Hawaii Defies the Supreme Court in the ‘Spirit of Aloha’

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The Constitution (always a capital C) is the supreme law of the land. Soldiers and statesmen take their oaths to it; some Americans even used to carry copies of it around in their pockets. The Constitution is the oldest written framework of government in the world still in operation — if it were still in operation.

The United States Supreme Court ruled in District of Columbia v. Heller (2008) that there is a right for an individual to bear arms, but the Hawaii Supreme Court recently denied that right. The lack of news about this is remarkable, especially in light of accusations of “treason” against Texas for trying to secure its border. Texas did not defy the Supreme Court but the outcry was much worse.

The Hawaii Supreme Court ruled unanimously that its state constitution provides more “rights” than the federal Constitution. However, the “right” in this case is for the state to impose restrictions on the Second Amendment. The court analyzed the meaning of the state constitution’s language and the history of the Second Amendment, and argued that the Framers meant the right of state militias to repel the federal government. “That’s what they were thinking about long ago,” it said. “Not someone packing a musket to the wigmaker just in case.”

Credit: jpellgen via Flickr, CC BY-NC-ND 2.0 DEED

The state court brushed aside the individual right, even though in Heller, the US Supreme Court determined that the Framers had a far more expansive role for “well-regulated militias” than modern gun-rights activists think. If it was supposed to fight off the federal tyranny, it cannot be the National Guard, which is ultimately under federal control.

The Hawaii judges went further and said the original meaning of the Constitution doesn’t matter anyway because history is “not straightforward or fair.” It cites a woman academic who complains that the current Supreme Court “frequently relies [on] moments [in history] in which women and people of color were expressly excluded from political participation and deliberation.” By that standard, much settled law should be overturned. The state court even recycled the idea that because modern weapons are different, the laws should be different. Does that mean protections for free speech and protection against search and seizure should evolve with technology?

After a bizarre tangent about restrictions on abortion, the state supreme court made its critical argument:

As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution. “The thing about the old days, they the old days.” The Wire: Home Rooms (HBO television broadcast Sept. 24, 2006) (Season Four, Episode Three).

The Supreme Court of the State of Hawaii seems to think that the words of a black heroin dealer on a TV show justify ignoring the Constitution. Perhaps for modern judges, pop culture may be more compelling than stare decisis.

Even though the judges warned they are not historians, they found certain parts of history “useful.” They dismissed the “old days” of the Constitution but invoked “the law of the splintered paddle” from King Kamehameha I (1736? – 1819):

O my people, Honor thy god; Respect alike (the rights of) men great and humble; See to it that our aged, our women, and our children Lie down to sleep by the roadside Without fear of harm. Disobey, and die.

“Kamehameha I’s law protects all people, ‘great and humble’,” says the court. “Especially the vulnerable — children and the elderly. The law imagines free movement without fear. Living without need to carry a deadly weapon for self-defense.” “Honor thy god” sounds like mandatory worship, and “disobey, and die” assumes capital punishment. Hawaii abolished the death penalty in 1957, even before it became a state.

After citations from more Hawaiian kings, the non-historians write that “a subversive group” of “schemers, mostly American men,” forced the monarch to sign a new constitution. The establishment of Hawaii was therefore an “unlawful overthrow,” and the state is “ruled by a subjugating nation.” Therefore, the “spirit of Aloha inspires constitutional interpretation.” It “clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”

At a time when media and government claim to fear “subversion” and “insurrection,” why do they not care about a state defying federal rule in the “Spirit of Aloha”? If the US Supreme Court means anything, this ruling would not just be overturned; the judges would be impeached. Instead, the Hawaii Attorney General called it a “landmark decision that affirms the constitutionality of crucial gun-safety legislation.”

Slate called it a “devastating rebuke of the U.S. Supreme Court,” with one journalist saying it was “kind of amazing and historic.” Business Insider quoted The Wire’s writer David Simon, who said the drug dealer character was a “sagacious mother***ker.” The Wire, which portrayed Baltimore as a crime-ridden wasteland of addicts and failing schools, has become liberal scripture. Common Dreams cheered the court’s willingness to dismiss the history of legislation, calling it “time-traveling.”

You should not be angry or surprised when leftists cheer a “progressive” ruling on grounds they would scorn if it went the other way. Instead, let us mock Republicans who think “the Constitution” can save us. It’s a piece of paper. There can never be a pure “government of laws, not men,” because men interpret laws. Still, if law is not to be completely arbitrary, there must be some pretense of final authority. That requires a common language, heritage, identity, and respect for common tradition. At the very least, there must be a good-faith approach to understand the Constitution. Today, the promise of common law has been broken down. Race often perverts justice. District attorneys worry about the “disparate impact” of stopping crime.

A multiracial America had to end this way. There’s no reason to expect non-whites to share our understanding of the law. It is unique to us. Besides, if leftists believe that the United States of America was built on racism and that all our institutions support white privilege, what could be more illegitimate than a constitution drafted by white male slaveholders?

Perhaps some whites will get the message that we are outlaws in the literal sense, deprived of the protection of the system that our ancestors established. There is no reason to live with these people or to respect their authority except at gunpoint. At least in Hawaii, the supreme court has given up pretending it is about anything else.