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NOTE
Hawaii v. Wilson, 543 P.3d 440 (2024)
Christy Hoffmann*
I. Introduction**
In the late 1700s, the new King Kamehameha I of the Hawaiian Islands attacked the village of Puna on the island of Hawai‘i as part of a military expedition.[1] During the attack, one of the villager’s fishermen struck King Kamehameha over the head with a canoe paddle.[2] The blow was hard enough to knock the king unconscious and to split the wood of the paddle.[3] Instead of then taking the killing blow, the fisherman left the vulnerable Kamehameha alive.[4] When King Kamehameha came to, his advisors asked if they should seek out the fisherman for punishment.[5] Instead, King Kamehameha declared a new law: Ke Kānāwai Mālamahoe, or the Law of the Splintered Paddle:
A e mālama ho‘i i kānaka nui
a me kānaka iki;
E hele ka ‘elemakule,
ka luahine, a me ke kama
A moe i ke ala
‘a‘ohe mea nāna e ho‘opilikia[6]
Translated into English, this law reads: “Respect alike (the rights of) men great and humble; see to it that our aged, our women, and our children lie down to sleep by the roadside without fear of harm.”[7]
While Hawai‘i’s government structure has gone through several major upheavals since the time of King Kamehameha I, the Law of the Splintered Paddle has remained as a guiding principle towards a right to a safe environment in what is now the state of Hawai‘i.[8] This principle came into question recently in the 2024 Hawai‘i Supreme Court case, State v. Wilson.[9] This case arose when Christopher Wilson was charged with several firearm-related offenses following his arrest for trespassing on private property on Maui while carrying an unlicensed firearm.[10] Wilson contended that his rights to carry a firearm for self-defense were violated by Hawai‘i’s firearm regulations.[11]
The decision in Wilson shines light on the tension between state sovereignty and federal constitutional rights by examining the boundaries of the Second Amendment within Hawai’i’s unique legal and cultural landscape. The Supreme Court of Hawai‘i raised a fundamental question: to what extent can a state with a distinct legal and cultural tradition regulate firearm possession without infringing on federal constitutional rights?[12] This Note will explore the broader legal tensions demonstrated in. Wilson, situating it within the historical context of Second Amendment jurisprudence, while considering Hawai‘i’s unique constitutional history. It will analyze how the Hawai‘i Supreme Court’s decision reflects tensions between Second Amendment jurisprudence and federalism, particularly in light of the U.S. Supreme Court’s recent emphasis on originalism-based interpretations of the Second Amendment. Finally, it will suggest a values-based approach to constitutional interpretation that can be used at the state and federal level.
II. Facts and Holding
In December 2017, the Maui Police Department arrested Christopher Wilson for trespassing.[13] Wilson claimed that he was night-hiking to view indigenous plants and missed the “No Trespassing” signs and fencing marking the property lines.[14] The property owner called the police after seeing Wilson on the property and detained Wilson until the authorities arrived.[15] During the arrest, Wilson admitted that he was armed and asserted that the gun had been legally attained in Florida in 2013.[16] The police officers discovered a loaded .22 caliber pistol tucked into Wilson’s pants.[17] Further investigation showed the pistol was not registered in Hawai‘i, that Wilson never applied for a permit to own a gun in Hawai‘i, and that Wilson was not the individual who acquired the gun in Florida.[18]
Wilson was charged later that month with criminal violations of four Hawai‘i statutes: (1) HRS Section 134-25(a), which requires firearms to be kept at the “possessor’s business, residence, or sojourn”; (2) Section 134-27(a), which also requires a possessor to keep ammunition at their business, residence or sojourn; (3) Section 134-2, requiring a license to carry a firearm in public; and (4) Section 708-813(1)(b), which governs first degree criminal trespass.[19] Wilson moved to dismiss counts one and two, alleging these counts infringed on his Second Amendment rights to bear arms.[20] The circuit court denied Wilson’s motion, relying on the Ninth Circuit’s holding in Young v. Hawaii, “that the Second Amendment does not provide a right to openly carry a firearm for self-defense.”[21]
Following the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, which established that the Second Amendment protects the right to carry handguns for self-defense outside the home, Wilson moved to dismiss counts one and two again. He argued that the holding in Bruen protects his unlicensed possession of a handgun for self-defense and that HRS Section 134-25(a) and HRS Section 134-27(a) are outside “the Nation’s historical tradition of firearm regulation” because they did not provide a less restrictive right to carry a firearm in public for self-defense.[22]
