*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Electronically Filed
Supreme Court
SCAP-22-0000561
07-FEB-2024
09:05 AM
Dkt. 49 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI---o0o--STATE OF HAWAIʻI,
Plaintiff-Appellant,
vs.
CHRISTOPHER L. WILSON,
Defendant-Appellee.
SCAP-22-0000561
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT(CAAP-22-0000561; CASE NO. 2CPC-17-0000964)
FEBRUARY 7, 2024
RECKTENWALD, C.J., McKENNA, EDDINS, JJ., CIRCUIT JUDGE MORIKAWA
AND CIRCUIT JUDGE TOʻOTOʻO, ASSIGNED BY REASON OF VACANCIESOPINION OF THE COURT BY EDDINS, J.
I.
Article I, section 17 of the Hawaiʻi Constitution mirrors
the Second Amendment to the United States Constitution.

We readthose words differently than the current United States Supreme*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Court.

We hold that in Hawaiʻi there is no state constitutionalright to carry a firearm in public.
The State appeals an order dismissing two “place to keep”
offenses, Hawaiʻi Revised Statutes (HRS) § 134-25 (2011) (pistol
or revolver) and § 134-27 (2011) (ammunition) filed against
Christopher Wilson.

Citing New York State Rifle & Pistol Ass’n,Inc. v. Bruen, 597 U.S. 1 (2022), the Circuit Court of theSecond Circuit dismissed the charges.
The State challenges Wilson’s standing.

The State says

Wilson did not bother to apply for a carry license and thereby
satisfy HRS § 134-9 (2011), Hawaiʻi’s license to carry law.

So

he can’t bring a Bruen-based constitutional challenge to HRS§ 134-25 and § 134-27.
Wilson believes otherwise.

He says HRS § 134-25(a) and§ 134-27(a) subvert his new constitutional right to protect
himself in public by carrying a lethal weapon.

Hawaiʻi’s place

to keep laws violate the Second Amendment to the United States
Constitution and its counterpart, article I, section 17 of the
Hawaiʻi Constitution.
Because the State charged Wilson with place to keep
offenses, we conclude that Wilson has standing to challenge theconstitutionality of those laws.

A criminal defendant has

standing to level a constitutional attack against the charged2*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***crime.

See State v. Armitage, 132 Hawaiʻi 36, 55, 319 P.3d 1044,

1063 (2014).
Wilson though lacks standing to confront HRS § 134-9(licenses to carry).

The State does not charge him withviolating HRS § 134-9 (it’s not a crime), and Wilson made no
attempt to obtain a carry license.
We reject Wilson’s constitutional challenges.

Conventional

interpretive modalities and Hawaiʻi’s historical tradition of
firearm regulation rule out an individual right to keep and beararms under the Hawaiʻi Constitution.

In Hawaiʻi, there is nostate constitutional right to carry a firearm in public.
Bruen snubs federalism principles.

Still, the UnitedStates Supreme Court does not strip states of all sovereignty topass traditional police power laws designed to protect people.
Wilson has standing to challenge HRS § 134-25(a) and § 13427(a).

But those laws do not violate his federal constitutionalrights.
II.
A.

Charges and Alleged Facts
In December 2017, the County of Maui Department of theProsecuting Attorney charged Christopher Wilson by felony
information.

He allegedly violated: (1) HRS § 134-25(a) place

to keep firearm, (2) HRS § 134-27(a) place to keep ammunition,(3) HRS § 134-2 (2011 & Supp. 2017) permit to acquire ownership3*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***of a firearm, and (4) HRS § 708-813(1)(b) (2014 & Supp. 2015),
first degree criminal trespass.
The facts are slim.

Declarations and police reports

submitted to support the parties’ position for the motion todismiss comprise the factual record.
In December 2017, at about 11:00 p.m., Flyin Hawaiian
Zipline owner Duane Ting saw men on his fenced-in property via
video surveillance.
Department.

Ting reported the matter to the Maui Police

Officers headed to Ting’s property.

Meanwhile

Ting, driving an all-terrain vehicle, corralled Wilson and histhree companions.

Armed with an AR-15 assault rifle, hedetained them until the police arrived.

Then Wilson volunteeredto the officers: “I have a weapon in my front waist band.”police lifted his shirt.

The

Wilson had a Phoenix Arms .22 LR

caliber pistol, loaded with ten rounds of .22 caliber
ammunition.

A records check reported that the pistol was

unregistered in Hawaiʻi, and Wilson had not obtained or applied
for a permit to own a handgun.

Wilson told the police that helegally bought the gun in Florida in 2013.
B.

Wilson’s Motions to Dismiss
In May 2021, Wilson moved to dismiss counts 1 and 2.

Citing District of Columbia v. Heller, 554 U.S. 570 (2008) and
McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), Wilson
argued that prosecuting him for possessing a firearm for self4

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***defense purposes outside his home violated his right to beararms under the Second Amendment to the United States
Constitution and article I, section 17 of the HawaiʻiConstitution.
The State opposed the motion.

It presented records from

Florida and the Department of Justice Bureau of Alcohol,
Tobacco, Firearms, and Explosives to refute Wilson’s remark
about when and where he had purchased the gun.

The records

showed: (1) Wilson had not applied for or been issued aconcealed weapon or firearm license pursuant to Florida law, and(2) in April 2011 someone not named Christopher Wilson purchased
the pistol from a licensed firearms dealer in Florida.
The circuit court denied Wilson’s motion to dismiss in July2021.

It relied on Young v. Hawaiʻi.

There, the Ninth Circuit

Court of Appeals held that the Second Amendment does not provide
a right to openly carry a firearm for self-defense.

Young v.

Hawaiʻi, 992 F.3d 765, 821 (9th Cir. 2021), cert. granted,
judgment vacated, 142 S. Ct. 2895 (2022), and abrogated by New
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1(2022).
In July 2022, Wilson filed a second motion to dismisscounts 1 and 2.

Bruen had just come out.

Wilson again challenged the constitutionality of HRS § 13425(a) and HRS § 134-27(a).

His motion declares he carried the5

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***gun solely for “self-defense purposes.”

He says the place tokeep laws violate his right to carry a handgun for self-defense
outside his home.

Both the United States and HawaiʻiConstitutions confer that right.

Wilson maintains that HRS§ 134-25 and HRS § 134-27 - which confine firearms andammunition to the “possessor’s place of business, residence, or
sojourn” - had “no exceptions” for carrying firearms outside thehome.

Wilson describes these “absolute restrictions” as “out ofstep” with the “Nation’s historical tradition of firearm
regulation.”
The Maui Department of the Prosecuting Attorney (State)countered.
First, the Second Amendment allows for some restrictions
per Heller and Bruen.
are constitutional.

For instance, registration and permitting
Second, unlike the Bruen plaintiffs, Wilson

illegally possessed a handgun because he never tried to follow
Hawaiʻi’s firearm registration and license to carry law.

Becausehe didn’t apply for a permit, he lacks standing to raise a
Second Amendment challenge.
Circuit Court Judge Kirstin Hamman granted Wilson’s second
motion to dismiss in August 2022.

HRS § 134-25(a) and § 134-27(a) infringed Wilson’s constitutional right to keep and bear afirearm for self-defense.

6*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***The court ruled that Wilson had standing to challenge HRS§ 134-25(a) and § 134-27(a).

Then it concluded that per Bruen,

a right to keep and bear firearms for self-defense under the
Hawaiʻi and United States Constitutions extends “outside thehome.”The State had failed to meet its burden to show how HRS§ 134-25(a) and § 134-27(a) are “consistent with the Nation’s
historical tradition of firearm regulation.”

The circuit court

also found that HRS § 134-25(a) and § 134-27(a) made “noexceptions for carrying firearms outside the home for selfdefense purposes.”[There are exceptions in those laws -“[e]xcept as provided in sections 134-5 and 134-9.”

This

mistake though is immaterial to our decision.]
The court dismissed counts 1 and 2 with prejudice.
The State moved to reconsider.
Attorney General got involved.

Then the Department of the

The court granted its request to

file an amicus brief in support of the Maui Prosecuting
Attorney’s motion.

The Attorney General argued that Bruen does

not stop states from requiring a license before bringing afirearm to a public place.

The circuit court denied the motion

to reconsider.
The State appealed.
transfer.

Then it filed an application for

We granted the transfer.

7*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***III.
We hold that the text and purpose of the HawaiʻiConstitution, and Hawaiʻi’s historical tradition of firearm
regulation, do not support a constitutional right to carrydeadly weapons in public.
We conclude that HRS § 134-25 and § 134-27 do not violate
Wilson’s right to keep and bear arms under article I, section 17of the Hawaiʻi Constitution and the Second Amendment to theUnited States Constitution.

