The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
In regards to rights not being created…
Rights are a created and codified concept. Whether or not something is a right or not is decided by someone somewhere down the line. There is always a foundational document that expresses the right because in it’s absence you don’t really have a right you have either a privilege that can be taken away by a valid or at least powerful authority or you have a grey area where simply no law or social norm applies until further regulation is created. This is subject to change over time and location.
Rights as we understand them today are not naturally occuring. The idea isn’t even particularly old in the grand scheme of things. Before that point laws definitely existed but they were pretty simplistic operating codes there was no higher echelon of law that superceed other law particularly just layers of powerful people who interacted with the law. If you were basically in charge of the law you could rewrite it as you saw fit and your potential consequences were pissing off someone who could band together and rebel against your authority. If you felt secure enough you could re-write anything through decree. Rights are a feature that was conceptualized or created from scratch in 18th century philosophy with the rise and design of modern concepts of democratic government.
The 2nd Amendment itself is a wonderful example of a non-universal right. Out of all the governments in rhe world today only four have a version of a right to firearms. The USA, Guatemala, Mexico and the Czech Republic. Of those only the US and Guatemala have no restrictions on both firearm type and a required licencing program. Outside of that guns are most often regulated but legal. Exceptions being situations like Japan where there is an almost total prohibition but where guns are legally purchasable ownership is covered under variation of regular property rights against government seizure sort of like how your car is.
You technically do not have a right specifically to a car. They are just legal to own without a licence and illegal to use without one. But use and possession are two independent principles. The right to property is subject to laws banning or regulations of specific things but also Constitutional rights against illegal seizure. There are a lot of things one can only legally possess only with an appropriate licence and that isn’t a violation of property rights.
Do you believe the second amendment creates a (individual or otherwise) right to bear arms?
Historically, deciding who ascends to the throne when a king dies or how to distribute a man’s property after his death was based on birthright, at least in some cultures. Birthright is an old concept. I believe our modern conception of natural rights or human rights has evolved from that. The development that accompanied democracy was the idea of equal rights, and we’re still working on that.
The text of the amendment is “arms,” not “firearms.” Those terms are not interchangeable.
In what sense does the United States have no restrictions on firearm type?
Firearms in the United States are regulated. Businesses that buy and sell firearms must have a license.
You only need a license to operate a car on a public road. No license is required for driving a vehicle on private property.
I am unsure how your individual takes are relevant to the passages you quoted or are at best fairly surface level abstractions or dodges of main topic at hand… and on a personal note I must say that I am quite tired of this style of engagement where an entire post is chopped up, regurgitated and replied to in short, low effort dismissals. If you can’t write your own damn paragraph, don’t bother.
I will leave this with an answer to your first question. Yes. Laws and legal theory are CREATIONS. Somebody wrote them, had intentions for their use which they tried to write in such a way to illustrate their intent because intent, letter, cultural continuity of precedent and effect to obtain peaceable justice are four independent vectors under which justices balance their individual rulings between. Rights are a body of law. Every single individual part of the operating system of the legal system is essentially optional and it CREATES the rubric for what is a legitimate use of force on behalf of the State. You are simply used to the one into which you were born and are choosing to believe it represents a universal truth. That whole legal possession of in(un)alienable rights was at one political considered a completely radical idea and it had critics. The “Divine Right of Kings” is tracable in an English sense to the Magna Carta which outlines the rules of legal succession which served as a constitutional document. You can trace the application of rights to the populace at large back to the English Bill of Rights from 1689 based largely on the ideas of John Locke and his contemporaries which mostly gained traction as a knee jerk response response to the perceived flippancy and overindulgences of James II but those rights are exceedingly foreign to our modern eyes for not the least reason they are very stratified by class. Your fun fact of the day is the UK didn’t legally have the very basics of human rights outlined as we know them in the American modern conception of them on their books until 1998 which was also when they officially repealed the death penalty since it was an ultimate violation of their conception of rights of the person.
Perhaps ask oneself if the original Constitutional right to “Life” is truly protected in the US when the State and the states under that Constitution are allowed to schedule the killing of people. That phrase “Life, Liberty and Pursuit of Happiness” is a rip from John Locke’s “Life, Liberty and Property” in which his definition of “Life” meant “to live a style of life free from government interference.” This is what has been interpreted as the US Constitutional definition. UK Human Rights Act of 1998 protects a right to “life” as in a right to breathe, think have a pulmonary rhythm etc. Thus while both promise a right to “life” only one is explicitly understood as a protected right to be alive. You have no perfect Constitutional right to be alive in the US.
Every law requires interpretation at it’s point of judgement both ways because the question “what is law” in a broad philosophical sense is something every court grapples with every day. Your take is very much overly simplistic.
… And please don’t try and post “gotchas” because I didn’t list particular nitty-gritty aspects of individual laws I mention. My posts are long enough and I need to truncate them somehow.
I would like to apologize for that. It is a defense against people who act in bad faith.
I will sit down and give you a proper reply when I have time.
>I must say that I am quite tired of this style of engagement where an entire post is chopped up, regurgitated and replied to in short, low effort dismissals.
i don’t mind short, low effort comments. but the meticulously quoted, but page-long comments bother me a great deal. each thread can contain its own topic, and when it necessitates addinional threads, that can happen. writing multiple-page essays back-and-forth is a genuine academic venture, and this is a link aggregation comment section.
I also do not mind short low effort comments either though they often fall into “short, quippy and wrong” issues but the series of quotations in response to each individual part of a prior post is the engagement style I’ve learned to expect of the very self-centered and close minded.
They generally don’t want to have a discussion with an actual discussion of ideas, they want to take the least amount of effort to dismiss the post as wrong out of hand and be done with it.