If Joe Biden gets another four years in office, one of the first items on his second-term to-do list is going to be remaking the Supreme Court. Democrats have been calling for packing the Court for several years now, but they've never had the numbers in Congress to pass a bill. Hopefully that remains the case, but even if SCOTUS remains at nine justices, the odds are pretty good that Biden will be able to make one or more appointments before 2029 given the age of some of the more seasoned members of the Court.
After reading the fawning interview conducted by Slate in its endless series of attacks on originalism, I get the feeling that Hawaii Supreme Court Justice Todd Eddins is already auditioning for a slot on the most important bench in the land. Eddins, you might remember, is the guy who invoked Hawaii's "law of the paddle" and quoted a drug-dealing character from HBO's The Wire in a unanimous decision that declared there is no individual right to keep and bear arms in Hawaii's state constitution, even though it's language is almost identical (save for a comma or two) from that of the Second Amendment.
That decision, known as Wilson, as well as the Supreme Court's decision in Bruen, were major topics of conversation between Eddins and Slate's Paul Joseph Stern and Dahlia Lithwick. Eddins didn't disguise his contempt for the Court at all. In fact, he proclaimed its decisions "are really destroying democracy"; including, presumably, the Bruen decision, where Eddins maintains the justices disregarded their own "text, history, and tradition" test so it could throw out New York's "may issue" carry law.
It was actually a pretty fun process because the U.S. Supreme Court totally disregarded the text, history, tradition, and purpose of the Second Amendment. So in Wilson, we decided to play on the originalism playing field and show how the justices were incredibly dishonest about how law and facts are cherry-picked. That was not a difficult thing to do.
Now, what we also did was trace back the real history and tradition of Hawaii. And if we trace back the tradition of our state, there absolutely was no right to carry lethal weapons in public for possible self-defense. It was an incredibly joyous exercise for me because I knew we were on the correct legal terrain. The Hawaii Constitution’s counterpart to the Second Amendment has the exact same words. So I thought, Hey, here’s an opportunity to take down the dishonest U.S. Supreme Court’s analysis of the Second Amendment, which snubbed federalism principles and increased homicide throughout the nation. Wilson really opened up the opportunity to articulate the importance of state constitutionalism in protecting the fundamental rights of citizens. Of course, Dobbs raised awareness of interpreting state constitutions to, ideally, protect every state citizen’s fundamental rights, since the U.S. Supreme Court is abdicating that responsibility.
Second Amendment attorney Kostas Moros provided an expert takedown of the Wilson opinion shortly after it was published, and rather than rehash his lengthy response to the 53-page decision I'll just link to his rebuttal so you can read it at your leisure. I'll also share what I think is the key tidbit: if the Hawaii legislature really didn't intend to protect an individual right to keep and bear arms when it was drafting the state constitution, then why did they talk about wanting to be able to adopt "reasonable restrictions on the right of the people"?
If the Hawaii framers were intending a collective right, they wouldn't be talking about "reasonable restrictions on the right of the people". They'd say they can pass anything they want, as this is just about the right to a state militia.
Yes, maybe the 1950s Hawaii legislature had a muscular view of what gun control was allowed, including banning certain guns, but they still presuppose some individual right.
Is the Hawaii Supreme Court's reading comprehension nonexistent?
No, but their animosity toward the right to keep and bear arms has left them blind to the text of the Second Amendment and the tradition of gun ownership in this country. Hawaii may be a late addition to this nation, but the Constitution still applies there.. at least in theory.
In truth, Hawaii currently occupies the same moral ground as some of the southern states in the wake of Brown v. Board of Education; intent on defying the Court as much as possible and continuing to impose its own version of states' rights obstructionism to deny the exercise of a fundamental civil right.
It may very well be that there was no tradition of gun ownership, or even owning weapons for self-defense, before Hawaii joined the Union in 1959. But there is a long national tradition of gun ownership in this country, and one that Eddins cannot ignore without placing himself on the wrong side of the history he says he can't define.
