this post was submitted on 11 Feb 2024
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The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.

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[–] Ranvier@sopuli.xyz 211 points 8 months ago* (last edited 8 months ago) (5 children)

The conservatives on the supreme court are crap historians and even worse judges.

[–] cogman@lemmy.world 133 points 8 months ago (5 children)

Originalism is nothing more than a mechanism for the Supreme Court to undo past precedent they don't like. Welcome to the new lochner era.

Hopefully we end this one like we ended the last, with a wave of socialism and a tough president willing to pack the court.

[–] Ranvier@sopuli.xyz 55 points 8 months ago (4 children)

Sorry Loving v Virginia, it didn't used to be widely understood that the equal protection clause would forbid inter racial marriage bans. After all, both white and black people are forbidden from marrying other races by those laws. There, equal. That's how it was historically understood, heck it was illegal in 16 states still at the time and widely disapproved of.

But this presumes origialism is some coherent philosophy in the first place, instead of an excuse for partisan hackery cherry picking by Heritage Foundation stooges to get the conclusion they want.

Count me in favor of packing the court, not like there's any integrity to jeopardize. More to lose by doing nothing while they continue to rampage.

[–] cogman@lemmy.world 29 points 8 months ago (2 children)

The next two civil rights I'm guessing we lose are gay marriage (Obergefell) and contraceptive access (Griswold). Obergefell because it was already close and hating anyone that's not cis is in vogue now on the right. Griswold because it was determined on exactly the same lines as Loving and Roe (In fact, Griswold is what underlay roe) and there's enough religious nuts out there that feel like contraceptives are sinful.

[–] captainlezbian@lemmy.world 10 points 8 months ago

We may lose sodomy as well (Lawrence)

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[–] jkrtn@lemmy.ml 19 points 8 months ago (3 children)

The Senate already changed the number of justices to 8 for a year. I don't see why it would be wrong to add extras after they admitted the count doesn't matter.

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[–] Maggoty@lemmy.world 11 points 8 months ago

And the major questions doctrine is just there to change laws they don't like.

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[–] GentlemanLoser@ttrpg.network 32 points 8 months ago

Both of those assume good faith

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[–] FlyingSquid@lemmy.world 145 points 8 months ago (3 children)

Sure, if Alabama can ignore SCOTUS, why not?

[–] watson387@sopuli.xyz 86 points 8 months ago (2 children)
[–] Viking_Hippie@lemmy.world 25 points 8 months ago

And Florida

[–] jballs@sh.itjust.works 13 points 8 months ago (16 children)

Speaking of Texas laws, could the rest of us pass a law that allows private citizens to sue anyone in possession of guns?

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[–] zaph@sh.itjust.works 45 points 8 months ago

Only republican led states are allowed to ignore scotus.

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[–] AnneBonny@lemmy.dbzer0.com 89 points 8 months ago (37 children)

It’s an amazing case because the Hawaii Constitution has a provision that is the same as the Second Amendment to the U.S. Constitution. It literally uses the exact same words as the Second Amendment. And Justice Eddins said: Even though the provisions are the same, we will not interpret them the same way, because we think the U.S. Supreme Court clearly got it wrong in Heller when it said the Second Amendment creates an individual right to bear arms.

The bill of rights protects rights, it doesn't create rights. That is a pretty fundamental concept.

[–] Kbin_space_program@kbin.social 43 points 8 months ago (15 children)

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

As written, the right to bear arms only applies to people who are in a well regulated militia.

[–] CosmicCleric@lemmy.world 19 points 8 months ago* (last edited 8 months ago) (17 children)

“A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.”

As written, the right to bear arms only applies to people who are in a well regulated militia.

To me it seems like that statement is broken down into two parts, divided by the second comma.

What it's premise is is that a militia could be formed at any time when the need arises (the Minutemen, etc.), so all the citizenry can have guns so that they are armed when the militia is formed.

~~Now if back then militias always existed, and they were not formed/disbanded as needed, then ignore what I just said, as it's incorrect.~~ Edit: just realized if they're always formed or not wasn't the issue, its if they were given guns to fight or if they had to bring their own guns to the fight.

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[–] AnneBonny@lemmy.dbzer0.com 14 points 8 months ago* (last edited 8 months ago) (18 children)

As written, the right to bear arms only applies to people who are in a well regulated militia.

The monkey paw curls. Gun control laws that do not exempt people who are in a well regulated militia are unconstitutional.

[–] Machinist3359@kbin.social 16 points 8 months ago (1 children)

This would...be good actually? The scary thing about guns isn't revolutions, it's random sad men poisoned with conservatism doing a mass shooting.

[–] AnneBonny@lemmy.dbzer0.com 9 points 8 months ago* (last edited 8 months ago) (1 children)

It would invalidate every firearm regulation at the federal level. None of them include carve outs for militia.

