Wilson v. Hawaii, State Standing, and Severability

On December 9, the U.S. Supreme Court denied a petition for review in Wilson v. Hawaii—where the Hawaii Supreme Court earlier rejected a Second Amendment challenge to Hawaii’s public-carry licensing rules and ban on unlicensed carry by a criminal defendant.  The Hawaii Supreme Court’s decision made waves primarily because the court held that Hawaii’s state constitutional right to bear arms provision is limited to the militia context and does not protect an individual right to carry a gun in public for self-defense.  As I discussed in this earlier post, the Hawaii justices roundly criticized the Bruen decision in reaching that result.  A less noticeable part of the decision was the ruling that Wilson lacked standing to challenge the state’s license-to-carry law because he had not actually applied for a license and been denied.  As a result, the Hawaii court limited its substantive analysis to the state criminal statutes that criminalize unlicensed public carry of guns and ammunition. 

While the Supreme Court denied certiorari unanimously, Justice Thomas (joined by Justice Alito) wrote separately to note his view that the Hawaii court improperly ignored the rule that, “because the constitutional violation occurs as soon as an individual’s right to bear arms is inhibited, States cannot mandate that would-be gun owners go through an unconstitutional licensing process before they may invoke their Second Amendment rights.”  In other words, Thomas and Alito contend that “state standing law [can never] restrict the defenses that criminal defendants facing firearms-related charges may raise.”  And they wrote that, despite Hawaii’s post-Bruen amendment of its permitting law to remove discretionary features, the regime in place when Wilson was charged and prosecuted was “obviously unconstitutional[].”  The two justices agreed with the decision to deny review at this point due to the interlocutory posture (Wilson is still proceeding to trial), but they urged that in a future case the Court “should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.”

The Thomas/Alito statement leaves unanswered a major resulting question, however.  Even if one assumes that Wilson does have standing to challenge the pre-Bruen Hawaii licensing rules—and that the Hawaii Supreme Court’s contrary finding on the issue was incorrect—the question remains whether Wilson can succeed on a facial challenge to that law.  The question is almost certainly more complex than the Thomas/Alito statement, and its reference to “obvious unconstitutionality,” suggests.  That’s because a court would still be required to determine whether any unconstitutional pieces of the licensing framework (namely, the “exceptional case” requirement that was analogous to New York’s “proper cause” standard) can be severed from the remaining criteria.  If so, Wilson’s facial challenge to Hawaii’s pre-Bruen licensing rule would likely fail on the merits because the objective criteria comply with Bruen’s text, history, and tradition framework, or are otherwise endorsed by that decision’s reasoning.

In a 2023 case, a California court confronted a similar question about a conviction under a pre-Bruen discretionary licensing rule and rejected that challenge on the merits, after determining that the defendant had standing to raise a facial challenge.  In that case, In Re D.L., a 17-year-old (D.L.) shot and killed a six-year-old boy and an adult at a 4^th of July barbeque.  D.L. was charged with murder in a California juvenile court, as well as assault with a semiautomatic firearm and unlawful possession of a loaded firearm.  D.L. was convicted and sentenced to a prison term of 58 years to life.[1]  D.L. appealed under Bruen only as to the unlawful possession charge, which was based on the fact that he had no license for the firearm with which he committed the murder and assault.  After reviewing the relevant legal framework, the state appellate court determined that D.L. did have standing to mount a facial constitutional challenge to the licensing rule as an offense of conviction even though he had never actually applied for a license[2]—in other words, reaching the opposite result as the Hawaii Supreme Court in Wilson. 

The California court relied on some of the same cases cited in the Alito/Thomas statement.  For example, in Shuttlesworth v. Birmingham, the U.S. Supreme Court considered a First Amendment challenge to a city ordinance requiring a permit for any parade or procession that vested vast discretionary authority in the city commission to deny applications on vague “public welfare” grounds.  The petitioner in the case, who had led a civil rights march without first applying for a permit, challenged his conviction.  The court explained “that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license,” thereby preserving a facial challenge on the grounds that the licensing law provides excessive discretion in a way that abridges a constitutional protection.  The Court went on to determine that the Birmingham ordinance violated the right to assembly and was unconstitutional. 

