This article appeared in Knife Magazine in April 2024
Know Your Knife Laws – Applying Knife Law Standards Complicated – State v. Wilson
By Anthony Sculimbrene, Attorney and Knife Expert
Weapons laws are exceptionally complicated. They are complicated for two independent reasons: 1) weapons are complicated, and 2) weapons have become intensely political objects. When you layer on that a radical redefinition of the Second Amendment in New York Rifle and Pistol Association v. Bruen, things can get wonky fast. Bruen held that the State has the burden to prove that laws restricting arms meet what subsequent courts have called a “text and tradition” test. That is, a law restricting arms is invalid unless the State can show a history of the same or similar restrictions. If there is no historical record, the law is unconstitutional. That seems like a simple enough test. So why is it complicated to apply that standard? The Hawaiian Supreme Court issued an opinion in State v. Wilson demonstrating why.
This case has been the talk of 2A scholars since its lower court order. But things got complicated at the Hawaii Supreme Court—first, a quick overview of facts (which the Hawaiian Supreme Court noted were especially short). Wilson was charged with two weapons-related violations, among other things, for being found near private property with a gun in his waistband. Wilson was charged with what the Court calls two “places to keep” violations. One is for keeping a gun outside of his home. The other is for keeping ammunition outside his home. In a surprising holding, the Supreme Court reversed the lower court’s dismissal of the weapons charges on Bruen grounds. Instead, the Court found against Wilson on highly technical grounds. First, they claimed that Bruen didn’t undo a legal doctrine called federalism. Second, they contended that Wilson lacked standing to raise a Bruen objection. As someone who reads these cases regularly, I think this was a pretty stunning outcome. It was also proof that weapons laws are exceptionally complicated.
The standing argument is intriguing and shows that Bruen’s application isn’t reflexive. Standing is a legal requirement to challenge a law. Essentially, a litigant is the proper person to challenge a given law. A farmer couldn’t challenge an aerospace statute because it doesn’t affect him. A criminal charged with arson couldn’t challenge a drug charge. Standing is a fit between the laws applied to a case and the litigants of that case. Without that “fit,” the litigants cannot fight about the law. The Hawaii court ruled that Wilson lacked standing to challenge the weapon licensing statute because he never bothered to apply for a license. As the Court noted: “He didn’t bother to apply for a carry license and satisfy [the licensing statute]. So can’t attack the licensing law.” This is a clever bit of logic. In Bruen, the litigants claimed that New York’s license-to-carry scheme was unconstitutional. They were applying for licenses but were denied for unconstitutional reasons. There was a fit between the law challenged AND the litigants. Here, Wilson was charged with violating the licensing statute but lacked standing to challenge it because he never even tried to comply with it. The Hawaii court noted that two other state courts, post-Bruen, have used similar logic–California and Hawaii.
But this argument might seem like a technicality without consequence–if the licensing regime is unconstitutional, who cares if a given litigant didn’t try to use it? The Hawaii Supreme Court has two primary responses. First, federalism requires that both federal and State laws receive equal attention. Where Bruen controls federal law, it does not supplant a state court’s right to interpret state law, like the licensing law. In other words–the US Supreme Court can tell states how federal law works and how it trumps state law when the two conflict, but it cannot reach a purely state-law decision. In this case, the Hawaii Supreme Court notes that state licensing regimes per se were not struck down by Bruen, and interpreting such regimes is a purely state law function. The Hawaii Supreme Court notes that its jurisprudence has a “sequencing” component to it. When interpreting state law, the Hawaii constitution comes first, and then, only if needed, does the Hawaii Supreme Court look to federal sources. In this case, even though the Hawaii constitutional right to carry arms is worded identically to the federal right, its interpretive history is different and critically dispositive. There is no need to reach for federal sources to decide the issue. Second, and this is a quirk of Hawaiian law, the Hawaii licensing regime is not a criminal statute. So, even if Wilson had standing to challenge it in a criminal case, he couldn’t–there is nothing criminal to challenge.
The Wilson court then details its own endemic interpretation of the right to bear arms. It does so using the same textual approach that the US Supreme Court did in Heller and Bruen. And it comes to the exact opposite conclusion as the Court in Bruen did. It relied on sources that were contemporary to those in Bruen. It noted that in the decade since Heller, historical and linguistic research has “unearthed a wealth of new evidence…showing that the phrase ‘keep and bear arms’ [was] overwhelmingly…a collective, militaristic meaning at the Founding.”
The Court then fired a salvo back at the US Supreme Court, noting that Bruen “unravels” durable law and that there will no longer be balancing tests based on public safety in favor of what the Hawaii court calls an “ad-lib” historical standard. Wilson is, for now, the best and most well-reasoned rejection of Bruen out there. Like with many recent issues–radical changes in direction and abandonment of decades of case law by the US Supreme Court have not “solved” a particular legal conundrum but instead merely shifted the lines of battle from federal courts to state courts. Plan on seeing a lot more Wilson-like logic elsewhere.
But this is not over–what happens if the licensing scheme does involve criminal penalties? What if the weapon being carried, like a knife, does not require licensing? Wilson doesn’t resolve those issues because of the facts of the case and the State of Hawaii law.