Amicus Curiae Brief — Christopher L. Wilson, Petitioner v. Hawaii

Supreme Court briefJun 20, 2024

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Text

No. 23-7517

In the

Supreme Court of the United States

♦

CHRISTOPHER L. WILSON,

Petitioner,

HAWAII,

Respondent

♦

On Petition for Writ of Certiorari to the

Supreme Court of Hawaii

♦

BRIEF OF AMICI CURIAE MOUNTAIN STATES

LEGAL FOUNDATION CENTER TO KEEP AND

BEAR ARMS IN SUPPORT OF

PETITION FOR CERTIORARI

♦

D. Sean Nation

Counsel of Record

Michael D. McCoy

Robert Welsh

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

snation@mslegal.org

June 20, 2024

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT

The undersigned attorney certifies that amicus

curiae Mountain States Legal Foundation (“MSLF”) is

a nonprofit corporation, formed and in good standing

in the state of Colorado under Section 501(c)(3) of the

Internal Revenue Code. MSLF is not publicly traded

and has no parent corporation. There is no publicly

held corporation that owns ten percent or more of its

stock.

TABLE OF CONTENTS

PAGE

CORPORATE DISCLOSURE STATEMENT ....

TABLE OF CONTENTS .....................................

TABLE OF AUTHORITITES .............................

iii

IDENTITY AND INTEREST OF AMICI

CURAE ................................................................

SUMMARY OF THE ARGUMENT....................

ARGUMENT .......................................................

Despite the Recent Lamentations of

Many Courts, Attorneys and Judges are

Well-Equipped to Use History When

Reviewing Second Amendment Cases .....

The Supreme Court of the State of

Hawaii Requires a Clear Message from

this Court: Summary Reversal ................

CONCLUSION ....................................................

II.

TABLE OF AUTHORITIES

Case

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) .....................................

American Tradition Partnership, Inc. v.

Bullock,

567 U.S. 516 (2012) .....................................

Citizens United v. Federal Election Comm’n,

558 U.S. 310 (2010) .....................................

Crawford v. Washington,

541 U.S. 36 (2004) .......................................

District of Columbia v. Heller,

554 U.S. 570 (2008) .....................................

Fisher v. Haldeman,

61 U.S. 186 (1857) .......................................

Giles v. California,

554 U.S. 353 (2008) .....................................

Gonzalez v. Thomas,

7 U.S. 183 (2006) .........................................

Hubbard v. U.S.,

514 U.S. 695 (1995) .....................................

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .....................................

iii

Marsh v. Chambers,

463 U.S. 783 (1983) .....................................

McDonald v. City of Chicago,

561 U.S. 742 (2010) .....................................

McDougall v. County of Ventura,

23 F.4th 1095 (9th Cir. 2022) .....................

Moore v. East Cleveland,

431 U.S. 494 (1977) .....................................

Moore v. Harper,

600 U.S. 1 (2023) .........................................

N.L.R.B. v. Noel Canning,

573 U.S. 513 (2014) .....................................

New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................ 1, 2, 6, 7, 8, 16

Obergefell v. Hodges,

576 U.S. 644 (2015) .....................................

Parker v. District of Columbia,

478 F. 3d 370 (D.C. Cir. 2007) ....................

Pavan v. Smith,

582 U.S. 563 (2017) ..................................... 10, 15

Rogers v. Grewal,

140 S. Ct. 1865 (2020) .................................

State v. Wilson,

543 P.3d 440 (Haw. 2024) ...........................

Teter v. Connors,

76 F. 4th 938 (9th Cir. 2023) ......................

United States v. Bullock,

679 F.Supp.3d 501 (2023) ...........................

United States v. Daniels,

77 F.4th 337 (C.A.5 (Miss.), 2023). .............

United States v. Pierret-Mercedes,

2024 WL 1672034 (D. P.R. 2024)................

United States v. Stevens,

559 U.S. 460 (2010) .....................................

United States v. Texas,

599 U.S. 670 (2023) .....................................

VanDerStok v. Garland,

633 F. Supp. 3d 847 (N.D. Tex. 2022) ........

Wisconsin v. Yoder,

406 U.S. 205 (1977) .....................................

Statutes

Haw. Rev. Stat. Ann. § 134-25 (b) ......................

