The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
The conservatives on the supreme court are crap historians and even worse judges.
Originalism is nothing more than a mechanism for the Supreme Court to undo past precedent they don’t like. Welcome to the new lochner era.
Hopefully we end this one like we ended the last, with a wave of socialism and a tough president willing to pack the court.
Sorry Loving v Virginia, it didn’t used to be widely understood that the equal protection clause would forbid inter racial marriage bans. After all, both white and black people are forbidden from marrying other races by those laws. There, equal. That’s how it was historically understood, heck it was illegal in 16 states still at the time and widely disapproved of.
But this presumes origialism is some coherent philosophy in the first place, instead of an excuse for partisan hackery cherry picking by Heritage Foundation stooges to get the conclusion they want.
Count me in favor of packing the court, not like there’s any integrity to jeopardize. More to lose by doing nothing while they continue to rampage.
The next two civil rights I’m guessing we lose are gay marriage (Obergefell) and contraceptive access (Griswold). Obergefell because it was already close and hating anyone that’s not cis is in vogue now on the right. Griswold because it was determined on exactly the same lines as Loving and Roe (In fact, Griswold is what underlay roe) and there’s enough religious nuts out there that feel like contraceptives are sinful.
The Senate already changed the number of justices to 8 for a year. I don’t see why it would be wrong to add extras after they admitted the count doesn’t matter.
Hopefully we end this one like we ended the last, with a wave of socialism and a tough president willing to pack the court.
Given the current crop of politicians moving through the state and federal seats, I’m not holding my breath.
The liberal judges on SCOTUS still recognize 2A, though maybe with a few more restrictions. You wouldn’t see them pass this decision.
I don’t know how they would have decided on this specific case, but I’m happy to see anyone standing up to the extreme extent the modern court has taken things with the second amendment. DC vs Heller, which started this nonsense not allowing basically any effective gun control legislation to stand, was a close decision, 5-4. The dissenting opinion was even written by a conservative registered republican, appointed by a republican president (John Paul Stevens, yes he was considered a conservative appointee, but looked more liberal over time as the court got more extreme around him): In a dissenting opinion, Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law.”
Our current judicial extremism on gun rights is out of control. More recently a gun control law that had stood for a hundred years in New York was struck down. And yes it was 6-3 with all the liberal justices strongly dissenting. Our current interpretation of the second amendment is an extreme modernist interpretation twisted by people like the Federalist Society and NRA, with plenty of money from gun manufacturers and other interests flowing in.
https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller https://en.wikipedia.org/wiki/New_York_State_Rifle_%26_Pistol_Association,_Inc._v._Bruen
Sure, if Alabama can ignore SCOTUS, why not?
Speaking of Texas laws, could the rest of us pass a law that allows private citizens to sue anyone in possession of guns?
No one in their right mind would expect a law to operate like that, and it’s really just to create fear. No, it could only be passed by someone whose goals are power, fear, intimidation, control. While I wouldn’t rule Dems out of those intentions, I do have higher expectations of their constituents.
Yes, but then you’d have to enforce it.
A big problem with modern “well if you do X then I’ll do Y” is that - even in brighter blue states like California and Minnesota and Vermont - the local Sheriffs and Police Departments are all still Fash AF.
I think a better idea would be for anyone who is carrying must have insurance, but that’s not too likely either
Sure, right after we pass a law that allows gun owners to shoot anyone who sues them. That makes about as much sense as what you said.
It’s an amazing case because 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.
The bill of rights protects rights, it doesn’t create rights. That is a pretty fundamental concept.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
As written, the right to bear arms only applies to people who are in a well regulated militia.
“A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.”
As written, the right to bear arms only applies to people who are in a well regulated militia.
To me it seems like that statement is broken down into two parts, divided by the second comma.
What it’s premise is is that a militia could be formed at any time when the need arises (the Minutemen, etc.), so all the citizenry can have guns so that they are armed when the militia is formed.
Now if back then militias always existed, and they were not formed/disbanded as needed, then ignore what I just said, as it’s incorrect. Edit: just realized if they’re always formed or not wasn’t the issue, its if they were given guns to fight or if they had to bring their own guns to the fight.
This is how I’ve always read it, especially given the historical context of the minute men being ready to go within a minute should the continental army/US call them to service.
The US wasn’t intended to have a standing army when we were founded, it was supposed to be militias.
This provision is completely irrelevant because we now have literal national guard in every state. The 2nd needs to be removed entirely. There is no need for militias anymore to defend the US against Britain or any other country.
