Aloha means hello and goodbye, and the Supreme Court said both, and see you later to a gun control case out of Hawaii on Monday. In Wilson v. Hawaii, the Court rejected an appeal challenging Hawaii’s gun carry law. What’s remarkable is what three conservative Justices wrote while doing so. Associate Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch engaged in rare speculation that the case would be back in the future with a different result.
Here are the particulars of this case: Christopher Wilson went for a hike with friends in the West Maui Mountains, including, inadvertently, on private lands. When police confronted and searched Wilson, they discovered his loaded pistol. Hawaii prosecutors charged him with misdemeanor criminal trespass and carrying a gun and ammunition in public without a license, as state law required. What has come after that is a series of court battles, still ongoing, likely to land back at the Supreme Court, with a favorable hearing for the defendant from the conservatives.
The trial court agreed to dismiss the unlicensed-carry charges. As Thomas wrote, “The Circuit Court recognized that Hawaii’s near-total restrictions on public carry could not be squared with Bruen [which struck down a longstanding public carry law in New York], and it accordingly held that prosecuting Wilson for unlicensed carry would violate the Second Amendment and the parallel provision in the Hawaii Constitution.” Then, the state’s supreme court reversed the dismissal. Hawaii is, perhaps, the state whose laws are most hostile to the right of the people to keep and bear arms, and the highest court in the island state is no exception.
Da Kine Gun Control
Because Wilson had never applied for and been denied a license to carry, the state supreme court ruled he had no valid basis to challenge the gun control law. That did not sit well with Justice Thomas, whom Justice Alito joined in taking the state supreme court to the woodshed, writing, “It spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court’s Second Amendment jurisprudence.” And, “So, the Hawaii Supreme Court cannot single out the Second Amendment for disfavor, even if it does not believe that ‘right is really worth insisting upon.’”
This author, who frequently reads US Supreme Court orders, cannot recall a more emphatic, direct rebuke of a state supreme court. Justices Thomas and Alito have called the Hawaii Supreme Court judges derelict in their duty to uphold the US Constitution in service of advancing their hoplophobia (irrational fear of guns). Justice Gorsuch was less critical and emphatic; nevertheless, he penned a criticism of the state court and suggested his colleagues would see the case again.
Gorsuch wrote the “decision raises serious questions” and:
“I do not mean to suggest Mr. Wilson’s Second Amendment defense has merit. I observe only that no one knows the answer to that question because the Hawaii Supreme Court failed to address it. And that failure invites with it the distinct possibility that Mr. Wilson may be convicted of, and ordered to serve time in prison for, violating an unconstitutional law.”
If these justices and others on the court agree with the petitioner, why dismiss his case? This is an interlocutory appeal, which Cornell University's Legal Information Institute defines as "an appeal of a non-final order issued during the course of litigation."
"Wilson’s case was sent down from the Hawaii Supreme Court to go back before the trial court. Presumably, he will be found guilty and again appeal to the state supreme court. Justices dislike interlocutory appeals as a rule because courts often clean up their own mess when given a long enough chance to do so. Yet, if Hawaii does not take heed of these SCOTUS justices, freeing Wilson of the charges, he will undoubtedly get a favorable reception from many at the nation’s highest court.
Justice Thomas wrote here in Wilson v. Hawaii, “[W]e should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.” He finished with speculation, wondering, or maybe wishing, that “[p]erhaps Wilson himself will present that case” if he loses again at the state level. Justice Thomas has been in the lead to right the ship of the state courts, which often treat the right to keep and bear arms as lesser than. The conservative icon’s missive said, “This Court cannot tolerate ‘such blatant defiance’ in any constitutional context.”
Read More on the Cases Discussed in This Article
Liberty Vault: New York State Rifle & Pistol Association, Inc. v. Bruen