Haw. Rev. Stat. Ann. § 134-27(b) .......................

Haw. Rev. Stat. Ann. § 134-9 .............................

Section 501(c)(3) of the Internal Revenue Code.

Rules

Fed. R. App. P. 29(a)(4)(E) ..................................

Other Authorities

Foreword: The Supreme Court’s Shadow

Docket,

9 NYU J.L. & Liberty 1 (2015) ...................

Text, History, and Tradition: What the Seventh

Amendment Can Teach Us About the

Second, 122 Yale L.J. 852 (2013)...............

IDENTITY AND INTEREST OF

AMICI CURAE 1

The Center to Keep and Bear Arms (“CKBA”) is

a project of Mountain States Legal Foundation

(“MSLF”), a Colorado-based non-profit, public interest

legal foundation. MSLF was founded in 1977 to defend

the Constitution, protect private property rights, and

advance economic liberty. CKBA was established in

2020 to continue MSLF’s litigation to protect

Americans’ natural and fundamental right to selfdefense.

CKBA

represents

individuals

and

organizations challenging infringements on the

constitutionally protected right to keep and bear

arms. See, e.g., VanDerStok v. Garland, 633 F. Supp.

3d 847 (N.D. Tex. 2022), cert. granted Apr. 22, 2024

(No. 23-852); Sullivan, et al. v. Ferguson, et al., W.D.

Wash. 3:22-cv-05403; Garcia v. Polis, D. Colo. 1:23-cv02563-JLK; Kansas, State of et al v. United States

Attorney General et al, D. of KS 24-cv-01086-TC; and

Ortega et al v. Lujan Grisham et al, D. of NM. 24-CV0471-JB.

CKBA also files amicus curiae briefs with the

U.S. Supreme Court and circuit courts across the

nation. See, e.g., New York State Rifle & Pistol Ass’n

v. Bruen, 597 U.S. 1 (2022) (representing amicus

1 Pursuant to Fed. R. App. P. 29(a)(4)(E), the undersigned affirms

that no counsel for a party authored this brief in whole or in part,

and no person or entity other than Mountain States Legal

Foundation, or its counsel, made a monetary contribution

specifically for the preparation or submission of this brief. And

counsel of record for all parties received notice of amici curiae’s

intention to file this brief at least 10 days prior to the due date

for the brief. See Rule 37.2.

curiae CKBA); McDonald v. City of Chicago, 561 U.S.

742 (2010) (representing amici curiae Rocky

Mountain Gun Owners and National Association for

Gun Rights); District of Columbia v. Heller, 554 U.S.

570 (2008) (representing amicus curiae MSLF); Teter

v. Connors, 76 F. 4th 938 (9th Cir. 2023), reh’g en banc

granted, 2024 WL 719051 (9th Cir. Feb. 22, 2024)

(representing amicus curiae MSLF). The Court’s

decision will directly impact CKBA’s current clients

and litigation.

SUMMARY OF THE ARGUMENT

In State v. Wilson, 543 P.3d 440 (Haw. 2024),

the Hawaii Supreme Court refused to apply the

Bruen 2 test when determining the constitutionality of

a law which made it a crime for any person in Hawaii

to “carry or possess" a handgun or ammunition

outside of their home. 3 In their written opinion, the

Hawaii Supreme Court not only expressed

disagreement with this Court’s decision in New York

State Rifle & Pistol Ass’n, Inc. v. Bruen, but outright

contempt over the requirement that contemporary

courts should consider “the history and tradition of

the very old days” when analyzing modern day

firearm regulations. State v. Wilson, 543 P.3d 440, 453

(Haw. 2024). The Hawaii Supreme Court lamented

2 In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.

1 (2022), this Court held that a law burdening the right to keep

and bear arms is constitutional only if it “is consistent with this

Nation’s historical tradition” of firearm regulation. Id at 4.

