In two separate, sharply worded statements, Justices Clarence Thomas and Neil Gorsuch said Hawaii's top court had ignored precedent set by the 2022 ruling in New York State Rifle & Pistol Association v. Bruen
, which struck down key portions of a gun licensing system in New York.The Hawaii Supreme Court reinstated charges against Christopher R. Wilson for possession of a firearm without a license after concluding that the Bruen ruling, which dealt solely with the administrative process of the licensing regime, didn't protect Wilson from criminal prosecution because he had never applied for a license and therefore lacked standing to pursue a defense based on the Second Amendment.
"This court cannot tolerate such blatant defiance in any constitutional context," Justice Thomas said in his statement, joined by Justice Samuel Alito. "By invoking state standing law to dodge Wilson's constitutional challenge, the Hawaii Supreme Court failed to give the Second Amendment its due regard."
At the same time, though, the justices agreed that they needed to pass on the case for now given that the charges against Wilson remain pending in Hawaii.
Wilson was arrested and criminally charged in 2017 for carrying a loaded pistol without a license and is still awaiting trial. The charges were later thrown out by a trial court after Wilson invoked his Second Amendment rights and the Supreme Court's ruling in Bruen.
The Hawaii Supreme Court went on to reinstate them following an appeal by state prosecutors. In a certiorari petition filed in May, Wilson asked the U.S. Supreme Court to weigh in even though the case was still pending. While declining to take the case, Justices Thomas, Alito and Gorsuch signaled that they would hear Wilson's claims once his case has played out in state court.
Justice Thomas explained that the high court's rejection of state procedural restrictions on the invocation of constitutional defenses stem from the fact that constitutional rights are "self-executing prohibitions on governmental action."
"Because the constitutional violation occurs as soon as an individual's right to bear arms is inhibited, states cannot mandate that would-be gun owners go through an unconstitutional licensing process before they may invoke their Second Amendment rights," he wrote.
Justice Thomas pointedly bashed the state court decision, saying it "denigrated" the citizens' need to publicly carry weapons.
"On the Hawaii Supreme Court's view, a sounder approach to constitutional interpretation would give due regard to the 'spirit of Aloha' and would preclude any individual right to bear arms," Justice Thomas wrote.
Justice Thomas agreed with the high court's decision not to immediately take up Wilson's case, given that his charges are still pending in state court, but concluded that the constitutional issues he raised were worthy of the court's attention.
"In an appropriate case … we should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes," he said. "Perhaps Wilson himself will present that case."
Justice Gorsuch also cast a sympathetic look on Wilson's Bruen claims, calling out the Hawaii Supreme Court for not considering them and expressing concern that he may be convicted and sentenced to prison "for violating an unconstitutional law."
"I do not mean to suggest Mr. Wilson's Second Amendment defense has merit. I observe only that no one knows the answer to that question because the Hawaii Supreme Court failed to address it," Justice Gorsuch wrote. He said there was still time for Hawaii's top court to address the Second Amendment issue.
"Perhaps the Hawaii Supreme Court will take advantage of that opportunity in this case," he wrote. "If not, Mr. Wilson remains free to seek this court's review after final judgment."
In his certiorari petition, Wilson lamented that the Hawaii's high court "has shown open hostility to the individual rights protected by the Second Amendment."
"The state is now free to disregard Bruen and regulate protected conduct by criminally enforcing an unconstitutional licensing scheme," "The holding sharply conflicts with this court's decisions on the Second Amendment."
During a brief phone interview while boarding a plane heading toward Hawaii, Benjamin E. Lowenthal, the public defender representing Wilson, told Law360 that his client was "grateful" that the three justices were paying attention to his claims.
Lowenthal said Wilson's defense team is discussing next steps but agreed that the justices' statements meant that a U.S. Supreme Court fight could be viable.
"The door does appear to be open," Lowenthal said. "They made it very clear that the analysis by the Hawaii Supreme Court is problematic and should be corrected. We hope it gets corrected."
--Editing by Rich Mills.
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