State v. Wilson.

• Court: Hawaii Supreme Court
• Decided: February 7, 2024
• Docket: SCAP-22-0000561
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 07-FEB-2024 09:05 AM Dkt. 49 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, Plaintiff-Appellant,

vs.

CHRISTOPHER L. WILSON, Defendant-Appellee.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 2CPC-XX-XXXXXXX)

FEBRUARY 7, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, JJ., CIRCUIT JUDGE MORIKAWA AND CIRCUIT JUDGE TOʻOTOʻO, ASSIGNED BY REASON OF VACANCIES

OPINION OF THE COURT BY EDDINS, J.

I.

Article I, section 17 of the Hawaiʻi Constitution mirrors

the Second Amendment to the United States Constitution. We read

those words differently than the current United States Supreme *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Court. We hold that in Hawaiʻi there is no state constitutional

right to carry a firearm in public.

The State appeals an order dismissing two “place to keep”

offenses, Hawaiʻi Revised Statutes (HRS) § 134-25 (2011) (pistol

or revolver) and § 134-27 (2011) (ammunition) filed against

Christopher Wilson. Citing New York State Rifle & Pistol Ass’n,

Inc. v. Bruen, 597 U.S. 1 (2022), the Circuit Court of the

Second Circuit dismissed the charges.

The State challenges Wilson’s standing. The State says

Wilson did not bother to apply for a carry license and thereby

satisfy HRS § 134-9 (2011), Hawaiʻi’s license to carry law. So

he can’t bring a Bruen-based constitutional challenge to HRS

§ 134-25 and § 134-27.

Wilson believes otherwise. He says HRS § 134-25(a) and

§ 134-27(a) subvert his new constitutional right to protect

himself in public by carrying a lethal weapon. Hawaiʻi’s place

to keep laws violate the Second Amendment to the United States

Constitution and its counterpart, article I, section 17 of the

Hawaiʻi Constitution.

Because the State charged Wilson with place to keep

offenses, we conclude that Wilson has standing to challenge the

constitutionality of those laws. A criminal defendant has

standing to level a constitutional attack against the charged

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crime. See State v. Armitage, 132 Hawaiʻi 36, 55, 319 P.3d 1044,

1063 (2014).

Wilson though lacks standing to confront HRS § 134-9

(licenses to carry). The State does not charge him with

violating HRS § 134-9 (it’s not a crime), and Wilson made no

attempt to obtain a carry license.

We reject Wilson’s constitutional challenges. Conventional

interpretive modalities and Hawaiʻi’s historical tradition of

firearm regulation rule out an individual right to keep and bear

arms under the Hawaiʻi Constitution. In Hawaiʻi, there is no

state constitutional right to carry a firearm in public.

Bruen snubs federalism principles. Still, the United

States Supreme Court does not strip states of all sovereignty to

pass traditional police power laws designed to protect people.

Wilson has standing to challenge HRS § 134-25(a) and § 134-

27(a). But those laws do not violate his federal constitutional

rights.

II.

A. Charges and Alleged Facts

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,

(3) HRS § 134-2 (2011 & Supp. 2017) permit to acquire ownership

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of a firearm, and (4) HRS § 708-813(1)(b) (2014 & Supp. 2015),

first degree criminal trespass.

The facts are slim. Declarations and police reports

submitted to support the parties’ position for the motion to

dismiss comprise the factual record.

In December 2017, at about 11:00 p.m., Flyin Hawaiian

Zipline 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. Meanwhile

Ting, driving an all-terrain vehicle, corralled Wilson and his

three companions. Armed with an AR-15 assault rifle, he

detained them until the police arrived. Then 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.

B. Wilson’s Motions to Dismiss

In May 2021, Wilson moved to dismiss counts 1 and 2.

Citing District of Columbia v. Heller, 554 U.S. 570 (2008) and

McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), Wilson

argued that prosecuting him for possessing a firearm for self-

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defense purposes outside his home violated his right to bear

arms under the Second Amendment to the United States

Constitution and article I, section 17 of the Hawaiʻi

Constitution.

The State opposed the motion. It presented records from

Florida and the Department of Justice Bureau of Alcohol,

Tobacco, Firearms, and Explosives to refute Wilson’s remark

about when and where he had purchased the gun. The records

showed: (1) Wilson had not applied for or been issued a

concealed weapon or firearm license pursuant to Florida law, and

(2) in April 2011 someone not named Christopher Wilson purchased

the pistol from a licensed firearms dealer in Florida.

The circuit court denied Wilson’s motion to dismiss in July

2021. It relied on Young v. Hawaiʻi. There, the Ninth Circuit

Court of Appeals held that the Second Amendment does not provide

a right to openly carry a firearm for self-defense. Young v.

Hawaiʻi, 992 F.3d 765, 821 (9th Cir. 2021), cert. granted,

judgment vacated, 142 S. Ct. 2895 (2022), and abrogated by New

York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1

(2022).

In July 2022, Wilson filed a second motion to dismiss

counts 1 and 2. Bruen had just come out.

Wilson again challenged the constitutionality of HRS § 134-

25(a) and HRS § 134-27(a). His motion declares he carried the

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gun solely for “self-defense purposes.” He says the place to

keep laws violate his right to carry a handgun for self-defense

outside his home. Both the United States and Hawaiʻi

Constitutions confer that right. Wilson maintains that HRS

§ 134-25 and HRS § 134-27 - which confine firearms and

ammunition to the “possessor’s place of business, residence, or

sojourn” - had “no exceptions” for carrying firearms outside the

home. Wilson describes these “absolute restrictions” as “out of

step” with the “Nation’s historical tradition of firearm

regulation.”

The Maui Department of the Prosecuting Attorney (State)

countered.

First, the Second Amendment allows for some restrictions

per Heller and Bruen. For instance, registration and permitting

are constitutional. Second, unlike the Bruen plaintiffs, Wilson

illegally possessed a handgun because he never tried to follow

Hawaiʻi’s firearm registration and license to carry law. Because

he didn’t apply for a permit, he lacks standing to raise a

Second Amendment challenge.

Circuit Court Judge Kirstin Hamman granted Wilson’s second

motion to dismiss in August 2022. HRS § 134-25(a) and § 134-

27(a) infringed Wilson’s constitutional right to keep and bear a

firearm for self-defense.

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The court ruled that Wilson had standing to challenge HRS

§ 134-25(a) and § 134-27(a). Then it concluded that per Bruen,

a right to keep and bear firearms for self-defense under the

Hawaiʻi and United States Constitutions extends “outside the

home.” The State had failed to meet its burden to show how HRS

§ 134-25(a) and § 134-27(a) are “consistent with the Nation’s

historical tradition of firearm regulation.” The circuit court

also found that HRS § 134-25(a) and § 134-27(a) made “no

exceptions for carrying firearms outside the home for self-

defense purposes.” [There are exceptions in those laws -

“[e]xcept as provided in sections 134-5 and 134-9.” This

mistake though is immaterial to our decision.]

The court dismissed counts 1 and 2 with prejudice.

The State moved to reconsider. Then the Department of the

Attorney General got involved. The court granted its request to

file an amicus brief in support of the Maui Prosecuting

Attorney’s motion. The Attorney General argued that Bruen does

not stop states from requiring a license before bringing a

firearm to a public place. The circuit court denied the motion

to reconsider.

The State appealed. Then it filed an application for

transfer. We granted the transfer.

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III.

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.

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. Since Wilson lacks standing to

challenge HRS § 134-9, we do not take up his Second Amendment

challenge to that law.

A. Standing

Wilson has standing. His standing though, is confined to

challenging HRS § 134-25 and § 134-27, not HRS § 134-9.

1. Wilson has standing to challenge HRS § 134-25 and § 134-27

The State argues Wilson has no standing to challenge

Hawaiʻi’s place to keep crimes, HRS § 134-25 (pistol or revolver)

and § 134-27 (ammunition). He didn’t bother to apply for a

carry license and satisfy HRS § 134-9. So he can’t attack the

licensing law.

