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 firstname.lastname@example.org. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."