The State argued that the Second Amendment’s rights are not limitless, giving the Hawai‘i legislature room to require a license.[23] It contended that Bruen affirmed the right of the states to require firearm registration and permits, and it distinguished Wilson from the Bruen plaintiffs by pointing out that Wilson illegally possessed his firearm, unlike the lawful Bruen plaintiffs.[24] The State further argued that Wilson lacked standing to contest section 134-2 because he failed to apply for a permit before contesting the scheme’s constitutionality.[25] The circuit court granted Wilson’s motion, dismissing counts one and two with prejudice, and held that Bruen established that Second Amendment rights to possess and carry firearms extend beyond the home.[26]
The State unsuccessfully filed a motion to reconsider, then appealed and applied successfully for transfer to the Supreme Court of Hawai‘i.[27] In February 2024, the Supreme Court of Hawai‘i vacated the order to grant the motion to dismiss and remanded to the circuit court.[28] The Hawai‘i Supreme Court held that Wilson lacked standing to challenge the constitutionality of Hawai‘i’s gun storage regulations or the licensing statute.[29] The court further held that Bruen did not apply and that the statues in question did not violate any Second Amendment rights, as neither the Hawai‘i State Constitution nor the “deeply rooted history and tradition” of Hawai‘i provides a right to carry a firearm in public.[30]
Wilson petitioned for a writ of certiorari to the Supreme Court of the United States in May 2024, which was denied in December 2024.[31] The denial of certiorari, written by Justice Thomas and joined by Justice Alito, noted that while the Court declined to review the case as a result of the “interlocutory posture” of Wilson’s petition, the authoring justices would very likely grant certiorari for this case when there is a final judgement.[32] Justice Thomas condemns the Hawai‘i gun licensing scheme and emphasizes the Court’s decision that the guaranteed Second Amendment right cannot be subjugated by conditional requirements..[33]
III. Legal Background
A. Supreme Court Interpretation of the Second Amendment
The Supremacy Clause of the U.S. Constitution provides that federal law is the “supreme law of the land,” meaning that states may not enact laws that contradict the Constitution or federal statutes.[34] However, the application of federal constitutional standards, particularly in areas like firearm regulation, often involves a delicate balance between respecting state sovereignty and ensuring that individual rights are uniformly protected across the country.[35] While the U.S. Constitution sets a minimum standard for the protection of individual rights, state governments have the authority to provide additional protections, or in some cases, impose greater restrictions, so long as they do not violate federal constitutional rights in doing so.[36]
The Second Amendment to the U.S. Constitution grants that “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[37] Very few cases regarding the Second Amendment were reviewed by early courts, as there simply were not very many cases that dealt with Second Amendment issues.[38] It was not until the early twenty-first century that several key Supreme Court cases developed the jurisprudence regarding gun rights and regulation.[39]
The Court in District of Columbia v. Heller held in 2008 that the Second Amendment protects a right for individuals to own and possess firearms for the purpose of self-defense.[40] Heller, a D.C. police officer, challenged the constitutionality of a D.C. code that prohibited handgun registration, except for a special one-year license.[41] Heller had applied for that license but was denied.[42] This decision marked a pivotal shift in the Court’s interpretation of the Second Amendment from a focus on collective rights related to militias to an emphasis on individual rights.[43] However, Heller also made clear that this right is not unlimited; the Court noted that prohibitions on firearms in sensitive places such as schools or government buildings, and restrictions on who can own firearms, remain constitutionally permissible.[44]
Two years later, McDonald v. City of Chicago clarified that the Second Amendment rights as defined in Heller are fundamental and are thus covered under the Due Process Clause of the Fourteenth Amendment and applicable to all states.[45] Chicago had similar laws to those in pre-Heller D.C., and the City contended that the Second Amendment did not apply to the States.[46] The Supreme Court disagreed and held that the Due Process clause extends the rights recognized by the federal government to be equally applicable to the state governments.[47] This expanded Heller beyond Washington, D.C. and asserted that “the Second Amendment is fully applicable to the States.”[48] The Court also emphasized the role of self-defense as a central component of the Second Amendment, citing legal precedent, legal scholars, and U.S history.[49] Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented, disagreeing with the historical conclusions reached by the majority and contesting that “neither text nor history support” the fundamentality of a right to keep and bear arms.[50] In a separate dissent, Justice Stevens argued that the Second Amendment should not be enforced against states because the very purpose of the Amendment is to “preserv[e] the autonomy of the sovereign States.”[51]