But if you follow this logic, how does it apply to the modern world? At the time, there was no standing army, but people could be called up to serve at anytime. There was no all-powerful military industrial complex, so people may need to supply their own gear. Hunting was common and war technology was primitive, so the gear you might keep anyway was directly applicable to war. The goals of this amendment really don’t apply anymore, so how can this topic best serve the people?
As written, the right to bear arms only applies to people who are in a well regulated militia.
The monkey paw curls. Gun control laws that do not exempt people who are in a well regulated militia are unconstitutional.
This would…be good actually? The scary thing about guns isn’t revolutions, it’s random sad men poisoned with conservatism doing a mass shooting.
Monkey’s toe curls: well regulated means heavy government oversight and oh, so many sensitivity and diversity equity trainings
Every single gun control law out there exempts police officers and service members in the course of their duties.
The modern use of “regulated” isn’t the same as it was then.
Regulation had to do with training and equipment. The idea was that militias, as opposed to a standing (“Regular”) army, weren’t always trained and armed when they were called to arms. The idea of a “well-regulated militia” was for civilians to already have weapons and understand their use if they were needed.
So a requirement for a well-regulated militia is for civilians to have the right to own and use weapons.
Is it antiquated? Maybe. But saying that “well-regulated” militia was meant to limit access to firearms is an argument based on either ignorance or dishonesty.
Well not quite. Well regulated did also include training and they did not consider the average person to be well trained enough to qualify for the phrase.
Aren’t there already limits on what firearms people can have? Also, if understanding their use is a requirement then why isn’t training necessary to purchase one?
False, George Mason quote “I ask, sir, what is the militia? It is the whole people except for a few public officials.” George Mason wrote a draft of what became the second amendment
The federalist papers, and the entire body of US law prior to 2003 disagree with you.
As written, the right belongs to ‘the people’. That’s everyone. It can’t be infringed because that would interfere with their ability to form a well regulated militia, which is necessary to secure freedom.
English is hard sometimes, but not that hard if you try.
If it were so simple, there would be no reason to preface the statement with the clause about a well-regulated militia. No other amendment includes functionless explanatory language. Every amendment was looked over and debated with considerable care, and the language used was deliberately chosen with purpose. The clause was included for a reason, and was not removed for a reason.
No good-faith reading of the language can conclude that the drafters would have phrased it that way if they did not intend for “a well-regulated militia” to be functionally relevant to the interpretation. If they had intended the amendment to mean, simply, “The right of the people to keep and bear arms shall not be infringed” then that would have comprised the entirety of the text. Legal language is hard sometimes, but not that hard if you try.
Before 2003 the law agreed with me. It was Anthony Scalia who made the baseless assertion that they were two separate concepts.
That’s 230 years of history and legal basis on my side, countless judges and lawmakers, and one corrupt, greedy bastard 21 years ago on yours.
In regards to rights not being created…
Rights are a created and codified concept. Whether or not something is a right or not is decided by someone somewhere down the line. There is always a foundational document that expresses the right because in it’s absence you don’t really have a right you have either a privilege that can be taken away by a valid or at least powerful authority or you have a grey area where simply no law or social norm applies until further regulation is created. This is subject to change over time and location.
Rights as we understand them today are not naturally occuring. The idea isn’t even particularly old in the grand scheme of things. Before that point laws definitely existed but they were pretty simplistic operating codes there was no higher echelon of law that superceed other law particularly just layers of powerful people who interacted with the law. If you were basically in charge of the law you could rewrite it as you saw fit and your potential consequences were pissing off someone who could band together and rebel against your authority. If you felt secure enough you could re-write anything through decree. Rights are a feature that was conceptualized or created from scratch in 18th century philosophy with the rise and design of modern concepts of democratic government.
The 2nd Amendment itself is a wonderful example of a non-universal right. Out of all the governments in rhe world today only four have a version of a right to firearms. The USA, Guatemala, Mexico and the Czech Republic. Of those only the US and Guatemala have no restrictions on both firearm type and a required licencing program. Outside of that guns are most often regulated but legal. Exceptions being situations like Japan where there is an almost total prohibition but where guns are legally purchasable ownership is covered under variation of regular property rights against government seizure sort of like how your car is.
You technically do not have a right specifically to a car. They are just legal to own without a licence and illegal to use without one. But use and possession are two independent principles. The right to property is subject to laws banning or regulations of specific things but also Constitutional rights against illegal seizure. There are a lot of things one can only legally possess only with an appropriate licence and that isn’t a violation of property rights.
