It seems self-evident that the Constitution would apply in all U.S. states and territories, but according to the High Court of American Samoa, the Second Amendment is utterly meaningless in the territory.
Two years ago, the Court concluded in a case called Wiesner v. Fainu’ulelei that recognition of the Second Amendment would be “impracticable and anomalous” given American Samoa’s history of gun restrictions and its status as an unincorporated territory.
Michael R. Davis, the founder and executive director of the Article III Project, says there’s a way to rectify the High Court’s error: remove and replace every one of the judges and justices on the court who refused to recognize the right to keep and bear arms.
American Samoa differs judicially and in other ways from the other territories. No statute grants birthright citizenship to those born in American Samoa, unlike every other territory. American Samoa also has no federal court, unlike other territories. The High Court of American Samoa serves as the ultimate judicial authority in that territory. 48 U.S.C. § 1661 vests the president with civil, military and judicial control over American Samoa. A 1951 executive order by President Harry Truman delegated authority over the territory to the secretary of the interior. Article III, Section 3 of American Samoa’s territorial constitution grants the secretary of the interior the power to appoint justices to the High Court. These justices serve no life tenure, unlike federal judges who serve during good behavior. The secretary can remove American Samoa justices without cause and appoint replacements without Senate confirmation.
And that’s exactly what Davis wants to see. He believes President Trump and Interior Sec. Doug Burgum should replace the justices on the High Court of American Samoa with individuals who understand that the Second Amendment applies there too.
No lawsuit is even necessary in American Samoa. The broad authority Congress granted the president under Section 1661 empowers President Trump and Secretary Burgum to overrule this egregious decision. Federal courts have upheld this overruling authority in several cases, though the Supreme Court has never addressed the question squarely. Beyond firing the justices and appointing new ones who respect the Constitution, President Trump should make clear in an executive order that the Second Amendment applies with equal force in American Samoa as it does in states and other territories.
I’m not a big fan of court-packing, especially with an eye towards getting a particular outcome in some cases, but I’m also not in favor of any U.S. court, territorial or not, reaching the conclusion that the Second Amendment is essentially meaningless. As Davis says, if the High Court of American Samoa ever decided that the First Amendment is meaningless there, “justifiable outrage would follow, even though American Samoa is only a territory.”
The Second Amendment is at least as important as the freedoms protected by the First Amendment, and if replacing the judges on the High Court is the only way to ensure that’s the case in American Samoa, then Burgum really should clean house.
There are still some important questions, though. The High Court of American Samoa consists of a Chief Justice and Associate Justice, who are appointed by the Sec. of the Interior, as well as five Associate Judges who are appointed by the governor of the territory. The Interior Secretary clearly has the power to remove the justices, but does not have any explicit statutory authority to remove the associate judges. That explicit authority is held by the Chief Justice of the High Court.
So, can Burgum swap out the entirety of the High Court? Probably, but it wouldn’t be easy and would almost certainly spark a complicated court fight. Federal courts have held that the territory is under the “plenary authority” of the Sec. of the Interior, so Burgum could conceivably replace the Chief Justice with someone who would then remove the associate judges. Still, Burgum would probably also have to remove and replace the governor with an official who would only appoint associate judges that recognize the Constitution still applies in American Samoa, including our right to keep and bear arms.
At that point, it might be easier for Congress to just organize a territorial government for American Samoa, which would extend American citizenship to residents and remove any doubt that the U.S. Constitution is the supreme law of the land.
I’m okay with either approach, so long as the residents of American Samoa get to exercise their right to keep and bear arms. Heck, I’d even be willing to serve as an associate judge for a couple of years, so long as my lack of a law degree and license isn’t too much of an impediment and I can bring my dogs and my guns with me. Pack the High Court of American Samoa or end its status as the only unincorporated and unorganized U.S. territory, but the Trump administration needs to do all it can to ensure that the Second Amendment’s protections extend across the Pacific to American Samoans too.
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