Since Wilson lacks standing tochallenge HRS § 134-9, we do not take up his Second Amendment
challenge to that law.
A.

Standing
Wilson has standing.

His standing though, is confined tochallenging HRS § 134-25 and § 134-27, not HRS § 134-9.
1.

Wilson has standing to challenge HRS § 134-25 and§ 134-27

The State argues Wilson has no standing to challenge
Hawaiʻi’s place to keep crimes, HRS § 134-25 (pistol or revolver)and § 134-27 (ammunition).

He didn’t bother to apply for acarry license and satisfy HRS § 134-9.

So he can’t attack thelicensing law.
The State relies on California and New York cases where
courts denied standing to criminal defendants who did not try to
get a license to carry.

They could not bring Bruen-based8

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***constitutional challenges.

See, e.g., People v. Rodriguez, 171

N.Y.S.3d 802, 806 (N.Y. Sup. Ct. 2022) (“Failing to seek alicense before roaming the streets with a loaded firearm is not
abiding by the law, and nothing in the Second Amendment requiresthat it be tolerated.”); People v. Velez, 302 Cal. Rptr. 3d 88,
106 (Cal. Ct. App. 2022) (“[U]nlike the petitioners in Bruen,
the record does not show, nor does [defendant] claim, that heapplied for and was denied a license to possess the gun inquestion.”).
Hawaiʻi law offers criminal defendants broad standing tochallenge the constitutionality of criminal laws they arecharged with violating.
480 P.2d 148, 152 (1971).

State v. Grahovac, 52 Haw. 527, 532,
It allows challenges “[w]here

restraints imposed act directly on an individual or entity and aclaim of specific present objective harm is presented.”Statev. Bloss, 64 Haw. 148, 151, 637 P.2d 1117, 1121 (1981).
Here, the State charges place to keep crimes.

BecauseWilson faces serious consequences, he has a claim of specificpresent objective harm.

And this gives him standing tochallenge the constitutionality of HRS § 134-25 and § 134-27.
See Armitage, 132 Hawaiʻi at 55, 319 P.3d at 1063 (defendants
subject to penal liability under a regulation have “a claim of
specific present objective harm,” and therefore standing to9

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***challenge the constitutionality of that regulation) (citation
omitted).
2.

Wilson lacks standing to challenge HRS § 134-9

Unlike his challenges to HRS § 134-25 and § 134-27, Wilson
does not have standing to challenge HRS § 134-9’s
constitutionality.
Wilson says HRS § 134-9 “may be unconstitutional” and that
it is unreasonable to “[r]equire[] defendants to apply forlicenses pursuant [to] a potentially unconstitutional statute asa prerequisite to challenging other statutes[.]”HRS § 134-9 isunconstitutional, Wilson’s argument goes, so he should not haveto apply for a license to challenge the law.
We disagree.

Wilson has no standing to challenge HRS§ 134-9 without applying for a license.
First, the State has not charged Wilson with violating HRS§ 134-9.

Since “a criminal defendant cannot challenge theconstitutionality of one subsection of a statute where he wascharged under a different subsection,” a criminal defendantcannot challenge the constitutionality of an entirely different
statute.

Armitage, 132 Hawaiʻi at 55, 319 P.3d at 1063;

see also Grahovac, 52 Haw. at 532, 480 P.3d at 152 (“acriminally accused has ‘standing’ to constitutionally challenge
only the specific penal sanctions” charged (emphasis added)).

10*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Next, HRS § 134-9 – Licenses to Carry - is not a criminal
offense.

It reads, in part: “No person shall carry concealed or

unconcealed on the person a pistol or revolver without being
licensed to do so under this section or in compliance withsections 134-5(c) or 134-25.”

Nowhere does HRS chapter 134

identify a criminal penalty for HRS § 134-9.

And the reference

to HRS § 134-25, the B felony place to keep handgun offense,
signals that crime covers it.
Last, Wilson did not bother to follow HRS § 134-9’s
procedure to obtain a license to carry.

Because Wilson made no

attempt to get a license, he cannot claim the law’s application
procedures are unconstitutional as applied to him.

Armitage,

132 Hawaiʻi at 55–56, 319 P.3d at 1063–64 (defendants lacked
standing because they did not follow a permit application
procedure, and therefore could not “claim that the specifics ofthe application procedures . . . [were] unconstitutional asapplied to them”).
Wilson cannot show a specific present objective harm basedon HRS § 134-9.

Thus, his constitutional challenges are

confined to HRS § 134-25 and § 134-27.

Had Wilson followed the

HRS § 134-9 application process, and been denied, then he might
have standing to challenge that law’s constitutionality in his
criminal case.

But those are not his facts.

So Wilson’schallenge is limited to HRS § 134-25 and § 134-27.
11*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***B.

HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s
right to keep and bear arms under article I, section 17
1.

Our Sequence of State Constitutional Interpretation

Wilson invokes both the Hawaiʻi and United States
Constitutions.
This court has yet to explain how we interpret matchingstate and federal constitutional provisions when both are inplay.

Do we look at the state constitution first?

constitution first?

Both?

The federal

If we interpret our constitution toprovide more protection, do we even take up the federal
constitution?
We believe that the proper sequence to consider matching
constitutional text is to interpret the Hawaiʻi Constitution
before its federal counterpart.

Only if the Hawaiʻi Constitution

does not reach the minimum protection provided by a parallelfederal constitutional right should this court construe thefederal analogue.
Thus, we interpret the Hawaiʻi Constitution first.
not get to the United States Constitution.

And maySee State v. Kono,

152 A.3d 1, 29 n.29 (Conn. 2016) (“If we address the state
constitutional claim first and decide it in favor of the
defendant, there is no reason to address the federal
constitutional claim; for purposes of that case, the defendantis entitled to prevail under the state constitution, and it
12

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***simply does not matter which way the claim would have been
decided under the federal constitution.”); State v. Moylett, 836
P.2d 1329, 1332 (Or. 1992) (“if no state law, including thestate constitution, resolves the issues, courts then should turnfor assistance to the Constitution of the United States”).
The Hawaiʻi Constitution often offers “greater protections”
than the federal constitution.

State v. Santiago, 53 Haw. 254,

265, 492 P.2d 657, 664 (1971).

When the two contain look-alikeprovisions, Hawaiʻi has chosen not to lockstep with the Supreme
Court’s interpretation of the federal constitution.
Rather, this court frequently walks another way.

Long ago,the Hawaiʻi Supreme Court announced that an “opinion of theUnited States Supreme Court . . . is merely another source ofauthority, admittedly to be afforded respectful consideration,
but which we are free to accept or reject in establishing theouter limits of protection afforded by . . . the HawaiʻiConstitution.”

State v. Kaluna, 55 Haw. 361, 369 n.6, 520 P.2d51, 58 n.6 (1974).

Further, “this court has not hesitated toadopt the dissents in U.S. Supreme Court cases when it was
believed the dissent was better reasoned than the majority
opinion.”State v. Mundon, 129 Hawaiʻi 1, 18 n.25, 292 P.3d 205,

222 n.25 (2012).
Interpreting the Hawaiʻi Constitution is this court’s #1
responsibility.

So we reason independently, untethered from the13

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Supreme Court’s analysis of the United States Constitution.
State v. Texeira, 50 Haw. 138, 142 n.2, 433 P.2d 593, 597 n.2(1967).

Hawaiʻi’s people “are entitled to an independentinterpretation of State constitutional guarantees.”
v. Ball, 471 A.2d 347, 350 (N.H. 1983).

See State

That means this court,

not the U.S. Supreme Court, drives interpretation of the HawaiʻiConstitution.

“If we ignore this duty, we fail to live up to

our oath” to defend Hawaiʻi’s Constitution.

Id.

State constitutions have a distinct role under our nation’s
system of federalism.

Deciding a case first on state

constitutional grounds respects state sovereignty and aligns
with a key constitutional design feature – subnational
governance.

As the Oregon Supreme Court put it:

The proper sequence is to analyze the state’s law,
including its constitutional law, before reaching a federal
constitutional claim. This is required, not for the sake
either of parochialism or of style, but because the state
does not deny any right claimed under the federal
Constitution when the claim before the court in fact isfully met by state law.

Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981) (en banc).
The state-constitution-first approach recognizes the states
as the cradle of rights.

State constitutions predated theConstitution as the original sources of constitutional rights.
Hans A. Linde, First Things First: Rediscovering the States’
Bills of Rights, 9 U. Balt. L. Rev. 379, 380 (1980) (“Statebills of rights are first in two senses: first in time and first14

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***in logic.”).

The Bill of Rights cut and pasted rights first

ensconced in pre-1789 state constitutions.

Id. at 381.

And formore than a century, state constitutional rights were the only
rights enforceable against state governments.