Rights are a created and codified concept. Whether or not something is a right or not is decided by someone somewhere down the line. There is always a foundational document that expresses the right because in it’s absence you don’t really have a right you have either a privilege that can be taken away by a valid or at least powerful authority or you have a grey area where simply no law or social norm applies until further regulation is created.
Do you believe the second amendment creates a (individual or otherwise) right to bear arms?
Rights as we understand them today are not naturally occuring. The idea isn’t even particularly old in the grand scheme of things. Before that point laws definitely existed but they were pretty simplistic operating codes there was no higher echelon of law that superceed other law particularly just layers of powerful people who interacted with the law. If you were basically in charge of the law you could rewrite it as you saw fit and your potential consequences were pissing off someone who could band together and rebel against your authority. If you felt secure enough you could re-write anything through decree. Rights are a feature that was conceptualized or created from scratch in 18th century philosophy with the rise and design of modern concepts of democratic government.
Historically, deciding who ascends to the throne when a king dies or how to distribute a man’s property after his death was based on birthright, at least in some cultures. Birthright is an old concept. I believe our modern conception of natural rights or human rights has evolved from that. The development that accompanied democracy was the idea of equal rights, and we’re still working on that.
The 2nd Amendment itself is a wonderful example of a non-universal right. Out of all the governments in rhe world today only four have a version of a right to firearms.
The text of the amendment is “arms,” not “firearms.” Those terms are not interchangeable.
The USA, Guatemala, Mexico and the Czech Republic. Of those only the US and Guatemala have no restrictions on both firearm type and a required licencing program.
In what sense does the United States have no restrictions on firearm type?
Outside of that guns are most often regulated but legal.
Firearms in the United States are regulated. Businesses that buy and sell firearms must have a license.
You technically do not have a right specifically to a car. They are just legal to own without a licence and illegal to use without one.
You only need a license to operate a car on a public road. No license is required for driving a vehicle on private property.
I am unsure how your individual takes are relevant to the passages you quoted or are at best fairly surface level abstractions or dodges of main topic at hand… and on a personal note I must say that I am quite tired of this style of engagement where an entire post is chopped up, regurgitated and replied to in short, low effort dismissals. If you can’t write your own damn paragraph, don’t bother.
I will leave this with an answer to your first question. Yes. Laws and legal theory are CREATIONS. Somebody wrote them, had intentions for their use which they tried to write in such a way to illustrate their intent because intent, letter, cultural continuity of precedent and effect to obtain peaceable justice are four independent vectors under which justices balance their individual rulings between. Rights are a body of law. Every single individual part of the operating system of the legal system is essentially optional and it CREATES the rubric for what is a legitimate use of force on behalf of the State. You are simply used to the one into which you were born and are choosing to believe it represents a universal truth. That whole legal possession of in(un)alienable rights was at one political considered a completely radical idea and it had critics. The “Divine Right of Kings” is tracable in an English sense to the Magna Carta which outlines the rules of legal succession which served as a constitutional document. You can trace the application of rights to the populace at large back to the English Bill of Rights from 1689 based largely on the ideas of John Locke and his contemporaries which mostly gained traction as a knee jerk response response to the perceived flippancy and overindulgences of James II but those rights are exceedingly foreign to our modern eyes for not the least reason they are very stratified by class. Your fun fact of the day is the UK didn’t legally have the very basics of human rights outlined as we know them in the American modern conception of them on their books until 1998 which was also when they officially repealed the death penalty since it was an ultimate violation of their conception of rights of the person.
Perhaps ask oneself if the original Constitutional right to “Life” is truly protected in the US when the State and the states under that Constitution are allowed to schedule the killing of people. That phrase “Life, Liberty and Pursuit of Happiness” is a rip from John Locke’s “Life, Liberty and Property” in which his definition of “Life” meant “to live a style of life free from government interference.” This is what has been interpreted as the US Constitutional definition. UK Human Rights Act of 1998 protects a right to “life” as in a right to breathe, think have a pulmonary rhythm etc. Thus while both promise a right to “life” only one is explicitly understood as a protected right to be alive. You have no perfect Constitutional right to be alive in the US.
Every law requires interpretation at it’s point of judgement both ways because the question “what is law” in a broad philosophical sense is something every court grapples with every day. Your take is very much overly simplistic.
… And please don’t try and post “gotchas” because I didn’t list particular nitty-gritty aspects of individual laws I mention. My posts are long enough and I need to truncate them somehow.
Not really. Rights are a man-made construct. A social contract that a people agree on. There’s nothing inherent about them.
