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The 2A Case That SCOTUS Might Not be Able to Resist

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Since Bruen was decided almost two years ago, the Supreme Court has turned away every gun control challenge presented by Second Amendment advocates. Sure, most of those cases were submitted before final judgment, and SCOTUS has accepted several cases brought by the DOJ, but there are a lot of gun owners who are understandably frustrated that the Court has been unwilling to step in and smack down post-Bruen carry restrictions, bans on commonly owned firearms, and other infringements that are having a daily impact on millions of Americans. 

A cert petition just filed with the Supreme Court may prove to be irresistible to at least four of the justices, however. The case is known as Wilson v. Hawaii, but you might remember it as the case where the Hawaii Supreme Court invoked the “law of the paddle” to declare that Hawaii’s state constitution doesn’t protect an individual right to keep and bear arms despite the fact that its language contains the almost the exact same wording as the Second Amendment. 

Christopher Wilson was convicted of the “crime” of carrying a firearm without a license back in 2017, when Hawaiian licensing authorities were routinely denying any and all concealed carry applications under the state’s “may issue” law. Wilson’s public defenders acknowledge he was bearing arms, but argue there was no chance at all for Wilson to receive a license, which is why he never applied for one. 

Mr. Wilson did not have a license to carry his pistol. That year county police chiefs throughout Hawai’i issued licenses to carry to 225 employees at private security firms. Fourteen “private citizens” applied for a concealed carry license and the police chiefs in every county denied them all. 

The fact that only fourteen residents in the entire state applied for a carry license that year is telling, especially given the surge in applications once the state’s “may issue’ regime was deemed unconstitutional. It was seen as a waste of time and money to apply for a concealed carry permit back then, but an untold number of residents may still have been carrying in the belief that their right of armed self-defense was worth the legal risk they were incurring.

A trial court actually sided with Wilson and dismissed the charges, but prosecutors appealed to the Hawaii Supreme Court, which reversed the lower court opinion and reinstated the charges against him. That was the decision crafted by Hawaii Supreme Court Justice Todd Eddins, who claimed that there is no individual right to keep and bear arms under Hawaii’s constitution. Instead, Eddins and the rest of the court maintained that any right that exists is one that can only be exercised collectively by a state militia. 

In their cert petition, Wilson’s public defender attorneys outline Eddins’ arguments, as well as his blistering attacks on the Court’s Second Amendment jurisprudence. 

It took aim at Heller,and asserted that this Court “flipped the nation’s textual and historical understanding of the Second Amendment” by recognizing the individual right to bear and keep arms. It criticized Heller’s analysis of the historical underpinnings of the Second Amendment (“History is prone to misuse. In Second Amendment cases, the Court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”). TheHawai’i Supreme Court suggested that the change came about because “interest groups advanced an individual rights interpretation of the Second Amendment.” 

The Hawai’i Supreme Court next attacked the Bruen test and this Court. (“Bruen unravels durable law. No longer are there the levels of scrutiny and public safety balancing tests long-used by our nation’s courts to evaluate firearm laws. Instead, the Court ad-libs a ‘history-only’ standard.”). According to the Hawai’i Supreme Court, Bruen forced it to “use a fuzzy ‘history and traditions’ test” and “scraps the traditional techniques used by federal and state courts to review laws passed by the People to protect people.” The Bruen test, it claimed, “dismantles workable methods to interpret firearm laws. All to advance a chosen interpretive modality.”

It claimed that originalism’s “liberty-reducing tendencies” should “not control contemporary American life.” The Hawai’i Supreme Court asserted Bruen, McDonald, and Heller “show how the Court handpicks history to make its own rules” and that the Bruen decision “undercuts the other branches’ responsibility …to preserve public order and solve today’s problems.” It charged that “Bruen snubs federalism principles.” 

The Hawai’i Supreme Court then rebuked the Government’s burden in Bruen as unreasonable and unsafe. (“Time-traveling to 1791 or 1868 to collar how a state regulates lethal weapons … is a dangerous way to look at the federal constitution.”). 

We believe it is a misplaced view to think that today’s public safety laws must look like laws passed long ago. Smoothbore, muzzle-loaded, and powder-and-ramrod muskets were not exactly useful to colonial era mass murderers. And life is a bit different now, in a nation with a lot more people, stretching to islands in the Pacific Ocean. 

The Hawai’i Supreme Court called the Bruen test a “backward-looking approach” that “ignores today’s realities.”

It accused this Court of “disabl[ing] the states’ responsibility to protect publicsafety, reduce gun violence, and safeguard peaceful public movement.” For the Hawai’i Supreme Court, “it [made] no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.” 

Since issuing his ruling, Eddins has been an outspoken critic of the Court, to the point that I suggested not long ago he’s auditioning for a role on the Supreme Court if Biden gets another term in office. In a recent interview with Slate, Eddins went so far as to claim that the Court is “destroying democracy” with decisions like Bruen

If this was only about Eddins and his attacks on the Court, it would be easy for the justices to brush off his spotlight-seeking soundbites. But when a state supreme court essentially (and unanimously) declares that the U.S. Supreme Court’s rulings in Heller, McDonald, and Bruen can and should be ignored, I’d like to think that would get the justices’ attention. 

SCOTUS likely won’t consider Wilson’s petition until it returns from its summer recess, but if they don’t grant cert to Wilson I’d be truly shocked and surprised. Unlike the earlier challenges that the Court has turned away, Wilson isn’t being appealed before judgment. The Supreme Court is the only thing standing between Christopher Wilson and a prison cell, which is reason enough for the Court to take the case, at least in my opinion. Add in the opportunity to administer a judicial swat to the judge who cited Hawaii’s “law of the paddle” in rejecting Wilson’s Second Amendment argument, and this case will hopefully be irresistible for a majority of the justices in D.C. when they get the chance to grant cert. 

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