Hawai’i Supreme Court Says No Right to Bear Arms in Public

The Hawai’i Constitution doesn’t recognize a right to bear arms in public, the Hawai’i Supreme Court said, criticizing the reasoning used by the US Supreme Court to recognize the right in the Second Amendment.

In its Second Amendment cases, the US Supreme Court “distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit,” the Hawai’i Supreme Court said. “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.” Life “is a bit different now, in a nation with a lot more people, stretching to islands in the Pacific Ocean.”

Hawai’i’s constitutional right to bear arms mirrors the Second Amendment, but “in Hawaiʻi there is no state constitutional right to carry a firearm in public,” the opinion by Justice Todd W. Eddins said Wednesday. "[T]he 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,” he said.

Christopher Wilson said that Hawai’i’s laws that required him to keep his pistol and ammunition in his “place of business, residence, or sojourn” violated his Second Amendment rights under New York State Rifle & Pistol Ass’n Inc. v. Bruen.

Wilson invoked the state and federal constitutions, but the court said that “the proper sequence to consider matching constitutional text is to interpret the Hawaiʻi Constitution before its federal counterpart.” This “approach recognizes the states as the cradle of rights,” it said.

The right to bear arms in the Hawai’i and US Constitutions both use military-tinged language—"well regulated militia” and “bear arms'—to limit the use of deadly weapons to a military purpose, the court said. “In contrast, there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense,” it said.

Looking at the definitions and history of the words used in the constitutions, the court said that it’s “‘the people’ who make up the militia that need to ‘keep and bear arms’ to protect’ the free state.’”

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,” the court said.

Not until District of Columbia v. Heller did the Second Amendment right to bear arms get untethered from “the nation’s textual and historical understanding of the Second Amendment,” the court said.

Heller said that on the basis of the text and history of the amendment, it “conferred an individual right to keep and bear arms.” But historians “quickly debunked Heller‘s history,” the court said.

Fuzzy History

The court added, “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.” The Supreme Court used “fuzzy” history “to advance a chosen interpretive modality,” it said.

“Judges are not historians,” and shouldn’t use history “to fit their preferred narratives,” the court said. Using an old-time analogue to analyze a case “downplays human beings’ aptitude for technological advancement,” it said.

Gun use has changed and a “backward-looking approach ignores today’s realities,” the court said. “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,” it said.

But the court noted that Hawai’i has a history and tradition of regulating deadly weapons. “Hawaiʻi has never recognized a right to carry deadly weapons in public; not as a Kingdom, Republic, Territory, or State,” it said.

The court also held that the challenged laws don’t violate the Second Amendment because they allow a person to carry a handgun for self-defense outside the home if they have a state license to do so.

Chief Justice Mark E. Recktenwald and Justices Sabrina S. McKenna, Faʻauuga L. Toʻotoʻo, and Trish K. Morikawa joined the opinion.

Richard R. Rost represented the state. Benjamin E. Lowenthal, of Wailuku, Haw., represented Wilson.

The case is Hawai’i v. Wilson, 2024 BL 39997, Haw., No. SCAP-22-0000561, 2/7/24.