See Gitlow v. New

York, 268 U.S. 652, 666 (1925) (incorporating the Bill of Rights
against subnational actors).
State constitutions provide a “double security” for thepeople’s liberty.

The Federalist No. 51, at 321 (James Madison)(Isaac Kramnick ed., 1987).

Per the Constitution’s design, theHawaiʻi Constitution supplies an additional guarantee ofindividual rights.

See, e.g., State v. Tanaka, 67 Haw. 658,

661, 701 P.2d 1274, 1276 (1985) (“We have not hesitated in thepast to extend the protections of the Hawaiʻi Bill of Rights
beyond those of textually parallel provisions in the Federal
Bill of Rights when logic and a sound regard for the purposes of
those protections have so warranted.”).
But federalism is about more than just the relationshipbetween state and federal governments.

“[W]e must not forgetthat the virtue of federalism lies not in the means ofpermitting state experimentation but in the ends of expandedliberty, equality, and human dignity.”

State v. Short, 851

N.W.2d 474, 507 (Iowa 2014) (Cady, C.J., concurring specially).
We honor the Hawaiʻi Constitution’s freestanding vitality.
We interpret the Hawaiʻi Constitution first.
15

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***2.

Wilson’s Constitutional Claims

Wilson argues that HRS § 134-25(a) and § 134-27(a) violate
his putative right to keep and bear arms under article I,
section 17 of the Hawaiʻi Constitution and the Second Amendment’s
brand-new right to bear arms in public for self-defense.
HRS § 134-25(a) and § 134-27(a) criminalize the carrying of“a loaded . . . pistol or revolver” and “ammunition” “[e]xcept
as provided in sections 134-5 and 134-9[.]”

HRS § 134-9 permits

the licensed carry of firearms outside the home.

Thus, HRS

§ 134-25(a) and § 134-27(a) regulate firearm use by restricting
the right to publicly carry a handgun and ammunition for selfdefense purposes to those who apply for and receive a carrylicense.
Wilson possessed an unlicensed, concealed, and loaded
handgun to, he says, protect himself.

Only certain factual

circumstances justify shooting another human in Hawaiʻi.

Per HRS§ 703-304(2), “[t]he use of deadly force is justifiable . . . if
the actor believes that deadly force is necessary to protect[themself] against death, serious bodily injury, kidnapping,rape, or forcible sodomy.”

HRS § 703-304(2) (2014).

The State argues Wilson’s handgun-toting conduct is not
saved by the right to bear arms.
not “law abiding.”
abstract.

He trespassed, a crime.

The State’s position makes sense in the

He’s

Neither Bruen, nor any case, protect a right to16

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***commit a crime while armed.

See People v. Gonzalez, 291 Cal.

Rptr. 3d 127, 130 (Cal. Ct. App. 2022) (“We are aware of no
court decision holding that the United States Constitution
protects a right to carry a gun while simultaneously engaging incriminal conduct.”); United States v. Perez-Garcia, No. 22-CR1581-GPC, 2022 WL 17477918, at *3 (S.D. Cal. Dec. 6, 2022) (“[A]reasonable interpretation of Bruen is that it does not obfuscate
the requirement that, as a threshold matter, to receive Second
Amendment protection, one must first and foremost be law
abiding.”).
The State’s argument about Wilson’s alleged criminal
conduct does not apply.

Wilson’s criminal trespass charge(count 4) is not before this court.

And it’s a trial matter.

The parties dispute the facts in declarations attached to theirmotion to dismiss briefing.
for now.

These declarations are fair game

They comply with Hawaiʻi Rules of Penal Procedure Rule47(a) (“If a motion requires the consideration of facts notappearing of record, it shall be supported by affidavit or
declaration.”).
Wilson denies trespassing.

Wilson says that he and his

friends “were hiking that night to look at the moon and Native
Hawaiian plants.”

They did not see any “No Trespassing” signs.

For purposes of the motion to dismiss, Wilson’s alleged criminal

17*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***conduct does not prevent him from challenging the charges under
the Second Amendment and article I, section 17.
So we go to Wilson’s article I, section 17 constitutional
challenge.
This court eyed article I, section 17 before.
Mendoza, 82 Hawaiʻi 143, 920 P.2d 357 (1996).

See State v.

But Mendoza dodged

the key question: Does Hawaiʻi’s Constitution afford a personal
right or a collective right to keep and bear arms?
Mendoza appealed from his conviction for unlawful firearm
possession (then an HRS § 134–4(b) (1993) place to keep charge).
The law violated his right to bear arms under the state andfederal constitutions, he argued.

Id. at 144, 920 P.2d at 358.

After some textual and historical analysis, this court chose not
to decide: “it is unnecessary for us to decide whether theframers intended to establish an individual or collective rightto bear arms under article I, section 17.”
at 367.

Id. at 153, 920 P.2d

The Mendoza court upheld the firearms regulation, even“[a]ssuming, without deciding, that article I, section 17
established an individual right to bear arms.”
Justice Levinson concurred.
individual right.

Id.

He concluded that there was no

Article I, section 17 covers conduct with a“reasonable relationship to the preservation or efficiency of awell regulated militia.”

Id. at 155, 920 P.2d at 369 (Levinson,18*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***J., concurring) (cleaned up).

Here, we decide theconstitutional question previously sidestepped.
Because the text of article I, section 17, its purpose, andHawaiʻi’s historical tradition of weapons regulation support acollective, militia meaning, we hold that the HawaiʻiConstitution does not afford a right to carry firearms in public
places for self-defense.
3.

Article I, section 17’s text

Article I, section 17 reads:
A well regulated militia being necessary to the security ofa free state, the right of the people to keep and bear arms
shall not be infringed.

Haw. Const. art. I, § 17.
The Second Amendment is nearly identical.
and three capital letters separate the two.

Only two commas

The Second

Amendment reads:
A well regulated Militia, being necessary to the securityof a free State, the right of the people to keep and bearArms, shall not be infringed.

U.S. Const. amend II.
Since article I, section 17 imitates the Second Amendment,
it is helpful to look at what the Second Amendment’s words mean.
A textual approach to constitutional interpretation
appreciates that words appear (or do not) for a reason.
Both clauses of article I, section 17 and the Second
Amendment use military-tinged language – “well regulated19*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***militia” and “bear arms” - to limit the use of deadly weapons toa military purpose.
In contrast, there are no words that mention a personal
right to possess lethal weapons in public places for possible
self-defense.
First, we examine the prefatory clause to article I,
section 17 and the Second Amendment.
military meaning.

The opening words carry a

The “well regulated militia” clause warms up

the rest, defining the text.

It “sets forth the object of theAmendment and informs the meaning of the remainder of its text.”
Heller, 554 U.S. at 643 (Stevens, J., dissenting).
Article I, section 17’s first clause offers context andclarity, like preambles do.

“It cannot be presumed that any

clause in the constitution is intended to be without effect.”
See Marbury v. Madison, 5 U.S. 137, 174 (1803).
The federal constitution deploys “militia” to mean anirregular state military force that may be called up by thefederal government to combat outside invasions or internal
insurrections.

See Silveira v. Lockyer, 312 F.3d 1052, 1070

(9th Cir. 2002); Paul Finkelman, “A Well Regulated Militia”: The
Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev.
195, 209 (2000).

Article I, section 8 gives Congress power to“provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions,” and to20

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***“provide for organizing, arming, and disciplining, the Militia.”
U.S. Const. art. I, § 8, cl. 15-16.

Article II makes the

President of the United States the “Commander in Chief of the
Army and Navy” and “of the Militia of the several States, whencalled into the actual Service of the United States.”

Id. art.

II, § 2, cl. 1.
Founding era dictionaries agree.

See Thomas Dyche &William Pardon, A New General English Dictionary (1765)(“Militia: the civil defence of a kingdom, who are cantoned into
companies, regiments, &c. that are casually raised out of the
inhabitants upon extraordinary occasions of riots, tumults,
invasions &c. who, as soon as the disturbance is over, return totheir respective habitations and employments”); John Ash, The
New and Complete Dictionary of the English Language (1775)(“Militia: the train bands, the standing military force of anation.”).
To English speakers – in 1791, 1868, and now - the firstclause narrows the right that the second clause confers.

It is“the people” who make up the militia that need to “keep and beararms” to protect “the free state.”
Centuries ago, the right to keep and bear arms was notuniversal.

It wasn’t for all.

“The people” who had the rightto “keep and bear arms” included a discrete subset, one that
excluded people based on gender and race.
21

Only able-bodied free

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***men could join a militia.

See, e.g., Militia Act of 1792, ch.

