Hawaii court rules no indvidual right exists for firearms

[Rickybillegas]

What he's highlighting is what I've termed 'the absurdities of Living Constitutionalism.' (I've called it other things as well.) In short, there is no touchstone and the rulings are whatever 'stream of consciousness' can be strung together to (ahem) 'explain' or 'rationalize' the feelz used to arrive at a verdict. For instance, from the piece...



The key to Heller and McDonald wasn't so much the 'uniqueness' of the thought, but the idea that SCOTUS was, finally, declaring that, for them, the question was 'settled' and was, therefore, incorporated to the states. The idea was to stop dancing around with various 'interpretations' and begin the process of working out the details. It's the very reasoning Scalia himself indicated in post-Heller interviews.

In that sense, what the Hawaii Supreme Court has done is to, in effect, say that Heller needs to be relitigated and a new decision made, one which favors the dissent in Heller. This is why SCOTUS needs to proactively keep reinforcing Heller and making it increasingly difficult to overturn or, short of that, making it publicly more ludicrous to ignore via what the article cites as 'judicial fiat.'

I agree with you here. Because I don't think SCOTUS will touch this impudence for right now. There is no plaintiff or defendant or formal challenge before them, only impudence. But what I agree what they can do for now is keep reinforcing HELLER.

Right now the HSSC ruling means nothing until their legislature or their law enforcement takes action based on that ruling. However there is the temptation for this cancer to spread to other courts. Some courts are already defying HELLER (don't we know!), but what I mean by the cancer spreading is open defiance rather than a thinly veiled faux adherence to HELLER and BRUEN backed up with fancy, wordy rulings that fly in the face of those two decisions. Other courts may be emboldened to rule in open defiance and then we will actually have the 'constitutional crises' that we've been hearing about for years.

So the danger I see in this ruling is not an impudent, conceited, inarticulate and childish, high school level judgment, but rather the potential for a new more widespread attack on the 2nd amendment, a new push to re-write HELLER as you say in favor of the decent. Or even barring that, open rebellion by courts just declaring that the HELLER dessent was correct.

[Rickybillegas]

What's the possibility of a GVR with a statement of:

Hey you idiots got it wrong and you don't get to go against our other decisions, go back and do it over.

Would be pretty simple and slap this down quick.

I like this idea, but maybe you can expand on how this would actually work.

[TrappedinCalifornia]

I agree with you here. Because I don't think SCOTUS will touch this impudence for right now. There is no plaintiff or defendant or formal challenge before them, only impudence. But what I agree what they can do for now is keep reinforcing HELLER.

Right now the HSSC ruling means nothing until their legislature or their law enforcement takes action based on that ruling. However there is the temptation for this cancer to spread to other courts. Some courts are already defying HELLER (don't we know!), but what I mean by the cancer spreading is open defiance rather than a thinly veiled faux adherence to HELLER and BRUEN backed up with fancy, wordy rulings that fly in the face of those two decisions. Other courts may be emboldened to rule in open defiance and then we will actually have the 'constitutional crises' that we've been hearing about for years.

So the danger I see in this ruling is not an impudent, conceited, inarticulate and childish, high school level judgment, but rather the potential for a new more widespread attack on the 2nd amendment, a new push to re-write HELLER as you say in favor of the decent. Or even barring that, open rebellion by courts just declaring that the HELLER dessent was correct.

There's actually a concept which has been pushed called 'narrowing from below.' From 2016... Legal scholarship highlight: When lower courts don't follow Supreme Court precedent

...But when Supreme Court precedent is relevantly ambiguous, then narrowing is often legitimate, even though it means not adhering to the best available reading of precedent. The high court, after all, isn't the only source of law relevant to lower courts. When dealing with unclear case law, lower courts are often justified in erring on the side of their own first-principles views of the constitutional or other law at issue. Indeed, the Supreme Court's decision to issue unclear precedent can be understood as a kind of delegation to lower courts, authorizing them to make adjustments in light of their own distinctive knowledge and opinions. And when the court's precedent is unclear, affected parties usually know not to rely too strongly on what seems like the best available reading.

Once you know what to look for, narrowing from below is fairly easy to find. Take the court's Second Amendment jurisprudence. District of Columbia v. Heller, in which the court struck down a law banning handguns, seemed to establish a fairly rigid historical test for Second Amendment claims, prompting Justice John Paul Stevens's four-justice dissent to "fear that the District's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table." But very few dominoes ever fell, with the thanks (or blame) going to the lower courts that quickly tamed Heller and curtailed its implications. Recognizing this pattern in a Second Amendment case, Judge Alice Batchelder recently cited my paper on the subject in positing that "[i]t is the lower courts, both we and our sister circuits, that have ? engag[ed] in 'narrowing from below.'"...

