The Hawaii Supreme Court released a ruling that sounds like Everytown wrote it for them. They say Heller was wrongly decided, and talk about the historical tradition of the former Kingdom of Hawaii as if that is at all relevant.
A lowlights thread.
Note that this "crime" occurred pre-Bruen, when Hawaii had never issued any permit to anyone. So it's insane the State gets to argue he should have applied for a CCW permit.
Again, before Bruen, Hawaii had never issued a CCW permit to ANYONE. It's insane that the State Supreme Court says he should have done a futile act back in 2017 to have standing.
They look at the Hawaii constitution first. But it's the same thing.
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. Art. I, § 17 (enacted 1959).
Hawaii's Supreme Court rehashes tired collective right arguments which the Supreme Court has expressly rejected, and overwhelming amounts of historical evidence confirm to be false (see my pinned thread, among other sources).
Nonsense. If it meant just "people in a militia", it would have said that. Like everywhere else "the People" is mentioned, we are talking about individual rights or protections.
Scalia debunked this in Heller. "Bearing arms" means military service, sure. But "to keep and bear arms" would make no sense if it was referring to just military service. Like Scalia said, it would be like interpreting "he stood up and kicked the bucket" to mean "he stood up and died."
This is hilarious because the Hawaii constitution was adopted in the 1950s. If the court is correct and it's just some militia right, why would that still be relevant by the mid-20th century, with our massive standing army? Why did Hawaii bother adding the provision?
This is not true. The individual right was implicitly confirmed in Dredd Scott and Cruikshank. Terrible rulings for other reasons, but they both confirm in passing the thinking around 2A at the time. An individual right, albeit one that only limited the federal government until after 14th amendment incorporation.
Do you think they even realize that their legislative history excerpt destroys their own argument? If the Hawaii framers were intending a collective right, they wouldn't be talking about "reasonable restrictions on the right of the people". They'd say they can pass anything they want, as this is just about the right to a state militia.
Same thing here. This literally says "the right to acquire, keep or bear firearms..."!!!! Yes, maybe the 1950s Hawaii legislature had a muscular view of what gun control was allowed, including banning certain guns, but they still presuppose some individual right.
Is the Hawaii Supreme Court's reading comprehension nonexistent.
Oh sure, "clarified" 18 years later, in a way that is completely incompatible with what the legislature of 1950 said. Here, they say it's all about the militia, whereas in the excerpts from 1950 that the court cited, there was no discussion of the militia. Just an individual right, albeit one subject to regulations.
What actually happened here is Hawaii politicians adopted the then-ascendant "militia right" lie.
Woah WHAT?!
This is an outright lie. Even if you argue stuff like Dred Scott and Cruikshank are dicta because they only mention 2A in passing, there were several 19th century state court rulings confirming to various degrees the individual right.
Jesus Christ, the arrogance here is off the charts. "This is what everyone thought."
No, it's what a cabal of hack academics and their well-to-do judicial allies gaslit the nation into believing for a few decades.
The Hawaii Supreme Court basically pretends all the 19th century rulings and commentary do not exist. Their example of "courts always ruled this way" was two rulings from the 1940s.
Saul Cornell cite, because of course.
Also, cool how they cite Federalist No. 46, but omit the sentence which reads "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation...."
Do they think Madison meant that the "advantage" spoken of there was the right to serve in a government militia? Because people in other nations definitely had that "right" too.
OK so again, if this is all true, and the 2A is just about militias, what goal was the 1950 legislature trying to accomplish by copying it into the Hawaii constitution? What was the point of doing that at a time when state militias didn't really exist anymore?
It is hilarious that they keep saying what the 1950 Hawaii legislature meant through what the legislature 18 years later said.
Because the two times they actually cited the 1950 framers, they were clearly talking about an individual right.
WARREN BURGER QUOTE!
The hackery is unprecedented. This is written by antigun twitter, basically.
As my pinned thread demonstrates, Warren Burger was a liar, ignorant, or both.
Who cares what "a majority of historians" think? Most of these are activists masquerading as unbiased historians. For example, almost none of them ever seriously discuss the overwhelming amount of nineteenth century commentary, because it obliterates their arguments. They pretend it doesn't exist.
This is another bullshit post-Bruen criticism. Nobody is saying judges have to be historians. They merely have to take historical laws the state presents and see if they are sufficiently similar to modern laws. Analyzing laws is a judge's whole job.
We get it, you guys hate the Supreme Court.
This should be the easiest cert petition ever.
Notice how they say 1791 and 1868, but then only talk about guns from 1791. Because if they talked about guns from 1868, their argument would fall apart. By 1868, revolvers had proliferated. Much of the gun crime we see today was possible with the weapons of 1868. So even if you think 1791 shouldn't count because guns were so much more primitive, a lot of that gap was erased by 1868.
Here they cite the Bevis court's error (at least I hope it wasn't intentional) that a semiatuo AR15 has a fire rate of 300 rounds per minute. Which is five rounds every second.