The State relies on California and New York cases where

courts denied standing to criminal defendants who did not try to

get a license to carry. They could not bring Bruen-based

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constitutional challenges. See, e.g., People v. Rodriguez, 171

N.Y.S.3d 802, 806 (N.Y. Sup. Ct. 2022) (“Failing to seek a

license before roaming the streets with a loaded firearm is not

abiding by the law, and nothing in the Second Amendment requires

that it be tolerated.”); People v. Velez, 302 Cal. Rptr. 3d 88,

106 (Cal. Ct. App. 2022) (“[U]nlike the petitioners in Bruen,

the record does not show, nor does [defendant] claim, that he

applied for and was denied a license to possess the gun in

question.”).

Hawaiʻi law offers criminal defendants broad standing to

challenge the constitutionality of criminal laws they are

charged with violating. State v. Grahovac, 52 Haw. 527, 532,

480 P.2d 148, 152 (1971). It allows challenges “[w]here

restraints imposed act directly on an individual or entity and a

claim of specific present objective harm is presented.” State

v. Bloss, 64 Haw. 148, 151, 637 P.2d 1117, 1121 (1981).

Here, the State charges place to keep crimes. Because

Wilson faces serious consequences, he has a claim of specific

present objective harm. And this gives him standing to

challenge the constitutionality of HRS § 134-25 and § 134-27.

See Armitage, 132 Hawaiʻi at 55, 319 P.3d at 1063 (defendants

subject to penal liability under a regulation have “a claim of

specific present objective harm,” and therefore standing to

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challenge the constitutionality of that regulation) (citation

omitted).

2. Wilson lacks standing to challenge HRS § 134-9

Unlike his challenges to HRS § 134-25 and § 134-27, Wilson

does not have standing to challenge HRS § 134-9’s

constitutionality.

Wilson says HRS § 134-9 “may be unconstitutional” and that

it is unreasonable to “[r]equire[] defendants to apply for

licenses pursuant [to] a potentially unconstitutional statute as

a prerequisite to challenging other statutes[.]” HRS § 134-9 is

unconstitutional, Wilson’s argument goes, so he should not have

to apply for a license to challenge the law.

We disagree. Wilson has no standing to challenge HRS

§ 134-9 without applying for a license.

First, the State has not charged Wilson with violating HRS

§ 134-9. Since “a criminal defendant cannot challenge the

constitutionality of one subsection of a statute where he was

charged under a different subsection,” a criminal defendant

cannot challenge the constitutionality of an entirely different

statute. Armitage, 132 Hawaiʻi at 55, 319 P.3d at 1063;

see also Grahovac, 52 Haw. at 532, 480 P.3d at 152 (“a

criminally accused has ‘standing’ to constitutionally challenge

only the specific penal sanctions” charged (emphasis added)).

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Next, HRS § 134-9 – Licenses to Carry - is not a criminal

offense. It reads, in part: “No person shall carry concealed or

unconcealed on the person a pistol or revolver without being

licensed to do so under this section or in compliance with

sections 134-5(c) or 134-25.” Nowhere does HRS chapter 134

identify a criminal penalty for HRS § 134-9. And the reference

to HRS § 134-25, the B felony place to keep handgun offense,

signals that crime covers it.

Last, Wilson did not bother to follow HRS § 134-9’s

procedure to obtain a license to carry. Because Wilson made no

attempt to get a license, he cannot claim the law’s application

procedures are unconstitutional as applied to him. Armitage,

132 Hawaiʻi at 55–56, 319 P.3d at 1063–64 (defendants lacked

standing because they did not follow a permit application

procedure, and therefore could not “claim that the specifics of

the application procedures . . . [were] unconstitutional as

applied to them”).

Wilson cannot show a specific present objective harm based

on HRS § 134-9. Thus, his constitutional challenges are

confined to HRS § 134-25 and § 134-27. Had Wilson followed the

HRS § 134-9 application process, and been denied, then he might

have standing to challenge that law’s constitutionality in his

criminal case. But those are not his facts. So Wilson’s

challenge is limited to HRS § 134-25 and § 134-27.

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B. HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s right to keep and bear arms under article I, section 17

1. Our Sequence of State Constitutional Interpretation

Wilson invokes both the Hawaiʻi and United States

Constitutions.

This court has yet to explain how we interpret matching

state and federal constitutional provisions when both are in

play. Do we look at the state constitution first? The federal

constitution first? Both? If we interpret our constitution to

provide more protection, do we even take up the federal

constitution?

We believe that the proper sequence to consider matching

constitutional text is to interpret the Hawaiʻi Constitution

before its federal counterpart. Only if the Hawaiʻi Constitution

does not reach the minimum protection provided by a parallel

federal constitutional right should this court construe the

federal analogue.

Thus, we interpret the Hawaiʻi Constitution first. And may

not get to the United States Constitution. See State v. Kono,

152 A.3d 1, 29 n.29 (Conn. 2016) (“If we address the state

constitutional claim first and decide it in favor of the

defendant, there is no reason to address the federal

constitutional claim; for purposes of that case, the defendant

is entitled to prevail under the state constitution, and it

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simply does not matter which way the claim would have been

decided under the federal constitution.”); State v. Moylett, 836

P.2d 1329, 1332 (Or. 1992) (“if no state law, including the

state constitution, resolves the issues, courts then should turn

for assistance to the Constitution of the United States”).

The Hawaiʻi Constitution often offers “greater protections”

than the federal constitution. State v. Santiago, 53 Haw. 254,

265, 492 P.2d 657, 664 (1971). When the two contain look-alike

provisions, Hawaiʻi has chosen not to lockstep with the Supreme

Court’s interpretation of the federal constitution.

Rather, this court frequently walks another way. 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.” State v. Kaluna, 55 Haw. 361, 369 n.6, 520 P.2d

51, 58 n.6 (1974). Further, “this court has not hesitated to

adopt the dissents in U.S. Supreme Court cases when it was

believed the dissent was better reasoned than the majority

opinion.” State v. Mundon, 129 Hawaiʻi 1, 18 n.25, 292 P.3d 205,

222 n.25 (2012).

Interpreting the Hawaiʻi Constitution is this court’s #1

responsibility. So we reason independently, untethered from the 13 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Supreme Court’s analysis of the United States Constitution.

State v. Texeira, 50 Haw. 138, 142 n.2, 433 P.2d 593, 597 n.2

(1967). Hawaiʻi’s people “are entitled to an independent

interpretation of State constitutional guarantees.” See State

v. Ball, 471 A.2d 347, 350 (N.H. 1983). That means this court,

not the U.S. Supreme Court, drives interpretation of the Hawaiʻi

Constitution. “If we ignore this duty, we fail to live up to

our oath” to defend Hawaiʻi’s Constitution. Id.

State constitutions have a distinct role under our nation’s

system of federalism. Deciding a case first on state

constitutional grounds respects state sovereignty and aligns

with a key constitutional design feature – subnational

governance. As the Oregon Supreme Court put it:

The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.

Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981) (en banc).

The state-constitution-first approach recognizes the states

as the cradle of rights. State constitutions predated the

Constitution as the original sources of constitutional rights.

Hans A. Linde, First Things First: Rediscovering the States’

Bills of Rights, 9 U. Balt. L. Rev. 379, 380 (1980) (“State

bills of rights are first in two senses: first in time and first

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in logic.”). The Bill of Rights cut and pasted rights first

ensconced in pre-1789 state constitutions. Id. at 381. And for

more than a century, state constitutional rights were the only

rights enforceable against state governments. See Gitlow v. New

York, 268 U.S. 652, 666 (1925) (incorporating the Bill of Rights

against subnational actors).

State constitutions provide a “double security” for the

people’s liberty. The Federalist No. 51, at 321 (James Madison)

(Isaac Kramnick ed., 1987). Per the Constitution’s design, the

Hawaiʻi Constitution supplies an additional guarantee of

individual rights. See, e.g., State v. Tanaka, 67 Haw. 658,

661, 701 P.2d 1274, 1276 (1985) (“We have not hesitated in the

past to extend the protections of the Hawaiʻi Bill of Rights

beyond those of textually parallel provisions in the Federal

Bill of Rights when logic and a sound regard for the purposes of

those protections have so warranted.”).

But federalism is about more than just the relationship

between state and federal governments. “[W]e must not forget

that the virtue of federalism lies not in the means of

permitting state experimentation but in the ends of expanded

liberty, equality, and human dignity.” State v. Short, 851

N.W.2d 474, 507 (Iowa 2014) (Cady, C.J., concurring specially).

