A Closer Look at Thomas’ Takes Down of Hawaiian Supreme Court’s Rejection of Individual 2A Right

When the Hawaii Supreme Court invoked the “Law of the Paddle” and the “spirit of Aloha” to declare that there is no individual right to keep and bear arms in the state’s constitution and deprived Christopher Wilson the opportunity to raise a Second Amendment challenge to his arrest for illegally carrying a firearm, there were high hopes that the Supreme Court would deliver an epic smackdown in response to the state’s refusal to recognize a fundamental civil right. 

Wilson was arrested in 2017 and charged with misdemeanor trespassing as well as carrying a firearm without a license. But as Thomas pointed out, in the year of Wilson’s arrest, “Hawaii police granted zero licenses to private citizens”. Under Hawaii’s “may issue” laws, police chiefs could only grant a concealed carry license if the applicant demonstrated an “exceptional case,” with “reason to fear injury to person or property”, while open carry licenses required the applicant to show “urgency” or “need,” “good moral character,” and that they would be “engaged in the protection of life and property.” 

Wilson’s gun charges were dismissed by the circuit court judge who oversaw his case, but when the state appealed the Hawaii Supreme Court issued its infamous decision; ruling that Wilson could be charged with carrying without a license even though “may issue” laws had at that point been deemed unconstitutional in the Bruen decision.  

Though the Supreme Court decided to turn away Wilson’s cert petition on Monday, we did at least get a strong rebuke of the court’s actions by Justice Clarence Thomas. In a lengthy statement, Thomas (joined by Justice Samuel Alito), chided the judges on the state Supreme Court for casually disgregarding and disrespecting the right to keep and bear arms. 

The decision below is the latest example of a lower court “fail[ing] to afford the Second Amendment the respect due an enumerated constitutional right.” As this Court has repeatedly emphasized, “[t]he constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” So, the Hawaii Supreme Court cannot single out the Second Amendment for disfavor, even if it does not believe that “right is really worth insisting upon.” 

By invoking state standing law to dodge Wilson’s constitutional challenge, the Hawaii Supreme Court failed to give the Second Amendment its due regard. To be sure, a state law standing determination ordinarily is an adequate and independent state ground precluding our review. But, as this Court has elsewhere recognized, only “constitutionally proper” rules can create adequate and independent state grounds.

The Hawaii Supreme Court should have asked the threshold question whether the Second Amendment allows state standing law to restrict the defenses that criminal defendants facing firearms-related charges may raise. The answer is “no,” as our case law on constitutional challenges to licensing regimes makes clear. 

Thomas went on to berate the Hawaii Supreme Court for holding that Wilson “lacked standing to attack the constitutionality of the ordinance because [he] made no attempt to secure a permit under it”, reminding the judges that when the ordinance facially violates the Constitution, state-level standing isn’t nearly adequate enough to turn away the challenge. 

Had the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent. We have made clear that the Second Amendment is a right “guaranteed to all Americans,” whose exercise cannot be conditioned on a showing of “special need.” Yet, in restricting license eligibility to Hawaiians with “‘exceptional case[s],’” or who otherwise could show special “urgency” or “need,” the Hawaii regime did just that. Hawaii’s onerous restrictions closely paralleled those in the New York regime we held unconstitutional in Bruen. 

The Hawaii regime’s obvious unconstitutionality may be why the Hawaii Legislature has since amended the State’s licensing statute to create a “shall issue” regime, at least for concealed carry. The new regime allows any applicant who meets certain baseline requirements to obtain a license without any “special need” limitation.

Had the Hawaii Supreme Court followed the legislature’s lead and tried to give effect to our Second Amendment jurisprudence, it would have found the licensing regime at issue unconstitutional and upheld the dismissal of Wilson’s public-carry charges. The court’s contrary path “resist[s] our decisions,” and demotes the Second Amendment to a “second class right”. This Court cannot tolerate “such blatant defiance” in any constitutional context.

Given Thomas’ ire at the Hawaii Supreme Court’s actions, why did he agree that Wilson’s case shouldn’t be heard by SCOTUS, at least for now? The justice argues that the defendant is seeking “review of an interlocutory order over which we may not have jurisdiction”, but added “[i]n an appropriate case, however, we should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.” Thomas suggested that Wilson himself could raise this issue once again by filing post-trial petition for certiorari.

Thomas and Alito’s denouncement isn’t as satisfying as, say, a 9-0 decision overturning the Hawaii Supreme Court, but it’s a start. And if the state Supreme Court continues to thumb its nose at the Second Amendment, the epic smackdown we’ve been waiting for may yet take place.