33, 1 Stat. 271, 271 (1792) (repealed 1903) (limiting enrollment
in the militia to every “free able-bodied white male citizen”
that is over “the age of eighteen years, and under the age of
forty-five years”).
Article I, section 17’s second clause also carries an“obvious purpose.”(1939).

United States v. Miller, 307 U.S. 174, 178“The term ‘bear arms’ is a familiar idiom; when usedunadorned by any additional words, its meaning is ‘to serve as asoldier, do military service, fight.’”

Heller, 554 U.S. at 646(Stevens, J., dissenting) (citing 1 Oxford English Dictionary
634 (2d ed. 1989).

“Bear arms” is “to serve as a soldier.”

Webster’s New International Dictionary (2d ed. 1960).
Before article I, section 17, bear arms had the same
meaning, going way back.

Some textualists champion corpus

linguistics, “an analysis of how particular combinations ofwords are used in a vast database of English prose.”

Facebook,

Inc. v. Duguid, 592 U.S. 395, 412 (2021) (Alito, J.,
concurring).

They see it as “an important tool . . . infiguring out the meaning of a term.”

Wilson v. Safelite Grp.,

Inc., 930 F.3d 429, 442 (6th Cir. 2019) (Thapar, J.,
concurring).
Like the first clause’s “well regulated militia,” thesecond clause’s “bear arms” has a collective, military meaning.
22*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Linguistic experts have churned through historical materials,
like the Corpus of Founding Era American English and the Corpus
of Early Modern English, to get to the bottom of the Second
Amendment’s key words.

“Founding-era sources almost always use

bear arms in an unambiguously military sense.”

See Dennis

Baron, Corpus Evidence Illuminates the Meaning of Bear Arms, 46
Hastings Const. L.Q. 509, 510 (2019).

“Non-military uses ofbear arms in reference to hunting or personal self-defense are
not just rare, they are almost nonexistent.”

Id. at 510-11; seealso James C. Phillips & Josh Blackman, Corpus Linguistics andHeller, 56 Wake Forest L. Rev. 609, 674, (2021) (“Theoverwhelming majority of bear arms was the ‘collective/militia’sense.”)
Judges interpret words as part of the job.
not language and speech specialists.

But judges are

Before Bruen, linguists

informed the Supreme Court about their research: “[C]orpus
linguistics researchers have unearthed a wealth of new evidence
over the past decade showing that the phrase ‘keep and beararms’ overwhelmingly had a collective, militaristic meaning at
the Founding.”

See Brief for Corpus Linguistics Professors andExperts as Amici Curiae Supporting Respondents at 4, N.Y. State
Rifle & Pistol Ass’n, Inc. v. City of New York, 590 U.S. ____,
140 S. Ct. 1525 (2020) (No. 18-280).

23

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***No words in article I, section 17 and the Second Amendment
describe an individual right.

No words mention self-defense.

“Bear arms” reads the text.

“The unmodified use of ‘beararms,’ . . . refers most naturally to a military purpose, as
evidenced by its use in literally dozens of contemporary texts.
The absence of any reference to civilian uses of weapons tailors
the text of the Amendment to the purpose identified in its
preamble.”Heller, 554 U.S. at 647-48 (Stevens, J., dissenting)(footnote omitted).
The Hawaiʻi Constitution leaves out an individual right tobear arms.

Our framers had options.

They could have worded theconstitution to plainly secure an individual right to possess
deadly weapons for self-defense.

But they didn’t.

The

Pennsylvania Constitution of 1776 did: “the people have a rightto bear arms for the defence of themselves and the state.”
Const. of 1776, article XIII (emphasis added).

Pa.

The Vermont

Constitution, too: “the people have a right to bear arms for the
defence of themselves and the State.”

Vt. Const. ch. 1, art. 16(enacted 1777, ch. 1, art. 15).
The Hawaiʻi Constitution and 44 state constitutions identify
a right to bear arms.

See Mendoza, 82 Hawaiʻi at 146 n.5, 920

P.2d at 360 n.5. (counting forty-two other states’ “bear arms”
provisions).

Two states amended their constitutions post-1996.

See Wis. Const. art. I, § 25 enacted in 1998; Iowa Const. art.
24

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***I, § 1A, enacted in 2022.

5 states – California, Maryland,

Minnesota, New Jersey, and New York - do not have a Second
Amendment counterpart in their constitutions.

And besides

Hawaiʻi, only four state constitutions (Alaska, North Carolina,
South Carolina, and Virginia) still say “well regulated
militia.”
Unlike article I, section 17, nearly all state
constitutions that recognize a right to keep and bear arms,
expressly identify it as a civilian right for personal selfdefense.

Overwhelmingly, state constitutions use individual-

centric language.

They recognize a right to bear arms for “anyperson” or “every citizen.”

For instance (1) Maine’s

Constitution: “Every citizen has a right to keep and bear arms
and this right shall never be questioned.”

Me. Const. art. I,§ 16 (enacted 1987, after a collective rights interpretation of
the original provision, State v. Friel, 508 A.2d 123 (Me.
1986)); (2) Connecticut’s Constitution: “Every citizen has aright to bear arms in defense of himself and the state.”

Conn.

Const. art. I, § 15 (enacted 1818, art. I, § 17); and (3)Illinois’ Constitution: “Subject only to the police power, theright of the individual citizen to keep and bear arms shall not
be infringed.”

Ill. Const. art I, § 22 (enacted 1970).

25

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***We believe that if article I, section 17 meant to provide
an individual right to carry deadly weapons in public for selfdefense, then it would say so.
Until Heller, the Supreme Court had never ruled that theSecond Amendment afforded an individual right to keep and beararms.

Because the Second Amendment provided a collective right,

most states conferred an individual right through theirconstitutions.

Federalism principles allow states to provide

broader constitutional protection to their people than thefederal constitution.

See, e.g., Texeira, 50 Haw. at 142 n.2,

433 P.2d at 597 n.2.
Hawaiʻi chose to use civic-minded language.

Article I,

section 17 textually cements the right to bear arms to a well
regulated militia.

Its words confer a right to “keep and beararms” only in the context of a “well regulated militia.”
Article I, section 17 traces the language of the Second
Amendment.

Those words do not support a right to possess lethal

weapons in public for possible self-defense.
4.

Article I, section 17’s purpose

The original public purpose of article I, section 17 (andthe Second Amendment) also supports a collective, militaryinterpretation.
This court construes the Hawaiʻi Constitution “with due
regard to the intent of the framers and the people adopting it,26

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***and the fundamental principle in interpreting a constitutional
provision is to give effect to that intent.”

Hanabusa v.

Lingle, 105 Hawaiʻi 28, 31, 93 P.3d 670, 673 (2004).
We conclude that the authors and ratifiers of the HawaiʻiConstitution imagined a collective right.

Our understandingaligns with what the Second Amendment meant in 1950 when Hawaiʻi
copied the federal constitution’s language.

And in 1968 and1978 when Hawaiʻi’s people kept those words.
Article I, section 17 originated as Proposal Number 3,
section 15 (Section 15) as introduced in the Constitutional
Convention of Hawaiʻi of 1950.

Debates in Comm. of the Whole on

Bill of Rights (Article I), 2 Proceedings of the Constitutional
Convention of Hawaiʻi of 1950, at 10 (1961).

Legislative history

shows that the first framers of the Hawaiʻi Constitution had
concerns about the potential impact that a bear arms provision
would have on existing firearms registration laws, and thestate’s ability to pass reasonable laws.

The committee reports

disclose the framer’s intent to allow sensible firearms
legislation.
Section 15 incorporates the 2nd Amendment of the Federal
Constitution. In adopting this language, it was theintention of the committee that the language should not be
construed as to prevent the state legislature from passing
legislation imposing reasonable restrictions upon the rightof the people to keep and bear arms.

27

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Stand. Comm. Rep. No. 20, in 1 Proceedings of the Constitutional
Convention of Hawaiʻi of 1950, at 164 (1960).
The 1950 Constitutional Convention delegates expressed an
intent to preserve the Territory’s firearms regulations.

They

had foresight, too, reserving the right to later pass laws toban “modern and excessively lethal weapons . . . .”This section incorporates the 2nd Amendment to the Federal
Constitution. Your Committee wishes to make it clear that
this section will not render invalid the existing laws of
the Territory, which will be continued in effect by theState Constitution, relating to the registration,possession and carrying of firearms, nor will it preventthe legislature from passing other reasonable restrictions
on the right to acquire, keep or bear firearms or otherweapons, including the power of the legislature to entirely
prohibit the possession of such modern and excessively
lethal weapons as machine guns, silencers, bombs, atomic
weapons, etc. Upon this understanding, your Committee
recommends the adoption of this section.

