Litigation Highlight: Hawaii Supreme Court Embraces Militia View for State Second Amendment Analogue

  • Date:
  • February 21, 2024

On February 9, in State v. Wilson, the Hawaii Supreme Court construed the state’s Second Amendment analogue provision more narrowly than the federal Second Amendment. In a per curiam by three supreme court justices and two circuit judges sitting by designation, the court determined that “in Hawaiʻi there is no state constitutional right to carry a firearm in public” and dismissed a Second Amendment challenge to a prosecution for carrying an unlicensed firearm on another’s property.  While the impact of the decision may ultimately be negligible, it raises fascinating questions about the interaction between state and federal protections of the right to keep and bear arms, and how to apply an analogical test to history from outside the original 13 colonies.

In Wilson, the court first rejected the plaintiff’s challenge to Hawaii’s licensing requirements—holding that, “[b]ecause Wilson made no attempt to get a license, he cannot claim the law’s application procedures are unconstitutional as applied to him.”[1]  Thus, the remainder of the opinion focused on Wilson’s constitutional challenges to Hawaii’s criminal prohibition on carrying firearm in public without first obtaining a concealed carry license from the state.[2]  Wilson argued that the state’s prosecution of him for violating these provisions violated both the U.S. and Hawaii constitutions.  In deciding to address the state constitutional challenge first, the court explained:

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.

This approach—addressing the state constitutional issue first—“respects state sovereignty,” the court said.  The judges observed that they have sole and ultimate authority to interpret provisions of Hawaii’s state constitution, that interpretations of corollary federal constitutional provisions by the U.S. Supreme Court are merely persuasive, and that “Hawaiʻi has chosen not to lockstep with the Supreme Court’s interpretation of the federal constitution” and in fact frequently goes in a different direction (including by sometimes adopting the reasoning in dissenting opinions by U.S. Supreme Court justices).

Noting that the Hawaii Supreme Court had not previously issued a precedential decision interpreting the state’s Second Amendment analogue, the court determined that the provision has “a collective, militia meaning . . .  [and] does not afford a right to carry firearms in public places for self-defense.”  The Hawaii provision is grammatically a near-twin of the federal Second Amendment—though it omits two commas and changes the capitalization of certain words. 

The Wilson court identified five major reasons supporting its reading of the state provision.  First, the court emphasized the plain meaning of the prefatory clause and its reference to a “well regulated militia,” concluded that these “words carry a military meaning,” and held that “the first clause narrows the right that the second clause confers.”  Second, the court cited post-Heller corpus linguistics evidence suggesting that “bear arms” was used almost exclusively in the military context around the time of the Founding.  Third, the court emphasized that other state constitutions do refer specifically to an individual right but that Hawaii chose not to adopt such wording—rather, the court said, Hawaii adopted a provision in 1950 that was understood at that time (by both courts and politicians) to refer to a collective, militia right.[3]  Fourth, Wilson traced Hawaii’s own history of strict gun regulation dating back to the Kingdom of Hawaii and asserted that “never have Hawaiʻi’s people felt that carrying deadly weapons during daily life is an acceptable or constitutionally protected activity.”  Fifth and finally, the court observed that Hawaii’s constitution is often interpreted with the island’s unique culture in mind and that “[t]he spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” 

Along the way, the court threw some pointed barbs at the U.S. Supreme Court.  The justices accused the Supreme Court of “handpick[ing] history to make its own rules” and argued that a “backward-looking approach ignores today’s realities[and] downplays human beings’ aptitude for technological advancement.”  Thus, Wilson held “that the Hawaiʻi Constitution does not afford a right to carry firearms in public places for self-defense” under the court’s collective-right interpretation.  In the final pages of the decision, the court rejected the federal constitutional claim by observing that, under Bruen, “[s]tates retain the authority to require that individuals have a license before carrying firearms in public.” 

The last two pages of the decision are quite important.  The court could have simply assumed (without deciding) that the Hawaii constitution protects an individual, private right to self-defense.  In fact, the Hawaii Supreme Court did just that in a pre-Heller decision in State v Mendoza, “[a]ssuming, without deciding, that article I, section 17 established an individual right to bear arms.”  Interestingly, Mendoza cited evidence from the 1950 state constitutional convention pointing in the opposite direction from the evidence noted in Wilson and “indicat[ing] the[] understanding that Section 15 provided an individual right to bear arms”—but the court declined to conclusively decide the question.  The Mendoza court then held “that the right to bear arms may be regulated by the state in a reasonable manner”[4] and that Hawaii’s prohibition on possessing a firearm belonging to another without a permit (even with the owner’s consent) passed muster under that standard.  

This approach would have obviated the need to examine in detail what the Hawaii provision actually protects.  Because the federal Second Amendment is more rights-protective, by encompassing an individual right to licensed carry in certain public places, the court only needed to analyze the federal constitutional question to resolve this specific case.  And that’s an inquiry with a relatively simple answer: Bruen said that states are free to maintain objective concealed carry licensing systems and require anyone seeking to carry a gun in public for self-defense to first obtain a permit.  Wilson did not do that, and he has no constitutional claim that Hawaii was required to allow him to carry in public without a permit.  A different hypothetical plaintiff who had applied for a license and was waiting for that application to be adjudicated might be differently situated, especially if applicants face long wait times.  But that was not the case here. 

