While
The authors of the Hawaiʻi Constitution understood the meaning of militia. “Militia” meant “a body of citizens enrolled as a regular military force for periodical instruction, discipline, and drill, but not called into active service except in emergencies.” Webster‘s New International Dictionary (2d ed. 1960). By then it included the state National Guard. At the 1968 constitutional convention, delegate Leland Larson explained, “Section 15, the so-called ‘right to bear arms’ provision, does not refer to the individual‘s right, it refers to the militia, to the national guard.” Debates in Comm. of the Whole on Bill of Rights (Article I), 2 Proceedings of the Constitutional Convention of Hawaiʻi of 1968, at 24 (1972); see also William L. Shaw, The Interrelationship of the United States Army and the National Guard, 31 Mil. L. Rev. 39, 44 (1966) (noting that “modern-day sense” of term “militia” includes “National Guard units“).
Soon interest groups advanced an individual rights interpretation of the Second Amendment. See Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000).
one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I‘ve ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
Silveira v. Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002) (quoting Warren E. Burger, The Right to Bear Arms, PARADE MAGAZINE, Jan. 14, 1990, at 4).
Circuit courts agreed. There was no individual right. Same as it ever was. See Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) (“Since [Miller], the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.“); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). In 2001 though, the Fifth Circuit took a new tact. See United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (finding that the Second Amendment “protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia“).
Then, the Supreme Court granted cert in Heller. Heller flipped the natiоn‘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
History by historians quickly debunked Heller‘s history. “If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?” McDonald, 561 U.S. at 916 (Breyer, J., dissenting); United States v. Bullock, ___ F. Supp. 3d ___, 2023 WL 4232309, at *4-*5 (S.D. Miss. 2023) (Reeves, J.) (“[A]n overwhelming majority of historians reject the Supreme Court‘s most fundamental Second Amendment holding - its 2008 conclusion that the Amendment protects an individual right to bear arms, rather than a collective, Militia-based right.“) (cleaned up).
History is prone to misuse. In the Second Amendment cases, the Court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don‘t fit. See Heller, 554 U.S. at 639 (Stevens, J., dissenting); Bruen, 597 U.S. at 112 (Breyer, J., dissenting) (“the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history‘s crowd“).
Bruen unravels durable law. No longer are there the levels of scrutiny and public safety balancing tests long-used by our nation‘s courts to evaluate firearms laws. Instead, the Court ad-libs a “history-only” standard. See id. at 84.
Yet only a few years before, the Court had constrained originalism‘s liberty-reducing tendencies. The history and tradition of the very old days did not control contemporary American life. “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” Obergefell v. Hodges, 576 U.S. 644, 664 (2015).
Judges are not historians. Excavating 18th and 19th century experiences to figure out how old times control 21st century life is not a judge‘s forte. “Judges are not historians. We were not trained as historians. We practiced law, not history.” Bullock, 2023 WL 4232309, at *4. Worse, judges may use history to fit their preferred narratives. “[I]n addition to the risk that [judges] will not understand the materials they are charged to consult, there is the additional risk that they will not conduct a dispassionate examination of the historical evidence and will simply marshal historical anecdotes to achieve what they have already decided is the
History is messy. It‘s not straightforward or fair. It‘s not made by most. See Melissa Murray, Children of Men: The Roberts Court‘s Jurisprudence of Masculinity, 60 Hous. L. Rev. 799, 800 (2023) (the current Court “frequently relies [on] moments in which women and people of color were expressly excluded from political participation and deliberation“).
Bruen, McDonald, Heller, and other cases show how the Court handpicks history to make its own rules. See Allegheny Reprod. Health Ctr. v. Pennsylvania Dep‘t of Hum. Servs., ___ A.3d ___, 2024 WL 318389, at *135 (Pa. 2024) (Wecht, J., concurring) (“At the same time that it purported to anchor its holding in American common law, the Dobbs majority engaged in historical fiction, disregarding evidence that undermined its view and ignoring the reproductive autonomy that American women originally exercised - autonomy that included matters of pregnancy, childbirth, and abortion.“). “A justice‘s personal values and ideas about the very old days suddenly control the lives of present and future generations.” See City & Cnty. of Honolulu v. Sunoco LP, 153 Hawaiʻi 326, 361, 537 P.3d 1173, 1208 (2023) (Eddins, J., concurring).
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.” Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
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.