More recently, the Bruen Court held in 2022 that the Fourteenth Amendment extends a right to carry a handgun outside the home for self-defense and that a state cannot require any further justification in a licensing scheme.[52] The Court, however, was clear that this holding does not prohibit states from firearm regulation: “[T]he right secured by the Second Amendment is not unlimited . . . . [T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[53] Bruen also established a test for challenges under the Second Amendment: in order to conclude that the individual’s conduct “falls outside” the Second Amendment, a court must first analyze whether the “plain text” of the Amendment covers the conduct in question.[54] If so, “the Constitution preemptively covers that conduct.”[55] The government then has the burden to “justify” the regulation at hand “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” [56] This case has been both lauded for its expansion of Second Amendment rights and condemned as “madness,” “fuzzy,” and an unrealistic task for judges.[57]
This confusion was addressed in 2024 in United States v. Rahimi.[58] Rahimi contested the constitutionality of 18 U.S.C. § 922(g)(8), which limits firearm possession rights for “individuals subject to a domestic violence restraining order.”[59] The Court applied the Bruen test and held that the firearms ban against Rahimi was constitutional under the Second Amendment because he posed a threat of physical violence due to prior firearm misuse.[60] The Court declared that history indicates firearms regulations have “included provisions preventing individuals who threaten physical harm to others from misusing firearms” and that in that light, § 922(g)(8) is “within this tradition.”[61] Addressing questions and judicial confusion, the Court reemphasized that the law in question must be “relevantly similar” to historical laws but can be analogous to the historical regulation, rather than a “historical twin.”[62]
B. Weapons Regulation in Hawai‘i
King Kamehameha I famously established the Hawaiian Kingdom by uniting all the islands in the Hawaiian archipelago in 1810, having conquered every island except Kaua‘i and Ni‘ihau by 1795.[63] Even before the kingdom was established, however, Hawaiian society was a strict hierarchy regulated by kānāwai (law).[64] Shortly after establishing the Kingdom of Hawai‘i, King Kamehameha I declared the first law of the Hawaiian Kingdom: Ke Kānāwai Mālamahoe, or the Law of the Splintered Paddle. This kānāwai, now enshrined in the state constitution of Hawai‘i, was considered one of the most important edicts during the reign of Kamehameha I and established a right to peaceful existence without fear of violence in all forms.[65]
In 1840, Kamehameha III adopted a new government structure: a constitutional monarchy.[66] Constitutionalism was part of an effort to avoid colonialism, especially from the English and the Americans, though the Hawaiian constitution mirrored some English and American frameworks.[67] However, the constitution also “reflected” the indigenous values of “what was pono [correct] in government.”[68] Notably, the Hawaiian constitution did not include a right to bear arms.[69]
The constitutional monarchy continued until American politicians and businessmen overthrew Queen Liliuokalani in 1893, against the Hawaiian people’s objections and protests.[70] The provisional government ratified a constitution in 1894 and banned firearms and ammunition from being imported to the islands.[71] In 1898, the United States “annexed” the Hawaiian Islands, declaring its laws consistent with the Constitution of the United States.[72] Hawai‘i became a state in 1959 and its State Constitution adopted similar language to the U.S. Constitution’s Second Amendment with the intent that the legislature could continue to pass “reasonable restrictions upon the right of the people to keep and bear arms.”[73]
Hawai‘i’s current regulatory scheme for firearms includes its “place to keep laws, requiring that firearms and ammunition be kept in the “possessor’s place of business, residence, or sojourn.”[74] Following Bruen, the Attorney General for the State of Hawai‘i recommended that the state concealed carry application remove language requiring an applicant “[i]n an exceptional case . . . [to] show[] reason to fear injury to the applicant’s person or property” in order to receive a permit.[75] Aside from that recommendation, the Attorney General determined that the application is consistent with Bruen.[76]
C. The Spirit of Aloha
While the “Aloha Spirit” may seem to simply be a community value, this principle has legal and political ramifications. As one anthropologist describes, “[t]he name of the political relationship in Hawai‘i is aloha.”[77] This relationship is encoded into Hawai‘i’s laws: HRS section 5-7.5(a) defines “aloha” as “mutual affection and regard” and “the essence of relationships in which each person is important to every other person for collective existence.”[78] The statute points to deep connection between the practice of aloha and the governmental stewards of the Islands.[79] This relationship generated a form of legal philosophy unique to Hawai‘i, sometimes referred to as “aloha jurisprudence.”[80] Alfred L. Brophy describes aloha jurisprudence as “vaguely defined” but centered on “concern for Native Hawaiians and other dispossessed groups in Hawaii.”[81] Aloha jurisprudence has been linked to property law (as used by Brophy), but also juvenile justice, prison reform, and same-sex marriage and adoption.[82] State v. Wilson now adds gun regulation to the list.