3 Hawai'i Revised Statutes §§ 134-25(b), 134-27(b), and 134-9.

that the history of the Founding and Reconstruction

eras was “messy” and “not fair”, and that judges were

ill equipped to review and consider it when analyzing

these laws. Id.

Despite these protestations, the fact of the

matter is that judges have always used history to help

them reach and justify their conclusions. Indeed, the

heart of legal decision-making has always involved

evaluating whether prior decisions and precedents, as

well as long-established legal principles and cannons,

apply to the case at hand. So, it is clear that any

recent objection by the courts to consult history when

analyzing firearm related regulations is less about the

ability of judges to do so, and more about their

objection to the idea that Founding era principles

should even be considered when determining the

constitutionality of modern laws that impact the

rights of Americans to keep and bear arms.

The Hawaii Supreme Court’s failure to apply

the Bruen test to a case involving the prosecution of

an individual who was carrying a firearm in selfdefense was obvious and egregious error that

warrants summary reversal. But summary reversal

is also independently warranted in this case due to the

fact that the Hawaii Supreme Court did not just

“misapply” this Court’s relevant Second Amendment

precedents, it openly defied them and, in the process,

undermined the doctrine of stare decisis.

Unfortunately, the Hawaii Supreme Court is

not the only lower court that has expressed resistance

to – and at times outright defiance of – Heller,

McDonald and Bruen. For this reason, a summary

reversal in this case would not only send a clear

message to the Supreme Court of Hawaii, but to all

jurists who need a reminder about the controlling

authority of this Court’s precedents.

ARGUMENT

Despite the Recent Lamentations of

Many Courts, Attorneys and Judges are

Well-Equipped to Use History When

Reviewing Second Amendment Cases

In its written opinion, the Hawaii Supreme

Court went out of its way to mock and undermine this

Court’s holding in Bruen—before ultimately refusing

to apply it to the present case altogether. After

emphasizing that an “overwhelming majority” of

jurists and historians had come to reject the Bruen

test as well as the holding in District of Columbia v.

Heller—that that the Second Amendment conferred

an individual right to keep and bear arms, and not

just a collective one—the Hawaii Supreme Court

accused this Court of reaching its faulty conclusions

in these cases by “distort[ing] and cherry-pick[ing]

historical evidence . . . and discard[ing] historical facts

that did not fit.” (cleaned up) Wilson at 453.

Ultimately, the Hawaii Supreme Court decided

that instead of considering “the history and tradition

of the very old days” it would ignore the precedent set

by the Heller and Bruen holdings and continue to use

a “public safety balancing test” to evaluate firearms

laws. Id.

The Hawaii Supreme Court sought to justify

this break with precedent by declaring that “[h]istory

is messy” and “not fair” enough to be of any real use

to the courts. Id. The court repeatedly cast doubt on

its own ability—and the ability of all courts—to

consistently review history and tradition in the

context of firearms regulation. It flippantly stated

that, “Judges are not historians . . . [and are therefore

not well-suited to] excavat[e] 18th and 19th century

experiences to figure out how ‘old times’ control 21st

century life.” Id. (internal quotation marks added). To

bolster this point, the Hawaii Supreme Court

referenced

the

prolific

handwringing

and

disparagement that other state and federal courts—

as well as academia—had heaped on this Court in the

wake of the Heller and Bruen decisions. See Wilson at

21. (quoting United States v. Bullock, 679 F.Supp.3d

501, 507-08 (2023) (“Judges are not historians. We

were not trained as historians. We practice law, not

history. And we do not have historians on staff. Yet

the standard articulated in Bruen expects us to play

historian in the name of constitutional adjudication.”);

(quoting Darrell A.H. Miller, Text, History, and

Tradition: What the Seventh Amendment Can Teach

Us About the Second, 122 Yale L.J. 852, 935 (2013)

(“[I]n addition to the risk that [judges] will not

understand the materials they are charged to consult,

there is the additional risk that they will not conduct

a dispassionate examination of the historical evidence

and will simply marshal historical anecdotes to

achieve what they have already decided is the

preferred outcome.”).