Comm. of the Whole Rep. No. 5, in 1 Proceedings of theConstitutional Convention of Hawaiʻi of 1950, at 303 (emphases
added).
The 1968 Constitutional Convention endorsed the HawaiʻiConstitution’s text and original purpose.

The introduction to aseries of Legislative Reference Bureau studies prepared to aid
the Convention’s delegates explains that article I, section 17
was based on the conventional and traditional interpretation of
the Second Amendment.

“The historical background of the Second

Amendment indicates that the central concern in the right tobear arms was the right of the states to maintain a militia.”
Hawaiʻi Constitutional Convention Studies: Introduction and28

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Article Summaries (Vol. I), at 7 (1968).

The report adds: “Theright to bear arms refers explicitly to the militia and issubject to lawful regulation.”Stand. Comm. Rep. No. 55 in 1

Proceedings of the Constitutional Convention of Hawaiʻi of 1968,at 235 (1973).
The 1968 Constitutional Convention’s Standing Committee
recommended retaining then-Section 15.

The Committee’s reportclarified:
The Committee feels that reference must be made to thereport of the 1950 Constitutional Convention in order thatthe people of this State not misconstrue the intent of thissection. The right to bear arms refers explicitly to themilitia and is subject to lawful regulation.

Id.
Ten years later, the 1978 Constitutional Convention Studies
similarly advised the delegates: “[T]he right to keep and beararms is one enjoyed collectively by members of a state militia”
rather than an individual right.

Hawaiʻi Constitutional

Convention Studies 1978: Introduction and Article Summaries, at
6 (1978).

The study recounts that the “1968 Constitutional

Convention, to clear up any confusion left by its predecessor,
stressed that section 15 referred only to the collective rightto bear arms as a member of the state militia, but did not amend
section 15.”Id.

The Hawaiʻi Constitution’s first framers knew about theUnited States Supreme Court’s decision in Miller, 307 U.S. at29

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***183.

In 1950, at the prepare-for-statehood Constitutional

Convention, only 11 years had passed since the unanimousdecision in Miller.

There the Supreme Court concluded that theSecond Amendment’s purpose was to preserve an effective state
militia:[i]n the absence of any evidence tending to show thatpossession or use of a “shotgun having a barrel of lessthan eighteen inches in length” at this time has somereasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an
instrument.

Id. at 178.
When the Hawaiʻi Constitution was first ratified, courts
throughout the nation’s history had always interpreted andapplied the Second Amendment with the militia-centric viewexpressed in Miller.

See, e.g., Cases v. United States, 131

F.2d 916, 921 (1st Cir. 1942) (“The right to keep and bear arms
is not a right conferred upon the people by the federal
constitution.”); United States v. Tot, 131 F.2d 261, 266 (3dCir. 1942) (finding it “abundantly clear” that the Second
Amendment, unlike freedom of speech and freedom of religion,“was not adopted with individual rights in mind, but as aprotection for the States in the maintenance of their militia
organizations against possible encroachments by the federal
power”).

30

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***This was what everyone thought.

A 1969 law dictionary

explained: the “right to bear arms” refers to the militia,“[n]ot a constitutional right to carry weapons on one’s person
as a civilian.”

Right to bear arms, Ballentine’s Law Dictionary(3d ed. 1969).
State and federal courts had also, with few exceptions,
upheld laws regulating firearms use and possession.
Article I, section 17 traces the Second Amendment’s
language.

The introductory militia language reveals article I,

section 17’s purpose - preserve the militia to safeguard the
security of Hawaiʻi as a free state.

See Heller, 554 U.S. at 640(Stevens, J., dissenting) (noting that the prefatory phrase“identifies the preservation of the militia as the Amendment’s
purpose”).
Like article I, section 17, the Second Amendment’s original
purpose protects a state’s right to have a militia.

The framers

included the right to keep and bear arms in the federal
constitution “in response to their fear that [the] government
might disarm the militia, not restrict the common law right ofself-defense.”

Saul Cornell & Nathan DeDino, A Well Regulated

Right: The Early American Origins of Gun Control, 73 Fordham L.
Rev. 487, 499 (2004).

Madison’s writings suggest that theSecond Amendment originated from fear of a federal government
power grab.

The Second Amendment quelled alarm that the31

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***national government might disarm and disband state militias.
Those militias could “oppose” a federal army, Madison wrote, and“would be able to repel the danger” of the federal government.
The Federalist No. 46, at 301 (James Madison) (Isaac Kramnicked., 1987).
That’s what they were thinking about long ago.

Not someone

packing a musket to the wigmaker just in case.
Until recently, the Second Amendment conferred a collective
right to bear arms in service to the militia.

See Miller, 307

U.S. at 178; Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).
There was no individual federal constitutional right to carrydeadly weapons in public places for self-defense.

There were

only statutory, common law, or state constitutional rights.
Around Miller’s time, the state militia was evolving into
the National Guard.

A 1903 Act created the National Guard.

“[T]he regularly enlisted, organized, and uniformed active
militia in the several States and Territories . . . whether
known and designated as National Guard, militia, or otherwise,
shall constitute the organized militia.”
1903, 32 Stat. 775.

Then the National Defense Act of 1916

federalized the National Guard.
166.

Act of January 21,

Act of June 3, 1916, 39 Stat.

A 1933 amendment to that act established state National

Guard units that would simultaneously enlist in the federal
National Guard.

Act of June 15, 1933, 48 Stat. 153, 159.
32

While

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***each state can call upon their unit for emergencies, the federal
government also retains power to utilize them for national
defense.

See Perpich v. Dep’t of Def., 496 U.S. 334, 351(1990).
The authors of the Hawaiʻi Constitution understood themeaning of militia.

“Militia” meant “a body of citizens

enrolled as a regular military force for periodical instruction,
discipline, and drill, but not called into active service except
in emergencies.”
1960).

Webster’s New International Dictionary (2d ed.

By then it included the state National Guard.

At the1968 constitutional convention, delegate Leland Larson
explained, “Section 15, the so-called ‘right to bear arms’
provision, does not refer to the individual’s right, it refers
to the militia, to the national guard.”

Debates in Comm. of theWhole on Bill of Rights (Article I), 2 Proceedings of theConstitutional Convention of Hawaiʻi of 1968, at 24 (1972); seealso William L. Shaw, The Interrelationship of the United States
Army and the National Guard, 31 Mil. L. Rev. 39, 44 (1966)(noting that “modern-day sense” of term “militia” includes“National Guard units”).
Soon interest groups advanced an individual rights
interpretation of the Second Amendment.

See Carl T. Bogus, The

History and Politics of Second Amendment Scholarship: A Primer,
76 Chi.-Kent L. Rev. 3 (2000).
33

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Former Chief Justice Burger called out that movement.

It

was:
one of the greatest pieces of fraud, I repeat the word
‘fraud,’ on the American public by special interest groups
that I’ve ever seen in my lifetime. The real purpose of
the Second Amendment was to ensure that state armies — themilitia — would be maintained for the defense of the state.
The very language of the Second Amendment refutes any
argument that it was intended to guarantee every citizen an
unfettered right to any kind of weapon he or she desires.

Silveira v. Lockyer, 312 F.3d 1052, 1063 (9th Cir. 2002)(quoting Warren E. Burger, The Right to Bear Arms, PARADE
MAGAZINE, Jan. 14, 1990, at 4).
Circuit courts agreed.
Same as it ever was.

There was no individual right.

See Love v. Pepersack, 47 F.3d 120, 124(4th Cir. 1995) (“Since [Miller], the lower federal courts have
uniformly held that the Second Amendment preserves a collective,
rather than individual, right.”); Gillespie v. City ofIndianapolis, 185 F.3d 693, 710 (7th Cir. 1999).
though, the Fifth Circuit took a new tact.

In 2001

See United States v.

Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (finding that theSecond Amendment “protects individual Americans in their rightto keep and bear arms whether or not they are a member of a
select militia”).
Then, the Supreme Court granted cert in Heller.

Hellerflipped the nation’s textual and historical understanding of theSecond Amendment.

The majority insisted there was “no doubt, on

the basis of both text and history, that the Second Amendment34*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***conferred an individual right to keep and bear arms.”

554 U.S.

at 595.
History by historians quickly debunked Heller’s history.
“If history, and history alone, is what matters, why would the
Court not now reconsider Heller in light of these more recently
published historical views?”

McDonald, 561 U.S. at 916 (Breyer,J., dissenting); United States v. Bullock, ___ F. Supp. 3d ___,
2023 WL 4232309, at *4-*5 (S.D. Miss. 2023) (Reeves, J.) (“[A]noverwhelming majority of historians reject the Supreme Court’s
most fundamental Second Amendment holding – its 2008 conclusionthat the Amendment protects an individual right to bear arms,
rather than a collective, Militia-based right.”) (cleaned up).
History is prone to misuse.