Regulations like storing powder safely, reporting with guns for militia “musters” (weapons inspection), and loyalty oaths are hardly helpful to address contemporary gun violence. Yet those odd laws have historical and traditional roots. Democratically-vetted laws, though - measures taken by today‘s citizens to save lives - are mostly out of bounds.
Lethal weapons share little resemblance to weaponry used centuries ago. A well-trained Revolutionary War soldier could
Gun use has changed, too. A backward-looking approach ignores today‘s realities. “In 2019 for every justifiable homicide in the United States involving a gun, guns were used in 30 criminal homicides.” (316 justifiable homicides and 9,610 criminal homicides.) This ratio does not take into account suicides and fatal unintentional shootings. See Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use, Violence Policy Center, 1, March 2023, https://vpc.org/studies/justifiable23.pdf [https://perma.cc/PW6G-J5U8].
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).
5. History and Tradition in Hawaiʻi
To be clear, history, though not the end all, is useful. See Hawaiʻi State AFL-CIO v. Yoshina, 84 Hawaiʻi 374, 376, 935 P.2d 89, 91 (1997) (“[A] constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was
Here, we discuss Hawaiʻi’s historical tradition of regulating weapons. We try our best. Judges are not historians. (Except the rare case of John Papa ʻĪʻī, historian and Associate Justice of the Supreme Court of the Kingdom of Hawaiʻi from 1848-1864.) Throughout its history as a sovereign nation and as a Territory, Hawaiʻi regulated deadly weapons.
History bares
In Hawaiʻi, a state constitutional right to keep and bear arms does not extend to non-militia purposes.
a. The Kingdom of Hawaiʻi’s First Law: Ke Kānāwai Māmalahoe and the promotion of public safety
“[A] unified monarchial government of the Hawaiian Islands was established in 1810 under Kamehameha I, the first King of Hawaiʻi.” S.J. Res. 19, 103d Cong., 107 Stat. 1510 (1993). King Kamehameha I enacted Hawaiʻi’s first law: Ke Kānāwai Māmalahoe, or “law of the splintered paddle.” See Carol Chang, The Law of the Splintered Paddle: Kānāwai Māmalahoe 14 (1994).
Kamehameha and Ka-hakuʻi paddled to Papaʻi and on to Keaʻau in Puna wherе some men and women were fishing, and a little child sat on the back of one of the men. Seeing them about to go away, Kamehameha leaped from his canoe intending to catch and kill the men, but they all escaped with the women except two men who stayed to protect the man with the child. During the struggle Kamehameha caught his foot in a crevice of the rock and was stuck fast; and the fishermen beat him over the head with a paddle. Had it not been that one of the men was hampered with the child and their ignorance that this was Kamehameha with whom they were struggling, Kamehameha would have been killed that day. This quarrel was named Ka-lele-iki, and from the striking of Kamehameha’s head with a paddle came the law of Mamala-hoe (Broken paddle) for Kamehameha.
Samuel M. Kamakau, Ruling Chiefs of Hawaiʻi 125-26 (1961):
The law of the splintered paddle promotes public safety:
E nā kānaka,
E mālama ʻoukou i ke akua
A e mālama hoʻi i kānaka nui
a me kānaka iki;
E hele ka ʻelemakule,
ka luahine, a me ke kama
A moe i ke ala
ʻaʻohe mea nāna e hoʻopilikia.
Hewa nō, make.O my people,
Honor thy god;
Respect alike (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.
Disobey, and die.
Chang, The Law of the Splintered Paddle at 16.
Kamehameha I’s law protects all people, “great and humble.” Especially the vulnerable - children and the elderly. The law
The law of the splintered paddle, [kānāwai māmalahoe], decreed by Kamehameha I -- Let every elderly person, woman and child lie by the roadside in safеty -- shall be a unique and living symbol of the State’s concern for public safety.
The State shall have the power to provide for the safety of the people from crimes against persons and property.
b. 1833-1893: Weapons were heavily regulated under Hawaiian Kingdom Law
By the time Kamehameha III became King, foreign nations and their citizens increasingly exposed the islands to deadly weapons. Kamehameha III enacted laws to protect his people from crime. 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.” Violators were subject to arrest and punishment by fine or lashings. Translation of the Constitution and Laws of the
Kamehameha III’s laws severely punished those who cоmmitted crimes with deadly weapons. Chapter XXXVII outlawed burglary. It had a harsh sentencing enhancement: ordinary burglary was punished by exile for a period of 3-10 years, but if a burglar had a deadly weapon, then it was “a great crime, and the man committing it shall be condemned to reside on another land till death.” Id. at 93. Chapter XXXVIII, too. Any murder committed by use of a weapon was punishable by death. Id. at 94.
