State Supreme Court takes to Task the U.S. Supreme Court
As you read this Slate article, this is something I was also thinking about. How did SCOTUS arrive at its decision and what was the basis or history supporting its decision? SCOTUS was interpreting what they thought it should be. Thomas was telling judges to study the history of gun control before they arrive at a decision. The discussion centers around militia and right of individuals to bear arms. Read on . . .
A State Supreme Court Just Issued Another Devastating Rebuke of the U.S. Supreme Court, msn.com, Dahlia Lithwick and Mark Joseph Stern.
The Hawaii Supreme Court handed down a unanimous opinion on Wednesday February 7th, declaring Hawaii’s state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. 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.
Now, I’ll note that there’s a big difference between the Pennsylvania and Hawaii cases. In Pennsylvania, the court can expand rights under its state constitution to encompass reproductive autonomy beyond what the U.S. Supreme Court held in Dobbs. Here, though, the Hawaii Supreme Court’s opinion will have limited reach, because gun advocates can still run to federal court and imperil any gun safety law under the sun. But what I think Justice Eddins is saying is: We will not be a part of that. We refuse to be complicit in this distortion of history that is killing us, that’s making us less safe and less free. We have an independent duty to interpret our own state’s constitution, and it guarantees a kind of liberty that’s very different from the paranoid armed society that SCOTUS sees as the pinnacle of liberty.
I think that’s powerful, even though it has limited effect. It could inspire other courts. I feel like these state judges are in conversation with each other about developing an alternate vision of the law that can thrive in state judiciaries. As SCOTUS moves in the wrong direction, they’re showing us what the right direction might be, and giving us a little hope for the future.
AB: Some thoughts about Hawaii’s Justice Todd Eddins interpretation on the history of gun control. It is a good discussion piece if you do not go full bore nuts on the topic either way.
Hawaii Supreme Court rebukes U.S. Supreme Court in devastating terms. (slate.com)
(One recalls that SCOTUS was largely influenced by Justice Scalia on this issue, and he was something of a Gun Aficionado. One may also doubt that the current SCOTUS cares much about Hawaii’s court on this matter.)
As I read this article I was thinking, wouldn’t it be nice to be able to get back to discussing, debating, and attempting to find solutions to some of our most pressing problems and issues? Instead, a majority of our elected leaders from one party, ignore solving the major issues of the day and find themselves bogged down in a quagmire of power-based, money-centric, political minutia, lies, and distortions that satisfy only their personal aspirations and senses that have lost sight and vision of anything but their next day in office.
What? Hawaii cannot overrule SCOTUS lol
This is just laughable.
John:
Why? Is SCOTUS going to invade them? It will be interesting to see what power SCOTUS has to enforce its ruling.
Bill,
They have the power to overrule state court rulings on the issue, such as convictions for violating state gun control laws.
Jack:
What are they going to do if Hawaii refuses?
Refuses what; to release the defendant? I suppose Hawaii could pull a Texas and try to secede. I don’t think it would have any more success than Texas did in 1861. You think Hawaii’s police would want to mount armed resistance to U.S. Marshals and military? I don’t think so.
Jack:
There is no victim as of yet. Nothing was done in Texas as of yet of major consequence. So do you think they be far more aggressive with an island State? They just say no.
Bill,
The test would come once Hawaii passes a law inconsistent with the Supreme court’s holding and tied to enforce it. The same thing sill be true in Texas if it tries to physically interfere with the Border Patrol.
Self Defense against the lawless criminal and the tyrannical Administrative State is the reason for private gun ownership.–Check out locations in the world where private gun ownership is not allowed—
Straight out of Heritage.
No, back when the Second Amendment was enacted, it was to be able to quell uprisings like Indians, bootleggers, and slaves.
Please go read the Constitution before making the comment you made because your comment literally made you look ignorant.
Second Amendment was there for protecting yourself from a tyrannical government as well. Please know what you are talking about before commenting.
Mrs G:
“as well” kind of disqualifies the earlier part of the statement. In other words, you added to Jack’s statement. The right to bear arms is not absolute and is subject to reasonable regulation.
Usually, people claim this assertion to be from Thomas Jefferson. Never made a comment asserting such. Jack and I are both xmilitary and lived with our weapons.
@Mrs G,
The Second Amendment provides for a well regulated militia to attack the federal government? Seriously?
The purpose of the 2nd Amendment was to prevent the US from having to maintain a standing army. That purpose is long past, and the notion that ammosexual amateurs with their popguns could successfully oppose the world’s most powerful military is so ridiculous it would make a dog laugh.
Mrs G
I am sorry you use the same sort of rhetoric I use myself from time to time. Makes me realize how ignorant that makes me seem.
probably none of us, even those who read the constitution for a living. can make a compelling case for what the 2nd amendment means or ought to mean in this day and age.