We honor the Hawaiʻi Constitution’s freestanding vitality.

We interpret the Hawaiʻi Constitution first.

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2. Wilson’s Constitutional Claims

Wilson argues that HRS § 134-25(a) and § 134-27(a) violate

his putative right to keep and bear arms under article I,

section 17 of the Hawaiʻi Constitution and the Second Amendment’s

brand-new right to bear arms in public for self-defense.

HRS § 134-25(a) and § 134-27(a) criminalize the carrying of

“a loaded . . . pistol or revolver” and “ammunition” “[e]xcept

as provided in sections 134-5 and 134-9[.]” HRS § 134-9 permits

the licensed carry of firearms outside the home. Thus, HRS

§ 134-25(a) and § 134-27(a) regulate firearm use by restricting

the right to publicly carry a handgun and ammunition for self-

defense purposes to those who apply for and receive a carry

license.

Wilson possessed an unlicensed, concealed, and loaded

handgun to, he says, protect himself. Only certain factual

circumstances justify shooting another human in Hawaiʻi. Per HRS

§ 703-304(2), “[t]he use of deadly force is justifiable . . . if

the actor believes that deadly force is necessary to protect

[themself] against death, serious bodily injury, kidnapping,

rape, or forcible sodomy.” HRS § 703-304(2) (2014).

The State argues Wilson’s handgun-toting conduct is not

saved by the right to bear arms. He trespassed, a crime. He’s

not “law abiding.” The State’s position makes sense in the

abstract. Neither Bruen, nor any case, protect a right to

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commit a crime while armed. See People v. Gonzalez, 291 Cal.

Rptr. 3d 127, 130 (Cal. Ct. App. 2022) (“We are aware of no

court decision holding that the United States Constitution

protects a right to carry a gun while simultaneously engaging in

criminal conduct.”); United States v. Perez-Garcia, No. 22-CR-

1581-GPC, 2022 WL 17477918, at *3 (S.D. Cal. Dec. 6, 2022) (“[A]

reasonable interpretation of Bruen is that it does not obfuscate

the requirement that, as a threshold matter, to receive Second

Amendment protection, one must first and foremost be law

abiding.”).

The State’s argument about Wilson’s alleged criminal

conduct does not apply. Wilson’s criminal trespass charge

(count 4) is not before this court. And it’s a trial matter.

The parties dispute the facts in declarations attached to their

motion to dismiss briefing. These declarations are fair game

for now. They comply with Hawaiʻi Rules of Penal Procedure Rule

47(a) (“If a motion requires the consideration of facts not

appearing of record, it shall be supported by affidavit or

declaration.”).

Wilson denies trespassing. Wilson says that he and his

friends “were hiking that night to look at the moon and Native

Hawaiian plants.” They did not see any “No Trespassing” signs.

For purposes of the motion to dismiss, Wilson’s alleged criminal

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conduct does not prevent him from challenging the charges under

the Second Amendment and article I, section 17.

So we go to Wilson’s article I, section 17 constitutional

challenge.

This court eyed article I, section 17 before. See State v.

Mendoza, 82 Hawaiʻi 143, 920 P.2d 357 (1996). But Mendoza dodged

the key question: Does Hawaiʻi’s Constitution afford a personal

right or a collective right to keep and bear arms?

Mendoza appealed from his conviction for unlawful firearm

possession (then an HRS § 134–4(b) (1993) place to keep charge).

The law violated his right to bear arms under the state and

federal constitutions, he argued. Id. at 144, 920 P.2d at 358.

After some textual and historical analysis, this court chose not

to decide: “it is unnecessary for us to decide whether the

framers intended to establish an individual or collective right

to bear arms under article I, section 17.” Id. at 153, 920 P.2d

at 367. The Mendoza court upheld the firearms regulation, even

“[a]ssuming, without deciding, that article I, section 17

established an individual right to bear arms.” Id.

Justice Levinson concurred. He concluded that there was no

individual right. Article I, section 17 covers conduct with a

“reasonable relationship to the preservation or efficiency of a

well regulated militia.” Id. at 155, 920 P.2d at 369 (Levinson,

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J., concurring) (cleaned up). Here, we decide the

constitutional question previously sidestepped.

Because the text of article I, section 17, its purpose, and

Hawaiʻi’s historical tradition of weapons regulation support a

collective, militia meaning, we hold that the Hawaiʻi

Constitution does not afford a right to carry firearms in public

places for self-defense.

3. Article I, section 17’s text

Article I, section 17 reads:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Haw. Const. art. I, § 17.

The Second Amendment is nearly identical. Only two commas

and three capital letters separate the two. The Second

Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const. amend II.

Since article I, section 17 imitates the Second Amendment,

it is helpful to look at what the Second Amendment’s words mean.

A textual approach to constitutional interpretation

appreciates that words appear (or do not) for a reason.

Both clauses of article I, section 17 and the Second

Amendment use military-tinged language – “well regulated

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militia” and “bear arms” - to limit the use of deadly weapons to

a military purpose.

In contrast, there are no words that mention a personal

right to possess lethal weapons in public places for possible

self-defense.

First, we examine the prefatory clause to article I,

section 17 and the Second Amendment. The opening words carry a

military meaning. The “well regulated militia” clause warms up

the rest, defining the text. It “sets forth the object of the

Amendment and informs the meaning of the remainder of its text.”

Heller, 554 U.S. at 643 (Stevens, J., dissenting).

Article I, section 17’s first clause offers context and

clarity, like preambles do. “It cannot be presumed that any

clause in the constitution is intended to be without effect.”

See Marbury v. Madison, 5 U.S. 137, 174 (1803).

The federal constitution deploys “militia” to mean an

irregular state military force that may be called up by the

federal government to combat outside invasions or internal

insurrections. See Silveira v. Lockyer, 312 F.3d 1052, 1070

(9th Cir. 2002); Paul Finkelman, “A Well Regulated Militia”: The

Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev.

195, 209 (2000). Article I, section 8 gives Congress power to

“provide for calling forth the Militia to execute the Laws of

the Union, suppress Insurrections and repel Invasions,” and to

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“provide for organizing, arming, and disciplining, the Militia.”

U.S. Const. art. I, § 8, cl. 15-16. Article II makes the

President of the United States the “Commander in Chief of the

Army and Navy” and “of the Militia of the several States, when

called into the actual Service of the United States.” Id. art.

II, § 2, cl. 1.

Founding era dictionaries agree. See Thomas Dyche &

William Pardon, A New General English Dictionary (1765)

(“Militia: the civil defence of a kingdom, who are cantoned into

companies, regiments, &c. that are casually raised out of the

inhabitants upon extraordinary occasions of riots, tumults,

invasions &c. who, as soon as the disturbance is over, return to

their respective habitations and employments”); John Ash, The

New and Complete Dictionary of the English Language (1775)

(“Militia: the train bands, the standing military force of a

nation.”).

To English speakers – in 1791, 1868, and now - the first

clause narrows the right that the second clause confers. It is

“the people” who make up the militia that need to “keep and bear

arms” to protect “the free state.”

Centuries ago, the right to keep and bear arms was not

universal. It wasn’t for all. “The people” who had the right

to “keep and bear arms” included a discrete subset, one that

excluded people based on gender and race. Only able-bodied free

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men could join a militia. See, e.g., Militia Act of 1792, ch.

33, 1 Stat. 271, 271 (1792) (repealed 1903) (limiting enrollment

in the militia to every “free able-bodied white male citizen”

that is over “the age of eighteen years, and under the age of

forty-five years”).

Article I, section 17’s second clause also carries an

“obvious purpose.” United States v. Miller, 307 U.S. 174, 178

(1939). “The term ‘bear arms’ is a familiar idiom; when used

unadorned by any additional words, its meaning is ‘to serve as a

soldier, do military service, fight.’” Heller, 554 U.S. at 646

(Stevens, J., dissenting) (citing 1 Oxford English Dictionary

634 (2d ed. 1989). “Bear arms” is “to serve as a soldier.”

Webster’s New International Dictionary (2d ed. 1960).