The Heller and Boumediene examples might create the impression that narrowing from below necessarily diminishes the Supreme Court's power. But the reality is more complicated. True, narrowing from below enables lower courts to act on their own views of the law and to influence the high court's agenda (such as by creating or avoiding circuit splits). But the Supreme Court itself has a great deal to say about when narrowing from below takes place. By asserting clear rules, the Supreme Court can preclude legitimate narrowing from below - and make any kind of narrowing from below harder to do. And, of course, the Supreme Court stands ready to add new clarity or correct outliers, including through summary reversals like the one it issued last week...

In short, the precedential universe is now too complex to rely only on the familiar concepts of following and overruling, or to limit one's view to conventional precedent. Narrowing from below and Supreme Court signals have become an important part of the story.

Personally, I think the Hawaii decision goes beyond 'narrowing' and, instead, openly defies the 'newer' precedents of things like Heller and Bruen. Let's just say the lack of clarity isn't as overwhelming as is claimed. It may be what their 'thinking' is or, at least, the type of thing they would use as a rationalization. However I would not count on it.

With that said, the steps SCOTUS can take are similar, if they will take them. Such is what we've seen in 2nd Amendment jurisprudence since Heller (2008), from cases such as McDonald (2010) thru Bruen (2022). Unfortunately, such steps take time and a willingness on the part of SCOTUS. Many don't feel we have the time in that Justice Thomas will be 76 and Justice Alito will be 74 this year. Our 'side' counts on Thomas, Alito, and Gorsuch as the core grouping for pro-2nd Amendment decisions. The real problem is a lack of confidence in Kavanagh, Coney Barrett, and Roberts.

Worse than that, Roberts doesn't seem inclined to move 'quickly' on virtually anything. While I can appreciate a 'slow and steady' pace, a lack of rapidity does create doubts when such 'narrowing' is too overt. As you indicate, it could cause a 'fever' which spreads among more Liberal courts/circuits. On top of that, Roberts himself is 69 this year. Not exactly 'old,' but not a 'kid' anymore either. In short, the Conservatives on the Court are rapidly 'aging,' meaning time is not necessarily on our side to solidify the current trend as precedent before a new generation takes the balance of power on SCOTUS and who knows where they will go with it once they do.

[Rickybillegas]

There is a certain segment of the academic, political, and judicial body attuned to the second amendment that is still arguing vociferously the 'militia' interpretation of the 2nd amendment. It's like a cottage industry.

It reminds me of a similar such movement re: "Roe v Wade" which recognized the poorly argued ruling by Blackman (add Justice Ginsburg to that list) and created a cottage industry devoted to 'propping up' the ruling by re-arguing the case with more intellectual vigor.

The difference of course, one was based in favor of a ruling, while the present movement is based on the dissent.

Thankfully, so far the 'militia interpretation' movement is more or less a fringe movement and most of the public and popular media I dare say is accepting, if even begrudgingly the 'right to keep and bear arms' as a public right. The whole thing might be summarized by: "The constitution guarantees the right to keep and bear arms, but........"

As an example, I read a long transcript of an interview with some Historian on NPR (forgot to save the link), which you would have thought would be a total repudiation of the 'public right', which surprisingly, it was not.

The 'Historian' was somewhat equivocal and presented a lot of what I would disagree with, but did actually accept that the 'public right' was the law of the land and didn't spend much intellectual capital trying to disprove that right.
And this guy was certainly no friend of ours.

[TrappedinCalifornia]

There is a certain segment of the academic, political, and judicial body attuned to the second amendment that is still arguing vociferously the 'militia' interpretation of the 2nd amendment. It's like a cottage industry.

It reminds me of a similar such movement re: "Roe v Wade" which recognized the poorly argued ruling by Blackman (add Justice Ginsburg to that list) and created a cottage industry devoted to 'propping up' the ruling by re-arguing the case with more intellectual vigor.

The difference of course, one was based in favor of a ruling, while the present movement is based on the dissent.

Thankfully, so far the 'militia interpretation' movement is more or less a fringe movement and most of the public and popular media I dare say is accepting, if even begrudgingly the 'right to keep and bear arms' as a public right. The whole thing might be summarized by: "The constitution guarantees the right to keep and bear arms, but........"

As an example, I read a long transcript of an interview with some Historian on NPR (forgot to save the link), which you would have thought would be a total repudiation of the 'public right', which surprisingly, it was not.

The 'Historian' was somewhat equivocal and presented a lot of what I would disagree with, but did actually accept that the 'public right' was the law of the land and didn't spend much intellectual capital trying to disprove that right.
And this guy was certainly no friend of ours.

This is why I feel things need to move with just a bit more rapidity. Yes. By Judicial standards, it's 'only' been 16 years, but the 'acceptance' you reference is still caveated to a point where "shall not be infringed" falls into the same category as...



I suspect that's where this whole thing is leading and what it's actually based in. The Left knows it 'lost' the overarching debate, now it is trying for a 'negotiated settlement' in terms of... If we can't have what we want, then we won't allow you to have what you want, so where can we decide an appropriate 'compromise' is? The problem is that it's not supposed be 'negotiable' and it simply returns us to a variation on...



...instead of a return to...

...The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections...