IV. Instant Decision
In February 2024, the Hawai‘i Supreme Court vacated the circuit court’s decision to dismiss the charges against Christopher Wilson and remanded the case for further proceedings.[83] The Court’s decision rested on a narrow interpretation of the Second Amendment’s scope, finding that Hawai‘i’s “place to keep” statutes did not violate Wilson’s constitutional rights.[84] The Court rejected Wilson’s argument that the Bruen decision granted him an unrestricted right to carry a firearm in public without a license.[85]
The Court distinguished Wilson’s case from Bruen.[86] Unlike New York’s discretionary licensing scheme in Bruen, which required applicants to demonstrate a special need for self-defense in order to obtain a license to carry a firearm outside the home,[87] Hawai‘i’s statutes impose a general requirement that firearms be kept at the owner’s residence or business unless the owner has obtained a carry license—a regulation consistent with the historical traditions of firearm regulation referenced in Bruen.[88]
The Hawai‘i Supreme Court’s decision was grounded in two key legal principles: standing and the historical scope of the Second Amendment.[89] First, the court found that Wilson lacked standing to challenge Hawai‘i’s licensing scheme (HRS section 134-2) because he had not applied for a license and thus had not been denied a constitutional right.[90] Citing precedent from the United States Supreme Court, the court held that standing must be established before a constitutional claim can be considered.[91] Despite other jurisdictions barring plaintiffs from bringing Second Amendment claims against licensing schemes without first applying for a license, the court held that Hawai‘i’s “broad” standing rules allow challenges only when there is a “claim of specific present objective harm.”[92] The court also noted that Hawai‘i’s licensing scheme, which requires applicants to demonstrate a legitimate need for public carry and to possess good moral character, is in line with historical precedents that allow for the regulation of public firearm possession.[93]
The court established that federalism principles apply when analyzing claims invoking both state and federal constitutions with “matching” provisions, attention first belongs to the state constitution unless the state constitution meets the minimum federal protection.[94] The court’s textual and historical analysis found that the state’s “place to keep” laws were consistent with Hawai‘i’s historical deadly weapon restrictions and analogous to longstanding regulations limiting public firearm possession in the interest of public safety.[95]
Lastly, the Court discussed its obligation to interpret the state constitution under the “Spirit of Aloha.”[96] HRS section 5-7.5, which codifies the “working philosophy of the Hawaiian people,” charges public servants, including judges, to “give consideration to the Aloha Spirit” in the course of their duties.[97] Connecting the “Spirit of Aloha” with the Law of the Splintered Paddle, the Court affirmed that the right to life, liberty, and the pursuit of happiness includes moving freely and safely without the threat of gun violence.[98]
V. Comment
A. Next Steps for the Hawai‘i Courts
The denial of certiorari strongly indicates that the Hawai‘i Supreme Court’s interpretation that the Second Amendment grants a collective right is not compatible with federal jurisprudence.[99] Justice Thomas’ denial further indicates that the Bruen holding sets the minimum standard of rights that a State may go above, but not below.[100] In Bruen, the Court expressly condemned the “may issue” licensing scheme of six states, including Hawai‘i.[101] Justice Kavanaugh’s concurrence in Bruen assures the states that the majority is not prohibiting licensing schemes as long as the schemes do not “provide broad discretion to licensing authority” or “require demonstration of a need to possess a firearm.”[102] If the Supreme Court does take a future petition from Wilson, it is likely to find the statute unconstitutional under Bruen.
B. Values-Based Interpretation of Constitutions
Hawai‘i is not alone in this values-based approach to constitutional interpretation, as several scholars discuss similar interpretive approaches to the federal constitution.[103] Constitutional scholar Erwin Chemerinsky identified four values in the U.S. Constitution’s Preamble: “a commitment to a democratic form of government, a desire to create an effective form of government, establishment of justice, and freedom.”[104] Chemerinsky does not provide a guide for applying these values in constitutional interpretation, but he does indicate that their application could be a progressive alternative to current interpretive approaches.[105] Professor Eliot Tracz notes that this approach has gained little traction, connecting this hesitance to “underdeveloped dicta . . . in Jacobson v. Massachusetts” where Justice Harlan wrote that “no power can be exerted” from the preamble.[106]
Tracz suggests a three-part process for “preamble-based” interpretation of the U.S. Constitution.[107] First, determine the clause or amendment challenged; second, identify the purpose from the Preamble the clause or amendment furthers; third, determine whether the action or statute conflicts with the value associated with the clause or amendment in question.[108] Tracz identifies Second Amendment challenges as a particularly applicable area for this sort of interpretive method and uses Heller as an example of how this might look.[109]
The first step is straightforward: the challenge in Heller was to the Second Amendment.[110] Next, Tracz looks to the values in the Preamble to determine which “the Second Amendment seeks to further” and finds that “‘[a] well regulated Militia’ . . . furthers the purpose of providing for the common defense.”[111] The third step, according to Tracz, requires a question: “[D]o the [D.C.] laws enforcing a ban on the registration of handguns, the licensing for firearms, and the trigger lock requirement conflict with the purpose of the Second Amendment?”[112] The restrictions in D.C. laws refer to private use of firearms, Tracz concludes, and “the Second Amendment furthers the Constitution’s . . . purpose of providing for the common defense” and thus no conflict exists.[113]
