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.”:

The Hawaii Supreme Court has issued a ruling flagrantly ignoring the U.S. Constitution, holding that there is no right to bear arms in Hawaii and any resident may be imprisoned for carrying one.

The Supreme Court has repeatedly held what the Constitution obviously says: That… pic.twitter.com/rbEBjOMhfa

— Charlie Kirk (@charliekirk11) February 8, 2024

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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