Before article I, section 17, bear arms had the same

meaning, going way back. Some textualists champion corpus

linguistics, “an analysis of how particular combinations of

words are used in a vast database of English prose.” Facebook,

Inc. v. Duguid, 592 U.S. 395, 412 (2021) (Alito, J.,

concurring). They see it as “an important tool . . . in

figuring out the meaning of a term.” Wilson v. Safelite Grp.,

Inc., 930 F.3d 429, 442 (6th Cir. 2019) (Thapar, J.,

concurring).

Like the first clause’s “well regulated militia,” the

second clause’s “bear arms” has a collective, military meaning.

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Linguistic experts have churned through historical materials,

like the Corpus of Founding Era American English and the Corpus

of Early Modern English, to get to the bottom of the Second

Amendment’s key words. “Founding-era sources almost always use

bear arms in an unambiguously military sense.” See Dennis

Baron, Corpus Evidence Illuminates the Meaning of Bear Arms, 46

Hastings Const. L.Q. 509, 510 (2019). “Non-military uses of

bear arms in reference to hunting or personal self-defense are

not just rare, they are almost nonexistent.” Id. at 510-11; see

also James C. Phillips & Josh Blackman, Corpus Linguistics and

Heller, 56 Wake Forest L. Rev. 609, 674, (2021) (“The

overwhelming majority of bear arms was the ‘collective/militia’

sense.”)

Judges interpret words as part of the job. But judges are

not language and speech specialists. Before Bruen, linguists

informed the Supreme Court about their research: “[C]orpus

linguistics researchers have unearthed a wealth of new evidence

over the past decade showing that the phrase ‘keep and bear

arms’ overwhelmingly had a collective, militaristic meaning at

the Founding.” See Brief for Corpus Linguistics Professors and

Experts as Amici Curiae Supporting Respondents at 4, N.Y. State

Rifle & Pistol Ass’n, Inc. v. City of New York, 590 U.S. ____,

140 S. Ct. 1525 (2020) (No. 18-280).

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No words in article I, section 17 and the Second Amendment

describe an individual right. No words mention self-defense.

“Bear arms” reads the text. “The unmodified use of ‘bear

arms,’ . . . refers most naturally to a military purpose, as

evidenced by its use in literally dozens of contemporary texts.

The absence of any reference to civilian uses of weapons tailors

the text of the Amendment to the purpose identified in its

preamble.” Heller, 554 U.S. at 647-48 (Stevens, J., dissenting)

(footnote omitted).

The Hawaiʻi Constitution leaves out an individual right to

bear arms. Our framers had options. They could have worded the

constitution to plainly secure an individual right to possess

deadly weapons for self-defense. But they didn’t. The

Pennsylvania Constitution of 1776 did: “the people have a right

to bear arms for the defence of themselves and the state.” Pa.

Const. of 1776, article XIII (emphasis added). The Vermont

Constitution, too: “the people have a right to bear arms for the

defence of themselves and the State.” Vt. Const. ch. 1, art. 16

(enacted 1777, ch. 1, art. 15).

The Hawaiʻi Constitution and 44 state constitutions identify

a right to bear arms. See Mendoza, 82 Hawaiʻi at 146 n.5, 920

P.2d at 360 n.5. (counting forty-two other states’ “bear arms”

provisions). Two states amended their constitutions post-1996.

See Wis. Const. art. I, § 25 enacted in 1998; Iowa Const. art.

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I, § 1A, enacted in 2022. 5 states – California, Maryland,

Minnesota, New Jersey, and New York - do not have a Second

Amendment counterpart in their constitutions. And besides

Hawaiʻi, only four state constitutions (Alaska, North Carolina,

South Carolina, and Virginia) still say “well regulated

militia.”

Unlike article I, section 17, nearly all state

constitutions that recognize a right to keep and bear arms,

expressly identify it as a civilian right for personal self-

defense. Overwhelmingly, state constitutions use individual-

centric language. They recognize a right to bear arms for “any

person” or “every citizen.” For instance (1) Maine’s

Constitution: “Every citizen has a right to keep and bear arms

and this right shall never be questioned.” Me. Const. art. I,

§ 16 (enacted 1987, after a collective rights interpretation of

the original provision, State v. Friel, 508 A.2d 123 (Me.

1986)); (2) Connecticut’s Constitution: “Every citizen has a

right to bear arms in defense of himself and the state.” Conn.

Const. art. I, § 15 (enacted 1818, art. I, § 17); and (3)

Illinois’ Constitution: “Subject only to the police power, the

right of the individual citizen to keep and bear arms shall not

be infringed.” Ill. Const. art I, § 22 (enacted 1970).

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We believe that if article I, section 17 meant to provide

an individual right to carry deadly weapons in public for self-

defense, then it would say so.

Until Heller, the Supreme Court had never ruled that the

Second Amendment afforded an individual right to keep and bear

arms. Because the Second Amendment provided a collective right,

most states conferred an individual right through their

constitutions. Federalism principles allow states to provide

broader constitutional protection to their people than the

federal constitution. See, e.g., Texeira, 50 Haw. at 142 n.2,

433 P.2d at 597 n.2.

Hawaiʻi chose to use civic-minded language. Article I,

section 17 textually cements the right to bear arms to a well

regulated militia. Its words confer a right to “keep and bear

arms” only in the context of a “well regulated militia.”

Article I, section 17 traces the language of the Second

Amendment. Those words do not support a right to possess lethal

weapons in public for possible self-defense.

4. Article I, section 17’s purpose

The original public purpose of article I, section 17 (and

the Second Amendment) also supports a collective, military

interpretation.

This court construes the Hawaiʻi Constitution “with due

regard to the intent of the framers and the people adopting it,

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and the fundamental principle in interpreting a constitutional

provision is to give effect to that intent.” Hanabusa v.

Lingle, 105 Hawaiʻi 28, 31, 93 P.3d 670, 673 (2004).

We conclude that the authors and ratifiers of the Hawaiʻi

Constitution imagined a collective right. Our understanding

aligns with what the Second Amendment meant in 1950 when Hawaiʻi

copied the federal constitution’s language. And in 1968 and

1978 when Hawaiʻi’s people kept those words.

Article I, section 17 originated as Proposal Number 3,

section 15 (Section 15) as introduced in the Constitutional

Convention of Hawaiʻi of 1950. Debates in Comm. of the Whole on

Bill of Rights (Article I), 2 Proceedings of the Constitutional

Convention of Hawaiʻi of 1950, at 10 (1961). Legislative history

shows that the first framers of the Hawaiʻi Constitution had

concerns about the potential impact that a bear arms provision

would have on existing firearms registration laws, and the

state’s ability to pass reasonable laws. The committee reports

disclose the framer’s intent to allow sensible firearms

legislation.

Section 15 incorporates the 2nd Amendment of the Federal Constitution. In adopting this language, it was the intention of the committee that the language should not be construed as to prevent the state legislature from passing legislation imposing reasonable restrictions upon the right of the people to keep and bear arms.

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Stand. Comm. Rep. No. 20, in 1 Proceedings of the Constitutional

Convention of Hawaiʻi of 1950, at 164 (1960).

The 1950 Constitutional Convention delegates expressed an

intent to preserve the Territory’s firearms regulations. They

had foresight, too, reserving the right to later pass laws to

ban “modern and excessively lethal weapons . . . .”

This section incorporates the 2nd Amendment to the Federal Constitution. Your Committee wishes to make it clear that this section will not render invalid the existing laws of the Territory, which will be continued in effect by the State Constitution, relating to the registration, possession and carrying of firearms, nor will it prevent the legislature from passing other reasonable restrictions on the right to acquire, keep or bear firearms or other weapons, including the power of the legislature to entirely prohibit the possession of such modern and excessively lethal weapons as machine guns, silencers, bombs, atomic weapons, etc. Upon this understanding, your Committee recommends the adoption of this section.

Comm. of the Whole Rep. No. 5, in 1 Proceedings of the

Constitutional Convention of Hawaiʻi of 1950, at 303 (emphases

added).

The 1968 Constitutional Convention endorsed the Hawaiʻi

Constitution’s text and original purpose. The introduction to a

series of Legislative Reference Bureau studies prepared to aid

the Convention’s delegates explains that article I, section 17

was based on the conventional and traditional interpretation of

the Second Amendment. “The historical background of the Second

Amendment indicates that the central concern in the right to

bear arms was the right of the states to maintain a militia.”

