The Hawaii Supreme Court handed down a Unanimous Opinion, Declaring that its State Constitution Grants Individuals, absolutely No Right to Keep and Bear Arms, outside the context of Military Service.
Its Unanimous Decision, authored by Justice Todd Eddins, Rejected the U.S. Supreme Court’s Interpretation of the Second Amendment, Refusing to add SCOTUS’ Analysis into Hawaii Law.
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 a 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, 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 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.
When the Second Amendment was issued, the Military Guns where locked-Up in the Armory. When called to Duty, they would go to the Armory to get their Weapons. When the Conflict was over, they would return those Arms to the Armory.
In Eddins Opinion, It goes on to talk about how, it’s just Not Practical, 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.”
Judge, 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.
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.
Justice Eddins also cites a Great Law Review Article by 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 Dude, 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.
If the Hawaii Decision inspire other Ccourts, developing an Alternate Vision of the Law, that can thrive in State Judiciaries, they’re showing us what the Right Direction might be, and giving us a little hope for the Future.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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