While amicus recognizes the difficulty in

judging any case involving extensive factual and

historical evidence, the concerns expressed by the

Hawaii Supreme Court are misplaced and nothing

more than a feeble attempt to justify their

intransigence.

History and law have always gone hand in

hand; and there is history involved in nearly every

case that comes before a court, whether criminal or

civil in nature.

Using and applying historical

precedents is—and has always been—a crucial tool for

all state and federal judges. Courts often look several

hundred years into the past to glean insights from our

Founding documents, the words of the Framers of the

Constitution, contemporary writings of prominent

authors, and the basic traditions of our country. See

generally, Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 536 (2022) (“The line that courts and

governments must draw between the permissible and

the impermissible has to accord with history and

faithfully reflect the understanding of the Founding

Fathers.”) (cleaned up); Moore v. Harper, 600 U.S. 1,

22 (2023) (citing to Alexander Hamilton’s words in

Federalist No. 78 to support the proposition that the

Framers intended for state courts to exercise judicial

review over state legislatures).

Generalist judges are not scientists, yet they

frequently evaluate scientific evidence when a

person’s liberty is at stake in criminal cases. Judges

are not economists, but they can capably evaluate

economic evidence in antitrust cases. It is the very role

of the judiciary in the adversarial process to evaluate

competing evidence and provide a reasoned rationale

for decisions. Indeed, in Bruen itself, the Court

pointed to other contexts in which the government

bears the burden of using history to establish the

constitutionality of its restrictions on liberty. See

Bruen, 597 U.S. at 24-25 (“[T]o carry that burden, the

government must generally point to historical

evidence about the reach of the First Amendment’s

protections.”); see also N.L.R.B. v. Noel Canning, 573

U.S. 513, 523 (2014) (citing Federalist No. 76 for the

proposition that Senate approval of presidential

nominees is a critical part of the constitutional

system).

In context after context, courts look to history

without thinking twice, or engaging in extensive

handwringing about how experts may disagree over

the meaning or weight of various sources. For

instance, in Wisconsin v. Yoder, the Court held that

the right of parents to be the primary decision-makers

for their own children was a “right recognized because

it reflects a ‘strong tradition’ founded on the ‘history

and culture of Western civilization.’” 406 U.S. 205, 232

(1977). See also Moore v. East Cleveland, 431 U.S. 494,

504 (1977). Indeed, this Court held that “history and

tradition” was sufficient rational basis to overcome a

challenge to a prayer delivered at the outset of a

legislative session. See Marsh v. Chambers, 463 U.S.

783, 790 (1983).

Bruen’s history and tradition test is thus well

within the judicial norms of constitutional analysis.

As noted in Bruen:

And beyond the freedom of speech, our focus

on history also comports with how we assess

many other constitutional claims. If a

litigant asserts the right in court to “be

confronted with the witnesses against him,”

U.S.

Const.,

Amdt.

require courts to consult history to

determine the scope of that right. See, e.g.,

Giles v. California, 554 U.S. 353, 358, 128 S.

Ct. 2678, 171 L.Ed.2d 488 (2008)

(“admitting only those exceptions [to the

Confrontation Clause] established at the

time of the founding” (internal quotation

marks omitted)). Similarly, when a litigant

claims a violation of his rights under the

Establishment Clause, Members of this

Court “loo[k] to history for guidance.”