Hawaiʻi Constitutional Convention Studies: Introduction and

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Article Summaries (Vol. I), at 7 (1968). The report adds: “The

right to bear arms refers explicitly to the militia and is

subject to lawful regulation.” Stand. Comm. Rep. No. 55 in 1

Proceedings of the Constitutional Convention of Hawaiʻi of 1968,

at 235 (1973).

The 1968 Constitutional Convention’s Standing Committee

recommended retaining then-Section 15. The Committee’s report

clarified:

The Committee feels that reference must be made to the report of the 1950 Constitutional Convention in order that the people of this State not misconstrue the intent of this section. The right to bear arms refers explicitly to the militia and is subject to lawful regulation.

Id.

Ten years later, the 1978 Constitutional Convention Studies

similarly advised the delegates: “[T]he right to keep and bear

arms is one enjoyed collectively by members of a state militia”

rather than an individual right. Hawaiʻi Constitutional

Convention Studies 1978: Introduction and Article Summaries, at

6 (1978). The study recounts that the “1968 Constitutional

Convention, to clear up any confusion left by its predecessor,

stressed that section 15 referred only to the collective right

to bear arms as a member of the state militia, but did not amend

section 15.” Id.

The Hawaiʻi Constitution’s first framers knew about the

United States Supreme Court’s decision in Miller, 307 U.S. at

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183. In 1950, at the prepare-for-statehood Constitutional

Convention, only 11 years had passed since the unanimous

decision in Miller. There the Supreme Court concluded that the

Second Amendment’s purpose was to preserve an effective state

militia:

[i]n the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Id. at 178.

When the Hawaiʻi Constitution was first ratified, courts

throughout the nation’s history had always interpreted and

applied the Second Amendment with the militia-centric view

expressed in Miller. See, e.g., Cases v. United States, 131

F.2d 916, 921 (1st Cir. 1942) (“The right to keep and bear arms

is not a right conferred upon the people by the federal

constitution.”); United States v. Tot, 131 F.2d 261, 266 (3d

Cir. 1942) (finding it “abundantly clear” that the Second

Amendment, unlike freedom of speech and freedom of religion,

“was not adopted with individual rights in mind, but as a

protection for the States in the maintenance of their militia

organizations against possible encroachments by the federal

power”).

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This was what everyone thought. A 1969 law dictionary

explained: the “right to bear arms” refers to the militia,

“[n]ot a constitutional right to carry weapons on one’s person

as a civilian.” Right to bear arms, Ballentine’s Law Dictionary

(3d ed. 1969).

State and federal courts had also, with few exceptions,

upheld laws regulating firearms use and possession.

Article I, section 17 traces the Second Amendment’s

language. The introductory militia language reveals article I,

section 17’s purpose - preserve the militia to safeguard the

security of Hawaiʻi as a free state. See Heller, 554 U.S. at 640

(Stevens, J., dissenting) (noting that the prefatory phrase

“identifies the preservation of the militia as the Amendment’s

purpose”).

Like article I, section 17, the Second Amendment’s original

purpose protects a state’s right to have a militia. The framers

included the right to keep and bear arms in the federal

constitution “in response to their fear that [the] government

might disarm the militia, not restrict the common law right of

self-defense.” Saul Cornell & Nathan DeDino, A Well Regulated

Right: The Early American Origins of Gun Control, 73 Fordham L.

Rev. 487, 499 (2004). Madison’s writings suggest that the

Second Amendment originated from fear of a federal government

power grab. The Second Amendment quelled alarm that the

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national government might disarm and disband state militias.

Those militias could “oppose” a federal army, Madison wrote, and

“would be able to repel the danger” of the federal government.

The Federalist No. 46, at 301 (James Madison) (Isaac Kramnick

ed., 1987).

That’s what they were thinking about long ago. Not someone

packing a musket to the wigmaker just in case.

Until recently, the Second Amendment conferred a collective

right to bear arms in service to the militia. See Miller, 307

U.S. at 178; Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).

There was no individual federal constitutional right to carry

deadly weapons in public places for self-defense. There were

only statutory, common law, or state constitutional rights.

Around Miller’s time, the state militia was evolving into

the National Guard. A 1903 Act created the National Guard.

“[T]he regularly enlisted, organized, and uniformed active

militia in the several States and Territories . . . whether

known and designated as National Guard, militia, or otherwise,

shall constitute the organized militia.” Act of January 21,

1903, 32 Stat. 775. Then the National Defense Act of 1916

federalized the National Guard. Act of June 3, 1916, 39 Stat.

166. A 1933 amendment to that act established state National

Guard units that would simultaneously enlist in the federal

National Guard. Act of June 15, 1933, 48 Stat. 153, 159. While

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each state can call upon their unit for emergencies, the federal

government also retains power to utilize them for national

defense. See Perpich v. Dep’t of Def., 496 U.S. 334, 351

(1990).

The authors of the Hawaiʻi Constitution understood the

meaning of militia. “Militia” meant “a body of citizens

enrolled as a regular military force for periodical instruction,

discipline, and drill, but not called into active service except

in emergencies.” Webster’s New International Dictionary (2d ed.

1960). By then it included the state National Guard. At the

1968 constitutional convention, delegate Leland Larson

explained, “Section 15, the so-called ‘right to bear arms’

provision, does not refer to the individual’s right, it refers

to the militia, to the national guard.” Debates in Comm. of the

Whole on Bill of Rights (Article I), 2 Proceedings of the

Constitutional Convention of Hawaiʻi of 1968, at 24 (1972); see

also William L. Shaw, The Interrelationship of the United States

Army and the National Guard, 31 Mil. L. Rev. 39, 44 (1966)

(noting that “modern-day sense” of term “militia” includes

“National Guard units”).

Soon interest groups advanced an individual rights

interpretation of the Second Amendment. See Carl T. Bogus, The

History and Politics of Second Amendment Scholarship: A Primer,

76 Chi.-Kent L. Rev. 3 (2000).

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Former Chief Justice Burger called out that movement. It

was:

one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies — the militia — would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.

Silveira v. Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002)

(quoting Warren E. Burger, The Right to Bear Arms, PARADE

MAGAZINE, Jan. 14, 1990, at 4).

Circuit courts agreed. There was no individual right.

Same as it ever was. See Love v. Pepersack, 47 F.3d 120, 124

(4th Cir. 1995) (“Since [Miller], the lower federal courts have

uniformly held that the Second Amendment preserves a collective,

rather than individual, right.”); Gillespie v. City of

Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). In 2001

though, the Fifth Circuit took a new tact. See United States v.

Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (finding that the

Second Amendment “protects individual Americans in their right

to keep and bear arms whether or not they are a member of a

select militia”).

Then, the Supreme Court granted cert in Heller. Heller

flipped the nation’s textual and historical understanding of the

Second Amendment. The majority insisted there was “no doubt, on

the basis of both text and history, that the Second Amendment

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conferred an individual right to keep and bear arms.” 554 U.S.

at 595.

History by historians quickly debunked Heller’s history.

“If history, and history alone, is what matters, why would the

Court not now reconsider Heller in light of these more recently

published historical views?” McDonald, 561 U.S. at 916 (Breyer,

J., dissenting); United States v. Bullock, ___ F. Supp. 3d ___,

2023 WL 4232309, at *4-*5 (S.D. Miss. 2023) (Reeves, J.) (“[A]n

overwhelming majority of historians reject the Supreme Court’s

most fundamental Second Amendment holding – its 2008 conclusion

that the Amendment protects an individual right to bear arms,

rather than a collective, Militia-based right.”) (cleaned up).

History is prone to misuse. In the Second Amendment cases,

the Court distorts and cherry-picks historical evidence. It

shrinks, alters, and discards historical facts that don’t fit.

See Heller, 554 U.S. at 639 (Stevens, J., dissenting); Bruen,

597 U.S. at 112 (Breyer, J., dissenting) (“the numerous

justifications that the Court finds for rejecting historical

evidence give judges ample tools to pick their friends out of

history’s crowd”).

Bruen unravels durable law. No longer are there the levels

of scrutiny and public safety balancing tests long-used by our

nation’s courts to evaluate firearms laws. Instead, the Court

ad-libs a “history-only” standard. See id. at 84.

