State Court Report: “The thing about the old days, they the old days.”

Hawaii Supreme Court quotes The Wire in repudiation of originalism and gun rights.

Last week, the Hawaii Supreme Court ruled that its state constitution does not protect an individual right to keep and bear arms — even though Article I, Section 17, of the Hawaii Constitution is virtually identical to the Second Amendment to the U.S. Constitution.

Among other things, the Hawaii court offered a pointed — and colorful — repudiation of the U.S. Supreme Court’s reliance on history and tradition in interpreting the Second Amendment. Quoting the TV show The Wire, the Hawaii Supreme Court observed, “The thing about the old days, they the old days.”

The case, State v. Wilson, came out of a challenge to a series of Hawaii laws that bar the public from carrying firearms without a license. There’s a lot to say about the court’s reasoning (and you should definitely read the whole thing), but here are some highlights.

First, the court both used history and critiqued its application in constitutional interpretation. One of the things I find most interesting about state constitutional law is that state courts are free to devise their own methods of interpretation, making them significant sites for experimentation and critique of prevalent federal methods.

And the Hawaii court certainly didn’t hold back from critiquing the U.S. Supreme Court's current approach to gun cases. Not only has the Court “distort[ed] and cherry-pick[ed] historical evidence” in order to find an individual right to bear arms under the Second Amendment, the state court argued, but in the 2022 Bruen case the U.S. Supreme Court “scrap[ped] the traditional techniques used by federal and state courts to review” gun laws in favor of “a fuzzy ‘history and traditions’ test.”

This isn’t something judges are well-equipped to do, argued the Hawaii court. “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.” Nor should history be seen as the only relevant consideration, the court contended. “History is messy. It’s not straightforward or fair.”

For its own part, the Hawaii court still looked to history as useful — but “not the end all.” Among other things, the court focused on a close textual analysis of Article 1, Section 17, to conclude that the Hawaii Constitution protects a collective right related to military service, not an individual right. Its sources included founding-era dictionaries, the operative interpretation of the Second Amendment at the time the Hawaii Constitution was ratified in the 1950s, and Hawaii convention records. It also made comparisons to other state constitutions that explicitly provide for individual gun rights. The court also considered Hawaii’s own historical tradition: “Throughout its history as a sovereign nation and as a Territory, Hawaiʻi regulated deadly weapons.”

In addition to its critique of SCOTUS, the Wilson decision is significant for a second reason: the court’s embrace of a “primacy” approach to interpreting the Hawaii Constitution. In other words, if a litigant is raising both federal and state constitutional claims, the court will interpret the Hawaii Constitution and only reach the federal claim if the state constitution doesn’t resolve the issue. Now I admit this might not seem earthshaking, but it could matter quite a bit for the development of state constitutional law by encouraging courts to focus on state constitutional questions and not punt to federal law as the default.

Indeed, Wilson illustrates why primacy can be significant. In addition to raising state constitutional objections to Hawaii’s gun laws, the defendant also had a claim under the Second Amendment. The court ultimately rejected this claim under existing federal doctrine, but only after providing an exhaustive analysis of what the Hawaii Constitution had to say on the matter. To date, only a handful of state courts have adopted this primacy approach. (As I wrote last October, New Mexico might be next.) A trend of more states embracing primacy is potentially a very big deal.

The last thing I’ll flag was the court’s analysis of Hawaii’s own traditions — what it described as “the Aloha spirit,” which “inspires constitutional interpretation” in the state. Something I didn’t expect before I started reading a lot of state constitutional decisions was how many of them are deeply grounded in the local context, even when courts are interpreting state analogues to federal law. States have their own histories, traditions, and cultures, and courts often draw on them as an important part of interpreting their own constitutions.

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• Rutgers University Law School and the Center for State Constitutional Studies are co-hosting the fourth annual Robert F. Williams State Constitutional Law Lecture, “Democracy and State Constitutional Separation of Powers,” on March 7 from 4 to 5:30 p.m. ET. This year’s guest speaker is Miriam Seifter of the University of Wisconsin Law School’s State Democracy Research Initiative. The event will be both in person and virtual. Register here.

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.