In the Second Amendment cases,

the Court distorts and cherry-picks historical evidence.

Itshrinks, alters, and discards historical facts that don’t fit.
See Heller, 554 U.S. at 639 (Stevens, J., dissenting); Bruen,
597 U.S. at 112 (Breyer, J., dissenting) (“the numerous
justifications that the Court finds for rejecting historicalevidence give judges ample tools to pick their friends out ofhistory’s crowd”).
Bruen unravels durable law.

No longer are there the levelsof scrutiny and public safety balancing tests long-used by our
nation’s courts to evaluate firearms laws.
ad-libs a “history-only” standard.
35

Instead, the Court

See id. at 84.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***The Supreme Court makes state and federal courts use afuzzy “history and traditions” test to evaluate laws designed topromote public safety.

It scraps the traditional techniques

used by federal and state courts to review laws passed by the
People to protect people.

And by turning the test into history

and nothing else, it dismantles workable methods to interpretfirearms laws.

All to advance a chosen interpretive modality.

Yet only a few years before, the Court had constrained
originalism’s liberty-reducing tendencies.

The history andtradition of the very old days did not control contemporary
American life.

“History and tradition guide and discipline thisinquiry but do not set its outer boundaries.”

Obergefell v.

Hodges, 576 U.S. 644, 664 (2015).
Judges are not historians.

Excavating 18th and 19th

century experiences to figure out how old times control 21st
century life is not a judge’s forte.
historians.

“Judges are not

We were not trained as historians.

law, not history.”

We practiced

Bullock, 2023 WL 4232309, at *4.

Worse,

judges may use history to fit their preferred narratives.

“[I]naddition to the risk that [judges] will not understand thematerials they are charged to consult, there is the additionalrisk that they will not conduct a dispassionate examination of
the historical evidence and will simply marshal historical
anecdotes to achieve what they have already decided is the36

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***preferred outcome.”

Darrell A.H. Miller, Text, History, andTradition: What the Seventh Amendment Can Teach Us About theSecond, 122 Yale L.J. 852, 935 (2013).
History is messy.
not made by most.

It’s not straightforward or fair.

It’s

See Melissa Murray, Children of Men: The

Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev.
799, 800 (2023) (the current Court “frequently relies [on]moments in which women and people of color were expressly
excluded from political participation and deliberation”).
Bruen, McDonald, Heller, and other cases show how the Court
handpicks history to make its own rules.

See Allegheny Reprod.

Health Ctr. v. Pennsylvania Dep’t of Hum. Servs., ___ A.3d ___,
2024 WL 318389, at *135 (Pa. 2024) (Wecht, J., concurring) (“Atthe same time that it purported to anchor its holding in
American common law, the Dobbs majority engaged in historicalfiction, disregarding evidence that undermined its view andignoring the reproductive autonomy that American womenoriginally exercised – autonomy that included matters ofpregnancy, childbirth, and abortion.”).

“A justice’s personalvalues and ideas about the very old days suddenly control the
lives of present and future generations.”

See City & Cnty. of

Honolulu v. Sunoco LP, 153 Hawaiʻi 326, 361, 537 P.3d 1173, 1208
(2023) (Eddins, J., concurring).

37

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Bruen’s command to find an old-days “analogue” undercuts
the other branches’ responsibility – at the federal, state, andlocal levels - to preserve public order and solve today’s
problems.

And it downplays human beings’ aptitude fortechnological advancement.
Time-traveling to 1791 or 1868 to collar how a state
regulates lethal weapons – per the Constitution’s democratic
design - is a dangerous way to look at the federal constitution.
The Constitution is not a “suicide pact.”

Terminiello v.

Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
We believe it is a misplaced view to think that today’s
public safety laws must look like laws passed long ago.
Smoothbore, muzzle-loaded, and powder-and-ramrod muskets were
not exactly useful to colonial era mass murderers.

And life isa bit different now, in a nation with a lot more people,
stretching to islands in the Pacific Ocean.
Regulations like storing powder safely, reporting with guns
for militia “musters” (weapons inspection), and loyalty oaths
are hardly helpful to address contemporary gun violence.

Yet

those odd laws have historical and traditional roots.
Democratically-vetted laws, though – measures taken by today’s
citizens to save lives - are mostly out of bounds.
Lethal weapons share little resemblance to weaponry used
centuries ago.

A well-trained Revolutionary War soldier could38

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***fire his Brown Bess musket three times a minute.

See, e.g.,

David S. Lux, Brown Bess, Guns in American Society: A-L 84, 86(Gregg Lee Carter ed., 2002) (“An effectively trained soldier
equipped with [a] smooth-bore musket[] could fire at least threerounds per minute on command.”).

The Civil War’s muzzle-loadingrifled muskets in the Civil War were an improvement on
Revolutionary War weapons, but were still plenty slow anddifficult to reload.

Earl J. Hess, The Rifle Musket in Civil

War Combat: Reality and Myth 4-7 (Univ. of Kansas 2008).
Presently, a semi-automatic rifle can fire at least 45 rounds aminute (and up to 300).

See Bevis v. City of Naperville, Ill.,

85 F.4th 1175, 1197 (7th Cir. 2023); Id. at 1224 (Brennan, J.,dissenting).

Weapons to maximize death differ from those in theeras Bruen tells us to review.
Gun use has changed, too.
ignores today’s realities.

A backward-looking approach“In 2019 for every justifiablehomicide in the United States involving a gun, guns were used in
30 criminal homicides.”criminal homicides.)(316 justifiable homicides and 9,610

This ratio does not take into accountsuicides and fatal unintentional shootings.

See Firearm

Justifiable Homicides and Non-Fatal Self-Defense Gun Use,
Violence Policy Center, 1, March 2023,
https://vpc.org/studies/justifiable23.pdf[https://perma.cc/PW6G-J5U8].
39

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***The United States Supreme Court disables the states’
responsibility to protect public safety, reduce gun violence,and safeguard peaceful public movement.

A government by thepeople works.

Hawaiʻi’s legislative branch has passed sensible

firearms laws.

And Hawaiʻi’s executive branch has enforced thoselaws.

The most recent available data from the Centers for

Disease Control shows that Hawaiʻi has the nation’s second-lowest
rate of gun deaths per year.

Centers for Disease Control andPrevention, National Center for Health Statistics, Firearm
Mortality by State (March 1, 2022) (displaying 2021 data)
https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/fire
arm.htm [https://perma.cc/J7HT-7NXH].
As the world turns, it makes no sense for contemporarysociety to pledge allegiance to the founding era’s culture,
realities, laws, and understanding of the Constitution.
thing about the old days, they the old days.”“The

The Wire: Home

Rooms (HBO television broadcast Sept. 24, 2006) (Season Four,
Episode Three).
5.

History and Tradition in Hawaiʻi

To be clear, history, though not the end all, is useful.
See Hawaiʻi State AFL-CIO v. Yoshina, 84 Hawaiʻi 374, 376, 935
P.2d 89, 91 (1997) (“[A] constitutional provision must be
construed in connection with other provisions of the instrument,
and also in the light of the circumstances under which it was40

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***adopted and the history which preceded it.”) (cleaned up).

The

Hawaiʻi Supreme Court values history and tradition to aid
statutory and constitutional interpretation.

Id.

But unlike

the United States Supreme Court, we do not subscribe to aninterpretive theory that nothing else matters.
Here, we discuss Hawaiʻi’s historical tradition ofregulating weapons.
historians.

We try our best.

Judges are not(Except the rare case of John Papa ʻĪʻī, historianand Associate Justice of the Supreme Court of the Kingdom of
Hawaiʻi from 1848-1864.)

Throughout its history as a sovereign

nation and as a Territory, Hawaiʻi regulated deadly weapons.
History bares article I, section 17’s purpose.

Never have

Hawaiʻi’s people felt that carrying deadly weapons during daily
life is an acceptable or constitutionally protected activity.
In Hawaiʻi, a state constitutional right to keep and beararms does not extend to non-militia purposes.
a.

The Kingdom of Hawaiʻi’s First Law: Ke Kānāwai
Māmalahoe and the promotion of public safety“[A] unified monarchial government of the Hawaiian Islands
was established in 1810 under Kamehameha I, the first King of
Hawaiʻi.”

S.J. Res. 19, 103d Cong., 107 Stat. 1510 (1993).

King

Kamehameha I enacted Hawaiʻi’s first law: Ke Kānāwai Māmalahoe,
or “law of the splintered paddle.”