[–] atomicorange@lemmy.world 9 points 8 months ago (4 children)

Do you need to explicitly include carve-outs or are those implicit? Don’t laws just get interpreted with the constitution in mind, without having to be completely thrown out? Genuinely asking!

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[–] chiliedogg@lemmy.world 10 points 8 months ago (13 children)

The modern use of "regulated" isn't the same as it was then.

Regulation had to do with training and equipment. The idea was that militias, as opposed to a standing ("Regular") army, weren't always trained and armed when they were called to arms. The idea of a "well-regulated militia" was for civilians to already have weapons and understand their use if they were needed.

So a requirement for a well-regulated militia is for civilians to have the right to own and use weapons.

Is it antiquated? Maybe. But saying that "well-regulated" militia was meant to limit access to firearms is an argument based on either ignorance or dishonesty.

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[–] HelixDab2@lemm.ee 34 points 8 months ago (4 children)

::sigh::

This is a bad ruling; Hawai'i is saying that their state laws and traditions take precedent over federal laws, the US constitution, and SCOTUS rulings. It's intentionally trying to undermine the concept of the rule of law in order to get the result that they want. That's not a "devastating rebuke", it's a toddler screaming about not getting candy in the supermarket.

This is counter to the concept of the rule of law, and should be seen as an embarrassment, not something to celebrate.

[–] UnderpantsWeevil@lemmy.world 37 points 8 months ago* (last edited 8 months ago)

That’s not a “devastating rebuke”, it’s a toddler screaming about not getting candy in the supermarket.

It appears Hawai'i is parroting decisions by redder states, in an effort to force the SCOTUS to rule broadly on the question of Supremacy (or, at least, try and split the baby in some coherent way).

This is counter to the concept of the rule of law

Its counter to the concept of Federalism, but right in line with the Seperatist theory of law that quite a few modern day politicians happily espouse when it suits them.

[–] Jaysyn@kbin.social 12 points 8 months ago

Exactly. This isn't any better than Texas.

[–] verdantbanana@lemmy.world 9 points 8 months ago (13 children)

just like cannabis and other laws in states taking precedent over federal laws?

Texas is another example and abortion is a state by state issue too as is medical and vehicle insurances

driver's licenses are a state by state thing too as is voting not a federal thing all state by state and education standards are state by state and SNAP benefits

US should have gotten things more united and settled before it was too late and shattering instead of waiting to cry and moan about it afterwards

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[–] SlothMama@lemmy.world 8 points 8 months ago (2 children)

I think this also. I don't think this is good, but it's not without precedent considering how Federal law and marijuana legalization works on a State level superceding Federal.

Truthfully this is just another ruling denying Federal as law of the land.

[–] HelixDab2@lemm.ee 10 points 8 months ago* (last edited 8 months ago) (2 children)

Marijuana laws don't supersede federal law though; the fed. gov't simply chooses not to enforce the laws in states that have legalized it, and citizens of the legal states don't have standing to sue the gov't and compel them to enforce the laws. (And yeah, I agree that marijuana needs to be descheduled completely so that this isn't an issue.) (IIRC, they would need to demonstrate a personal harm caused by lack of enforcement to have standing to sue.)

In point of fact, if you purchase legal marijuana, either for recreational purposes or medical reasons, you are ineligible to purchase a firearm; this is made very clear on form 4473, where it specifically states that even if it's legal in your state, it's still a federal crime that makes you a prohibited person.

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[–] reverendsteveii@lemm.ee 7 points 8 months ago

marijuana legalization works on a State level superceding Federal.

it really doesn't, though. federal agents can and still occasionally do assert the supremacy of federal prohibition over state level legalization, it's just that they've been directed not to in most cases. you can absolutely still be arrested for possession and when I was getting my card they made an effort to point that out and told me not to bring it to the post office or national parks or anything else like that where the law enforcement is likely to be federal rather than state or local.

[–] Skkorm@lemmy.world 23 points 8 months ago (1 children)

Considering Hawaii is, by UN definition, illegally occupied? Good. Hawaii should be it's own nation.

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[–] FluffyPotato@lemm.ee 19 points 8 months ago (2 children)

Not too familiar with the US but didn't Texas just recently just set a precedent that the supreme court can just be ignored. Doesn't the legal system there work off of precedent so that's a thing you can just do now?

[–] deaf_fish@lemm.ee 10 points 8 months ago

I call it the you and what army precedent. Things will get interesting from here on out.

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[–] dezmd@lemmy.world 18 points 8 months ago (2 children)

This is asserting we have no rights outside of what the federal or state constitutions allow, which is a bad precedent to attempt to set. The Bill of Rights Amendments do not provide us with rights, they instead protect us from government limitations of certain rights that are inherent. People seem do not understand the juxtaposition of granted rights vs protected rights in these contexts when diacussing these kinds of cases.

Does the Hawaii state constitution specifically deny the right to keep and bear arms outside of military service?

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[–] RainfallSonata@lemmy.world 7 points 8 months ago

More of this.

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