Kamehameha III enacted Hawaiʻi’s first constitution in 1840. Kamakau, Ruling Chiefs of Hawaiʻi at 370. Kamehameha III and his advisors, including the American William Richards, spent years deliberating what the Kingdom of Hawaiʻi’s Constitution would say. Ralph S. Kuykendall, The Hawaiian Kingdom, 1778-1854 159, 167 (1938). The 1840 Constitution included the United States Constitution’s right to freedom of religion. Translation of the Constitution and Laws at 10 (1842). But it left out its “right to bear arms” provision, signaling there was no desire to allow the King’s subjects to freely arm themselves. See id. at 9-16.
Kamehameha III’s government revised the Constitution twelve years later. The 1852 Constitution was in many ways modeled on the United States Constitution and the Declaration of Independence. Article I declared inalienable rights: life,
Hawaiʻi has a tradition of updating its weapons laws to match changing technology. The Kingdom’s 1852 law, “An Act to Prevent the Carrying of Deadly Weapons,” expanded the definition of “deadly weapon” to prohibit anyone not authorized by law from carrying “any bowie-knife, sword-cane, pistol, air-gun, slungshot or other deadly weapon.” Id. at 19. The only people allowed to carry arms were Kingdom officials and military officers, but only “when worn for legitimate purposes.” Id.
Kamehameha V adopted a new constitution in 1864. Again, the Kingdom of Hawaiʻi’s Constitution left out a right to bear arms. See
A shift in deadly weapons regulation occurred in 1870. Concerned that hunters were destroying Oʻahu’s bird population, the Kingdom enacted a firearm licensing law. Laws of His Majesty Kamehameha V., King of the Hawaiian Islands, Passed by the Legislative Assembly, at its Session, 1870 26 (1870) (“An Act to License the Carrying of Fowling Pieces and Other Firearms“). The Minister of Interior could issue hunting licenses for the southern part of Oʻahu. Without a license, the “use or carry” of hunting guns resulted in fines or imprisonment at hard labor. Id.
The Kingdom of Hawaiʻi Constitution of 1864 remained in effect until 1887. Then, a subversive group forced King Kalākaua to sign a new constitution. Queen Liliʻuokalani recalled that they would have executed her brother, King Kalākaua, had he not signed the “Bayonet Constitution,” the Constitution of 1887. Liliʻuokalani, Hawaiʻi’s Story by Hawaiʻi’s Queen 181 (1898). The schemers, mostly American men, omitted a right to bear arms. See
In 1893, another armed group forcibly deposed Queen Liliʻuokalani, who was crowned after King Kalākaua’s death in 1891. Liliʻuokalani, Hawaiʻi’s Story at 209-10, 387.
“A so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaiʻi, acting with the United States Armed Forces, replaced the monarchy with a provisional government.” Rice v. Cayetano, 528 U.S. 495, 504–05 (2000). (100 years later, in 1993, “Congress enacted a joint resolution ‘to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawaiʻi’” and apologize to Native Hawaiians. Hawaiʻi v. Office of Hawaiian Affairs, 556 U.S. 163, 168-69 (2009)).
After the unlawful overthrow, one of the first things the Provisional Government did was end the importation of firearms, ammunitions, or explosives. See Laws of the Provisional Government of the Hawaiian Islands Passed by the Executive and Advisory Councils Acts 1 to 42 13 (Act 9) (1893).
The next year, the Provisional Government formed the “Republic of Hawaiʻi.” Liliʻuokalani, Hawaiʻi’s Story at 258. Then, on July 4, 1894, they unveiled a new Constitution. Id. Again, the right to assemble was only “without arms.”
In 1896, the Republic passed a law that prohibited anyone from carrying or using a firearm in Hawaiʻi without a license. Laws of the Republic of Hawaiʻi Passed by the Legislature at its Session, 1896 224 (1896). The law also required registration for every firearm in the islands, even those belonging to police or military members. Id. at 224-25. Anyone possessing an unlicensed firearm was subject to a fine and forfeiting the gun. Id. at 226.
d. 1898-1959: The Territorial Government continued to heavily regulate weapons
In 1898, the United States, by joint resolution of Congress, annexed the Republic of Hawaiʻi, сreating the Territory of Hawaiʻi. Newlands Resolution, H.R.J. Res. 259, 55th Cong. (1898), 30 Stat. 750.