The Wilson court performed a similar analysis on Heller while examining Hawaii State Constitution article I, section 17, which “imitates the Second Amendment.”[114] Similar to Tracz, the court looked at the Militia Clause.[115] The Wilson court first went into depth regarding the historical meaning of relevant terms in the clause, then briefly discussed a textualist reading.[116] The court next connected the text and history to the purpose of article I, section 17 (step two).[117] Finally, and in line with step three, the Court concluded that there is no conflict between the D.C. laws and the Second Amendment because “[t]here was no individual right. Same as it ever was.”[118] The Hawai‘i court also examined the history and tradition of weapons regulation in Hawaii.[119] While arguably a capitulation to the originalist’s commitment to “deeply rooted history and tradition,” this examination provides further discussion and evaluation on the Hawaiian values at play in weapons regulation, such as the Law of the Splintered Paddle and a right to live and move about without fear.[120]
C. Values-based Interpretation in State v. Wilson
In State v. Wilson, the Hawai‘i Supreme Court’s decision stands out not just for its interpretation of the Second Amendment, but also for the unique emphasis it places on the “Spirit of Aloha” and value-based constitutional interpretation. This approach reflects a legal philosophy deeply rooted in Hawai‘i’s cultural and historical context, particularly the Kingdom’s tradition of lawmaking, which prioritized harmony, collective responsibility, and the protection of all individuals within society.[121]
The court’s invocation of the Aloha Spirit, codified in Hawai‘i Revised Statutes sections 5-7.5, intertwines Hawaiian values of kindness, mutual respect, and a collective sense of well-being with the state’s approach to firearm regulation.[122] By invoking the Law of the Splintered Paddle, which historically protected the right of individuals to live and move without fear of violence, the court frames public safety as a fundamental value undergirding its decision to uphold firearm restrictions.[123] This law, now enshrined in the state constitution, highlights a deep commitment to the idea that the rights of individuals must be balanced with the safety and harmony of the community at large.[124]
In its analysis, the Hawai‘i Supreme Court contrasts this culturally embedded perspective with federal constitutional standards. The decision demonstrates a form of aloha jurisprudence, reflecting Hawaiian values in legal interpretation, much like broader value-based constitutional interpretations seen in the U.S. Constitution’s Preamble.[125] Such an approach is not unique to Hawai‘i, and, as demonstrated by scholars like Erwin Chemerinsky, U.S. constitutional law can also be interpreted through the lens of underlying values such as justice, freedom, and public safety.[126]
Through this value-centered lens, the Hawai‘i Supreme Court’s decision to uphold the state’s firearm regulations manages to skirt past the Bruen ruling while aligning with Hawaii’s broader legal tradition of ensuring public peace.[127] The court’s interpretation of the Second Amendment, therefore, is not solely a legal question about individual rights, but a reflection of the state’s cultural commitment to ensuring the collective good—a hallmark of the “Spirit of Aloha.”[128]
This emphasis on values signals a broader, more holistic form of constitutional interpretation that can be utilized by state and federal judges alike.[129] For states like Hawai‘i, whose “deeply rooted history and tradition” is overlooked in originalist approaches that stop their evaluation at the ratification of the Fourteenth Amendment, this method is deeply connected to its own cultural fabric, as well as the legal traditions of the United States.[130] This decision underscores how courts can preserve regional identities while adhering to federal law. In Hawai‘i’s case, the approach recognizes that its historical and legal traditions—spanning from the Kingdom of Hawai‘i to its modern statehood—provide a distinct cultural framework that courts can draw upon to resolve tensions between state law and federal constitutional rights.
Additionally, this decision serves as a model for other states with distinctive historical and cultural backgrounds similar to Hawai’i—particularly those with Native American, First Nations, or Mexican legal histories—to incorporate their own cultural values into constitutional interpretation while remaining within federal parameters.[131] This is particularly significant in jurisdictions whose legal systems predate their incorporation into the United States or that maintain distinctive cultural frameworks.[132]
Looking forward, State v. Wilson highlights the evolving relationship between states and the federal judiciary, particularly as the U.S. Supreme Court continues to shape Second Amendment jurisprudence.[133] Ultimately, this decision reflects not only a specific judicial outcome for firearm regulation but also a broader philosophical stance on how states can apply their values in constitutional interpretation. It positions Hawai‘i’s legal framework as not just a mirror of federal law but a manifestation of its own historical and cultural priorities, suggesting a pathway for other states to follow when balancing individual rights with community well-being.
VI. Conclusion
Nearly 230 years after King Kamehameha I declared the Law of the Splintered Paddle, the U.S. Supreme Court declined to review State v. Wilson.[134] The last 230 years have been rife with change and upset for Hawai‘i, but the Hawai‘i Supreme Court asserts that deadly weapons regulation has stayed consistent throughout the years.[135] While “deeply rooted history and tradition” is the current constitutional interpretive guide at the United States Supreme Court, State v. Wilson not only asks for state discretion to interpret their own constitution, but points towards an alternative interpretative method applicable to state and federal constitutions.