Applying Shuttlesworth, the California court in D.L. found standing based on the injury of “be[ing] subjected to prosecution based on an allegedly facially unconstitutional statute.”  That, however, was not the end of the inquiry.  The California attorney general conceded, of course, that the state’s good-cause, discretionary requirement for a public-carry permit was unconstitutional post-Bruen.  But the AG argued that D.L.’s facial challenge must nevertheless fail “because [California’s] ‘good cause’ requirement can be severed from the remainder of the licensing framework.”  Noting that the California public-carry permit statutes lack any specific severability provision, the court considered whether the unconstitutional good-cause provision was (1) grammatically, (2) functionally, and (3) volitionally separable from other parts of the licensing law.  The court found that the good-cause requirement is contained in a separate provision, that the remaining provisions of the licensing framework are capable of independent application, and that the provision is “volitionally” separate because it does not rely on other pieces of the law and the legislative history illustrates the provisions were viewed independently when enacted.

Finally, the court considered D.L.’s argument “that severability cannot be applied retroactively to cure the harm from a pre-Bruen conviction based on unlicensed possession.”  The court found that the propriety of retroactive severability turns on whether the “severed” statute itself presents any constitutional infirmities—which it determined were not present in the case, even if D.L. had been able to bring an as-applied challenge.  Ultimately, then, the California court ruled that the “good cause” requirement could be severed and that the remaining, objective components of the licensing law were consistent with Bruen—defeating the facial challenge. 

D.L. suggests how Wilson might play out on remand.  The Thomas/Alito statement on standing is not binding on lower courts.  But, even if the Hawaii trial court was to reverse course and find standing to challenge the state’s pre-Bruen licensing law, that would have to be a facial challenge (Wilson didn’t apply for a license) and it would lead to the same severability questions as in D.L.  It’s difficult to imagine the Hawaii court reaching a different conclusion on the merits of the licensing challenge than the California court.  Hawaii law seems to endorse the general approach to severability that the California case used: there is a presumption of severability and courts must “try not to nullify more of a legislature's work than is necessary, . . . [because] a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”  As in the California case, the legislative history and general post-Bruen practice[3] appear to confirm that severability is feasible.  Indeed, Bruen itself and the concurring opinions in that case are perhaps best read as “severing” the unconstitutional proper-cause-like requirements from various state licensing rules while leaving remaining objective criteria intact.  Thus, the most likely outcome seems to be one where only those applicants who, unlike Wilson and D.L., were denied a license for discretionary reasons, can mount an as-applied challenge to convictions under the pre-Bruen law.  And, by definition, this category would require criminal violation of and conviction under those earlier laws and therefore simply shouldn’t include many individuals.

At the end of the day, then, it’s somewhat difficult to discern the underlying rationale behind the Thomas/Alito statement in Wilson.  One might reasonably wonder if the statement was motivated primarily by frustration with the Hawaii Supreme Court’s open criticism of the Supreme Court’s approach to the Second Amendment.  Though that criticism surfaced almost entirely in the portion of the Hawaii opinion dealing with the state’s own constitution—on which the Hawaii Supreme Court is the final word—the justices may have felt a need to respond in some way and thus focused on the standing question even while recognizing that it is ultimately inconsequential.  

On the other hand, it’s possible that Thomas and Alito are using the statement to flag what they believe are more serious constitutional infirmities with even certain objective post-Bruen public-carry licensing rules.  The justices took care to note that Hawaii granted 0 public-carry licenses to private citizens in 2017, and the state has been among the slowest to ramp up its permitting process post-Bruen.  Viewed in this light, the statement is perhaps more important.  It could be a warning shot against shall-issue licensing frameworks that operate too slowly and, even, part of a nascent judicial view that permitless carry is constitutionally mandated in order to cure such ills.