I think real historians look at the judiciary with shock to see that we think history has such certitude. And we don’t have the opportunity, or even the ability, to weigh into the rigor of historical methodology and historical integrity when deciding cases. How are supposed to decide what is history? Do we outsource it to A.I.? Do we deputize our law clerks as historians? Do we rely on partisan amicus briefs? I don’t want to do that. But it seems like the United States Supreme Court tends to cherry-pick history that way.
Then you run into the problem of Whose history are we really talking about, anyway? There’s certainly a few white men who decided things back centuries ago, when women and people of color were excluded from public participation and deliberation. Their views are nonexistent. So it’s absolutely impossible to try to root around in history and excavate 18th- and 19th-century experiences and try to apply them to 21st-century problems. Aside from being so whacked-out and silly, it’s just not practically possible.
If you're merely looking at the law, then yes, it's going to be difficult if not impossible to hear from women or people of color in the 18th and 19th century. But the Supreme Court never said that judges are dependent solely on historical statutes, and there is a wealth of information that can help us see how the right to keep and bear arms was viewed in the past; both by those who could exercise it and those who could not.
In fact, I've been on a Reconstruction-era history binge as of late, and found multiple examples of this while reading Eric Foner's Reconstruction: 1863-1877. Foner, ironically enough, is also an opponent of an originalist reading of the Constitution, but his book contains multiple references of the importance of the right to keep and bear arms for freedman in the South during Reconstruction.
As Foner details, in the years after the surrender of the Confederacy, a wave of violence swept across the South.
In Texas, [Freedmen's] Bureau records listend the "reasons" for some of the 1,000 murders of blacks by whites between 1865 and 1868: One victim "did not remove his hat"; another "wouldn't give up his whiskey flask"; a white man "wanted to thin out the n****** a little"; another wanted "to see a d------d n****** kick".
After several more examples of the horrors that freed slaves were subjected to, Foner quotes a Louisiana resident who warned, "As one of the disenfranchised race, I would say to every colored soldier, 'Bring your gun home.'"
This violence was on the minds of congressmen when the Fourteenth Amendment was being ratified. Again, quoting Foner (emphasis mine):
"It is a singular fact," Wendell Phillips declared as Congress deliberated, "that unlike all other nations, this nation has yet a question as to what makes or constitutes a citizen." The Amendment remedied that situation as a result, observed John A. Bingham, "the powers of the States have been limited and the powers of Congress extended." The states, declared Michigan Sen. Jacob Howard, who guided the Amendment to passage in the Senate, could no longer infringe upon the liberties the Bill of Rights had secured against federal violation; henceforth they must respect the personal rights guaranteed and secured by the first eight Amendments." Bingham said much the same thing in the House. Some portions of the Bill of Rights were of little moment in 1866 (no one was threatening to quarter soldiers in a home without consent of the owner). But it is abundantly clear that Republicans wished to give constitutional sanction to states' obligations to protect such key provisions as freedom of speech, the right to keep and bear arms, trial by impartial jury, and protection against cruel and unusual punishment and unreasonable search and seizure.
Freedmen took advantage of being able to exercise those rights. By 1868, Foner writes, "it seemed, virtually every black voter in the South had enrolled in the Union League or some equivalent local political organization". Many of those meetings were guarded by "armed black sentinels", something "'unheard of in South Carolina history', according to one alarmed white."
Unfortunately, those gains were short-lived. In what I consider to be one of the greatest tragedies in U.S. history, Reconstruction fell apart, Jim Crow became the law of the land, and the right to keep and bear arms (among others) was once again subject to infringement based on the color of your skin (and, in some cases, your economic status).
The statutes only tell a small part of the story about our national tradition of gun ownership, as well as the periodic attempts to restrict that right; generally against a disfavored class of citizens. In the past it's been Catholics, Mormons, Native Americans, freed slaves, loyalists, immigrants, and other groups. Today it's gun owners in general, even if the harms disproportionately fall on minorities and those on the lower rungs of our economic ladder.
Eddins is a smart man, and if he's not aware of how important the right to keep and bear arms has been to those Americans who've been the underdogs in our shared history he can always correct his ignorance by opening up a book or two. But I don't think a lack of information is the issue here. It's his fundamental animosity toward the Second Amendment that's my real concern. Well, that and the fact that he seems like exactly the type of judge Biden would like to elevate to the Supreme Court if given the opportunity.