Though the Hawaiian Islands were now ruled by a subjugating nation, Hawaiʻi continued its historic tradition of strict weapons regulation.
The year before Bruen, the Ninth Circuit Court of Appeals upheld Hawaiʻi’s regulatory framework for firearms,
Hawaiʻi’s regulation of dangerous weapons remained in effect after Hawaiʻi consented to annexation as a U.S. territory in 1898. Under the Newlands Resolution, “[t]he municipal legislation of the Hawaiian Islands . . . not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.” Resolution of July 7, 1898, 30 Stat. 750. See Territory of Hawaiʻi v. Mankichi, 190 U.S. 197, 209 (1903). Hawaiʻi’s territorial legislature renewed its 1852 limitations on the carrying of dangerous weapons in a 1905 Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913 statute made it unlawful to carry deadly weapons unless “authorized by law.” Id. The statute imposed civil and criminal penalties on anyone who carried a “deadly weapon” without prior authorization “unless good cause bе shown for having such dangerous weapon.” Id.
In 1927, Hawaiʻi implemented its first restriction on firearms specifically, as opposed to restrictions on the broader class of “deadly weapons.” In a section entitled “Carrying or keeping small arms by unlicensed person,” the law provided:
Except as otherwise provided in Sections 7 and 11 hereof in respect of certain licensees, no person shall carry, keep, possess or have under his control a pistol or revolver; provided, however, that any person who shall have lawfully acquired the ownership or possession of a pistol or revolver may, for purposes of protection and with or without a license, keep the same in the dwelling house or business office personally occupied by [them], and, in the case of an unlawful attack upon any person or property in said house or office, said pistol or revolver may be carried in any lawful, hot pursuit of the assailant.
Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927 Act, which was modeled in part on the Uniform Firearms Act, required a person to obtain a license to carry a “pistol or revolver concealed upon [their] person or to carry one elsewhere than in [their] home or office.” Id. § 7. Carry licenses could be issued by the sheriff or a sitting judge after either had determined that applicant was “suitable . . . to be so licensed.” Id. An applicant was deemed “suitable” to carry a firearm upon meeting a citizenship and age requirement and showing a “good reason to fear an injury to [their] person or property, or . . . other proper reason for carrying a pistol or revolver.” Id.
In 1933, the Hawaiʻi legislature further refined its concealed-carry licensing scheme. Act 26, § 8, 1933–1934 Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed weapon, the applicant had to demonstrate an “exceptional case” and a “good reason to fear injury to [their] person or property.” Id.
The “exceptional case” and “good reason to fear injury” requirements included in the 1933 Act became staples of Hawaiʻi’s future firearm regulations. The Hawaiʻi legislature included those requirements in its 1961 Act “Relating to Permits to Carry Firearms.” Act 163, 1961 Haw. Sess. Laws 215. The 1961 regulations mirrored those in the 1933 statute and required an applicant to demonstrate an “exceptional case” and a “good reason [fоr the applicant] to fear injury to [their] person or property” before publicly carrying a firearm. Id. § 1. Whereas the 1933 Act only applied to concealed carry, however, the 1961 Act announced a new regulatory scheme for open carry. An individual seeking to carry a firearm openly in public was required to demonstrate “the urgency of the need” to carry and must be “engaged in the protection of life and property.” Id. If the applicant made such a showing and was not otherwise prohibited from possessing a firearm, the chief of police had discretion to grant the carry application. Id. (“[T]he respective chiefs of police may grant a license . . . .“).
No doubt. 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.
e. The Aloha Spirit
In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation. See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises “power on
The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.
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. See
The government’s interest in reducing firearms violence through reasonable weapons regulations has preserved peace and tranquility in Hawaiʻi. A free-wheeling right to carry guns in public degrades other constitutional rights.
The right to life, liberty, and the pursuit of happiness, encompasses a right to freely and safely move in peace and tranquility. See
There is no individual right to keep and bear arms under
C. HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s right to bear arms under the Second Amendment
We also hold that
The circuit court erred by dismissing the place to keep offenses,
IV.
We vacate the circuit court’s Order Granting Defendant’s Motion to Dismiss Counts 1 & 2 and remand to the Circuit Court of the Second Circuit.
Richard B. Rost
for appellant
Benjamin E. Lowenthal
for appellee
/s/ Mark E. Recktenwald
/s/ Sabrina S. McKenna
/s/ Todd W. Eddins
/s/ Faʻauuga L. Toʻotoʻo
/s/ Trish K. Morikawa