Hawaii Supreme Court: No state 2A rights because state constitution supersedes US Constitution
Tyranny is alive and well in Hawaii. The Supreme Court of the State of Hawai'i made that plain in the first few sentences of its opinion in State of Hawai‘i versus Wilson, a Second Amendment case handed down Feb. 7.
The court begins its opinion with this:
“Article I, section 17 of the Hawaiʻi Constitution mirrors the Second Amendment to the United States Constitution.” [So far, so good].
But then the court follows that assertion up with these two brazen assertions:
“We read those words differently than the current United States Supreme Court. We hold that in Hawai‘i there is no state constitutional right to carry a firearm in public.”
In just two sentences, the Hawaii Supreme Court has ripped apart the basic tenets of a nation founded on liberty.
This is the import of the court’s opinion:
- Hawaii does not recognize a natural law right to armed self-defense.
- Hawaii does not recognize the codification of the natural law right to armed self-defense in the Second Amendment to the U.S. Constitution.
- Hawaii does not recognize the holdings and reasoning of the U.S. Supreme Court in the three foundational Second Amendment cases: Heller, McDonald, and Bruen.
- Hawaii declares the language of Article I, Section 17 of Hawaii’s state constitution doesn’t mean what it says.
In one fell swoop, the Hawaii Supreme Court has slashed to ribbons:
- One, the nation’s belief in and faith in the supremacy of eternal natural law rights over transient man-made law.
- Two, the basic tenets, precepts, and principles of a free constitutional republic grounded on liberty, as reflected in both the Articles of the Constitution and the Bill of Rights.
- Three, the sovereignty of the American people over the government.
The Hawaii Supreme Court has “one-upped” New York for its brazenness. The New York Governor’s Office and the U.S. Court of Appeals for the Second Circuit have, at least, tried to couch their contempt for the U.S. Constitution, for the U.S. Supreme Court, and for the American people through constant obfuscation and dissembling. The Hawaii Supreme Court didn’t trouble itself with those ostensible niceties.
The facts
“In December 2017, ... owner Duane Ting saw men on his fenced-in property via video surveillance. Ting reported the matter to the Maui Police Department. Officers headed to Ting’s property. ... Wilson volunteered to the officers: ‘I have a weapon in my front waist band.’ The police lifted his shirt. Wilson had a Phoenix Arms .22 LR caliber pistol, loaded with ten rounds of .22 caliber ammunition. A records check reported that the pistol was unregistered in Hawaiʻi, and Wilson had not obtained or applied for a permit to own a handgun. Wilson told the police that he legally bought the gun in Florida in 2013.”
The charging documents
“In December 2017, the County of Maui Department of the Prosecuting Attorney charged Christopher Wilson by felony information. He allegedly violated: (1) HRS § 134-25(a) place to keep firearm, (2) HRS § 134-27(a) place to keep ammunition, [and] (3) HRS § 134-2 (2011 & Supp. 2017) permit to acquire ownership of a firearm ...”
HRS § 134-25(a) says in part, “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 ...”
HRS § 134-27(a) says in part, Except as provided in sections 134-5 and 134-9, all ammunition shall be confined to the possessor’s place of business, residence, or sojourn ...
HRS § 134-2 says in part, “No person shall acquire the ownership of a firearm, . . . until the person has first procured from the chief of police of the county of the person’s place of business or, if there is no place of business, the person’s residence or, if there is neither place of business nor residence, the person’s place of sojourn, a permit to acquire the ownership of a firearm as prescribed in this section ...”
Developments In the case
In May 2021, Wilson moved to dismiss the charges, citing the rulings in Heller and McDonald. He “argued that prosecuting him for having a firearm for self-defense purposes outside his home violated his right to bear arms under the Second Amendment and Article I, Section 17 of the Hawai’i Constitution, which ‘mirrors’ the language of the Second Amendment.”
The state opposed the motion, and the lower “circuit court” thereupon denied it.
Thereafter, the Bruen case came down. Defendant Wilson refiled his motion to dismiss.
Based on Bruen, the “circuit court” found for Wilson and dismissed the gun and ammunition charges with prejudice. That meant the state could not thereafter refile them.
The state appealed the dismissal to the Hawaii Supreme Court.
