Washington — The Supreme Court on Monday declined to take up a Hawaii man’s appeal of his prosecution for carrying a handgun without a license, leaving untouched a state supreme court decision that castigated its new framework for determining whether gun laws comport with the Second Amendment.
Justice Clarence Thomas, in a statement joined by Justice Samuel Alito, criticized the Hawaiian court for its ruling, but said the high court was right to dismiss the challenge on technical grounds. However, he wrote that the court should hear an “appropriate case” to “make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.”
The court laid out the so-called “history and tradition” standard in a landmark Second Amendment decision in June 2022. The test requires the government to show that a gun law is consistent with the nation’s historical tradition of firearm regulation.
The Supreme Court provided some clarity about its new standard this past June, when it upheld a federal firearms prohibition for alleged domestic abusers, but lower courts have still struggled to apply the framework when assessing the constitutionality of firearm restrictions. That decision involved whether certain categories of people — namely those found to pose a credible threat to others — can be temporarily disarmed.
The case from Hawaii involved the state’s rules for licenses to carry handguns in public. Under the state’s scheme, residents must obtain a permit to legally own a firearm. Those who want to carry a gun publicly also must obtain a carry license, which can be acquired by demonstrating an “urgency or need,” good moral character and that they are “engaged in the protection of life and property.
Applicants also have to be at least 21 years old and a U.S. citizen. Police departments had the discretion to deny licenses.
In December 2017, Christopher Wilson was arrested after he and a group of hikers were found on a trail running through private property into the West Maui Mountains. Wilson and his fellow hikers told police they didn’t see “no trespassing” signs on the property and were headed into the mountains to look at the moon and planets. Wilson also told police he had a weapon, and a loaded pistol was seized from his waistband.
Wilson didn’t have a permit to acquire a gun or a license to carry it and was charged with violating Hawaii laws for carrying or possessing a handgun.
Wilson sought to dismiss the charges on the grounds that they violated his Second Amendment rights under two recent Supreme Court decisions, one of which said the Constitution guarantees the right to keep a handgun in the home for self-defense.
Wilson’s bid to toss out the charges was denied, but soon after, the Supreme Court handed down its June 2022 ruling that expanded gun rights and laid out its history-and-tradition test for evaluating the constitutionality of firearms rules.
On the heels of that decision, Wilson again sought to have the charges against him dismissed, arguing that under the Supreme Court’s standard, he was legally allowed to carry a firearm for self-defense, and the state had to justify its licensing scheme.
A trial court sided with Wilson and dismissed the charges against him. But the Hawaii Supreme Court reversed that decision and concluded that prosecuting Wilson for carrying a handgun didn’t violate the Constitution. The Hawaii court also lambasted the nation’s highest court for its Second Amendment rulings.
The state supreme court claimed that the Supreme Court “distorts and cherry-picks historical evidence” in its Second Amendment cases and accused the high court of ad-libbing a new standard for evaluating gun laws.
Referencing the Supreme Court’s latest decision, the Hawaii Supreme Court said its new test is a “backward-looking approach” that “ignores today’s realities.”
The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities,” Hawaii’s highest court wrote.
Wilson, represented by public defenders, appealed to the Supreme Court, arguing that the Hawaii court showed “open hostility to the individual rights protected by the Second Amendment.”
They warned in a filing that refusing to apply the court’s history-and-tradition test “upends the constitutional order between the States and the national government. When constitutional rights are incorporated under the Fourteenth Amendment, the states must recognize them.”
Writing on Monday, Thomas said the decision by the Hawaii Supreme Court “failed to give the Second Amendment its due regard.”
“Had the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent,” he wrote.
But Thomas noted that “correction of the Hawaii Supreme Court’s error must await another day,” since Wilson sought to dismiss only some of the charges and asked the court to review an “interlocutory order over which we may not have jurisdiction.” Thomas said that Wilson could ask the court to review the case again after trial.
Justice Neil Gorsuch echoed that sentiment in a statement of his own, writing that “Mr. Wilson remains free to seek this Court’s review after final judgment.”