For Hawai‘i, value-based interpretation aligns with a tradition prioritizing collective safety and well-being, and it balances local legal history with federal constitutional standards. The Hawai‘i Supreme Court ruling invites discussion on how states with historically unique cultural identities or non-English legal histories might use their values to interpret constitutional rights. While it might take more than a wallop with a canoe paddle to inspire the originalist U.S. Supreme Court majority to reconsider their methodology, values-based interpretation would provide state courts with an approach that considers the past without requiring an expert-level historical analysis of the framers’ intent.
* B.A., Major in International Cultural Studies, Minor in Hawaiian Studies, Brigham Young University-Hawai‘i, 2012; M.A., English, University of Oregon, 2016; J.D. Candidate, University of Missouri School of Law, 2026; Associate Member, 2024-2025, Associate Editor, 2025-2026, Missouri Law Review. Many thanks to the wide community of educators and kumu for their influence, with special gratitude to Professor Carli Conklin for her generous time, support, and insights on this article. I am also grateful to the members of the Missouri Law Review and Judge Thomas B. Griffith (ret.) for their suggestions and improvements to this Note.
** Modern usage of ʻŌlelo Hawaiʻi, the indigenous language of the Hawaiian people, utilizes two diacritical marks, the ʻokina (ʻ) and kahakō (a macron, or bar above a vowel). See Use of the Written Hawaiian Language (ʻŌlelo Hawaiʻi), Iolani Palace, https://www.iolanipalace.org/information/hawaiian-language/.I use the ʻokina and kahakō (e.g. Hawaiʻi vs. Hawaii) but maintain the original spelling when quoting or when consistent with court documents (e.g. Hawaii v. Wilson).
[1] William D. Westervelt, Hawaiian Historical Legends 167 (Fleming H. Revell Co., 1923).
[2] Id. at 169.
[3] Hawaiʻi Legal Auxiliary, The Law of the Splintered Paddle: Kānāwai Māmalahoe 16 (1994).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] See, e.g., Honolulu Police Department, Our Badge, https://www.honolulupd.org/our-badge/ (last visited Apr. 22, 2025).
[9] State v. Wilson, 543 P.3d 440 (Haw. 2024).
[10] Id. at 442–43.
[11] Id. at 443.
[12] Id.
[13] Id. at 442.
[14] Id. at 447.
[15] Id. at 442.
[16] Id. at 442–43.
[17] Id. at 443.
[18] Id.
[19] Id. at 442.
[20] Id. at 443.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id. at 444.
[28] Id.
[29] Id.
[30] Id. at 459.
[31] Petition for Writ of Certiorari, Wilson v. Hawaii, 145 S. Ct. 18 (2024) (No. 23-7517).
[32] Wilson v. Hawaii, 145 S. Ct. 18, 18 (2024).
[33] Id. at 21.
[34] U.S. Const. Art. VI, cl. 2.
[35] See Ilya Somin, Federalism and the Roberts Court, 46 Publius J. Federalism 441, 442 (2016).
[36] American Legion v. American Humanist Ass’n, 588 U.S. 29, 72 (2019) (Kavanugh, J., concurring) (“the Constitution sets a floor for the protection of individual rights. . . . Other federal, state, and local government entities generally possess authority to safeguard individual rights above and beyond the rights secured by the U.S. Constitution.”).
[37] U.S. Const. amend. II.
[38] H. Richard Uviller & William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent 13 (2002).
[39] Patrick A. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court 6 (McFarland & Co., Inc., 2009).
[40] District of Columbia v. Heller, 554 U.S. 570, 628 (2008).
[41] Id. at 574–75.
[42] Id. at 575.
[43] Id. at 595.
[44] Id. at 626.
[45] McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
[46] Id.
[47] Id. at 754.
[48] Because the District of Columbia is not a state, constitutional interpretation of its laws does not automatically apply to the states . The Heller Courtrecognized the Second Amendment as an individual right in D.C., but did not discuss application of the right to the states. Id. at 750.
[49] Id. at 767 (“Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is ‘the central component’ of the Second Amendment right.”).
[50] Id. at 912 (Breyer, J., dissenting).
[51] Id. at 859 (Stevens, J., dissenting).
[52] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70–71 (2022).
[53] Id. at 21.
[54] Id. at 24.
[55] Id.
[56] Id.
