For two hundred years, judges and legal scholars generally agreed that the Second Amendment protected a collective right to bear arms in defense of the state, the right to bear arms as part of a militia. The Second Amendment debate has historically been whether the Constitution guaranteed a personal, individual right to bear arms.
In 2008, nearly fifteen years ago, the Supreme Court settled that debate in District of Columbia v. Heller, where the Court held, for the first time, that the Second Amendment’s “central component” is individual self-defense (as opposed to the right to be part of a state-affiliated militia). The Court found that limiting the Second Amendment to militia service would only recognize the state’s right to have an armed-citizen militia while ignoring the individual’s right of self-protection and right to organize non-state militias. The Heller Court held that the constitution protects an individual (rather than collective) right to possess a firearm in defense of “hearth and home.”
Because the Supreme Court only hears a select few cases each year, the lower courts have been the center of post-Heller Second Amendment jurisprudence. Even under Heller’s establishment of the individual right to bear arms, in the post-Heller landscape the vast majority of gun laws survived challenges in the district and lower appellate courts. Bans on possessing assault weapons and large-capacity magazines, bans on carrying firearms in government buildings and public parks, and bans on possessing firearms for people in high-risk categories are a few examples of gun laws upheld after Heller, where gun law reality became that individual gun rights were subject to restriction as long as that restriction was arguably reasonable. The test for gun laws was reasonableness, a test that recognized the government’s interest in gun regulation was stronger that the individual’s right to possess the kind of gun he or she wanted in a place where he or she wanted.
That law changed in 2022 with the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, where the court raised the right of gun ownership and possession (for self-defense) to a levelat least equal to and possibly higher than the government’s right to regulate gun possession, ownership and use. Specifically, the Bruen Court held that the Second Amendment protects an individual’s right to carry a handgun in public for self-defense. More broadly, the Bruen court established a new test for assessing firearms laws, saying restrictions must be “consistent with this nation’s historical tradition of firearm regulation.”
Shockingly (Constitution law speaking), Bruen held that individual gun ownership and possession is presumptively constitutional. This places the burden on the government, which, “land of the free” and all aside, the burden in rarely on the government to prove the constitutionality of laws that restrict individual freedoms. A law that infringes on gun rights is presumptively unconstitutional, and the government must justify a law by demonstrating that the restriction is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that a gun restriction is constitutional.
Last week the Hawaii state supreme court shot the middle finger to Bruen and gun rights recognized in Bruen finding that the state can regulate guns with no historical analog. In State of Hawaii v. Wilson, the Court refused to follow Heller and Bruen when it upheld its law that requires a license to carry a handgun (a restriction not found in American history, see West, The Wild). The Hawaiian Court described the Second Amendment as “militia-centric,” protecting militia gun use not individual gun use and went so far as to hold that there is no such thing as an individual right to bear arms. Instead of applying Heller and Bruen and deciding that the law was constitutional under those tests, which could have easily been attempted, the Court decided to make headlines and issue a decision that will not stand unless Hamiltonian federal power erodes and we go back to a union of independent states confederated only for common defense.
Instead of presuming that the gun restriction was unconstitutional, as required under Heller and Bruen, the Hawaii Court found gun regulation to be generally acceptable under “the spirit of Aloha.” Although the Hawaiian Constitution of 1787 acknowledges that the United States Constitution is the “supreme law of the land,” the Hawaiian court said that its local interpretation of constitutional rights, guided by the spirit of Aloha, reigns supreme, which directly contradicts the way our union of states has operated for over 200 years. Clown show.
Mitchell Driskell has practiced law for twenty-two years. He is currently with the Tannehill & Carmean firm (voted Oxford’s Best Law Firm every year since 2010). You can reach him at 662.236.9996 or mitchell@tannehillcarmean.com. He practices personal injury law, criminal law and family law.
