When I served as a judicial officer, I leaned into the originalist philosophy championed by Justice Antonin Scalia. His wisdom — that judges must adhere to the Constitution and the law as written, not as they wish it to be — served as a lodestar. As Scalia famously remarked, “The Constitution is not a living document — it is a legal document.” This sharp declaration underscores a vital truth: the Constitution is not a chameleon, changing with the political winds or cultural trends. It is a fixed, enduring framework meant to safeguard liberty and ensure the rule of law. Judges are bound by its text and original meaning, not free to reinterpret it to suit their preferences or the moment’s fashionable ideologies. To treat it otherwise is to abandon constitutional governance altogether.
This principle could not be more relevant in the wake of the Hawaii Supreme Court’s defiance of U.S. Supreme Court precedent in State v. Wilson. The procedural posture of the case is important: Christopher Wilson, a Hawaii resident, was charged in 2017 with carrying a pistol without a license while hiking. Wilson argued that his actions were protected by the Second Amendment, particularly after the U.S. Supreme Court’s landmark decision in New York State Rifle & Pistol Association Inc. v. Bruen (2022), which affirmed the right to carry a firearm in public for self-defense.
The Hawaii Supreme Court, however, reinstated charges against Wilson, effectively ignoring Bruen. In a particularly audacious move, the court criticized the U.S. Supreme Court for “cherry-pick[ing]” historical evidence and engaging in “fuzzy” reasoning, dismissing the Bruen decision as backward-looking. The Hawaii court even invoked the state’s so-called “spirit of aloha” as justification for rejecting the plain guarantees of the Second Amendment. This was more than a bad legal ruling — it was a brazen act of judicial nullification.
When the case reached the U.S. Supreme Court, the justices denied certiorari on procedural grounds, noting that this was an interlocutory matter that had not yet fully played out in Hawaii’s courts. However, Justice Clarence Thomas, joined by Justice Samuel Alito, issued a statement that should serve as a warning to all who care about constitutional governance. Justice Thomas sharply criticized the Hawaii Supreme Court for not giving the Second Amendment its proper weight, observing that the lower court’s analysis “failed to give the Second Amendment its due regard.” He further noted that Hawaii’s defiance of Bruen was deeply troubling and a signal of broader disregard for the rights of Americans.
While the denial of certiorari means the Supreme Court will not review State v. Wilson at this stage, the issue is far from resolved. Cases like this underscore a troubling trend among progressives to sidestep federal law and Supreme Court precedent whenever it clashes with their ideological preferences. From sanctuary cities refusing to enforce federal immigration law to local governments enacting gun control measures that openly defy the Second Amendment, these actions bear the hallmarks of a modern-day form of nullification.
Nullification — the doctrine whereby states or localities can disregard a federal law the state deems unconstitutional — was discredited long ago, most notably during the Civil War and the desegregation era. A related concept, interposition, involves a state asserting that a federal law is unconstitutional and stepping in to “interpose” itself between the federal government and its citizens. These doctrines were historically invoked to resist federal authority, often to disastrous effect.
What makes the Hawaii Supreme Court’s actions in State v. Wilson even more concerning is that this is not a case of a state challenging the constitutionality of federal law. Instead, Hawaii has effectively declared that the Second Amendment, as interpreted in Bruen, does not apply within its borders. By reinstating charges against a citizen exercising what the U.S. Supreme Court has unequivocally affirmed as a fundamental right, the Hawaii court has treated the Constitution not as the supreme law of the land, but as an inconvenience to be disregarded.
This is not interposition in the historical sense — it is an outright dismissal of federal authority and a refusal to acknowledge the Second Amendment’s binding force. Such defiance signals a dangerous precedent, where states or localities decide unilaterally which parts of the Constitution they will honor. It is a direct challenge to constitutional governance and the principle that the rights enshrined in the Constitution apply equally across all states.
By invoking doctrines like nullification and interposition — whether explicitly or implicitly — progressive activists undermine the structure of our Republic. The Constitution is not a patchwork quilt of negotiable rights. It is a unified legal framework, and its protections do not cease to exist when they conflict with the political preferences of a state or locality. What Hawaii has done is more than defiance; it is a rejection of constitutional order, one that endangers the rights of all Americans.
The Hawaii Supreme Court’s invocation of the “spirit of aloha” is particularly galling. Although cultural values and local traditions are important, they do not trump federal constitutional rights. The Second Amendment is not subject to the whims of a state court’s cultural preferences. It is self-executing; binding on all states and localities; and, as Justice Thomas’s statement makes clear, deserving of full respect from every level of government.
The implications of Hawaii’s defiance are far-reaching. We risk a fragmented legal landscape, where liberties are dictated not by the Constitution, but by the whims of local authorities. Even worse, we risk a Republic where fundamental rights are stripped away entirely depending on where one happens to stand.
Liberty is not a negotiable commodity. Freedom stolen from a fellow citizen in another state is freedom stolen from us all, for the erosion of one person’s rights diminishes the rights of every American.
Justice Scalia warned us of this danger: “The Constitution is not meant to facilitate change. It is meant to impede change — to make it difficult to change.” This deliberate rigidity protects our freedoms from the shifting sands of political trends. When judges treat the Constitution as a living document, they usurp the role of legislators and threaten the rule of law itself.
The Hawaii Supreme Court’s actions are not an isolated incident, but part of a broader progressive effort to rewrite the Constitution by ignoring it. Whether through judicial activism, selective enforcement of federal law, or outright defiance of Supreme Court precedent, this trend is a grave threat to constitutional governance. Advocates for liberty must remain vigilant.
As a former judicial officer, I adhered to Scalia’s principle that the law must guide you, even when you disagree with where it leads. That discipline is essential to preserving the Constitution and protecting the rights of all Americans. The Hawaii Supreme Court’s decision in State v. Wilson is a stark reminder of the stakes. The Second Amendment is not a suggestion. It is not contingent on the “spirit of aloha” or any other subjective interpretation. It is the law. And the law must be followed.
This case should serve as a clarion call: when courts abandon their duty to uphold the Constitution, they undermine the very liberties that define our nation. The Second Amendment, like every provision of the Constitution, is not up for debate. It is the law of the land, and no amount of judicial activism can change that.
Charlton Allen is an attorney and former chief executive officer and chief judicial officer of the North Carolina Industrial Commission. He is the founder and editor of The American Salient and the host of the Modern Federalist podcast.
Image via Pexels.
Jesus Christ is King
Comments are closed.