A question of standing
Wilson challenged the constitutionality of HRS § 134-25(a), HRS § 134-27(a), and HRS § 134-2 under both the state constitution’s Bill of Rights, Article I Section 17, and the Second Amendment, given Bruen.
The state contested, on the ground of “standing,” Wilson’s right to challenge the constitutionality of the statutes.
The state’s “standing” argument is an important procedural tactical move. For if Wilson lacks standing, then the question of the constitutionality of the state statutes under the state’s Bill of Rights and the U.S. Constitution is moot.
The Hawaii Supreme Court reasoned that because the first two statutes were part of the charging documents, Wilson did have standing to challenge the constitutionality of the two statutes under both Hawaiian law and under the Second Amendment. The charging documents conferred standing on him.
However, the state did not charge Wilson for violating the third statute — failure to obtain a permit for a firearm. So Wilson could not challenge the constitutionality of the application process under that statute, based on Hawaiian law.
The state knew this. That is why the state never charged Wilson for failing to obtain a permit. The state didn’t need to do so, and the state wished to avoid any challenge to its firearms licensing scheme, however remote the danger to the licensing scheme might be.
Wilson demurred, arguing somewhat circuitously that had he gone through the permit process, doing so would have constituted acknowledging the constitutionality of the process.
He has a point. For if the firearms permit process had not existed, there would be neither a legal nor logical basis for charging him with felony possession of a firearm or felony possession of ammunition. That means the statutes under which the state did charge him would never have existed.
Curiously, there is no criminal penalty in Hawaii for possession of a firearm without a permit. None is needed, as the Hawaii Supreme Court points out, because the criminal penalty falls under other statutes.
The idiocy and irrationality of firearms licensing are readily apparent wherever enacted. But, for the licensing scheme here, this case would never have arisen. It could not arise. But it did.
The Hawaii Supreme Court proceeded on an "Alice in Wonderland" excursion into an exposition of the meaning of a “right to keep and bear arms” and whether the state constitution takes precedence over the U.S. Constitution.
The Hawaii Supreme Court’s opinion is decisively incoherent, internally inconsistent, and logically fallacious.
The court opined that, under the doctrine of “Federalism,” the interpretation of the state’s constitution takes precedence over that of the federal constitution.
The court tacitly looked to the Tenth Amendment for support but never mentioned it, realizing, perhaps, that doing so would effectively place the dictates of the U.S. Constitution over that of the state constitution. It had no intention of doing that. Doing so would be repugnant to Hawaiian jurisprudence and would weaken the court’s position, grounded on abhorrence toward the right to armed self-defense.
The court opined, incorrectly, that the right to bear arms is a “collective right,” not an individual right under Article I, Section 17, and that:
“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.’”
Finding for the state against defendant Wilson, thus overruling the decision of the lower “circuit court,” the Hawaii Supreme Court said,
“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.”
The court next looked to the import of the U.S. Constitution.
Relying on dissenting opinions in Heller and McDonald for support and perfunctorily dismissing Bruen because it “unravels durable law,” the Hawaii Supreme Court overturned the circuit court’s decision, finding for the state against the defendant, Wilson.
This result was never in doubt. It was presumed at the outset. A reader could see where the Court was going with this after reading the first few sentences of the opinion.
And so, the court opined: “We conclude that HRS § 134-25 and § 134-27 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.”
Wilson will likely appeal this case to the U.S. Supreme Court, as well he should.
Conclusion
What is tyranny? Tyranny is the government operating with abandon, creating ad hoc “law” (unlawful edict) to support whatever it wishes instead of adhering to law and Constitution as it must.
Ad hoc law isn’t law. It is pretense and artifice — government operating outside of, not remaining within, the bounds of law.
The actions of the Hawaii Supreme Court in State vs. Wilson are a case study in the application of ad hoc “law.”
There are many, many other instances of the use of ad hoc “law” today in America and at all levels of government — state, and federal. How long will Americans suffer this dangerous nonsense?
*Using an apostrophe for “Hawai’i” in the quoted material is intentional. That is how the Hawaii Supreme Court spells “Hawai’i.” Officially, it's the Supreme Court of the State of Hawai'i. For an explanation, look to the history of the Hawaiian language. See, e.g., the article in “The Hawaiian Historical Foundation.”
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