U.S. Supreme Court Lets Hawaii Off With a Warning … For Now

Last February, we reported on the judicial equivalent of a temper tantrum emanating from the Hawaii Supreme Court over the U.S. Supreme Court’s Second Amendment jurisprudence. That outburst finally reached the ears of its intended targets, the nine justices of America’s highest court, as they considered earlier this month whether to review the case of State v. Wilson. Ultimately, the justices did what the Hawaii Supreme Court had not by calmly and dispassionately applying the law to find the Second Amendment issues in the case were not yet ripe for review. In doing so, however, the Supreme Court’s three staunchest Second Amendment stalwarts issued statements that served as warnings to the churlish state jurists that further proceedings in the case will be watched very carefully.

The fracas began when Christopher Wilson was charged with trespassing and unlawfully carrying a pistol and ammunition without a license in violation of state law. Wilson sought dismissal of the carry charges on the basis that the licenses necessary to lawfully exercise the right to bear firearms for self-defense were unconstitutionally withheld under the then-existing special needs provisions of Hawaii’s may-issue licensing laws. He prevailed on this argument before the trial court, but that decision was then reversed by the Hawaii Supreme Court. The actual legal basis for the state supreme court’s opinion was that Wilson lacked standing to challenge the licensing law, because he had never applied for a license. This ignored the fact that no one at the time was granted the requisite licenses to carry, other than for professional purposes.

Nevertheless, although the Hawaii Supreme Court hedged its legal bets by ruling on a narrow state law issue, it wrote an expansive, highly disrespectful treatise on the U.S. Supreme Court’s Second Amendment jurisprudence. Part of that diatribe occurred in the opinion’s ruling on Hawaii’s own constitutional right to arms, which just happens to have the exact same wording as the U.S. Second Amendment. This gave the Hawaiian judges their own “redo” of the Supreme Court’s last 16 years of Second Amendment jurisprudence, as state courts are free to interpret the enactments of their jurisdictions as they see fit. Not only did the Hawaii jurists depart from the U.S. Supreme Court’s holdings that those words protect an individual right to keep and bear arms for self-defense, they mocked that reading, elevating their own judicial acumen above the U.S. justices’. They also rendered a civil right meant to protect the people of Hawaii from official abuse a nullity.  

The Hawaiian court’s over-the-top theatrics earned it the attention and praise of the antigun media, with one outlet approvingly noting the Wilson opinion dispensed with the usual duties of “deference” and even “basic respect” toward the nation’s highest court. It was instead, that article continued, “an open display of contempt.”

But the Wilson court’s bravado stopped short of actually ruling on the merits of the defendant’s Second Amendment claims, so the U.S. Supreme Court arguably had no federal issue in the case to correct. The Hawaiian court, in other words, picked its fight from what it assumed was an inaccessible perch. That, and the fact the decision concerned an issue raised before the final outcome of Wilson’s prosecution (which theoretically could still be decided in his favor), led the U.S. Supreme Court to let the state proceedings conclude before deciding if their involvement was warranted.

The U.S. Supreme Court’s own disposition of the matter was a model of judicial restraint and modesty, under the circumstances. One could argue that its demeanor only made the self-indulgence of the Hawaiian court that much more blatant and unseemly.

But three of the court’s leading Second Amendment lights did not let the occasion pass without comment.

Justice Thomas, joined by Justice Samuel Alito (both authors of opinions derided by the Hawaii court) wrote a statement “respecting the denial of certiorari,” because a final judgment in the case had not yet been issued. But they took issue with the “empty formalities” the state court insisted upon in its standing analysis, pointing out other circumstances where plaintiffs had successfully challenged unconstitutional licensing schemes without actually applying for the license. The two justices argued: “a state-law holding that a defendant lacked standing to attack the constitutionality of the ordinance because he made no attempt to secure a permit under it is not an adequate nonfederal ground of decision where the ordinance on its face violates the Constitution” (internal formatting omitted). They continued: In an appropriate case … we should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.” The opinion concluded pointedly: “And, this Court’s intervention clearly remains imperative, given lower courts’ continued insistence on treating the Second Amendment right so cavalierly” (internal quotation marks omitted).

Also issuing a statement respecting the denial of certiorari was Justice Neil Gorsuch, again because of the procedural posture in which Wilson’s Second Amendment challenge arose. But, he insisted, “the Hawaii Supreme Court’s decision raises serious questions,” including its focus on procedural minutiae in the face of a case that so obviously implicates a fundamental right under the U.S. Constitution. Like Justices Thomas and Alito, Justice Gorsuch was unimpressed by the state court’s standing analysis. The Hawaii Supreme Court’s dodge of the important constitutional issues in the case, he argued, “invites with it the distinct possibility that Mr. Wilson may be convicted of, and ordered to serve time in prison for, violating an unconstitutional law.” Justice Gorsuch noted that it wasn’t too late for justice to be served in the course of Mr. Wilson’s ongoing state criminal proceedings. But his final point also carried with it an implicit warning: “If not, Mr. Wilson remains free to seek this Court’s review after final judgment.”

What happens next for Christopher Wilson remains to be seen. Criminal prosecution imposes its own burdens and hardships, and even an accused whose cause is just can be worn down or impoverished in the attempt to stand up for his rights. Meanwhile, the Hawaii legislature – at least – has recognized it can only go so far in defying the U.S. Supreme Court and has amended the laws under which Wilson was convicted to supposedly give other applicants a more realistic chance of getting a carry license. Whether those changes go far enough, or whether Mr. Wilson himself has the wherewithal to keep fighting, only time will tell. But surely Hawaii has not seen the last of legal challenges to its defiance of the right to keep and bear arms. 

As they unfold, one can only hope that the cynicism, contempt, and unprofessionalism of the Hawaii Supreme Court serves as a lasting and illuminating example of the sorts of public officials who find the Second Amendment, in particular, unworthy of respect. Perhaps that will in turn provide the U.S. Supreme Court with added impetus to ensure that provision is not treated as a second-class right.

The court of last resort, in maintaining its judicial dignity and decorum, sometimes speaks softly. But it always gets the last word.