[ProfChaos]

Thank you for the cake diagram. I tried looking for it a while ago for another argument and could not find one large enough to read.

[AlmostHeaven]

Personally, I think the Hawaii decision goes beyond 'narrowing' and, instead, openly defies the 'newer' precedents of things like Heller and Bruen. Let's just say the lack of clarity isn't as overwhelming as is claimed. It may be what their 'thinking' is or, at least, the type of thing they would use as a rationalization. However I would not count on it.

With that said, the steps SCOTUS can take are similar, if they will take them. Such is what we've seen in 2nd Amendment jurisprudence since Heller (2008), from cases such as McDonald (2010) thru Bruen (2022). Unfortunately, such steps take time and a willingness on the part of SCOTUS. Many don't feel we have the time in that Justice Thomas will be 76 and Justice Alito will be 74 this year. Our 'side' counts on Thomas, Alito, and Gorsuch as the core grouping for pro-2nd Amendment decisions. The real problem is a lack of confidence in Kavanagh, Coney Barrett, and Roberts.

Worse than that, Roberts doesn't seem inclined to move 'quickly' on virtually anything. While I can appreciate a 'slow and steady' pace, a lack of rapidity does create doubts when such 'narrowing' is too overt. As you indicate, it could cause a 'fever' which spreads among more Liberal courts/circuits. On top of that, Roberts himself is 69 this year. Not exactly 'old,' but not a 'kid' anymore either. In short, the Conservatives on the Court are rapidly 'aging,' meaning time is not necessarily on our side to solidify the current trend as precedent before a new generation takes the balance of power on SCOTUS and who knows where they will go with it once they do.

I fully understand the concept of narrowing from below; I just wish conservative courts had the ability to utilize the strategy against progressive precedents as effectively as liberals wield it to erode originalist rulings. The Supreme Court places upon right-wing appeals courts such as the Fifth Circuit a shorter leash than the feral leftists in the Second and Ninth Circuits.

[TrappedinCalifornia]

I fully understand the concept of narrowing from below; I just wish conservative courts had the ability to utilize the strategy against progressive precedents as effectively as liberals wield it to erode originalist rulings. The Supreme Court places upon right-wing appeals courts such as the Fifth Circuit a shorter leash than the feral leftists in the Second and Ninth Circuits.

Others might not, which is why the portion you clipped provides an explanation.

With that said, it's not an 'inability' to use such a template against Liberal rulings. It's a lack of desire. Conservatives don't necessarily look to 'narrow' a ruling, they tend to look to overturn.

It's one of the differences between the two 'sides.' Liberals look to create confusion and chaos, thereby allowing for a variety of shenanigans. Conservatives, on the other hand, attempt to create a sense of consistency, something that is difficult to achieve when Living Constitutionalists are 'all over the board' in terms of how they rule and when even more confusion/chaos is introduced, it becomes nigh unto impossible.

Look at the thread. We tend to favor directly putting the 'smack down' on the Hawaii Court for ruling inconsistent with SCOTUS precedent and traditional understandings of how the relationship between the states and the Federal Government works. Meanwhile, the ruling may be an attempt to 'narrow from below' and it may be something else. We don't know and it creates questions as to how to 'properly' proceed. Confusion and chaos buys time and inaction from those who approach things differently.

[AlmostHeaven]

Others might not, which is why the portion you clipped provides an explanation.

With that said, it's not an 'inability' to use such a template against Liberal rulings. It's a lack of desire. Conservatives don't necessarily look to 'narrow' a ruling, they tend to look to overturn.

It's one of the differences between the two 'sides.' Liberals look to create confusion and chaos, thereby allowing for a variety of shenanigans. Conservatives, on the other hand, attempt to create a sense of consistency, something that is difficult to achieve when Living Constitutionalists are 'all over the board' in terms of how they rule and when even more confusion/chaos is introduced, it becomes nigh unto impossible.

Look at the thread. We tend to favor directly putting the 'smack down' on the Hawaii Court for ruling inconsistent with SCOTUS precedent and traditional understandings of how the relationship between the states and the Federal Government works. Meanwhile, the ruling may be an attempt to 'narrow from below' and it may be something else. We don't know and it creates questions as to how to 'properly' proceed. Confusion and chaos buys time and inaction from those who approach things differently.

I think you have written a solid general characterization of the overarching situation.

The federal elections this November will truly determine the future of this great nation, even more so than 2020. We live in excessively interesting times.

[Sgt Raven]

SAF Amicus Brief on Petition for Writ of Certiorari.

https://saf.org/wp-content/uploads/2024/06/23-7517-Amicus-Brief.pdf

[Sgt Raven]

NAGR files Amicus brief.

[TruOil]

I will have to go back and reread the decision. As I recall, it was based solely on the Hawaiian Constitution and not the federal Constitution. Was the lawsuit limited to only the former and not the latter? Either way, I do not recall how the Hawaii Supremes dealt with McDonald, as their decision seems to completely contradict that holding extending 2A rights to all states. Federal supremacy should have killed this case.