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

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Last week, the Hawaii Supreme Court ruled

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

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

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

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

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

This isn’t something judges are well-equipped to do, argued the Hawaii court. “Judges are not historians. Excavating 18th and 19th century experiences to figure out how old times control 21st century life is not a judge’s forte.” Nor should history be seen as the only relevant consideration, the court contended. “History is messy. It’s not straightforward or fair.”

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

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

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

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.) A trend of more states embracing primacy is potentially a very big deal.

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





A Constitutional Right to Abortion in Pennsylvania?

The Pennsylvania Supreme Court late last month took a step toward — possibly — finding a fundamental right to abortion in the state’s constitution. Two articles tackle the court’s ruling, which overturned a dismissal of a challenge to a ban on Medicaid-funded abortion. In the first, Professor Bruce Ledewitz of Thomas R. Kline School of Law of Duquesne University explores whether the state high court will declare the state constitution protects abortion. He unpacks the recent decision, and argues that if the case returns to the court “with the funding exclusion struck down without the establishment of a state constitutional right to abortion,” the votes necessary to find such a right “might prove elusive.” Read more

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Next, David S. Cohen, professor at Drexel University Thomas R. Kline School of Law and counsel for the plaintiffs, weighs in on the import of the decision. He notes that court relegated “to the dustbin of history” damaging precedent from 1985, which held that a ban on Medicaid funds for abortion did not violate the state constitution. In so doing, it “reinvigorate[ed] the state’s Equal Rights Amendment to be used in future cases.” He calls the decision "an incredible victory for reproductive rights and sex equality in Pennsylvania”. Read more

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When SCOTUS Borrows from State Supreme Courts

It’s no secret that state high courts frequently look to U.S. Supreme Court interpretations of the federal Constitution to inform state constitutional interpretation. But, writes University of Pittsburgh School of Law Vice Dean Jerry Dickinson, sometimes it’s the other way around. “When the U.S. Supreme Court struggles to find an appropriate source or applicable precedent when addressing vexing questions of federal constitutional law,” he explains, “it sometimes turns to state supreme courts for guidance.” Read more

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Covid-19 Litigation Addresses Scope of State Takings Law

Robert H. Thomas, the director of property rights litigation at the Pacific Legal Foundation, looks at the application of state takings clauses in cases challenging Covid-19 restrictions. The Washington Supreme Court, he writes, issued a takings decision that “fell well below the ‘floor’ established by the U.S. Constitution.” Now, he says, Michigan has “the opportunity to confirm that the Michigan Takings Clause recognizes greater protections than its federal counterpart — an opportunity it should take.” Read more

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Unpacking the Legal Challenges to Trump’s Ballot Eligibility

As the U.S. Supreme Court reviews Trump v. Anderson, an appeal of the Colorado Supreme Court decision barring Donald Trump from inclusion on that state’s primary ballot, the Brennan Center’s Kathrina Szymborski Wolfkot does a deep dive into the similar actions filed across 32 states. “As for the nearly two dozen cases that have come out in Trump’s favor,” Wolfkot writes, “almost all have been dismissed either because of state election procedures or because a court held the plaintiff lacked standing.” Read more

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Abortion on the Ballot in 2024

The U.S. Supreme Court’s 2022 ruling in Dobbs v. Jackson Women's Health Organization has led to efforts around the country to establish, clarify, or expand state-level abortion rights by amending state constitutions. The Brennan Center’s Erin Geiger Smith explains exactly where efforts around abortion-related ballot measures stand. “As many as 14 states could have abortion-related constitutional amendments on the ballot this year,” she writes. Read more

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Scrutinizing Laws that Restrict Voting

The Brennan Center’s Eliza Sweren-Becker unpacks cases in Idaho and Kansas that raise the question: What level of scrutiny should courts apply to voting restrictions? “Lower courts in both cases agreed that the right to vote constitutes a fundamental right under their state constitutions,” explains Sweren-Becker. “But they diverged in ways that showcase different perspectives on both voting restrictions and the role that federal law should play in state court.” Read more

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South Carolina Weighs Execution Methods

As the drugs needed for execution by lethal injection become increasingly hard to obtain, states are turning to antiquated, painful, and sometimes untested methods to kill people on death row. The Brennan Center’s Kathrina Szymborski Wolfkot and Jamie Muth highlight a case pending before the South Carolina Supreme Court challenging two such methods of execution — electrocution and firing squad — under the state constitution. At the heart of the dispute, they explain, is whether a South Carolina provision barring cruel, unusual, or corporal punishment is more protective than the federal Eighth Amendment. Read more

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What Else We’re Watching

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

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Notable Cases

Idaho State Athletic Commission v. Office of the Administrative Rules Coordinator

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, Idaho Supreme Court

Unanimously dismissed the Idaho Athletic Commission’s challenge to a law requiring legislative preapproval of certain agency rules. // Mountain States Policy Center

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Knopp v. Griffin-Valade

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, Oregon Supreme Court

Rejected a challenge to the secretary of state’s interpretation of a 2022 ballot measure, which disqualifies state legislators from seeking reelection if they accrued more than 10 unexcused absences, as applying to the legislator’s next term of office (and not one term later). The challenge was brought by Republican senators who participated in a six-week walkout in the 2022 session. // Portland Tribute

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Forward Montana v. State

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, Montana Supreme Court

Reversed a trial court’s denial of attorney’s fees to private plaintiffs who prevailed in a challenge to the legislature’s enactment of a bill that violated state constitutional provisions. // Daily Montanan

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

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