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The Supreme Court makes state and federal courts use a

fuzzy “history and traditions” test to evaluate laws designed to

promote public safety. It scraps the traditional techniques

used by federal and state courts to review laws passed by the

People to protect people. And by turning the test into history

and nothing else, it dismantles workable methods to interpret

firearms laws. All to advance a chosen interpretive modality.

Yet only a few years before, the Court had constrained

originalism’s liberty-reducing tendencies. The history and

tradition of the very old days did not control contemporary

American life. “History and tradition guide and discipline this

inquiry but do not set its outer boundaries.” Obergefell v.

Hodges, 576 U.S. 644, 664 (2015).

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. “Judges are not

historians. We were not trained as historians. We practiced

law, not history.” Bullock, 2023 WL 4232309, at *4. Worse,

judges may use history to fit their preferred narratives. “[I]n

addition to the risk that [judges] will not understand the

materials they are charged to consult, there is the additional

risk that they will not conduct a dispassionate examination of

the historical evidence and will simply marshal historical

anecdotes to achieve what they have already decided is the

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preferred outcome.” Darrell A.H. Miller, Text, History, and

Tradition: What the Seventh Amendment Can Teach Us About the

Second, 122 Yale L.J. 852, 935 (2013).

History is messy. It’s not straightforward or fair. It’s

not made by most. See Melissa Murray, Children of Men: The

Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev.

799, 800 (2023) (the current Court “frequently relies [on]

moments in which women and people of color were expressly

excluded from political participation and deliberation”).

Bruen, McDonald, Heller, and other cases show how the Court

handpicks history to make its own rules. See Allegheny Reprod.

Health Ctr. v. Pennsylvania Dep’t of Hum. Servs., ___ A.3d ___,

2024 WL 318389, at *135 (Pa. 2024) (Wecht, J., concurring) (“At

the same time that it purported to anchor its holding in

American common law, the Dobbs majority engaged in historical

fiction, disregarding evidence that undermined its view and

ignoring the reproductive autonomy that American women

originally exercised – autonomy that included matters of

pregnancy, childbirth, and abortion.”). “A justice’s personal

values and ideas about the very old days suddenly control the

lives of present and future generations.” See City & Cnty. of

Honolulu v. Sunoco LP, 153 Hawaiʻi 326, 361, 537 P.3d 1173, 1208

(2023) (Eddins, J., concurring).

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Bruen’s command to find an old-days “analogue” undercuts

the other branches’ responsibility – at the federal, state, and

local levels - to preserve public order and solve today’s

problems. And it downplays human beings’ aptitude for

technological advancement.

Time-traveling to 1791 or 1868 to collar how a state

regulates lethal weapons – per the Constitution’s democratic

design - is a dangerous way to look at the federal constitution.

The Constitution is not a “suicide pact.” Terminiello v.

Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

We believe it is a misplaced view to think that today’s

public safety laws must look like laws passed long ago.

Smoothbore, muzzle-loaded, and powder-and-ramrod muskets were

not exactly useful to colonial era mass murderers. And life is

a bit different now, in a nation with a lot more people,

stretching to islands in the Pacific Ocean.

Regulations like storing powder safely, reporting with guns

for militia “musters” (weapons inspection), and loyalty oaths

are hardly helpful to address contemporary gun violence. Yet

those odd laws have historical and traditional roots.

Democratically-vetted laws, though – measures taken by today’s

citizens to save lives - are mostly out of bounds.

Lethal weapons share little resemblance to weaponry used

centuries ago. A well-trained Revolutionary War soldier could

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fire his Brown Bess musket three times a minute. See, e.g.,

David S. Lux, Brown Bess, Guns in American Society: A-L 84, 86

(Gregg Lee Carter ed., 2002) (“An effectively trained soldier

equipped with [a] smooth-bore musket[] could fire at least three

rounds per minute on command.”). The Civil War’s muzzle-loading

rifled muskets in the Civil War were an improvement on

Revolutionary War weapons, but were still plenty slow and

difficult to reload. Earl J. Hess, The Rifle Musket in Civil

War Combat: Reality and Myth 4-7 (Univ. of Kansas 2008).

Presently, a semi-automatic rifle can fire at least 45 rounds a

minute (and up to 300). See Bevis v. City of Naperville, Ill.,

85 F.4th 1175, 1197 (7th Cir. 2023); Id. at 1224 (Brennan, J.,

dissenting). Weapons to maximize death differ from those in the

eras Bruen tells us to review.

Gun use has changed, too. A backward-looking approach

ignores today’s realities. “In 2019 for every justifiable

homicide in the United States involving a gun, guns were used in

30 criminal homicides.” (316 justifiable homicides and 9,610

criminal homicides.) This ratio does not take into account

suicides and fatal unintentional shootings. See Firearm

Justifiable Homicides and Non-Fatal Self-Defense Gun Use,

Violence Policy Center, 1, March 2023,

https://vpc.org/studies/justifiable23.pdf

[https://perma.cc/PW6G-J5U8].

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The United States Supreme Court disables the states’

responsibility to protect public safety, reduce gun violence,

and safeguard peaceful public movement. A government by the

people works. Hawaiʻi’s legislative branch has passed sensible

firearms laws. And Hawaiʻi’s executive branch has enforced those

laws. The most recent available data from the Centers for

Disease Control shows that Hawaiʻi has the nation’s second-lowest

rate of gun deaths per year. Centers for Disease Control and

Prevention, National Center for Health Statistics, Firearm

Mortality by State (March 1, 2022) (displaying 2021 data)

https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/fire

arm.htm [https://perma.cc/J7HT-7NXH].

As the world turns, it makes no sense for contemporary

society to pledge allegiance to the founding era’s culture,

realities, laws, and understanding of the Constitution. “The

thing about the old days, they the old days.” The Wire: Home

Rooms (HBO television broadcast Sept. 24, 2006) (Season Four,

Episode Three).

5. History and Tradition in Hawaiʻi

To be clear, history, though not the end all, is useful.

See Hawaiʻi State AFL-CIO v. Yoshina, 84 Hawaiʻi 374, 376, 935

P.2d 89, 91 (1997) (“[A] constitutional provision must be

construed in connection with other provisions of the instrument,

and also in the light of the circumstances under which it was

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adopted and the history which preceded it.”) (cleaned up). The

Hawaiʻi Supreme Court values history and tradition to aid

statutory and constitutional interpretation. Id. But unlike

the United States Supreme Court, we do not subscribe to an

interpretive theory that nothing else matters.

Here, we discuss Hawaiʻi’s historical tradition of

regulating weapons. We try our best. Judges are not

historians. (Except the rare case of John Papa ʻĪʻī, historian

and Associate Justice of the Supreme Court of the Kingdom of

Hawaiʻi from 1848-1864.) Throughout its history as a sovereign

nation and as a Territory, Hawaiʻi regulated deadly weapons.

History bares article I, section 17’s purpose. Never have

Hawaiʻi’s people felt that carrying deadly weapons during daily

life is an acceptable or constitutionally protected activity.

In Hawaiʻi, a state constitutional right to keep and bear

arms does not extend to non-militia purposes.

a. The Kingdom of Hawaiʻi’s First Law: Ke Kānāwai Māmalahoe and the promotion of public safety

“[A] unified monarchial government of the Hawaiian Islands

was established in 1810 under Kamehameha I, the first King of

Hawaiʻi.” S.J. Res. 19, 103d Cong., 107 Stat. 1510 (1993). King

Kamehameha I enacted Hawaiʻi’s first law: Ke Kānāwai Māmalahoe,

or “law of the splintered paddle.” See Carol Chang, The Law of

the Splintered Paddle: Kānāwai Māmalahoe 14 (1994).

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The law reflects Kamehameha’s personal experience:

Kamehameha and Ka-hakuʻi paddled to Papaʻi and on to Keaʻau in Puna where some men and women were fishing, and a little child sat on the back of one of the men. Seeing them about to go away, Kamehameha leaped from his canoe intending to catch and kill the men, but they all escaped with the women except two men who stayed to protect the man with the child. During the struggle Kamehameha caught his foot in a crevice of the rock and was stuck fast; and the fishermen beat him over the head with a paddle. Had it not been that one of the men was hampered with the child and their ignorance that this was Kamehameha with whom they were struggling, Kamehameha would have been killed that day. This quarrel was named Ka-lele-iki, and from the striking of Kamehameha’s head with a paddle came the law of Mamala-hoe (Broken paddle) for Kamehameha.

