Earlier this year, the Hawaii Supreme Court gutted its state constitutional provision protecting the right to keep and bear arms, at the same time using clever standing arguments under Hawaii state law to dodge a related Second Amendment issue. When defendant Christopher Wilson appealed to the United States Supreme Court, the Goldwater Institute, along with our friends at The Buckeye Institute and the Kansas Justice Institute, filed an amicus brief asking the federal high court to step in and protect Wilson’s Second Amendment rights.
Although the court this week declined to get involved—yet—on procedural grounds, three justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) issued statements making clear that they are displeased with the Hawaii court’s “second-class” treatment of the Second Amendment, and keeping the door open for the case to potentially return if the Hawaii Supreme Court does not change course.
Although Wilson’s case is somewhat complicated procedurally, the facts are not.
In 2017, Wilson and a group of friends went for a hike on the island of Maui and unknowingly ended up on private property. The owner (himself armed with an AR-15 rifle, riding an ATV, and accompanied by other men) called the police and detained the hikers until officers arrived. Wilson was carrying a .22 LR caliber pistol without a license, which he voluntarily informed the officers. He was arrested and charged with misdemeanor trespass and weapons violations, including carrying a firearm and ammunition in public without government permission.
While Wilson’s criminal case was pending, the United States Supreme Court issued its Bruen decision, which reiterated that the United States Constitution “protect[s] an individual’s right to carry a handgun for self-defense outside the home.” Mr. Wilson’s public defense attorneys moved to dismiss some of the charges on that ground (the second time they had done so, as a pre-Bruen motion had been denied). The trial court agreed, but then prosecutors immediately filed what lawyers call an “interlocutory appeal” with the Hawaii Supreme Court, which just means that they appealed the trial court’s decision before the case had fully concluded.
As Goldwater previously explained, the Hawaiian high court rejected the Bruen analysis and said that in Hawaii, “[t]he spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” Importantly, the state supreme court avoided squarely deciding Wison’s Second Amendment defense by saying he did not have legal standing because he did not actually apply for a license under the state’s firearm permitting statutes.
But as Justices Thomas and Alito noted this week, the Supreme Court in Bruen “singled out Hawaii’s firearms-licensing regime as ‘analog[ous]’ to the New York regime” found unconstitutional in that case, and the “Hawaii regime’s obvious constitutionality [is] why the Hawaii Legislature has since amended” the law.
Our friend-of-the-court brief emphatically stated that, “a person does not have to apply for a license before challenging an unconstitutional licensing scheme.” In other words, Wilson had legal standing to challenge Hawaii’s licensing laws on constitutional grounds because he was criminally charged with violating unconstitutional requirements.
Justices Thomas and Alito appear to agree, explaining that even though state standing law can sometimes preclude federal judicial review, that only works if the standing rules are “constitutionally proper,” which is not true here. They went on to say that “[b]y invoking state standing law to dodge Wilson’s constitutional challenge, the Hawaii Supreme Court failed to give the Second Amendment its due regard,” and that “[h]ad the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent,” a blatant critique of the rogue state court’s opinion.
The Institute’s brief also pointed out that the state supreme court tried to shield the statutory licensing requirements from review because they were supposedly separate from the specific criminal statutes Wilson was charged under. But, we explained, those criminal statutes specifically incorporated the unconstitutional licensing scheme by reference!
Justice Gorsuch picked up on this point, writing that the Hawaii Supreme Court’s attempt to separate the intertwined laws “raises serious questions” because the criminal statutes “work hand-in glove” with the licensing statute. He criticized the state court for having “failed to grapple with that argument,” and said it was “perhaps …. understandable” that Mr. Wilson would ask the United States Supreme Court to intervene at this stage.
But at least in part because “Mr. Wilson’s case has not yet proceeded to trial, let alone through the post-judgment appellate process,” the court chose to wait. That said, all three justices who issued statements this week anticipate the case could potentially return.
Justice Gorsuch suggested that the Hawaii Supreme Court could “revisit and supplement its ruling[] later in the course of proceedings,” and that “[i]f not, Mr. Wilson remains free to seek this Court’s review after final judgment.” And Justices Thomas and Alito hinted that although “correction of the Hawaii Supreme Court’s error must await another day,” perhaps Wilson may later “file a post-trial petition for certiorari.” Even if that doesn’t occur for whatever reason, the two justices recognized that “this issue is an important and recurring one” and that “this Court’s intervention clearly remains imperative, given lower courts’ continued insistence on treating the Second Amendment right so cavalierly.”
For our part, the Goldwater Institute will continue to advocate nationwide for the rights to keep and bear arms in self-defense and the defense of others. And we’ll keep tabs on Wilson’s case as it continues in the Hawaii courts.
You can read our brief here, and the justices’ statements on the case here.
Click here and here to read more about Goldwater’s efforts to protect the right to keep and bear arms. You can learn more about Goldwater’s work defending gun rights organizations here and here. And our fight to protect the rights of firearm-related businesses is highlighted here and here.
Parker Jackson is a Staff Attorney at the Goldwater Institute.
