Stephen Halbrook | 2.12.2024 11:20 PM

On February 7, the Supreme Court of Hawai'i decided State v. Wilson, upholding state criminal laws confining handguns and ammunition to the "possessor's place of business, residence, or sojourn." A separate provision provides for permits to carry (which historically no one got), but the defendant had not applied for a permit and thus had no standing to challenge that provision.

Article I, § 17 of the Hawai'i Constitution has the same language as the federal Second Amendment, just deleting the first and last comma. Wilson held that § 17 "supports a collective, militia meaning," and thus "in Hawai'i there is no state constitutional right to carry a firearm in public."

Citing Justice Stevens' dissent in Heller and Justice Breyer's dissent in Bruen, Wilson claims that the U.S. Supreme Court "distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don't fit." The Court's failings are not limited to the issue at hand – "the Dobbs majority engaged in historical fiction" as well. Wilson avers: "The United States Supreme Court disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement."

Wilson fails to analyze the actual precedents when it asserts: "Until Heller, the Supreme Court had never ruled that the Second Amendment afforded an individual right to keep and bear arms." Well, the Court assumed that the right is individual in Scott v. Sandford (1857), U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Robertson v. Baldwin (1897), U.S. v. Miller (1939), Johnson v. Eisentrager (1950), and U.S. v. Verdugo-Urquidez (1990).

According to Wilson, both § 17 and the Second Amendment "use military-tinged language – 'well regulated militia' and 'bear arms' – to limit the use of deadly weapons to a military purpose." However, "there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense." But this ignores that the guarantee has two separate clauses – one declaring the necessity of the militia, the other declaring the right of the people to bear arms. Wilson implies that the militia are the only "people," as if the guarantee refers to "the right of the militia to bear arms."

The court doesn't bother to compare the usage of "the people" with other parts of the state Bill of Rights, which prohibits abridgment of "the right of the people peaceably to assemble," provides that "the right of the people to privacy … shall not be infringed," and guarantees "the right of the people to be secure … against unreasonable searches, seizures and invasions of privacy…." By contrast, in the very next provision after the arms guarantee, the drafters knew how to distinguish "the people" from "member[s] of the militia" by providing that "no soldier or member of the militia" may be quartered in any house except in certain circumstances.

Quoting Justice Stevens' dissent in Heller, the court stated that "when used unadorned by any additional words, its meaning [i.e., bear arms] is 'to serve as a soldier, do military service, fight.'" But there are additional words – the "right" of "the people" to bear arms.

The court acknowledged that most state constitutions protect individuals because they refer to "persons" and "citizens," but ignores that several also refer to "the people." Many follow variants of Pennsylvania's 1776 Constitution by stating that "the people........

© Reason.com