The Hawaii Supreme Court argued that the history of the 50th state did not align with the Second Amendment, and some even suggested that the Constitution might clash with the Aloha Spirit.
Hawaii joined the Union in 1959 as its 50th state, and the lived experience of Hawaiians differed markedly from that of the other 49 states. The United States came into being after the overthrow of a monarchy in 1776, whereas Hawaii remained under royal rule until 1893. In the nineteenth century, as American states and territories enjoyed the right to keep and bear arms, Hawaii did not have such protection. Justice Jackson recounts this trajectory in her dissent:
Since its days as an independent kingdom, Hawaii has never permitted broad firearm carriage within its borders. In 1833, King Kamehameha III of the Kingdom of Hawaii forbade possession of “dangerous weapon[s].” In translating the Constitution and Laws of the Hawaiian Islands, Established in the Reign of Kamehameha III 163 (1842) (reprint 1934) (targeting possession of any “knife, sword-cane, or any other dangerous weapon”), this tradition of strict weapon regulation persisted both before and after annexation as a U. S. territory in 1898.
There was a long debate about whether Justice Jackson should have leaned on racist Jim Crow laws, but invoking Hawaiian monarchical statutes proves even more problematic. Why should it matter that a King barred the carrying of arms? King George III and General Thomas Gage likewise restricted arms in the Massachusetts Bay Colony. That infringement of rights helped spark the Revolutionary War and inspired the Second Amendment. There is no justification for citing King Kamehameha’s laws as a means to interpret the Second Amendment.
The Hawaii Supreme Court has proclaimed that it interprets the federal Constitution by taking into account the state’s distinctive legal history. Justice Eddins of the Hawaii Supreme Court wrote in State v. Wilson that the “Aloha Spirit” should guide how his court reads the federal Constitution:
In Hawai‘i, the Aloha Spirit informs constitutional interpretation. See Sunoco, 153 Hawai‘i at 363, 537 P.3d at 1210 (Eddins, J., concurring). When this court exercises “power on 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 give consideration to the ‘Aloha Spirit.’” The spirit of Aloha clashes with a federally mandated lifestyle that allows citizens to carry deadly weapons during ordinary daily life. The history of the Hawaiian Islands does not reflect a society where armed individuals move about to counter potential deadly aims of others. See Haw. Const. art. IX, § 10 (“The law of the splintered paddle … shall be a unique and living symbol of the State’s concern for public safety.”).
The Supreme Court correctly rejected Justice Eddins’s reading of the Constitution:
As the plurality explained in McDonald, the Second Amendment carries the same meaning across the entire United States. 561 U.S. at 784–785, 130 S.Ct. 3020. It cannot yield to “the spirit of Aloha” in Hawaii any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald). It applies with the same force to our 50th State (where roughly 8% of adults own guns) as to our 49th State (where the figure is about 59%). Merely local attitudes cannot diminish or enlarge the fundamental rights guaranteed by the Bill of Rights that bind the states through the Fourteenth Amendment.
The “Aloha Spirit,” whatever its content, arose from a set of legal, political, and social circumstances that were very different from those on the mainland. Can a state supreme court justice, sworn to uphold the federal Constitution, base decisions on a “spirit” that conflicts with American history and tradition? Put bluntly, is the Hawaii Supreme Court’s “Aloha Spirit” compatible with a republican form of government? Could a Massachusetts Supreme Judicial Court justice cite General Gage’s seizure of firearms to justify the Commonwealth’s strict gun-control regime? Is there a “Red Sox Spirit”?
Yet a deeper concern lingers. Justice Eddins appears to be suggesting that Hawaii’s legal order is alien to the mainland’s legal development. Whether this view has been fully examined is debatable. There is, in fact, a pertinent Supreme Court case from 1901 concerning another territory:
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
Of course, this passage comes from Downes v. Bidwell, one of the Insular Cases.
The Hawaii Supreme Court argued that the history of the 50th state conflicted with the Second Amendment. Perhaps the Constitution itself conflicts with the “Aloha Spirit.”
As states and their courts continue to drift, we ought to devote more attention to the Guarantee Clause. A question that has occupied my mind: would a state that explicitly adopts a socialist framework be compatible with a republican form of government?
The Supreme Court sidestepped the “invasion” issue in Barbara, but the justiciability of these kinds of questions does not seem to be going away anytime soon.
