# Gun Control (again...but topical): Hawaii Supreme Court Declares Second Amendment Infringes on the ‘Spirit of Aloha’ **URL:** \ **Category:** Great Debates\ **Created:** [February 9, 2024, 6:55am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343 "2024-02-09T06:55:15Z")\ **Posts on this page:** 13\ **Page:** 3
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 11, 2024, 2:39am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/41 "2024-02-11T02:39:58Z")
> [@DrDeth](#): > > When/if he appeals to the US Supreme court, then we will see. That depends if there is a federalism issue, on the facts of the Hawai’i case. If it was decided solely on state law, no appeal lies to the Supreme Court of the US. From my brief skim, it appears that the accused tried to raise a 2nd amendment issue, but the Hawai’i courts held that he didn’t have standing, in this particular case, to raise the federalism issue, based on the nature of the state laws in issue. I don’t know enough to speculate as to whether that standing decision would be the basis for a successful cert application. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 11, 2024, 3:21am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/42 "2024-02-11T03:21:15Z")
> [@Babale](#): > > The federal government cannot tell a state it is misinterpreting its own constitution. That’s not its jurisdiction. Yes, but if that interpretation violated the Federal constitution SCOTUS certainly can. > [@Northern\_Piper](#): > > That depends if there is a federalism issue, on the facts of the Hawai’i case. If it was decided solely on state law, no appeal lies to the Supreme Court of the US. State laws have been overturned several times by SCOTUS, such as Heller. [https://supreme.justia.com/cases/federal/us/554/570/](https://supreme.justia.com/cases/federal/us/554/570/) [https://supreme.justia.com/cases/federal/us/577/411/](https://supreme.justia.com/cases/federal/us/577/411/) # Caetano v. Massachusetts _The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment,” that stun guns are “dangerous per se at common law and unusual,” and that “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” The U.S. Supreme Court, per curiam, vacated, reiterating that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that it has rejected the proposition “that only those weapons useful in warfare are protected.”_ So that is an example of the US Supreme court overriding a State supreme court on that states own laws. In other words, if the State of Florida passed a law making slavery legal, and the Florida Supreme court upheld it, the US Supreme court would knock it down. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 11, 2024, 3:26am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/43 "2024-02-11T03:26:48Z")
Yes, I know. But the initial question is whether a federal issue was raised earlier in this case. If the Hawai’i Supreme Court decided the case solely on state law, and correctly decided that the accused did not have standing to raise the federal issue on the facts before them, on what basis could the Supreme Court of the US hear an appeal? It doesn’t have original jurisdiction ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [February 11, 2024, 4:52am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/44 "2024-02-11T04:52:09Z")
> [@DrDeth](#): > > > [@Babale](#): > > > > The federal government cannot tell a state it is misinterpreting its own constitution. That’s not its jurisdiction. > > Yes, but if that interpretation violated the Federal constitution SCOTUS certainly can. Can _what_? It can_not_ say “you misinterpreted Hawaii law”. It _can_ say, “that interpretation of Hawaiian law violates _the federal constitution_”. Those are two different things. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [February 11, 2024, 5:46am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/45 "2024-02-11T05:46:44Z")
> [@Babale](#): > > > [@DrDeth](#): > > > > > [@Babale](#): > > > > > > The federal government cannot tell a state it is misinterpreting its own constitution. That’s not its jurisdiction. ⁢ > > > > Yes, but if that interpretation violated the Federal constitution SCOTUS certainly can. ⁢ > > Can _what_? > > It can_not_ say “you misinterpreted Hawaii law”. > > It _can_ say, “that interpretation of Hawaiian law violates _the federal constitution_”. > > Those are two different things. ⁢ They’re conceptually different, but, based on what is said here, it seems the result is the same–the law is unable to be enforced if it is deemed to violate the federal constitution, regardless of what the Hawaiian constitution says. So the actual effect is as if the federal interpretation of the federal Constitution overrides the state interpretation of the state constitution. ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [February 11, 2024, 5:50am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/46 "2024-02-11T05:50:49Z")