Samuel M. Kamakau, Ruling Chiefs of Hawaiʻi 125-26 (1961):

The law of the splintered paddle promotes public safety:

E nā kānaka, E mālama ʻoukou i ke akua A e mālama hoʻi i kānaka nui a me kānaka iki; E hele ka ʻelemakule, ka luahine, a me ke kama A moe i ke ala ʻaʻohe mea nāna e hoʻopilikia. Hewa nō, make.

O my people, Honor thy god; Respect alike (the rights of) men great and humble; See to it that our aged, our women, and our children Lie down to sleep by the roadside Without fear of harm. Disobey, and die.

Chang, The Law of the Splintered Paddle at 16.

Kamehameha I’s law protects all people, “great and humble.”

Especially the vulnerable - children and the elderly. The law

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imagines free movement without fear. Living without need to

carry a deadly weapon for self-defense.

Article IX, section 10 of the 1978 Hawaiʻi Constitution

codifies Ke Kānāwai Māmalahoe:

The law of the splintered paddle, [kānāwai māmalahoe], decreed by Kamehameha I -- Let every elderly person, woman and child lie by the roadside in safety -- shall be a unique and living symbol of the State’s concern for public safety.

The State shall have the power to provide for the safety of the people from crimes against persons and property.

Haw. Const. art. IX, § 10.

Article IX, section 10 provides the people of Hawaiʻi a

constitutional right to freely and safely travel in peace and

tranquility. To animate this constitutional right, the Hawaiʻi

Constitution empowers the State to provide for the “safety of

the people from crimes against persons and property.”

b. 1833-1893: Weapons were heavily regulated under Hawaiian Kingdom Law

By the time Kamehameha III became King, foreign nations and

their citizens increasingly exposed the islands to deadly

weapons. Kamehameha III enacted laws to protect his people from

crime. In 1833, the King promulgated a law prohibiting “any

person or persons” on shore from possessing a weapon, including

any “knife, sword-cane, or any other dangerous weapon.”

Violators were subject to arrest and punishment by fine or

lashings. Translation of the Constitution and Laws of the

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Hawaiian Islands, Established in the Rein of Kamehameha III 98

(Lahainaluna, 1842).

Kamehameha III’s laws severely punished those who committed

crimes with deadly weapons. Chapter XXXVII outlawed burglary.

It had a harsh sentencing enhancement: ordinary burglary was

punished by exile for a period of 3-10 years, but if a burglar

had a deadly weapon, then it was “a great crime, and the man

committing it shall be condemned to reside on another land till

death.” Id. at 93. Chapter XXXVIII, too. Any murder committed

by use of a weapon was punishable by death. Id. at 94.

Kamehameha III enacted Hawaiʻi’s first constitution in 1840.

Kamakau, Ruling Chiefs of Hawaiʻi at 370. Kamehameha III and his

advisors, including the American William Richards, spent years

deliberating what the Kingdom of Hawaiʻi’s Constitution would

say. Ralph S. Kuykendall, The Hawaiian Kingdom, 1778-1854 159,

167 (1938). The 1840 Constitution included the United States

Constitution’s right to freedom of religion. Translation of the

Constitution and Laws at 10 (1842). But it left out its “right

to bear arms” provision, signaling there was no desire to allow

the King’s subjects to freely arm themselves. See id. at 9-16.

Kamehameha III’s government revised the Constitution twelve

years later. The 1852 Constitution was in many ways modeled on

the United States Constitution and the Declaration of

Independence. Article I declared inalienable rights: life,

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liberty, property, and pursuing safety and happiness.

Constitution and Laws of His Majesty Kamehameha III, King of the

Hawaiian Islands, Passed by the Nobles and Representatives at

Their Session, 1852 3 (1852). Article II enshrined freedom of

religion. Article III established freedom of the press. And

article IV decreed, “[a]ll men shall have the right, in an

orderly and peaceable manner to assemble, without arms, to

consult upon the common good; give instructions to their

Representatives; and to petition the King or the Legislature for

a redress of grievances.” Id. (emphasis added). The 1852

Constitution contained no right to keep and bear arms. See id.

And it explicitly conditioned the right of assembly on being

unarmed. There was no right to carry weapons in public.

Hawaiʻi has a tradition of updating its weapons laws to

match changing technology. The Kingdom’s 1852 law, “An Act to

Prevent the Carrying of Deadly Weapons,” expanded the definition

of “deadly weapon” to prohibit anyone not authorized by law from

carrying “any bowie-knife, sword-cane, pistol, air-gun, slung-

shot or other deadly weapon.” Id. at 19. The only people

allowed to carry arms were Kingdom officials and military

officers, but only “when worn for legitimate purposes.” Id.

Kamehameha V adopted a new constitution in 1864. Again,

the Kingdom of Hawaiʻi’s Constitution left out a right to bear

arms. See Haw. Const. of 1864. And again, it protected the

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right to assemble only “without arms.” Haw. Const. of 1864,

art. 4.

A shift in deadly weapons regulation occurred in 1870.

Concerned that hunters were destroying Oʻahu’s bird population,

the Kingdom enacted a firearm licensing law. Laws of His

Majesty Kamehameha V., King of the Hawaiian Islands, Passed by

the Legislative Assembly, at its Session, 1870 26 (1870) (“An

Act to License the Carrying of Fowling Pieces and Other Fire-

arms”). The Minister of Interior could issue hunting licenses

for the southern part of Oʻahu. Without a license, the “use or

carry” of hunting guns resulted in fines or imprisonment at hard

labor. Id.

The Kingdom of Hawaiʻi Constitution of 1864 remained in

effect until 1887. Then, a subversive group forced King

Kalākaua to sign a new constitution. Queen Liliʻuokalani

recalled that they would have executed her brother, King

Kalākaua, had he not signed the “Bayonet Constitution,” the

Constitution of 1887. Liliʻuokalani, Hawaiʻi’s Story by Hawaiʻi’s

Queen 181 (1898). The schemers, mostly American men, omitted a

right to bear arms. See Haw. Const. of 1887; Liliʻuokalani,

Hawaiʻi’s Story at 355.

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c. 1893-1898: The Provisional Government continued to heavily regulate weapons

In 1893, another armed group forcibly deposed Queen

Liliʻuokalani, who was crowned after King Kalākaua’s death in

1891. Liliʻuokalani, Hawaiʻi’s Story at 209-10, 387.

“A so-called Committee of Safety, a group of professionals

and businessmen, with the active assistance of John Stevens, the

United States Minister to Hawaiʻi, acting with the United States

Armed Forces, replaced the monarchy with a provisional

government.” Rice v. Cayetano, 528 U.S. 495, 504–05 (2000).

(100 years later, in 1993, “Congress enacted a joint resolution

‘to acknowledge the historic significance of the illegal

overthrow of the Kingdom of Hawaiʻi’” and apologize to Native

Hawaiians. Hawaiʻi v. Office of Hawaiian Affairs, 556 U.S. 163,

168-69 (2009)).

After the unlawful overthrow, one of the first things the

Provisional Government did was end the importation of firearms,

ammunitions, or explosives. See Laws of the Provisional

Government of the Hawaiian Islands Passed by the Executive and

Advisory Councils Acts 1 to 42 13 (Act 9) (1893).

The next year, the Provisional Government formed the

“Republic of Hawaiʻi.” Liliʻuokalani, Hawaiʻi’s Story at 258.

Then, on July 4, 1894, they unveiled a new Constitution. Id.

Again, the right to assemble was only “without arms.” Haw.

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Const. of 1894, art. IV. Again, there was no analogue to the

Second Amendment. See Haw. Const. of 1894.

In 1896, the Republic passed a law that prohibited anyone

from carrying or using a firearm in Hawaiʻi without a license.

Laws of the Republic of Hawaiʻi Passed by the Legislature at its

Session, 1896 224 (1896). The law also required registration

for every firearm in the islands, even those belonging to police

or military members. Id. at 224-25. Anyone possessing an

unlicensed firearm was subject to a fine and forfeiting the gun.