Sounds like the Hawaii Supreme Court doesn't even want to be a part of the United States, in this rejection of not just the Second Amendment but their culture and understanding of the Constitution.
They are about to get into the history of Hawaii. Before going into that, I wanted to share an old post I did about when Hawaii became part of the US. Basically, they had to abandon laws that were inconsistent with the US constitution, but could keep the rest. Some of the laws that had to be abandoned? See below.
So to be clear, in its analysis of the Hawaii right to bear arms provision, which is identical to the federal one and was adopted by the Hawaii legislature in 1950, the Hawaii Supreme Court looks to the history of Hawaii when it was a foreign nation.
Cool.
Ah yes, "The Law of the Splintered Paddle".
What the hell is this court talking about right now? They complained judges are now historians, but they are now giving an irrelevant history lesson from a time when Hawaii wasn't part of the US?
Ya, that's cool. The British tried to do the same in the 1770s.
The Hawaii Supreme Court cites to the Young case, which omitted that Hawaii had to get rid of certain gun control laws to become a state. That they partially reimplemented them later is irrelevant - the draconian form of these laws was seen at the end of the 19th century as incompatible with our constitution.
OK.
What's the process by which we can turn states into territories again?
Once again, at the time this man was charged, no one had ever gotten a CCW permit in Hawaii.
It's completely abdication of the judicial role to ignore this, unless the petitioner never brought it up, which I find unlikely.
I hope the poor guy dealing with all this nonsense files a cert petition. What a preposterous ruling by a bench of antigun activists.
Alright, let's take a quick look at some highlights from our amicus brief in US v. Allam before I call it a night.
The case is a rare opportunity for a friendly circuit to hear a "sensitive places" case, which is what caught our interest. At issue is the federal gun free school zones act, which blocks carry within a thousand feet of a school, subject to some exceptions. The case is not about carry on school campuses themselves, just the zones around them.
The petitioner is not particularly sympathetic. But he is mounting a facial challenge, and so we approached this argument from the perspective of regular citizens.
The district court's ruling was kind of bizarre in that it rejected all of the government's proposed analogues because none of them restricted zones around schools, just the schools themselves. That's correct!
But then, the district court presented its own history, a few old polling place buffer zone laws, and said THAT was the right analogue, and upheld the federal law.
We think the district court made three critical errors.
My Rahimi live thread here. The basic holding is, as Chuck notes, "When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment."
8-1 case.
ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion.
Getting my toddler breakfast, then we begin 🤣
First bit of good news comes at the start of the analysis. This language would seem to call into question laws that disarm AFTER a restraining order has ended. California bans people who had a restraining order from carrying for five years.
Oh hey, addition to my 19th century historical sources thread coming. Thanks Justice Roberts.
A thread on Garland v. Cargill. I am not a technical expert on firearms nor experienced in these sorts of agency rule challenges. But I'll do my best.
Notably, this case is not at all about Chevron deference - ATF disclaimed that and just argued their bump stock ban was faithful to the law, no deference required.
This is the whole fight in this case. What does "single function of the trigger" mean?
I think it is pretty clear that bump stocks do not make it so that semiautomatic firearms can fire automatically with a single function of the trigger. They just essentially make the user pull that trigger faster.
Good explanation on how bump firing works without a bump stock.
Fun fact - California's dumb laws make unintentional bump fire possible. One time a family member and I were at the range shooting a fin-grip compliant rifle, and he let off 2 or 3 shots at once unintentionally. We can't be certain, but he believed it was an accidental bump fire, because the fin didn't let him get a good grip on the rifle.
It's kinda interesting how the Sears catalog often advertised guns for pocket carry. This one is from 1901.
"Expert" historians for the state like to claim that carry was uncommon in the 19th century. The large amount of ads boasting a handgun could be carried concealed seem to go against those claims.
Also amusing: Colts were by far the most expensive, and apparently did Apple-style price protection. In its Colt section, Sears complains Colt won't let them list the pistols any lower.
The old Sears catalogs are a ton of fun to look through, and not just for guns.
Prepared by the excellent @Stambo2A, Rob Olson, and Oliver Krawczyk. We work with them on several cases and it is always a pleasure.
@Stambo2A On top of all this, it also is of no benefit to anyone for trial to proceed on the Seventh Circuit's erroneous test. At minimum, if the Court won't resolve this now, they should kick it back to 7COA with instructions to scrap their garbage "military" test.
Disappointing, if not at all unexpected decision. I’m not doing a full thread right now, but some especially erroneous portions.
Such as claiming that Teter said something outlandish and out of step, when it’s actually what THE SUPREME COURT SAID. Teter was just quoting the Supreme Court, as this acknowledges by mentioning (but ignoring) Heller. Incredible.
There is no other right in the original Bill of Rights for which the “operative period” is the reconstruction era.
Paging @fourboxesdiner
@fourboxesdiner Given I won’t have many nice things to say about this ruling, I’ll praise this footnote.