One Case Where 'The Rule of Law Strikes Back'
Court-watching has become our national obsession.
Some now rely on Excel spread-sheets to keep track of former President Donald Trump’s 88 indictments and four suits across three states and the District of Columbia. Proposed trial dates, postponements and appeals swirl around him like private Gulfstream jets stacked up over Palm Beach airport.
Trump sucks up so much oxygen that you might well have missed the Hawaii high court’s remarkable smack-down of the U.S. Supreme Court’s increasingly contorted efforts to cancel modern gun safety regulations. The unanimous ruling in February laid out stinging lessons in both history and grammar – which the wider public, as well as the Supremes, would do well to heed.
Francis Wilkinson of Bloomberg Opinion wrote a swell opinion piece about it. The Blue states, Wilkinson declares, are totally fed up with the “nonsense” issued by this cohort of conservative Supremes. He lays out why the SCOTUS gun law opinion deserves disdain, not deference.
You can also think of the Hawaii decision, however, as a case of “The Rule of Law Strikes Back.”
The Hawaii Supreme Court used a challenge to the state’s robust restrictions against carrying unlicensed firearms in public to slice-and-dice not just Justice Clarence Thomas’s reasoning in his 2022 NY State Rifle and Pistol Assoc. v Bruen opinion but Justice Antonin Scalia’s 2008 opinion in Heller v District of Columbia, which decreed the 2nd Amendment gives individuals the right to own firearms. Thomas’s majority ruling, supported by the five other conservative justices, doubled down on this by smiting New York state’s century-old restrictions against carrying guns in public. Thomas did this by creating an entirely new standard for judging all gun regulations: the “text, history, and tradition test.”
The big problem, as Hawaii Supreme Court Justice Todd Eddins points out in his biting decision, is that Thomas gets virtually everything wrong. He decrees, for example, that any new restrictions must be compared to the standards practiced when the 2nd Amendment was written in the late 18th century. “But,” Eddins warns, “judges are not language and speech specialists.”[p. 23] As Eddins demonstrates, Thomas knows not of what he speaks. For the justice declared that the 2nd Amendment’s use of “right to bear arms” therefore means all individuals have this right. Eddins writes, however, “The phrase ‘keep and bear arms’ overwhelmingly had a collective, militaristic meaning at the Founding.” [p. 23]
Eddins also dismisses Thomas’s use of history: “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.” [p. 36] Eddins details the key problems: “History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.” [p. 35]
Much of the coverage of the Hawaii decision – as well as many opinion pieces – highlighted Eddins’ use of a line from The Wire. Journalists and legal analysts seemed to relish the opportunity to cite an incisive comment from the HBO series -- "The thing about the old days, they the old days" -- when referring to the state court’s disdain for the Supremes’ use of history.
A more recent (Mar. 29) New York Times opinion piece, “Something Other Than Originalism Explains This Supreme Court,” by Prof. Marc O. De Girolami, applies the term “Traditionalist” to the Supremes’ gun decisions, as well as the Dobbs decision. This is all part of a reasoned, rational code of legal jurisprudence, according to De Girolami.
What’s wrong with using the term “wrong” — as Eddins does in his ruling?