See Carol Chang, The Law of

the Splintered Paddle: Kānāwai Māmalahoe 14 (1994).
41

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***The law reflects Kamehameha’s personal experience:
Kamehameha and Ka-hakuʻi paddled to Papaʻi and on to Keaʻauin Puna where some men and women were fishing, and a little
child sat on the back of one of the men. Seeing them about
to go away, Kamehameha leaped from his canoe intending tocatch and kill the men, but they all escaped with the women
except two men who stayed to protect the man with thechild. During the struggle Kamehameha caught his foot in acrevice of the rock and was stuck fast; and the fishermenbeat him over the head with a paddle. Had it not been that
one of the men was hampered with the child and theirignorance that this was Kamehameha with whom they were
struggling, Kamehameha would have been killed that day.
This quarrel was named Ka-lele-iki, and from the strikingof Kamehameha’s head with a paddle came the law ofMamala-hoe (Broken paddle) for Kamehameha.

Samuel M. Kamakau, Ruling Chiefs of Hawaiʻi 125-26 (1961):
The law of the splintered paddle promotes public safety:
E nā kānaka,
E mālama ʻoukou i ke akua
A e mālama hoʻi i kānaka nui
a me kānaka iki;
E hele ka ʻelemakule,ka luahine, a me ke kama
A moe i ke ala
ʻaʻohe mea nāna e hoʻopilikia.
Hewa nō, make.
O my people,
Honor thy god;
Respect alike (the rights of)men great and humble;
See to it that our aged,
our women, and our children
Lie down to sleep by the roadside
Without fear of harm.
Disobey, and die.
Chang, The Law of the Splintered Paddle at 16.
Kamehameha I’s law protects all people, “great and humble.”
Especially the vulnerable - children and the elderly.

42

The law*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***imagines free movement without fear.

Living without need tocarry a deadly weapon for self-defense.
Article IX, section 10 of the 1978 Hawaiʻi Constitution
codifies Ke Kānāwai Māmalahoe:
The law of the splintered paddle, [kānāwai māmalahoe],decreed by Kamehameha I -- Let every elderly person, woman
and child lie by the roadside in safety -- shall be aunique and living symbol of the State’s concern for public
safety.
The State shall have the power to provide for the safety ofthe people from crimes against persons and property.

Haw. Const. art. IX, § 10.
Article IX, section 10 provides the people of Hawaiʻi aconstitutional right to freely and safely travel in peace andtranquility.

To animate this constitutional right, the HawaiʻiConstitution empowers the State to provide for the “safety ofthe people from crimes against persons and property.”b.

1833-1893: Weapons were heavily regulated under
Hawaiian Kingdom Law

By the time Kamehameha III became King, foreign nations andtheir citizens increasingly exposed the islands to deadly
weapons.
crime.

Kamehameha III enacted laws to protect his people fromIn 1833, the King promulgated a law prohibiting “anyperson or persons” on shore from possessing a weapon, including
any “knife, sword-cane, or any other dangerous weapon.”
Violators were subject to arrest and punishment by fine orlashings.

Translation of the Constitution and Laws of the43

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Hawaiian Islands, Established in the Rein of Kamehameha III 98(Lahainaluna, 1842).
Kamehameha III’s laws severely punished those who committed
crimes with deadly weapons.

Chapter XXXVII outlawed burglary.

It had a harsh sentencing enhancement: ordinary burglary was
punished by exile for a period of 3-10 years, but if a burglar
had a deadly weapon, then it was “a great crime, and the mancommitting it shall be condemned to reside on another land till
death.”

Id. at 93.

Chapter XXXVIII, too.

Any murder committed

by use of a weapon was punishable by death.

Id. at 94.

Kamehameha III enacted Hawaiʻi’s first constitution in 1840.
Kamakau, Ruling Chiefs of Hawaiʻi at 370.

Kamehameha III and his

advisors, including the American William Richards, spent years
deliberating what the Kingdom of Hawaiʻi’s Constitution would
say.

Ralph S. Kuykendall, The Hawaiian Kingdom, 1778-1854 159,

167 (1938).

The 1840 Constitution included the United States

Constitution’s right to freedom of religion.
Constitution and Laws at 10 (1842).

Translation of the

But it left out its “rightto bear arms” provision, signaling there was no desire to allow
the King’s subjects to freely arm themselves.

See id. at 9-16.

Kamehameha III’s government revised the Constitution twelve
years later.

The 1852 Constitution was in many ways modeled on

the United States Constitution and the Declaration of
Independence.

Article I declared inalienable rights: life,44*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***liberty, property, and pursuing safety and happiness.
Constitution and Laws of His Majesty Kamehameha III, King of the
Hawaiian Islands, Passed by the Nobles and Representatives at
Their Session, 1852 3 (1852).
religion.

Article II enshrined freedom of

Article III established freedom of the press.

And

article IV decreed, “[a]ll men shall have the right, in anorderly and peaceable manner to assemble, without arms, toconsult upon the common good; give instructions to their
Representatives; and to petition the King or the Legislature fora redress of grievances.”

Id. (emphasis added).

The 1852

Constitution contained no right to keep and bear arms.

See id.

And it explicitly conditioned the right of assembly on being
unarmed.

There was no right to carry weapons in public.

Hawaiʻi has a tradition of updating its weapons laws tomatch changing technology.

The Kingdom’s 1852 law, “An Act toPrevent the Carrying of Deadly Weapons,” expanded the definitionof “deadly weapon” to prohibit anyone not authorized by law fromcarrying “any bowie-knife, sword-cane, pistol, air-gun, slungshot or other deadly weapon.”

Id. at 19.

The only people

allowed to carry arms were Kingdom officials and military
officers, but only “when worn for legitimate purposes.”
Kamehameha V adopted a new constitution in 1864.

Id.
Again,

the Kingdom of Hawaiʻi’s Constitution left out a right to beararms.

See Haw. Const. of 1864.

And again, it protected the45

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***right to assemble only “without arms.”

Haw. Const. of 1864,

art. 4.
A shift in deadly weapons regulation occurred in 1870.
Concerned that hunters were destroying Oʻahu’s bird population,
the Kingdom enacted a firearm licensing law.

Laws of His

Majesty Kamehameha V., King of the Hawaiian Islands, Passed by
the Legislative Assembly, at its Session, 1870 26 (1870) (“AnAct to License the Carrying of Fowling Pieces and Other Firearms”).

The Minister of Interior could issue hunting licenses

for the southern part of Oʻahu.

Without a license, the “use or

carry” of hunting guns resulted in fines or imprisonment at hardlabor.

Id.

The Kingdom of Hawaiʻi Constitution of 1864 remained in
effect until 1887.

Then, a subversive group forced KingKalākaua to sign a new constitution.

Queen Liliʻuokalani

recalled that they would have executed her brother, KingKalākaua, had he not signed the “Bayonet Constitution,” theConstitution of 1887.
Queen 181 (1898).

Liliʻuokalani, Hawaiʻi’s Story by Hawaiʻi’sright to bear arms.

The schemers, mostly American men, omitted a
See Haw. Const. of 1887; Liliʻuokalani,

Hawaiʻi’s Story at 355.

46

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***c.

1893-1898: The Provisional Government continued
to heavily regulate weapons

In 1893, another armed group forcibly deposed Queen
Liliʻuokalani, who was crowned after King Kalākaua’s death in1891.

Liliʻuokalani, Hawaiʻi’s Story at 209-10, 387.

“A so-called Committee of Safety, a group of professionals
and businessmen, with the active assistance of John Stevens, theUnited States Minister to Hawaiʻi, acting with the United States
Armed Forces, replaced the monarchy with a provisional
government.”

Rice v. Cayetano, 528 U.S. 495, 504–05 (2000).

(100 years later, in 1993, “Congress enacted a joint resolution‘to acknowledge the historic significance of the illegal
overthrow of the Kingdom of Hawaiʻi’” and apologize to Native
Hawaiians.

Hawaiʻi v. Office of Hawaiian Affairs, 556 U.S. 163,168-69 (2009)).
After the unlawful overthrow, one of the first things theProvisional Government did was end the importation of firearms,
ammunitions, or explosives.

See Laws of the Provisional

Government of the Hawaiian Islands Passed by the Executive andAdvisory Councils Acts 1 to 42 13 (Act 9) (1893).
The next year, the Provisional Government formed the“Republic of Hawaiʻi.”

Liliʻuokalani, Hawaiʻi’s Story at 258.

Then, on July 4, 1894, they unveiled a new Constitution.
Again, the right to assemble was only “without arms.”
47

Id.

Haw.

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Const. of 1894, art. IV.
Second Amendment.

Again, there was no analogue to the

See Haw. Const. of 1894.

In 1896, the Republic passed a law that prohibited anyone
from carrying or using a firearm in Hawaiʻi without a license.
Laws of the Republic of Hawaiʻi Passed by the Legislature at its
Session, 1896 224 (1896).

The law also required registrationfor every firearm in the islands, even those belonging to policeor military members.