> [@BigT](#): > > They’re conceptually different, but, based on what is said here, it seems the result is the same–the law is unable to be enforced if it is deemed to violate the federal constitution, regardless of what the Hawaiian constitution says. Yes, obviously that is correct. I never said otherwise. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 11, 2024, 6:45am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/47 "2024-02-11T06:45:35Z")
> [@Falchion](#): > > But, then again, so is the premise of the thread, I think. > > The Hawaii opinion is [here](https://www.courts.state.hi.us/wp-content/uploads/2024/02/SCAP-22-0000561.pdf). The Hawaii Supreme Court was interpreting the Hawaii Constitution. The language of the Hawaii Constitution is identical to the federal constitution and, ordinarily, you would expect a state court to look at and apply federal court interpretation of analogous state law provisions, but I’m not sure there is any _requirement_ that they do so. There’s no requirement, nor could there be. And several states have very active state constitutional jurisprudence. More states should, in my view. It’s particularly odd to me when states decide to construe state constitutional provisions in lockstep with federal ones on the same subject, even when the provisions have completely different wording. Or, as with Hawai’i, adopted the provision at a very different time. Why would you look to the 1790s to figure out what the framers of the Hawai’ian constitution intended when it was drawn up in 1949, or approved by voters in 1950? > [@DrDeth](#): > > When/if he appeals to the US Supreme court, then we will see. SCOTUS has struck down several gun controls laws that the state thought was perfectly legal. They won’t and cannot do it by overruling the state supreme court’s construction of its own constitution. The supremacy clause means that the federal right is a floor. In this case, the state constitution would not be equally or more protective, so it is the federal right that ends up setting the limit. But they are the laws of separate sovereigns. The US Supreme Court has no say about what state laws mean. All that the US Supreme Court can do is say when a state law falls below a US constitutional standard, which means that the law cannot be enforced. > [@DrDeth](#): > > Yes, but if that interpretation violated the Federal constitution SCOTUS certainly can. No, it can’t. It can only decide if the state law, as construed by the _state’s_ supreme court, violates the 2nd Amendment of the US Constitution. > [@BigT](#): > > They’re conceptually different, but, based on what is said here, it seems the result is the same–the law is unable to be enforced if it is deemed to violate the federal constitution, regardless of what the Hawaiian constitution says. > > So the actual effect is as if the federal interpretation of the federal Constitution overrides the state interpretation of the state constitution. There are important distinctions. It doesn’t override the construction of the state constitutional provision. The 2nd Amendment, via the Supremacy Clause, sets the floor of how much the right must be protected. States can be more protective of a right than the US Constitution. This kind of thing can be profoundly important, as can be seen by the overturning of _Roe_. In some states, there is a preexisting and independent state right to privacy or other provision that is equally or more protective to people in that state. For those people, the protection was seamless. Not a mad scramble to see what laws were still on the books that might retake effect. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 11, 2024, 6:52am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/48 "2024-02-11T06:52:37Z")
> [@eschrodinger](#): > > No, it can’t. It can only decide if the state law, as construed by the _state’s_ supreme court, violates the 2nd Amendment of the US Constitution. Which is what I said. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 11, 2024, 8:27am UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/49 "2024-02-11T08:27:16Z")
> [@Babale](#): > > The federal government cannot tell a state it is misinterpreting its own constitution. That’s not its jurisdiction. That is what you were responding to. Then you said this. > [@DrDeth](#): > > Yes, but if that interpretation violated the Federal constitution SCOTUS certainly can. That is not the same thing I said. The state constitution doesn’t violate the federal constitution; in this context, it \*can’t \*. It just doesn’t separately provide the protection that the federal constitution does on that particular point, and it doesn’t have to. The state statute is invalidated by the federal constitutional right (if it’s invalidated at all). And if the US Supreme Court does not disagree with the Hawai’ian Supreme Court about the defendant’s standing, then there will be no basis for the US Supreme Court to get involved at all. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [February 11, 2024, 5:21pm UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/50 "2024-02-11T17:21:20Z")