[57] See Shawn Hubler, In the Gun Law Fights of 2023, a Need for Experts on the Weapons of 1791, N.Y. Times(Mar. 16, 2023), https://www.nytimes.com/2023/03/14/us/gun-law-1791-supreme-court.html (“‘We are going to defeat virtually every gun control on the books . . . ,’ Sam Paredes, the executive director of the Gun Owners of California, said. ‘The courts have held that these laws don’t have an analogous law to 1791 when the Second Amendment was written, so they are by definition unconstitutional.’”);United States v. Rahimi, 602 U.S. 680, 742 (2024) (Justice Jackson, concurring) (“[L]ower courts. . . say there is little method to Bruen’s madness.”); State v. Wilson, 543 P.3d 440, 453 (Haw. 2024) (“The Supreme Court makes state and federal courts use a fuzzy ‘history and traditions’ test to evaluate laws designed to promote public safety.”); United States v. Bullock, 679 F. Supp. 3d 501, 505 (S.D. Miss. 2023), rev’d, 123 F.4th 183 (5th Cir. 2024) (“[T]he standard articulated in Bruen expects [judges] ‘to play historian in the name of constitutional adjudication.’”).
[58] Rahimi, 602 U.S. at 680.
[59] Id. at 680, 689.
[60] Id. at 691–92, 693, 702.
[61] Id. at 690.
[62] Id. at 692 (internal quotation marks omitted).
[63] Hawaiʻi Legal Auxiliary, supra note 3.
[64] Mary Kawena Pukui, Samuel H. Elbert & Esther Mookini, The Pocket Hawaiian Dictionary 55 (1975).
[65] Hawaiʻi Legal Auxiliary, supra note 3; Haw. Const. art. IX, § 10 (“The State Shall have the power to provide for the safety of the people from crimes against persons and property.”).
[66] Keanu Sai, Hawai’i’s Sovereignty and Survival in the Age of Empire, in Unconquered States: Non-European Powers in the Imperial Age 468 (H. E. Chehabi & David Motadel, eds., 2024) “Hawai‘i was the first consolidated non-European constitutional monarchy. . . . ‘King Kamehameha III originally possessed . . . all the attributes of absolute sovereignty. Of his own free will he granted the Constitution of 1840, as a boon to his country and people . . . .’”(quoting Rex v. Booth, 2 Hawai‘i 616, 630 (1863)).
[67] Noenoe K. Silva, Aloha Betrayed: Native Hawaiian Resistance to American Colonialism 16 (2004).
[68] Id. at 38.
[69] Translation of the Constitution and Laws of the Hawaiian Islands, Established in the Rein of Kamehameha III 98 (Lahainaluna, 1842).
[70] Silva, supra note 68, at 129–30.
[71] See Laws of the Provisional Government of the Hawaiian Islands Passed by the Executive and Advisory Councils Acts 1 to 42 13 (Act 9) (1893).
[72] See Young v. Hawaii, 992 F3d 765, 773–75 (9thCir. 2021) (“‘[T]he municipal legislation of the Hawaiian Islands [is] not inconsistent with this joint resolution nor contrary to the Constitution of the United States . . . .’”) (quoting the Newlands Resolution of July 7, 1898, 30 Stat. 750). Many legal scholars and historians contest the legality of the U.S. annexation and note that “occupation” is a better term. See generally Williamson Chang, Darkness over Hawaii: The Annexation Myth Is the Greatest Obstacle to Progress, 16Asian-Pac. L. & Pol’y J. 70 (2015); Tom Coffman, Nation Within: The History of the American Occupation of Hawai‘i (rev. ed. 2016).
[73] Stand. Comm. Rep. No. 20, in 1 Proceedings of the Constitutional Convention of Hawai‘i of 1950, at 164 (1960).
[74] Haw. Rev. Stat. § 134-25(a) (2025); Haw. Rev. Stat. § 134-27(a) (2025).
[75] Letter from Holly T. Shikada, Attorney General of Hawaii, to Hon. David Y. Ige, Governor of Hawaii (July 7, 2022), https://ag.hawaii.gov/wp-content/uploads/2022/07/Attorney-General-Opinion-22-02.pdf.
[76] See id.
[77] Marshall Sahlins, Islands of History 17 (1987).
[78] Haw. Rev. Stat. § 5-7.5(a) (2025). These partial definitions may not match perfectly with cultural uses or familiar explanations, although they are consistent with the way my kumu ‘olelo taught me. As prominent scholar and activist Jamaica Heolimeleikalani Osorio cautioned regarding the definition of another Hawaiian value, aloha ‘āina, we must “be careful when trying to make meaning . . . so that we do not perpetrate the very sicknesses that hinder its practice today” Jamaica Heolimeleikalani Osorio, Aloha ‘Āina as Pilina, in Remembering our Intimacies: Mo’olelo, Aloha ’āina, and Ea 1, 9 (2021).
