Today I want to highlight a case that is discussed at the American Thinker by Carlton Allen entitled Hawaii Judges Say 'Hell With the Constitution'. The case involves Christopher Wilson, a resident of Hawaii who was charged with carry a pistol while hiking. Wilson cited the Second Amendment and the Bruen decision. The Hawaii Supreme Court citing the states "spirit of Aloha" reinstated the charges against Wilson. The United States Supreme Court has so far refused to grant certiorari in the case on technical grounds. Such is the state of play.
When I served as a judicial officer, I leaned into the originalist philosophy championed by Justice Antonin Scalia. His wisdom — that judges must adhere to the Constitution and the law as written, not as they wish it to be — served as a lodestar. As Scalia famously remarked, “The Constitution is not a living document — it is a legal document.” This sharp declaration underscores a vital truth: the Constitution is not a chameleon, changing with the political winds or cultural trends. It is a fixed, enduring framework meant to safeguard liberty and ensure the rule of law. Judges are bound by its text and original meaning, not free to reinterpret it to suit their preferences or the moment’s fashionable ideologies. To treat it otherwise is to abandon constitutional governance altogether.
The principles of originalist philosophy are important if we are to have Constitutional governance at all. Human nature does not change, and the laws laid down in the Constitution do not change just because current whims of society change. People have certain rights, and those rights always exist in all times and places. Thus the Constitution is not a "living document" but a legal document.
This principle could not be more relevant in the wake of the Hawaii Supreme Court’s defiance of U.S. Supreme Court precedent in State v. Wilson. The procedural posture of the case is important: Christopher Wilson, a Hawaii resident, was charged in 2017 with carrying a pistol without a license while hiking. Wilson argued that his actions were protected by the Second Amendment, particularly after the U.S. Supreme Court’s landmark decision in New York State Rifle & Pistol Association Inc. v. Bruen (2022), which affirmed the right to carry a firearm in public for self-defense.
The Hawaii Supreme Court, however, reinstated charges against Wilson, effectively ignoring Bruen. In a particularly audacious move, the court criticized the U.S. Supreme Court for “cherry-pick[ing]” historical evidence and engaging in “fuzzy” reasoning, dismissing the Bruen decision as backward-looking. The Hawaii court even invoked the state’s so-called “spirit of aloha” as justification for rejecting the plain guarantees of the Second Amendment. This was more than a bad legal ruling — it was a brazen act of judicial nullification.
When the case reached the U.S. Supreme Court, the justices denied certiorari on procedural grounds, noting that this was an interlocutory matter that had not yet fully played out in Hawaii’s courts. However, Justice Clarence Thomas, joined by Justice Samuel Alito, issued a statement that should serve as a warning to all who care about constitutional governance. Justice Thomas sharply criticized the Hawaii Supreme Court for not giving the Second Amendment its proper weight, observing that the lower court’s analysis “failed to give the Second Amendment its due regard.” He further noted that Hawaii’s defiance of Bruen was deeply troubling and a signal of broader disregard for the rights of Americans.
...snip...
What makes the Hawaii Supreme Court’s actions in State v. Wilson even more concerning is that this is not a case of a state challenging the constitutionality of federal law. Instead, Hawaii has effectively declared that the Second Amendment, as interpreted in Bruen, does not apply within its borders. By reinstating charges against a citizen exercising what the U.S. Supreme Court has unequivocally affirmed as a fundamental right, the Hawaii court has treated the Constitution not as the supreme law of the land, but as an inconvenience to be disregarded.
This is not interposition in the historical sense — it is an outright dismissal of federal authority and a refusal to acknowledge the Second Amendment’s binding force. Such defiance signals a dangerous precedent, where states or localities decide unilaterally which parts of the Constitution they will honor. It is a direct challenge to constitutional governance and the principle that the rights enshrined in the Constitution apply equally across all states.
By invoking doctrines like nullification and interposition — whether explicitly or implicitly — progressive activists undermine the structure of our Republic. The Constitution is not a patchwork quilt of negotiable rights. It is a unified legal framework, and its protections do not cease to exist when they conflict with the political preferences of a state or locality. What Hawaii has done is more than defiance; it is a rejection of constitutional order, one that endangers the rights of all Americans.
Gentle readers are encouraged to read all of Allen's article. This is one to watch as the precedent set by the Hawaii Supreme Court cannot stand. I would note especially the statement by Justice Scalia that the Constitution is meant to be difficult to change. One cannot legitimately reinterpret the plain meaning of the words to mean something different because of changing fashions. Fashions always change, but as noted above, human nature does not.
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