The State of Aloha

Lodged between the celebrated First Amendment, establishing freedoms of speech, religion, assembly and press, and the dead letter of the Third, which protects homeowners from housing soldiers in peace and in war, are these 22 words:

“A well regulated militia being necessary to the security of a free state, the right to bear arms shall not be infringed.”

The Second Amendment to the United States Constitution is mysterious and ambiguous. What exactly does it mean to bear arms? Does the introductory phrase limit that right? Is it an absolute infringement?

The cryptic language of the amendment will always be relevant too. Governments – state and federal – have all passed laws and regulations about the ownership of firearms. Not just that, but there are laws stopping people from using other weapons too. I guess that means whenever laws prevent someone from “bearing arms” (whatever that means), the Second Amendment could theoretically come into play.

About five years ago, the Supreme Court of the United States examined the Second Amendment and ruled that the right to bear arms is an individual one that does not need to be related to a militia, but that right is not unlimited. The government has an interest in regulating firearms, and regulations that are “reasonable” do not infringe on the right to bear arms. The decision brought shock waves throughout the land. It was the first time the high court had examined the Second Amendment since 1939.

The court addressed the issue again in 2010. It confirmed the earlier ruling and this time made it perfectly clear that state governments are also bound to adhere to the Second Amendment. (The application of the federal Constitution’s Bill of Rights is a perennial topic in the history of the Supreme Court.)

Hawaii has now joined the debate in a significant way. For many years, our state has had some of the country’s strictest laws regulating firearms. And very recently, those laws have been challenged. Last summer, Christopher Baker brought a lawsuit in the federal court in Honolulu asking the court to declare Hawaii’s firearms regulations unconstitutional and in violation of the Second Amendment.

Baker argued that the Hawaii laws are so strict that a person cannot carry a gun anywhere without a special permit. These special permits can be approved only by the chief of police and cannot be reviewed by any court, agency or other government entity. The rigid restrictions, according to Baker, are absolute and violate the right to bear arms.

Baker brought his case against the City and County of Honolulu, the chief of police, Louis Kealoha, and the governor. The city responded by asking the court to dismiss the case, known as Baker v. Kealoha, entirely. According to the city, the right to bear arms is not infringed by the statutory scheme. The court agreed and ruled for the city.

Baker then took his case to the 9th Circuit Court of Appeals in San Francisco. He argued that our state laws give unfettered discretion to the chiefs of police in determining who can have a permit to keep firearms and who can’t. That infringement, according to Baker, is unreasonable and cannot stand.

The city countered that there was no error in knocking the case out. The city examined the history of the Second Amendment and went back to ancient English statutes, the common law of the original 13 colonies, and all the way up to the landmark decisions of our modern-day Supreme Court. According to the city, there is no historical basis supporting a right to bear arms outside of one’s home.

The appellate court heard arguments in December and then took the case under advisement. We’re still waiting for a decision.

If the city prevails, then the Legislature won’t have to amend a thing. The statutes will have withstood the constitutional challenge and the laws as written need not be altered. The real ramification will be for other states. If the 9th Circuit agrees with and adopts the city’s argument, then it could allow states to take a more restrictive approach to the possession of firearms. (Whether states like Wyoming and Idaho possess the political will to adopt Hawaii’s restrictions is a different story.)

If Baker prevails, the fate of the Hawaii statutes could be another result of the newly revived Second Amendment. It would be the latest example of an infringement upon that right to bear arms – one of our oldest civil rights.

No matter how the case pans out, it probably won’t end in San Francisco. From there, it’s on to the highest court in the land. Baker v. Kealoha could go all the way to the Supreme Court. It could give the Supreme Court another chance – the third time in more than 70 years – to explore the meaning of those ambiguous 18th-century words.

* Ben Lowenthal is a trial and appellate lawyer, who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”

The State of Aloha

We’ve all heard complaints about Kihei. It’s too hot. It’s ugly. It’s overrun with tourists walking around in snow-white shorts and matching shoes or green newcomers zipping around on mopeds. Maybe it’s true.

Kihei may not look like your typical town on Maui. Compared to Wailuku or Hana, the subdivisions are pretty new. And yes, there are a lot of condominiums squeezed between South Kihei Road and Piilani Highway.

But despite the way it looks, Kihei isn’t all that different than the other towns on Maui. In fact, South Maui carries on a long tradition in Hawaii.

More than a hundred years ago, sugar and pineapple were the biggest industries in the islands. Sugar and pineapple companies owned most of the viable lands, ran the major economic engines of the time, and controlled just about every facet of the government.

The companies recruited workers from all over the world to sweat it out in the fields, harvest the cane and run the mills and canneries. They brought in immigrants from Asia, Europe and the Mainland to the islands and settled them into small, single-industry towns with such precision that they could essentially dictate who would stay and who would have to leave.

Waves of immigrants from Japan, China, Portugal, Puerto Rico and the Philippines were no accident. The migrations were the result of conscious decisions of the landowners and industrial giants. They were assigned to little towns built entirely for a single industry, such as Paia and Lanai City. These are the same towns we now call “historic” and consider the quintessential local towns now that the industries that created them are long gone.

Now, look again at Kihei. If sugar and pineapple were the industries of the past, tourism and construction are the industries of today. Instead of a compact company town, we have an unplanned boomtown on the dusty south shore.

Of course, the hotels and construction industries aren’t as heavy-handed as their predecessors. They cannot pick where most of their workforce comes from, nor do they have company towns. However, as was once the case in Puunene, Kihei is where the workers in today’s industries call home. And like the first generation of folks to arrive in Puunene, most of the people who actually live in Kihei are new to Maui.

It’s full of newcomers, immigrants from other countries, and even locals who all come together to work in pretty much the same industry and live side by side. Just about everyone who lives there came from somewhere else, be it Mexico, Missouri or Makawao.

The story of the generations of people who move there, work hard in the service industry and raise their kids on the south side continues the local tradition. Plantation camps were full of people from other places getting together and working for a single employer. The story isn’t that much different for a lot of people who call Kihei home. Most people living in Kihei work at the major resorts in Wailea, run late shifts at high-end restaurants, and man the kiosks and counters for vacationing tourists.

It may not be pretty for some, but then many probably didn’t think the towns created by the sugar and pineapple industries to be all that attractive either. Nobody at the time figured that Paia would become such a quaint, gentrified center for organic food sellers, high-end yoga shops and hip tattoo parlors.

Kihei will get there too. South Maui is maturing. Generations of families are claiming Kihei as the only home they have known. The need for a high school is becoming more and more pressing. People who moved there in the 1970s, ’80s and ’90s want to raise their own children there. They want parks, schools, a hospital, and the infrastructure enjoyed in more established towns on the island.

Kihei is going to be old someday. It will have a historical society and be considered quaint. Maybe future Mauians will demand that its government preserve that late 20th- and early 21st-century look. Maybe they will argue that “historic” homes in Maui Meadows or the “classic” condominiums on South Kihei Road are the best examples of the tourism or construction industry booms of the era and should be spared the wrecking ball. We could even have a tourism museum where old pictures and real uniforms of pool attendants and valets are on display. Imagine hearing Kihei folks debate how much longer their ancestors have lived, worked and played along the sunny, hot stretches of South Kihei Road.

By then, Maui may find a new industry and a new startup town will be there for everyone to frown upon.

* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Ilima Loomis’ “Neighbors.”