597 U.S. at 25 (some citations omitted); accord

Crawford v. Washington, 541 U.S. 36, 43 (2004) (“The

right to confront one’s accusers is a concept that dates

back to Roman times.”); id. at 44 (“Suspecting that

[Lord] Cobham would recant, [Sir Walter] Raleigh

demanded that the judges call him to appear, arguing

that “the Proof of the Common Law is by witness and

jury: let Cobham be here, let him speak it. Call my

accuser before my face.’”) (cleaned up). This approach

also comports with this Court’s approach to other

rights. See, e.g. United States v. Stevens, 559 U.S. 460,

468–71 (2010) (placing the burden on the government

to show that a type of speech belongs to a “historic and

traditional categor[y]” of constitutionally unprotected

speech “long familiar to the bar”) (internal quotation

marks omitted).

The act of judging itself relies on applying

historical antecedents to unique situations. Just last

year, this Court relied on history and tradition in

another context to reject Texas’s ability to challenge

federal immigration policy. In support of the

majority’s opinion that Texas lacked standing, Justice

Kavanaugh noted: “In adhering to that core principle

[of hearing cases only where an asserted injury is

redressable], the Court has examined ‘history and

tradition,’ among other things, as a meaningful guide

to the types of cases that Article III empowers federal

courts to consider.” United States v. Texas, 599 U.S.

670, 676 (2023); see id. at 677 (“The States have not

cited any precedent, history, or tradition of courts

ordering the Executive Branch to change its arrest or

prosecution policies so that the Executive Branch

makes more arrests or initiates more prosecutions.”).

Notably, two of the dissenters in Bruen signed onto

this opinion.

And long before Texas’s challenge to federal

immigration policy, the Supreme Court relied on the

famed English scholar William Blackstone for its

jurisprudence surrounding sovereign immunity. See

Alden v. Maine, 527 U.S. 706, 715 (1999)

(“Blackstone—whose

works

constituted

the

preeminent authority on English law for the founding

generation—underscored the close and necessary

relationship understood to exist between sovereignty

and immunity from suit.”). In Heller itself, the Court

cited Blackstone’s Commentaries on the Laws of

England, dated 1769. Heller, 554 U.S. at 582 (“The

phrase ‘keep arms’ was not prevalent in the written

documents of the founding period that we have found,

but there are a few examples, all of which favor

viewing the right to “keep Arms” as an individual

right unconnected with militia service.”) (relying on

Blackstone, among other treatises).

Indeed, the heart of legal decision-making

involves evaluating whether prior decisions and

precedents, as well as long-established legal

principles and cannons, apply to the case at hand.

Federal and state judges frequently rely on decisions

from many years ago to guide their interpretations of

the law, ensuring consistency, predictability, and

respect for established norms. See, e.g., Ketanji Brown

Jackson, Questions for the Record Upon Nomination

as an Associate Justice of the Supreme Court of the

United States, at 1 (Undated) (“I look at history and

practice at the time the document was created to

understand what those who created the text intended;

I also look at precedent to understand how the text

has been previously interpreted and applied.”); id. at

4 (“[A]s a general matter, due process protects those

fundamental rights and liberties which are,

objectively, deeply rooted in this Nation’s history and

tradition and implicit in the concept of ordered

liberty.”) (cleaned up). 4

And while—since Bruen—too many judges

have taken the opportunity to publicly lament the

requirement that they have to consider the historical

tradition of firearms regulation when dealing with

cases involving Second Amendment rights, the fact of

the matter is that courts have always had to consider

history and tradition as part of their everyday

operations. A Westlaw search reveals the term

“history and tradition” in thousands of cases, used in

a similar manner since at least 1857. See, e.g., Fisher

v. Haldeman, 61 U.S. 186, 193 (1857) (evaluating

Pennsylvania’s history and tradition as it related to

property rights, all the way back to the mid-1700s); id.

at 194 (“This doctrine has continued to be recognized

as settled law in Pennsylvania for half a century.”).

All of this is to say that judges use history on a

regular and continuous basis to justify their

conclusions; so saying that history is “messy”, “fuzzy”

or difficult to interpret when it comes to cases which

involve the Second Amendment is nothing more than

a cop out.

