The right to bear arms in the United States is a highly controversial topic, and I have written several blogs on that subject. It is refreshing, therefore to read that the Hawaii Supreme Court handed down a unanimous decision last week declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service.
It is refreshing because, at last, someone is actually reading the U.S. Constitution instead of falling in line with the deliberate misinterpretation of the National Rifle Association and its acolytes. The bit that the NRA conveniently leaves out is “the right to bear arms AS PART OF A FORMALLY CONSTITUTED STATE MILITIA”.
Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Mark, I know you’re eager to talk about a kind of amazing and historic Hawaii Supreme Court decision on gun rights. It’s a unanimous opinion authored by Justice Todd Eddins that flames the logic of the U.S. Supreme Court’s Second Amendment decisions. And it cuts to the core of everything we’ve ever said on this show about originalism and judging. Walk us through the case?
Mark Joseph Stern: It’s an amazing case because the Hawaii Constitution has a provision that is the same as the Second Amendment to the U.S. Constitution. It literally uses the exact same words as the Second Amendment. And Justice Eddins said: Even though the provisions are the same, we will not interpret them the same way, because we think the U.S. Supreme Court clearly got it wrong in Heller when it said the Second Amendment creates an individual right to bear arms.
Justice Eddins then pored over the immense body of scholarship and historical research that has shown, beyond a reasonable doubt, that SCOTUS was catastrophically wrong in Heller. He even quoted this great study that refutes a centerpiece of Justice Antonin Scalia’s analysis in Heller, which was the idea that the phrase “bear arms” typically meant individual use of a weapon in 18th-century parlance. Scholars have analyzed thousands of documents from that era and proved that Scalia was just objectively wrong: The phrase “bear arms” was unfailingly used in a collective context, describing a militia—which makes sense, since the Second Amendment begins by saying its purpose is to protect the militia, not an individual right to own guns.
Then Eddins’ opinion goes on to analyze the real history of guns in Hawaii. And he says: “Never have Hawaii’s people felt that carrying deadly weapons during daily life is an acceptable or constitutionally protected activity. 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.”
It’s so interesting, Mark, because this really echoes the conversation we had about the Pennsylvania Supreme Court’s discussion of Dobbs and real history—but also originalism, and who history leaves out.
Well, what’s really great about Eddins’ opinion is that it’s not just a rejoinder to Heller. It also goes on to talk about how it’s just not practical or feasible or wise to use history as your only guide to constitutional interpretation. He wrote: “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.”
I feel like we could just read chunks of this opinion into the record because it’s just such a delightful excavation of both the bad history that undergirds Bruen and Heller before it, as well as the larger project of conscripting judges into historical analysis. But I just want to read this quote from Justice Eddins: “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. History is messy. It’s not straightforward or fair. It’s not made by most. Bruen, McDonald, Heller, and other cases show how the court handpicks history to make its own rules.”
I love that two-step of saying to the U.S. Supreme Court: First, you got the history wrong, and second, even if you got the history right, this is such a distorted lens through which to determine not just rights to today but also safety today. In light of this case and the Pennsylvania abortion decision, it does feel like state courts are starting to say, Actually, we’ll look at our own constitutions, our own prerogatives, even our own competency as judges. Is this the way forward, Mark?
It’s a way forward, for sure. And Justice Eddins actually cites the great concurrence by Justice David Wecht of Pennsylvania to explain that if we’re only looking at laws from the 18th century, we’re looking at laws written by misogynistic, often slave-holding white men. And he also cites a great law review article by our friend Melissa Murray talking about how this hardcore originalist approach locks in the law at a time when it was exclusively controlled and written by racist, sexist white dudes—who could not have possibly foreseen either societal progress over the last few centuries or the technological advancements that have moved weaponry from muskets to AR-15s.
As I said at the beginning of this blog, it’s refreshing that someone in authority is actually reading the Constitution instead of parroting the NRA.
I should perhaps add here, by way of clarification, that the NRA has forced the writers of many State Constitutions to eliminate that particular phrase about “formally constituted state militias”. However, that bastardization of the U.S. Constitution does not eliminate the original’s intent. Hurrah!
