Countering Lower Courts?

Feb 12, 2024

Fresh off the “spirit of aloha” decision by the Hawaii State Supreme Court, a coalition of gun rights groups has moved to avoid a tactic anti-gun groups appear to be using - allowing activist judges to carry their proverbial water when it comes to interpreting the Bruen decision on the Second Amendment.

If you’re not familiar with the “spirit of aloha” it’s the term used by the Supreme Court of Hawaii to overrule the United States Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen. That decision has reversed the various interpretations of the Second Amendment by courts using reduced levels of scrutiny to gun rights cases. The lowered level of scrutiny permitted them to use occasionally convoluted logic to uphold firearms restrictions inside their various jurisdictions.

Bruen should have remedied that. And it has led to the vacation of many state restrictions on the carrying of guns. Bruen ruled that the two-step tests of “intermediate scrutiny” were, in the words of Justice Clarence Thomas, “one step too many” when it came to the right to “keep and bear arms.” In other words, laws that inconsistent with the nation’s historic tradition of firearm regulation infringed on the rights of the individual.

Under the Bruen interpretation, Hawaii’s Second Circuit Court dismissed charges against a resident charged with carrying a pistol without the requisite Hawaiian permit.

The case was appealed to the Hawaii Supreme Court. There, the state supreme court concluded “”We reject Wilson’s constitutional challenges. Conventional interpretive modalities and Hawaii’s historical tradition of firearms regulation rule out an individual right to keep and bear arms under the Hawaii Constitution. In Hawaii, there is no constitutional right to carry a firearm in public (Emphasis added).

Well, aloha….this is shaping up to be a battle between the state and federal supreme courts.

The state supreme court references a constitution written when the islands were a separate kingdom, not a state inside the United States. I’m told by attorneys reviewing the case that there’s a disconnect between the state supreme court using “historical precedent” -locally applied- to counter a legal precedent that looks first to its own historical precedent.

Hawaii’s supremes may find they’re not the only justices who watch -or reference - television. Their semi-snarky reversal of the Second Circuit’s reversal referenced HBO’s The Wire with a quote: “The thing about the old days, they the old days.”

They might do well to remember another old movie quote, this one from Hoosiers: “the sun don’t shine on the same dog’s a** every day, but mister, you ain’t seen a ray of light since you got here.”

The United States Supreme Court isn’t pleased when lower courts blatantly conflate to get their desired outcomes. They’re especially unhappy when the lower court essentially thumbs its nose at their decisions.

Ultimately, this sets the stage for a question that seems to be emerging: what can/will the U.S. Supreme Court do about lower courts that delay, or in the case of the Hawaiian court, ignore their interpretations of the law?

The Supreme Court has the ability to find lower courts in contempt. Following a contempt ruling, the SCOTUS has the power to remove offending parties -including the officers of a lower court. It also has the ability to order imprisonment for “disobedience or resistance to its lawful writ, process, order, rule, decree or command.” At that point, federal marshals would be ordered to arrest non-compliant judges. That’s in keeping with the U.S. Constitution, which states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Despite the U.S. Supreme Court’s Bruen decision, lower courts continue their various interpretations of regulations regarding AR-style rifles. Three 2A advocacy groups are asking the high court to step in before the 4th Circuit Court of Appeals can hold an en banc hearing on Maryland’s “assault weapons ban.”

That “big question” remains unanswered, but the challenge has been issued by Hawaii.

Meanwhile, the Second Amendment Foundation, the Citizens Committee for the Right to Keep and Bear Arms and the Firearms Policy Coalition have petitioned the Supreme Court to take up their challenge to Maryland’s ban on “assault weapons” - before the Richmond, Virginia, based 4th Circuit Court of Appeals can (re)hear the case.

It’s fair to categorize their action as a preemptive move to prevent the 4th’s apparent reluctance to accept a 3-judge judicial panel’s finding on Maryland’s ban.

In their petition, they categorize the 4th’s decision the “most brazen” example of how appeals courts are “failing to heed the clear teaching of this Court’s precedent” on the right to keep and bear arms.

A three judge panel of the 4th had heard the arguments regarding Maryland’s ban in December of 2022, but the court voted to have the full 14-member court hear the case before the panel could issue its ruling. To most observers, that’s a sign that the full court didn’t like the conclusion reached by the three-judge panel.

As Adam Kraut, executive director of the SAF said in a statement, the en banc hearing decision “seems to imply the court desired to take this case from a panel with which it disagreed.”

In their petition, the groups made the case "The Court should step in now to make clear once and for all that the most popular rifles in the history of the nation are protected by the Second Amendment.”

There’s also the valid question of political ideology. Two of the three judges on the panel were Republican appointees. The full court has eight Democratic appointees versus six Republican administration selections.

As always, we’ll keep you posted.

— Jim Shepherd