This Critique of the Supreme Court’s Gun Logic Really Got Under Alito’s and Thomas’ Skin

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Last February, the Hawaii Supreme Court dared to call out the U.S. Supreme Court’s Second Amendment jurisprudence for what it is: unworkable law built on bogus history and pro-gun fanaticism. It now appears the critique has gotten under some justices’ skin. In an opinion on Monday, Justice Clarence Thomas, joined by Justice Samuel Alito, railed against the Hawaii Supreme Court’s top-to-bottom evisceration of his own gun-rights opinions. But Thomas and Alito protest too much: Their grousing is pure projection, accusing the Hawaii Supreme Court of committing the same sins at the heart of their own Second Amendment rulings. Given an opening to defend their Second Amendment views, the conservative justices whiffed—and, in their anger, fabricated a new rule that would make it even easier for law-breaking citizens to challenge gun regulations. It has never been more apparent that, as the Hawaii Supreme Court charged, SCOTUS’s gun enthusiasts are making it up as they go along.

The case that set off this clash, Hawaii v. Wilson, should not be a difficult one. Christopher Wilson, the defendant, allegedly trespassed on someone else’s property while carrying a loaded gun in his waistband. Hawaii requires residents to obtain a permit to own a handgun; Wilson didn’t have one. The state also requires a license for concealed carry; Wilson didn’t have that either. Prosecutors charged him with criminal trespass and gun charges stemming from his possession of an illegal firearm and ammunition. Wilson contested the charges, arguing that they violated his rights under the Second Amendment. He also claimed that the charges ran afoul of a provision of the Hawaii Constitution that uses the exact same words as the Second Amendment.

The Hawaii Supreme Court rejected Wilson’s arguments. It began by refusing to interpret the Hawaii Constitution in line with SCOTUS’s interpretation of the Second Amendment, which prohibits any gun restriction that isn’t rooted in the nation’s “history and tradition.” Justice Todd Eddins’ unanimous opinion for the court lambasted SCOTUS for crafting this jurisprudence out of whole cloth. Eddins pointed out that an individual right to bear arms had been “debunked” shortly after SCOTUS created it. He took the conservative justices to task for grafting their “personal values and ideas about the very old days” onto an ambiguous historical record, writing that the supermajority “cherry-picks historical evidence,” then “shrinks, alters, and discards historical facts that don’t fit.” (Eddins expanded on these concerns in a withering interview with Slate.)

Turning to the Second Amendment, Eddins held that Wilson lacked standing to challenge the particulars of Hawaii’s concealed carry regime. After all, Wilson never even tried to apply for a license. And he was charged for trespassing with an illegal weapon—not for violating the concealed carry law. Eddins reasoned that Wilson could challenge only the statutes under which he was being prosecuted. And those narrower statutes, which target unauthorized possession of a handgun, survive Second Amendment scrutiny.

Wilson appealed to SCOTUS, accusing the Hawaii Supreme Court of defying Second Amendment precedents. The justices did not take up the case, probably because the appeal was premature: As a rule, a defendant like Wilson can’t appeal until after his trial, and he has not yet been convicted. Nonetheless, Thomas, in his opinion joined by Alito, seized the opportunity to whine about the state Supreme Court’s “critique of this Court’s Second Amendment jurisprudence.” Eddins’ opinion, the justice complained, “took aim at our focus on original meaning,” thus “bemoaning the policy consequences” of “an originalist interpretation of the Second Amendment.” The Hawaii Supreme Court, he wrote, preferred to use “public safety balancing tests,” ostensibly prioritizing “policy” over real law. And it valued the state’s authority to “safeguard peaceful public movement” over the “need” for carrying a concealed weapon around in public.

This criticism gets it backward. The Hawaii Supreme Court did not prioritize policy over law: It accused SCOTUS of doing policy masquerading as law, imposing its own preference for lax gun regulation on all 50 states under the guise of constitutional interpretation. The court took pains to show that the prevailing interpretation of the Second Amendment is not originalist but based on a fantastical alternative history peddled by the gun industry and its defenders. It is as if Thomas projected the flaws of his own approach onto the lower court’s opinion. Moreover, the Hawaii Supreme Court did not merely question SCOTUS’s “focus” on original meaning, as Thomas claimed. Rather, it asserted that SCOTUS did an atrocious job of divining the Second Amendment’s original meaning—a nuanced critique with which Thomas did not even engage.

It is true, as Thomas wrote on Monday, that the Hawaii Supreme Court “denigrated the need for public carry in particular,” dismissing “a federally-mandated lifestyle that lets citizens walk around with deadly weapons.” But lower courts are free to pillory SCOTUS’s decisions as long as they apply them fairly. The Hawaii Supreme Court did that here. What, then, is the problem?

There isn’t any, so Thomas made one up: The lower court, he declared, was wrong to bar the defendant from challenging Hawaii’s concealed carry regime. True, the defendant never tried to comply with this regime, and he wasn’t actually charged with violating it, so it would be strange for him to contest its constitutionality. But according to Thomas, the Second Amendment gives criminal defendants who are prosecuted for violating one gun regulation the privilege to attack a different gun regulation. The right to bear arms is so powerful that a defendant can parlay a run-of-the-mill illegal weapons charge into a full-on assault against a state’s entire concealed carry licensure system. Any other approach, Thomas reasoned, would compel Americans to “engage in empty formalities”—which is another way of saying: “Try to follow the law before breaking it.”

Of all the rights to supercharge in this respect, the Second Amendment is an unusual candidate. People who carry illegal weapons are, by definition, dangerous; unlike someone exercising, say, their right to free speech, an individual in possession of an illegal firearm can easily murder a bunch of people in a few seconds. Letting gun owners break the law until they’re caught, then awarding them the right to mount a sweeping challenge to whole swaths of gun regulation, seems like a real threat to public order. Then again, as Thomas reiterated on Monday, he does not believe that courts can ever consider the safety benefits of gun restrictions when deciding whether to strike them down. So this approach is in line with his broader prejudice toward Second Amendment litigants.

It is clear that Thomas craved the chance to scold the Hawaii Supreme Court for bashing his gun rights opinions. And it is telling that, in the process, he inadvertently proved the Hawaii Supreme Court’s point. There is nothing—not history, not law, not reason—that Thomas will not warp in pursuit of maximalist Second Amendment freedoms. Even the rules of standing may be contorted to help a defendant like Wilson because his crime happened to involve illegal possession of a gun. One court here is definitely valuing policy over neutral legal principles. It is not the one in Honolulu.