A society could, for example, decide that certain people had the right to eat human babies, beat their wives. That would be just as legitimate as anything else.
By the same token, a society can decide that certain things are explicitly NOT rights, or to decide which rights take precedence over other rights.
None of this is defined by some divine ordnance, or law of nature. It’s all people.
Rights are a fascinating concept. While I agree with you practically that we definitely create the social contract that “gives” people rights, that’s not really how rights are conceptualized in law. In the Western conception, rights are, by definition, not “given”, they are “inalienable”, meaning that you have rights even if someone has taken away your practical ability to exercise them. The rights themselves, separate from your ability to exercise them, are indeed considered “inherent”. In the olden days, this was often codified or framed in terms of religion, but it doesn’t have to be. Calling rights “natural” or “self-evident” are other ways of framing their “inherent-ness”.
Of course, in reality it isn’t so simple. We separate “natural” and “derived” rights. There aren’t many natural rights. Things like the right to life, to self-determination, and to freedom of conscience are considered natural rights (in the West, anyway), while something like the 2nd amendment to the US Constitution would be considered a derived right. Derived rights, of course, are rather more subject to interpretation since they rely on a chain of reasoning from a more natural right, and that chain of reasoning is subject to challenge.
Except, that many black folk in the US did not have a right to life or self determination at the beginning. So even these “inherent” rights aren’t so inherent until society agrees to grant/create them.
Rights are not created, bestowed, issued, manufactured, or handed out.
They aren’t a license or a badge or something physical.
Right. Just like God.
I think the important thing is to remember how important it always is to fight for them, at any rate.
::sigh::
This is a bad ruling; Hawai’i is saying that their state laws and traditions take precedent over federal laws, the US constitution, and SCOTUS rulings. It’s intentionally trying to undermine the concept of the rule of law in order to get the result that they want. That’s not a “devastating rebuke”, it’s a toddler screaming about not getting candy in the supermarket.
This is counter to the concept of the rule of law, and should be seen as an embarrassment, not something to celebrate.
That’s not a “devastating rebuke”, it’s a toddler screaming about not getting candy in the supermarket.
It appears Hawai’i is parroting decisions by redder states, in an effort to force the SCOTUS to rule broadly on the question of Supremacy (or, at least, try and split the baby in some coherent way).
This is counter to the concept of the rule of law
Its counter to the concept of Federalism, but right in line with the Seperatist theory of law that quite a few modern day politicians happily espouse when it suits them.
just like cannabis and other laws in states taking precedent over federal laws?
Texas is another example and abortion is a state by state issue too as is medical and vehicle insurances
driver’s licenses are a state by state thing too as is voting not a federal thing all state by state and education standards are state by state and SNAP benefits
US should have gotten things more united and settled before it was too late and shattering instead of waiting to cry and moan about it afterwards
I already responded to that. Local laws do not supersede federal marijuana laws, as you will quickly discover if you try to purchase a firearm. (And, BTW, if you are a ‘legal’ user of marijuana and buy a firearm, that’s a federal felony.)
I think this also. I don’t think this is good, but it’s not without precedent considering how Federal law and marijuana legalization works on a State level superceding Federal.
Truthfully this is just another ruling denying Federal as law of the land.
Marijuana laws don’t supersede federal law though; the fed. gov’t simply chooses not to enforce the laws in states that have legalized it, and citizens of the legal states don’t have standing to sue the gov’t and compel them to enforce the laws. (And yeah, I agree that marijuana needs to be descheduled completely so that this isn’t an issue.) (IIRC, they would need to demonstrate a personal harm caused by lack of enforcement to have standing to sue.)
In point of fact, if you purchase legal marijuana, either for recreational purposes or medical reasons, you are ineligible to purchase a firearm; this is made very clear on form 4473, where it specifically states that even if it’s legal in your state, it’s still a federal crime that makes you a prohibited person.
It is ultimately all rooted in the same concept, a rejection of the Supremacy Clause.
This is just another salvo in the kind of language that leads to either a civil war or a secession, and it being made by the “good guys” doesn’t stop that.
marijuana legalization works on a State level superceding Federal.
it really doesn’t, though. federal agents can and still occasionally do assert the supremacy of federal prohibition over state level legalization, it’s just that they’ve been directed not to in most cases. you can absolutely still be arrested for possession and when I was getting my card they made an effort to point that out and told me not to bring it to the post office or national parks or anything else like that where the law enforcement is likely to be federal rather than state or local.
Considering Hawaii is, by UN definition, illegally occupied? Good. Hawaii should be it’s own nation.