[79] Aloha can be a practice, like aloha ‘āina: “Dr. Noelani Goodyear-Ka’ōpua underscores that, as a ‘political philosophy and praxis,’ the ‘aloha part of this phrase [aloha ‘āina] is an active verb, not just a sentiment’ . . . .” MJ Palau-McDonald, The Duty to Aloha ‘Āina: Indigenous Values as a Legal Foundation for Hawaii’s Public Trust, 57 Harv. C.R.-C.L. L. Rev. 525 (Fall 2022).
[80] See Alfred L. Brophy, Aloha Jurisprudence: Equity Rules in Property, 85 Or. L. Rev. 771, 773 (2006).
[81] Id. at 811.
[82] See generally, Sean M. Smith, The “Hawaiianness” of Same-Sex Adoption, 30 U. Haw. L. Rev. 517, 531–33 (2008); Hon. Catherine H. Remigio, Overview of Juvenile Justice Reform Efforts in Hawaii, 20-OCT Haw. B.J. 4, 11 (2016); Anita H. S. Hurlburt, Building Constructive Prison Reform on Norway’s Five Pillars, Cemented with Aloha, 19 Asian-Pac. L. & Pol’y J. 194, 231 (2018); Robert J. Morris, Configuring the Bo(u)nds of Marriage: The Implications of Hawaiian Culture & Values for the Debate About Homogamy, 8 Yale J. L. & Human. 105, 119 (1996).
[83] State v. Wilson, 543 P.3d 440, 460 (Haw. 2024).
[84] Id. at 459.
[85] Id. at 442.
[86] Id. at 447.
[87] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
[88] Id.
[89] Wilson, 543 P.3d at 444, 455.
[90] Id. at 444.
[91] Id.
[92] Id.
[93] Id. at 459.
[94] Id. at 445.
[95] Id. at 447–59.
[96] Id. at 459.
[97] Haw. Rev. Stat. § 5-7.5 (2025).
[98] Wilson, 543 P.3d at 459.
[99] See Wilson v. Hawaii, 145 S. Ct. 18 (2024).
[100] Id.; Scott L. Kafker, State Constitutional Law Declares Its Independence: Double Protecting Rights During A Time of Federal Constitutional Upheaval, 49 Hastings Const. L. Q. 115, 116 (2022) (“State courts are fully empowered and expected to interpret independently analogous provisions in their state constitutions and thereby provide greater protections of individual rights.”).
[101] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 15 (2022) (noting that Hawaii and six other states had “may issue” licensing schemes at the time).
[102] Bruen, 597 U.S. at 79 (Kavanaugh, J., concurring).
[103] See generally Eliot T. Tracz, Towards A Preamble-Based Theory of Constitutional Interpretation, 56 Gonz. L. Rev. 95 (2021) (citing various scholars’ and judges’ discussions of the role of values in constitutional interpretation)
[104] Id. at 96.
[105] Id.
[106] Id. at 97.
[107] Id. at 107.
[108] Id.
[109] Id. at 110.
[110] Id.
[111] Id. at 110–11(quoting U.S. Const. amend. II).
[112] Id. at 111.
[113] Id. (emphasis added).
[114] State v. Wilson, 543 P.3d 440, 448 (Haw. 2024).
[115] Id. at 448–49.
[116] Id.
[117] Id. at 450–52.
[118] Id. at 452.
[119] Id. at 455–59.
[120] Id. at 455–56.
[121] Id.
[122] See id. at 455–56, 459.
[123] Id. at 455–56.
[124] See id.
[125] See Brophy, supra note 81, at 773.
[126] See generally Tracz, supra note 111.
[127] See Wilson, 543 P.3d at 459.
[128] Haw. Rev. Stat. § 5-7.5 (2025); Michele Ebersole & Huihui Kanahele-Mossman, Broadening Understandings of the Cultural Values of Aloha in a Teacher Education Program, 3 J. of Culture and Values in Ed. 81, 83–84 (2020), https://cultureandvalues.org/index.php/JCV/article/view/83/58 (discussing the role of “aloha” and the “aloha spirit” in the Hawaiian community).
[129] See generally Tracz, supra note 111, at 96.
[130] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 129, 2154 (2022).
[131] Alaska incorporates several values in its state constitution, including environmental protection and well-being of all Alaskans. See Alaska Const. pmbl.
[132] See Scott L. Kafker, State Constitutional Law Declares Its Independence: Double Protecting Rights During A Time of Federal Constitutional Upheaval, 49 Hastings Const. L.Q. 115, 116 (2022).
[133] See generally, Albert W. Alschuler, Twilight Zone Originalism: The Peculiar Reasoning and Unfortunate Consequences of New York State Pistol Association v. Bruen, 32 Wm. & Mary Bill Rts. J. 1 (2023).
[134] Wilson v. Hawaii, 145 S. Ct. 18 (2024).
[135] State v. Wilson, 543 P.3d 440, 450–52 (outlining Hawai‘i’s constitutional history regarding the right to “keep and bear arms”).