Id. at 224-25.

Anyone possessing an

unlicensed firearm was subject to a fine and forfeiting the gun.
Id. at 226.
d.

1898-1959: The Territorial Government continued
to heavily regulate weapons

In 1898, the United States, by joint resolution ofCongress, annexed the Republic of Hawaiʻi, creating the Territoryof Hawaiʻi.

Newlands Resolution, H.R.J. Res. 259, 55th Cong.

(1898), 30 Stat. 750.
Though the Hawaiian Islands were now ruled by a subjugating
nation, Hawaiʻi continued its historic tradition of strict
weapons regulation.
The year before Bruen, the Ninth Circuit Court of Appeals
upheld Hawaiʻi’s regulatory framework for firearms, HRS chapter
134.

Young v. Hawaiʻi, 992 F.3d 765, 773–75 (9th Cir. 2021).

Young recounts the history of weapons regulation in Hawaiʻithrough much of the 20th century:48

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***Hawaiʻi’s regulation of dangerous weapons remained in effectafter Hawaiʻi consented to annexation as a U.S. territory in
1898. Under the Newlands Resolution, “[t]he municipal
legislation of the Hawaiian Islands . . . not inconsistent
with this joint resolution nor contrary to the Constitutionof the United States nor to any existing treaty of theUnited States, shall remain in force until the Congress of
the United States shall otherwise determine.” Resolutionof July 7, 1898, 30 Stat. 750. See Territory of Hawaiʻi v.
Mankichi, 190 U.S. 197, 209, 23 S. Ct. 787, 47 L.Ed. 1016
(1903). Hawaiʻi’s territorial legislature renewed its 1852
limitations on the carrying of dangerous weapons in a 1905
Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089
(1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1.
Like its predecessors, the 1913 statute made it unlawful tocarry deadly weapons unless “authorized by law.” Id. The
statute imposed civil and criminal penalties on anyone whocarried a “deadly weapon” without prior authorization“unless good cause be shown for having such dangerous
weapon.” Id.
In 1927, Hawaiʻi implemented its first restriction on
firearms specifically, as opposed to restrictions on the
broader class of “deadly weapons.” In a section entitled“Carrying or keeping small arms by unlicensed person,” thelaw provided:
Except as otherwise provided in Sections 7 and 11
hereof in respect of certain licensees, no person
shall carry, keep, possess or have under his control
a pistol or revolver; provided, however, that any
person who shall have lawfully acquired the ownershipor possession of a pistol or revolver may, forpurposes of protection and with or without a license,
keep the same in the dwelling house or businessoffice personally occupied by [them], and, in thecase of an unlawful attack upon any person orproperty in said house or office, said pistol orrevolver may be carried in any lawful, hot pursuit of
the assailant.
Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927
Act, which was modeled in part on the Uniform Firearms Act,required a person to obtain a license to carry a “pistol orrevolver concealed upon [their] person or to carry one
elsewhere than in [their] home or office.” Id. § 7. Carrylicenses could be issued by the sheriff or a sitting judge
after either had determined that applicant was“suitable . . . to be so licensed.” Id. An applicant wasdeemed “suitable” to carry a firearm upon meeting a
citizenship and age requirement and showing a “good reason
to fear an injury to [their] person or property, or . . .
other proper reason for carrying a pistol or revolver.”Id.

49

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***In 1933, the Hawaiʻi legislature further refined its
concealed-carry licensing scheme. Act 26, § 8, 1933–1934
Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed
weapon, the applicant had to demonstrate an “exceptionalcase” and a “good reason to fear injury to [their] personor property.” Id.
The “exceptional case” and “good reason to fear injury”
requirements included in the 1933 Act became staples of
Hawaiʻi’s future firearm regulations. The Hawaiʻilegislature included those requirements in its 1961 Act“Relating to Permits to Carry Firearms.” Act 163, 1961
Haw. Sess. Laws 215. The 1961 regulations mirrored thosein the 1933 statute and required an applicant todemonstrate an “exceptional case” and a “good reason [forthe applicant] to fear injury to [their] person orproperty” before publicly carrying a firearm. Id. § 1.
Whereas the 1933 Act only applied to concealed carry,
however, the 1961 Act announced a new regulatory scheme foropen carry. An individual seeking to carry a firearm
openly in public was required to demonstrate “the urgencyof the need” to carry and must be “engaged in theprotection of life and property.” Id. If the applicant
made such a showing and was not otherwise prohibited frompossessing a firearm, the chief of police had discretion to
grant the carry application. Id. (“[T]he respective
chiefs of police may grant a license . . . .”).

Id. at 774-75.
No doubt.

Hawaiʻi’s historical tradition excludes anindividual right to possess weapons.

Hawaiʻi prohibited the

public carry of lethal weapons – with no exceptions for licensed
weapons – from 1833-1896.

Unlicensed public carry of firearms

has been illegal from 1896 to the present.

Hawaiʻi has neverrecognized a right to carry deadly weapons in public; not as a
Kingdom, Republic, Territory, or State.
e.

The Aloha Spirit

In Hawaiʻi, the Aloha Spirit inspires constitutional
interpretation.

See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210

(Eddins, J., concurring).

When this court exercises “power on50

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***behalf of the people and in fulfillment of [our]responsibilities, obligations, and service to the people” we“may contemplate and reside with the life force and giveconsideration to the ‘Aloha Spirit.’”

HRS § 5-7.5(b) (2009).

The spirit of Aloha clashes with a federally-mandated
lifestyle that lets citizens walk around with deadly weapons
during day-to-day activities.
The history of the Hawaiian Islands does not include asociety where armed people move about the community to possibly
combat the deadly aims of others.

See Haw. Const. art. IX, § 10(“The law of the splintered paddle . . . shall be a unique andliving symbol of the State’s concern for public safety.”).
The government’s interest in reducing firearms violence
through reasonable weapons regulations has preserved peace andtranquility in Hawaiʻi.

A free-wheeling right to carry guns inpublic degrades other constitutional rights.
The right to life, liberty, and the pursuit of happiness,encompasses a right to freely and safely move in peace andtranquility.
§ 10.

See Haw. Const. art. I, § 2; Haw. Const. art. IX,

Laws regulating firearms in public preserve orderedliberty and advance these rights.
There is no individual right to keep and bear arms underarticle I, section 17.

So there is no constitutional right tocarry a firearm in public for possible self-defense.
51

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***We hold that HRS § 134-25(a) and § 134-27(a) do not violate
Wilson’s rights under the Hawaiʻi Constitution.
C.

HRS § 134-25(a) and § 134-27(a) do not violate Wilson’s
right to bear arms under the Second Amendment
We also hold that HRS § 134-25(a) and § 134-27(a) do not

violate the Second Amendment to the United States Constitution.
“[T]he right secured by the Second Amendment is notunlimited. . . .

[T]he right [is] not a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever
purpose.”

Bruen, 597 U.S. at 21.

States retain the authority

to require that individuals have a license before carrying
firearms in public.

Id. at 79-80 (Kavanaugh, J., concurring)(“[T]he Court’s decision does not prohibit States from imposing
licensing requirements for carrying a handgun for selfdefense.”); Antonyuk v. Chiumento, 89 F.4th 271, 312 (2d Cir.
2023) (“Licensing that includes discretion that is bounded bydefined standards, we conclude, is part of this nation’s history
and tradition of firearm regulation and therefore in compliancewith the Second Amendment.”).
HRS § 134-25(a) and § 134-27(a) allow a person to carry ahandgun for self-defense outside the home if they have a license
issued per HRS § 134-9.

See HRS § 134-25(a) (“Except asprovided in sections 134-5 and 134-9, all firearms shall be
confined to the possessor’s place of business, residence, or52

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***sojourn” (emphasis added)); HRS § 134-27(a) (restricting thepossession of ammunition based on HRS § 134-5 and § 134-9).
HRS § 134-25(a) and § 134-27(a) do not graze Wilson’s
Second Amendment right.

Because he has no standing, Wilson’sconstitutional challenge to HRS § 134-9, Hawaiʻi’s licensing law,fails.

See supra section III.A.2.

The circuit court erred by dismissing the place to keep
offenses, HRS § 134-25 and § 134-27.

Those laws do not violate

Wilson’s constitutional rights under article I, section 17 or
the Second Amendment.
IV.
We vacate the circuit court’s Order Granting Defendant’s
Motion to Dismiss Counts 1 & 2 and remand to the Circuit Courtof the Second Circuit.
Richard B. Rost
for appellant/s/ Mark E. Recktenwald

Benjamin E. Lowenthal
for appellee/s/ Todd W. Eddins/s/ Sabrina S. McKenna/s/ Faʻauuga L. Toʻotoʻo/s/ Trish K. Morikawa

53