Much of this is intuitive to lawyers and judges.

4https://www.judiciary.senate.gov/imo/media/doc/Judge%20Ket

anji%20Brown%20Jackson%20Written%20Responses%20to%20

Questions%20for%20the%20Record.pdf

An undergraduate coursework in history is often a

pathway to law school and legal practice. 5 Using

historical sources, evidence, and American traditions

is often in the bones of attorneys across the country. 6

The adversarial process brings out the relevant

examples of potentially analogous laws, traditions,

and precedents that Courts can use to determine

whether or not a given law fits within the history and

tradition of American firearms regulation. 7

Honest minds may disagree about history.

That’s especially true when the question is whether a

5 According to the United States Bureau of Labor Statistics, more

than ten percent of undergraduate history majors enter legal

occupations.

https://www.bls.gov/ooh/field-ofdegree/history/history-field-of-degree.htm

6 One District Court recently commented on how it had still

managed to comport with Bruen’s test despite its limited judicial

resources. See United States v. Pierret-Mercedes, — F. Supp. 3d

—, 2024 WL 1672034, *14 (D. P.R. Apr. 18, 2024) (“[T]he Court

has benefited from the well-researched opinions of other district

and circuit courts and from numerous works by legal scholars

dedicated to the history of firearms regulation. For good

measure, the Court has also made use of a well-known historical

gun law repository maintained by the Duke Center for Firearms

Law to verify the primary sources.”).

7 In a concurrence, Judge Higginson of the Fifth Circuit Court of

Appeals noted that in cases where historical precedents may be

in tension, a public call for amicus briefs may be of value to a

lower court. United States v. Daniels, 77 F.4th 337, 360 n. 15 (5th

Cir. 2023) (Higginson, J., concurring) (“Accordingly, in this case,

we found it helpful to publish a court directive inviting briefs

from amici curiae who wish to supply relevant information

regarding the history and tradition of the issues presented in this

case.”) (cleaned up).

challenged statute is sufficiently analogous to a prior

statute. But the process itself—of analogizing and

distinguishing—is intuitive to the bar, and a skill that

attorneys start learning in their 1L year.

In sum, history isn’t as “messy” or as difficult to

apply as the Hawaii Supreme Court and many other

state and federal courts have made it out to be; and,

regardless of how they may feel about it, under Bruen

it is a court’s obligation to consider and consult history

when analyzing Second Amendment claims.

II.

The Supreme Court of the State of

Hawaii Requires a Clear Message from

this Court: Summary Reversal

Whether the standard for summary reversal is

egregious error or intransigence, the Hawaii Supreme

Court’s decision in this case demands it. They have

thumbed their nose at this Court and brazenly refused

to apply the Bruen test to conduct that is plainly

covered by the Second Amendment.

When a lower court refuses to apply United

States Supreme Court precedent, it upends the

constitutional order and threatens the very

foundation upon which our legal system is based.

A central component of that system is the

doctrine of stare decisis. It is what allows our nation’s

system of federalism to operate efficiently, effectively

and predictably. Justice Antonin Scalia addressed the

significance of the doctrine of stare decisis in his

following concurrence:

The doctrine of stare decisis protects the

legitimate expectations of those who live

under the law, and, as Alexander

Hamilton observed, is one of the means by

which exercise of ‘an arbitrary discretion

in the courts’ is restrained. Who ignores it

must give reasons, and reasons that go

beyond mere demonstration that the

overruled opinion was wrong (otherwise

the doctrine would be no doctrine at all).

Hubbard v. U.S., 514 U.S. 695, 716 (1995) (Scalia, J.,

concurring in part and in judgement).

In ruling as it has in the present case, the

Hawaii Supreme Court has unabashedly ignored

precedent, and brought into question not only the

rigidity of the structure supporting American

jurisprudence by disregarding stare decisis, but more

importantly bringing into question the rigidity of all

rights enshrined within the Constitution. If left

unchecked, state and federal courts could begin to

follow Hawaii’s lead and snub their nose not only at

the Second Amendment but all other constitutional

rights that they feel don’t suit the “best interests” of

their particular states or environs. For this reason,

summary reversal is appropriate.