> [@DrDeth](#): > > > [@Ulysses](#): > > > > The Supremacy Clause is immaterial to a state supreme court’s interpretation of its own state’s constitution. > > When/if he appeals to the US Supreme court, then we will see. SCOTUS has struck down several gun controls laws that the state thought was perfectly legal. As others (@Northern_Piper, @Falchion, @eschrodinger, and @Babale) also noted, SCOTUS defers to state court interpretations of their own state constitutions. WRT a petition to SCOTUS on a Second Amendment basis, it’s doubtful it would even grant cert, as the Hawaii Supreme Court’s ruling is consistent with SCOTUS’s (and other federal courts’) case law, including recent cases like _Heller_ and _Bruen_. The defendant was charged with improperly keeping a firearm and ammunition (he was concealed carrying without a permit and had never even sought one), and failing to obtain a permit to acquire said firearm. He wants to extend the rulings in _Heller_ and _Bruen_ to provide a federal constitutional right to acquire and concealed carry an unregistered firearm without a permit or background check. Citing _Bruen_ itself (among other cases), the Hawaii Supreme Court correctly noted that the SCOTUS has held that the Second Amendment guarantees no such right (emphases mine): > We also hold that HRS § 134-25(a) and § 134-27(a) do not violate the Second Amendment to the United States Constitution. “[T]he right secured by the Second Amendment is not unlimited. . . . **[T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, 597 U.S. at 21.** States retain the authority to require that individuals have a license before carrying firearms in public. Id. at 79-80 (Kavanaugh, J., concurring) **(“[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self defense.”)**; Antonyuk v. Chiumento, 89 F.4th 271, 312 (2d Cir. 2023) (“Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this nation’s history and tradition of firearm regulation and therefore in compliance with the Second Amendment.”). Wilson (the defendant) argues for something quite radical: an end to laws concerning firearm registration and permitting (and, by extension, background checks). Notwithstanding SCOTUS’s recent reinterpretations of the Second Amendment, the Court is unlikely to embrace those arguments given its express recognition of limits on the Second Amendment that include registration and permitting requirements in _Heller_ and _Bruen_ (in an opinion and concurrence written, respectively, by Justices Scalia and Kavanaugh, no less). Moreover, as others noted, the defendant likely lacks standing to challenge permitting and registration laws. He was never denied a permit to acquire, register, or carry a firearm because he never applied for any of them. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 11, 2024, 7:56pm UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/51 "2024-02-11T19:56:20Z")
> [@Ulysses](#): > > SCOTUS defers to state court interpretations of their own state constitutions. (Not criticizing, just a jumping off point.) It’s not just deference, it is jurisdictional. Granted, in this case, the 2nd Amendment is at issue, so the Supreme Court could take up the case if they wanted to. But they could not decide to provide their own construction\* of Hawai’i’s constitution. And if the US Supreme Court got involved but agreed with Hawai’i that the defendant lacked standing to bring the 2nd Amendment challenge, that’s where the decision would end because there would no longer be a federal question. In a case that involves only construction of state laws and the state constitution, there is no basis for Supreme Court jurisdiction. It’s worth noting here also that the Supreme Court generally defers to state courts’ rules of preservation. So if a defendant did not argue based on the 2nd Amendment until after one or more stages of the case we’re complete, the defendant raising that argument at a late stage would not typically create Supreme Court jurisdiction. \*This is a bit of a legal term of art. It’s the noun form of “construe.” I tend to not use “interpretation” because I think construction is more accurate and has a better connotation. Also, @Ulysses, thanks for your contributions here. Nice to see more posters providing good legal analysis with citations, etc. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [February 11, 2024, 8:19pm UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/52 "2024-02-11T20:19:13Z")
> [@eschrodinger](#): > > Granted, in this case, the 2nd Amendment is at issue, so the Supreme Court could take up the case if they wanted to. But they could not decide to provide their own construction\* of Hawai’i’s constitution. Right. ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [February 11, 2024, 8:28pm UTC](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343/53 "2024-02-11T20:28:13Z")
@eschrodinger Agreed. Was paraphrasing given that you and other posters had thoroughly addressed why SCOTUS cannot overrule a state supreme court’s application of its state constitution. And thanks for the kind words. 🙂 [Previous page](https://boards.straightdope.com/t/gun-control-again-but-topical-hawaii-supreme-court-declares-second-amendment-infringes-on-the-spirit-of-aloha/997343.md?page=2)