Id. at 226.

d. 1898-1959: The Territorial Government continued to heavily regulate weapons

In 1898, the United States, by joint resolution of

Congress, annexed the Republic of Hawaiʻi, creating the Territory

of Hawaiʻi. Newlands Resolution, H.R.J. Res. 259, 55th Cong.

(1898), 30 Stat. 750.

Though the Hawaiian Islands were now ruled by a subjugating

nation, Hawaiʻi continued its historic tradition of strict

weapons regulation.

The year before Bruen, the Ninth Circuit Court of Appeals

upheld Hawaiʻi’s regulatory framework for firearms, HRS chapter

134. Young v. Hawaiʻi, 992 F.3d 765, 773–75 (9th Cir. 2021).

Young recounts the history of weapons regulation in Hawaiʻi

through much of the 20th century:

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Hawaiʻi’s regulation of dangerous weapons remained in effect after Hawaiʻi consented to annexation as a U.S. territory in 1898. Under the Newlands Resolution, “[t]he municipal legislation of the Hawaiian Islands . . . not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.” Resolution of July 7, 1898, 30 Stat. 750. See Territory of Hawaiʻi v. Mankichi, 190 U.S. 197, 209, 23 S. Ct. 787, 47 L.Ed. 1016 (1903). Hawaiʻi’s territorial legislature renewed its 1852 limitations on the carrying of dangerous weapons in a 1905 Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913 statute made it unlawful to carry deadly weapons unless “authorized by law.” Id. The statute imposed civil and criminal penalties on anyone who carried a “deadly weapon” without prior authorization “unless good cause be shown for having such dangerous weapon.” Id.

In 1927, Hawaiʻi implemented its first restriction on firearms specifically, as opposed to restrictions on the broader class of “deadly weapons.” In a section entitled “Carrying or keeping small arms by unlicensed person,” the law provided:

Except as otherwise provided in Sections 7 and 11 hereof in respect of certain licensees, no person shall carry, keep, possess or have under his control a pistol or revolver; provided, however, that any person who shall have lawfully acquired the ownership or possession of a pistol or revolver may, for purposes of protection and with or without a license, keep the same in the dwelling house or business office personally occupied by [them], and, in the case of an unlawful attack upon any person or property in said house or office, said pistol or revolver may be carried in any lawful, hot pursuit of the assailant.

Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927 Act, which was modeled in part on the Uniform Firearms Act, required a person to obtain a license to carry a “pistol or revolver concealed upon [their] person or to carry one elsewhere than in [their] home or office.” Id. § 7. Carry licenses could be issued by the sheriff or a sitting judge after either had determined that applicant was “suitable . . . to be so licensed.” Id. An applicant was deemed “suitable” to carry a firearm upon meeting a citizenship and age requirement and showing a “good reason to fear an injury to [their] person or property, or . . . other proper reason for carrying a pistol or revolver.” Id.

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In 1933, the Hawaiʻi legislature further refined its concealed-carry licensing scheme. Act 26, § 8, 1933–1934 Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed weapon, the applicant had to demonstrate an “exceptional case” and a “good reason to fear injury to [their] person or property.” Id.

The “exceptional case” and “good reason to fear injury” requirements included in the 1933 Act became staples of Hawaiʻi’s future firearm regulations. The Hawaiʻi legislature included those requirements in its 1961 Act “Relating to Permits to Carry Firearms.” Act 163, 1961 Haw. Sess. Laws 215. The 1961 regulations mirrored those in the 1933 statute and required an applicant to demonstrate an “exceptional case” and a “good reason [for the applicant] to fear injury to [their] person or property” before publicly carrying a firearm. Id. § 1. Whereas the 1933 Act only applied to concealed carry, however, the 1961 Act announced a new regulatory scheme for open carry. An individual seeking to carry a firearm openly in public was required to demonstrate “the urgency of the need” to carry and must be “engaged in the protection of life and property.” Id. If the applicant made such a showing and was not otherwise prohibited from possessing a firearm, the chief of police had discretion to grant the carry application. Id. (“[T]he respective chiefs of police may grant a license . . . .”).

Id. at 774-75.

No doubt. Hawaiʻi’s historical tradition excludes an

individual right to possess weapons. Hawaiʻi prohibited the

public carry of lethal weapons – with no exceptions for licensed

weapons – from 1833-1896. Unlicensed public carry of firearms

has been illegal from 1896 to the present. Hawaiʻi has never

recognized a right to carry deadly weapons in public; not as a

Kingdom, Republic, Territory, or State.

e. The Aloha Spirit

In Hawaiʻi, the Aloha Spirit inspires constitutional

interpretation. See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210

(Eddins, J., concurring). When this court exercises “power on

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behalf of the people and in fulfillment of [our]

responsibilities, obligations, and service to the people” we

“may contemplate and reside with the life force and give

consideration to the ‘Aloha Spirit.’” HRS § 5-7.5(b) (2009).

The spirit of Aloha clashes with a federally-mandated

lifestyle that lets citizens walk around with deadly weapons

during day-to-day activities.

The history of the Hawaiian Islands does not include a

society where armed people move about the community to possibly

combat the deadly aims of others. See Haw. Const. art. IX, § 10

(“The law of the splintered paddle . . . shall be a unique and

living symbol of the State’s concern for public safety.”).

The government’s interest in reducing firearms violence

through reasonable weapons regulations has preserved peace and

tranquility in Hawaiʻi. A free-wheeling right to carry guns in

public degrades other constitutional rights.

The right to life, liberty, and the pursuit of happiness,

encompasses a right to freely and safely move in peace and

tranquility. See Haw. Const. art. I, § 2; Haw. Const. art. IX,

§ 10. Laws regulating firearms in public preserve ordered

liberty and advance these rights.

There is no individual right to keep and bear arms under

article I, section 17. So there is no constitutional right to

carry a firearm in public for possible self-defense.

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We hold that HRS § 134-25(a) and § 134-27(a) do not violate

Wilson’s rights under the Hawaiʻi Constitution.

C. HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s right to bear arms under the Second Amendment

We also hold that HRS § 134-25(a) and § 134-27(a) do not

violate the Second Amendment to the United States Constitution.

“[T]he right secured by the Second Amendment is not

unlimited. . . . [T]he right [is] not a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever

purpose.” Bruen, 597 U.S. at 21. States retain the authority

to require that individuals have a license before carrying

firearms in public. Id. at 79-80 (Kavanaugh, J., concurring)

(“[T]he Court’s decision does not prohibit States from imposing

licensing requirements for carrying a handgun for self-

defense.”); Antonyuk v. Chiumento, 89 F.4th 271, 312 (2d Cir.

2023) (“Licensing that includes discretion that is bounded by

defined standards, we conclude, is part of this nation’s history

and tradition of firearm regulation and therefore in compliance

with the Second Amendment.”).

HRS § 134-25(a) and § 134-27(a) allow a person to carry a

handgun for self-defense outside the home if they have a license

issued per HRS § 134-9. See HRS § 134-25(a) (“Except as

provided in sections 134-5 and 134-9, all firearms shall be

confined to the possessor’s place of business, residence, or

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sojourn” (emphasis added)); HRS § 134-27(a) (restricting the

possession of ammunition based on HRS § 134-5 and § 134-9).

HRS § 134-25(a) and § 134-27(a) do not graze Wilson’s

Second Amendment right. Because he has no standing, Wilson’s

constitutional challenge to HRS § 134-9, Hawaiʻi’s licensing law,

fails. See supra section III.A.2.

The circuit court erred by dismissing the place to keep

offenses, HRS § 134-25 and § 134-27. Those laws do not violate

Wilson’s constitutional rights under article I, section 17 or

the Second Amendment.

IV.

We vacate the circuit court’s Order Granting Defendant’s

Motion to Dismiss Counts 1 & 2 and remand to the Circuit Court

of the Second Circuit.

Richard B. Rost /s/ Mark E. Recktenwald for appellant /s/ Sabrina S. McKenna Benjamin E. Lowenthal /s/ Todd W. Eddins for appellee /s/ Faʻauuga L. Toʻotoʻo /s/ Trish K. Morikawa