As outlined above, summary reversal is also

appropriate due to the fact that the Hawaii Supreme

Court committed egregious error by failing to apply

the Bruen test to a case involving the prosecution of

an individual who was carrying a firearm in selfdefense. See Gonzalez v. Thomas, 54 7 U.S. 183, 185

(2006) (summary reversal warranted where lower

court's error is "obvious").

The fact that this obvious error was intentional

further justifies summary reversal in this case. The

Hawaii Supreme Court did not simply misapply the

relevant Second Amendment precedents, it willfully

resisted them.

In the past, when courts have engaged in this

type of recalcitrance, this Court has summarily

reversed them to both correct an error and “enforce

the Court’s supremacy”. William Baude, Foreword:

The Supreme Court’s Shadow Docket, 9 NYU J.L. &

Liberty 1, 2 (2015). Accord American Tradition

Partnership, Inc. v. Bullock, 567 U.S. 516 (2012)

(summarily reversing a Montana Supreme Court

decision that attempted to carve out an exception to

Citizens United v. Federal Election Comm’n, 558 U.S.

310 (2010), based on unique state law circumstances);

see also Pavan v. Smith, 582 U.S. 563, 566 (2017)

(summarily reversing the Arkansas Supreme Court’s

conclusion that Obergefell v. Hodges, 576 U.S. 644

(2015), protected only same-sex marriage, and

therefore did not protect same-sex couples’ rights to be

named on their children’s birth certificates).

Resisting the right to keep and bear arms is an

unfortunate but longstanding tradition in the United

States. Before Heller, numerous lower court judges

rejected the principle that the Second Amendment

protected an individual right to keep and bear arms.

See Parker v. District of Columbia, 478 F. 3d 370, 403

n.4 (D.C. Cir. 2007) (Henderson, J., dissenting)

(collecting circuit court cases and explaining that

“[n]ine of our sister circuits have noted that the

declaratory clause modifies the guarantee clause”

with respect to the Second Amendment – concluding,

therefore, that there was no individual right to keep

and bear arms) (emphasis added).

Even after Heller, numerous lower courts

defiantly engaged in loosely tethered means-end

scrutiny when determining whether a plaintiff was

protected by the Second Amendment. Bruen, 597 U.S.

at 19 (“Despite the popularity of this two-step

approach, it is one step too many.”); see also Rogers v.

Grewal, 140 S. Ct. 1865, 1866 (2020) (Mem.) (Thomas,

J., dissenting from denial of certiorari) (“[A]s I have

noted before, many courts have resisted our decisions

in Heller and McDonald. … Instead of following the

guidance provided in Heller, these courts minimized

that decision’s framework.”); McDougall v. County of

Ventura, 23 F.4th 1095, 1119 (9th Cir. 2022)

(VanDyke, J., concurring) (“As I’ve recently explained,

our circuit can uphold any and every gun regulation

because our current Second Amendment framework is

exceptionally malleable and essentially equates to

rational basis review.”).

And, as the present case makes clear, this

resistance to – and at times outright defiance of –

Heller, McDonald and Bruen continues throughout

both the state and federal court systems today. For

this reason, a summary reversal in this case would not

only send a clear message to the Supreme Court of

Hawaii, but would also serve as a “lightning bolt” that

would reverberate across the legal landscape

reminding all of this Court’s authority to enforce its

precedents, and the right of the people to keep and

bear Arms. Baude, 9 NYU J.L. & Liberty 1, 2.

CONCLUSION

Summary reversal would send this message

loud and clear. Therefore, Mountain States Legal

Foundation respectfully urges the Court to grant the

petition for certiorari and summarily reverse the

Hawaii Supreme Court’s decision in this case.

Respectfully submitted,