Thus, the court’s lengthy analysis of the Hawaii provision is ultimately not that consequential for future cases.  A plaintiff in almost any future case will be able to also invoke the federal Second Amendment, as Wilson did here, which indisputably protects a private right.  That said, there may be good reason for the court to settle the interpretive question as a matter of state constitutional law.  And the judges are certainly correct that there is no obligation to interpret that provision in lockstep with the federal Second Amendment.  Legal challenges do sometimes invoke only a state-analogue right—for example, a 2022 challenge to a Virginia city’s sensitive-places restriction invoked only Virginia’s state-analogue right to bear arms provision (the court there held that the Virginia provision was identical in content and scope to the federal provision, as I explained in this prior post). 

And some states have actually mandated through constitutional amendment a different legal standard than that articulated by the U.S. Supreme Court for federal constitutional challenges.  Iowa recently approved by referendum a state constitutional amendment providing that “[a]ny and all restrictions of [the right to keep and bear arms] shall be subject to strict scrutiny”—following in the footsteps of Alabama, Louisiana, and Missouri (as described here).  In these states, a court can never use the same legal analysis for claims under the state analogue and the federal provision.  As in Wilson, a state court evaluating parallel challenges in Iowa, Alabama, Louisiana, or Missouri would need to closely analyze the state constitutional claim because, as then-Judge Brett Kavanaugh noted in 2011, “fewer gun laws might pass muster under strict scrutiny than under a history- and tradition-based approach.” 

One other fascinating section of Wilson is its lengthy discussion of Hawaii’s own historical regulation of firearms, dating all the way back to 1810 and the establishment of the kingdom of Hawaii under Kamehameha I.  In an earlier post, I discussed whether the history of regulation within a specific state might constitute stronger support for modern firearm regulation in that state—in other words, whether Bruen might countenance some degree of firearms localism.  Hawaii is an especially interesting case study here; as is New York, where the Sullivan Law was in place for well over 100 years before Bruen. 

But Hawaii also draws attention to the question of how changes in sovereignty may impact the historical analysis.  As I see it, there are four ways courts might approach a transition in sovereignty over the same territory when consulting text, history, and tradition to resolve constitutional claims:

  1. A court might decide that only the history of the modern-day sovereign matters.  In other words, an American court would look only at a territory’s or state’s gun laws as far back as the date on which the U.S. assumed control over the territory (in Hawaii’s case, only to 1898 and the island’s annexation).
  2. A court might pick and choose which history is relevant, based on how closely the government in place at the time corresponded to our modern republican form of government.  Under this approach, British history might be more relevant while monarchical regulation (by Hawaii or by Spain or France, for that matter) would be less relevant or perhaps irrelevant.
  3. It could be that all laws are relevant back to some historical date tied to the American nation-state (for example, 1776, 1789, or 1791).  Under this approach, a court would consider all historical evidence, regardless of source, but only dating back to the relevant point in time. 
  4. Finally, maybe all history (as far back as historians are able to discern) is fair game and can potentially indicate a historical tradition of analogous regulation.

I think it’s relatively easy to rule out options 1 and 4.  The Court in Bruen refers, of course, to “this Nation’s historical tradition”—but it is also clear that consulting British history “makes some sense” to the justices, even if “English common law ‘is not to be taken in all respects to be that of America.’”  And I doubt the Supreme Court would endorse option 4, which seems almost boundless in scope.  But accepting that at least some non-American history matters opens the door to thorny questions about the bounds of the historical-analogical inquiry.  Why should British history be the only non-American history that matters?[5]  Is our Nation’s historical tradition simply the tradition we inherited from the British—or is it broader and more diverse, incorporating perspectives from non-British groups later absorbed into the growing country?

[1] Hawaii’s discretionary public-carry licensing law was the subject of pre-Bruen litigation in Young v. Hawaii.  In 2021, the en banc Ninth Circuit found Hawaii’s permitting law broadly consistent with historical tradition and upheld the law (Jake Charles summarized the decision here); that ruling was appealed and the Supreme Court granted certiorari, vacated and remanded the case after it decided Bruen.  In August 2022, the circuit court remanded the case back to the district court, over a dissent from Judge O’Scannlain.  Hawaii subsequently amended its concealed carry laws to switch to a shall-issue approach, while also designating sensitive places where guns are banned.  A district judge invalidated a number of the locational restrictions in an August 2023 opinion now on appeal to the Ninth Circuit.  There are also open questions about delays in Hawaii’s new permitting process.

[2] While there is some debate about whether Wilson was engaged in a crime (trespass) while carrying an unlicensed gun, the court held that it could not decide the case solely on the basis that Wilson was using a gun to further criminal conduct because that issue was not before the court.

[3] Here, the court cites legislative history from Hawaii’s 1950 adoption of the provision and re-adoption in subsequent constitutional conventions in 1968 and 1978.  In 1968, for example, a committee report that recommended retaining the provision said that “[t]he right to bear arms refers explicitly to the militia and is subject to lawful regulation.”

[4] As Adam Winkler has described, state courts prior to Heller almost universally applied some form of reasonableness review to challenges brought under state-analogue right to keep and bear arms provisions.

[5] Approximately 21.4% of the American colonial population in 1770 was Black.  In 1790, the white population of the country was 60.9% English, 8.7% German, and 3.4% Dutch.  A couple of specific states are worth highlighting: Pennsylvania was 26% German in 1790, and New York was around 17% Dutch.