I tend to agree with Haskell below. I am not sure he would go as far as I go toward “reasonable regulation” that honors the fears and wishes of people who want to keep their guns, as well as the people who would like to keep semi automatic weapons out of the hands of mass murderers. I think it could be done, but probably not by us as long as we elect congresspeople who prey on our emotions and love of One Big Answer to every question.
actually it turns out to be “Haskell above” @ 11:43 am Feb 13
what seems clear to me is that we are now in the hands of a supreme court and republican party who are partisan to the point of crime and even treason.
they claim to be true to what the “founders intended’ because that is easer to game than being true to present day needs and opinions, including the widespread opinion that what the founders intended was maximum personal freedom consistent with having to protect each other from violent enforcement of and by each person’s view of ultimate truth.
so the present court looks to the middle ages for its precedents when witches were murdered by the state…and a population made hysterical by “religious” charlatans…instead of a constitution written and further construcited to promote “civil rights” of the people against the State, the states, and factions willing to use force to get what they want.
there does not appear to be an obvious “constitutional” way to defeat this conspiracy. no constitution, however perfect can prevail when the “officers” of the government are men of bad faith.
we did make some progress against that kind of government in the sixties. we, the people, may need to do it again.
@WJ,
LOL! Your little popgun will be useless against the most powerful military on the planet!
Of course, nobody is talking about outlawing private ownership of guns except the NRA, which has duped the ammosexual rubes into believing they have to wear a prosthetic penis everywhere.
If you’re part of the MAGA bunch, the law only applies if it agrees with you. Otherwise, you say “Shove it!”
Richard Groves: So, do states have the right to say no to Supreme Court decisions they don’t like?
When asked by CNN’s Jake Tapper whether “elected officials should just ignore rulings from the U.S. Supreme Court with which they disagree,” Oklahoma Gov. Kevin Stitt (R) said, “We all agree that the Constitution is the supreme law of the land. And if the Supreme Court gets something wrong — for example, if they tried to ban and say that we didn’t have a Second Amendment right to bear arms — I think the Constitution supersedes somebody in Washington, D.C., telling us, you know.”
Presumably, the “somebody in Washington, D.C.” is the Supreme Court.
Twenty-five Republican governors issued a statement assuring Gov. Greg Abbott that they had his back in this struggle between state and federal jurisdiction. They said: “We stand in solidarity with our fellow Governor, Greg Abbott, and the State of Texas in utilizing every tool and strategy, including razor wire fences, to secure the border.”
there’s your problem, half the country believe we still live in the middle ages. they don’t give a damn about your rights, or human rights , only their right toshoot you or hang you or drown you in the river with razor wire wrapped around your neck and your children’s necks.
that’s the country we live in. and our holier than thaou rhetoric has no effect on them.
so we need to think of something better.
one thing i think is funny is that some on the left like to say an AR 15 has no civilian uses, including as a hunting gun. of course it doesn’t, but who are they talking to? the gun nuts explicitly are not talking about civilian use..they are talking about a military need to defend themselves agains government tyranny…they don’t think they will have to fight the U.S. Army, or even the local police.
States’ rights have been “tried” a few times: nullification in S Carolina, secession in 1860-61.
Both trials went adverse to states’ rights.
Might be different in the 21st century?
The 10th is the problem.
Excellent. May many another state follow suit.
mark stern finally gets around to what i was thinking, but he draws the opposite conclusion:
after using history to debunk the Court’s use of history, instead of finding that self-contradictory he “loves” that Hawaii finds the use of history meaningless to the decision.
I personally agree that the use of history is problematic . . . we need to consider the present day implications of our own understanding of individual rights and the general welfare. But we also have to begin somewhere with our reasoning, and the law does need to start with the law as it is… or we end up with no law at all. we also…need to make explicit what is implied by what I just said… we also need to consider the present day political impact of the changes in the law that we advocate.
so, for what it is worth, i personally hate guns and wish the gun owners would go away or at least stop behaving in a manner that feels threatening to me and my kids and my dogs. but i also prefer the government stay out of personal decisions that don’t meaningfully affect the general welfare. by “the government” here, i mean “us”…we should mind our own business until something really matters and then make the least interference with the other guy’s right to his own stupid opinions as we can.
i won’t draw the obvious (to me) conclusion that this leads me to…because it would only provoke more hate from the people who very strongly disagree with me about this.
typo
we need to make explicit not “no make explicit”
Ableman v. Booth, 62 U.S. 506 (1859)
Dobbs
I’d be glad to ignore any aw I think is unjust or endangers our Freedom
But I’m not sure I’d be glad to let you make the same decision for yourself.
Lincoln was prepared to ignore Dred Scott, but look what happened next. I think Lincoln was right. But we need to remember what Thomas More said [in the play Man For All Seasons”:
“William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
― Robert Bolt, A Man for All Seasons: A Play in Two Acts