Wilson v. Hawaii

1 Cite as: 604 U. S. ____ (2024)
Statement of T
HOMAS, J.
SUPREME COURT OF THE UNITED STATES
CHRISTOPHER L. WILSON v. HAWAII
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF HAWAII
No. 23–7517. Decided December 9, 2024
The petition for a writ of certiorari is denied.
Statement of J
USTICE THOMAS, with whom JUSTICE
ALITO joins, respecting the denial of certiorari.
In New York State Rifle & Pistol Assn., Inc. v. Bruen, 597
U. S. 1 (2022), we singled out Hawaii’s firearms-licensing
regime as “analog[ous]” to the New York regime we held
unconstitutional. Id., at 15. We explained that States can-
not condition an individual’s exercise of his Second Amend-
ment rights on a showing of “special need.” Id., at 70–71.
Yet, the Hawaii Supreme Court ignored our holding in the
decision below. See 154 Haw. 8, 543 P. 3d 440 (2024). It
instead stated that petitioner Christopher Wilson could not
invoke the Hawaii regime’s unconstitutionality as a defense
in his criminal proceedings because he had never applied
for a license. That conclusion contravenes the settled prin-
ciple that Americans need not engage in empty formalities
before they can invoke their constitutional rights, and it
wrongly reduces the Second Amendment to a “second-class
right.” McDonald v. Chicago, 561 U. S. 742, 780 (2010)
(plurality opinion). Although the interlocutory posture of
the petition weighs against correcting this error now, I
would grant certiorari in an appropriate case to reaffirm
that the Second Amendment warrants the same respect as
any other constitutional right.
I
In December 2017, police arrested Wilson after he wan-
dered onto private property while hiking. At the time, he
was carrying a loaded pistol without a license. The county

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Statement of T
HOMAS, J.
prosecutor charged him with misdemeanor criminal tres-
pass and firearms offenses. These offenses included
charges for carrying guns and ammunition in public with-
out a license. See Haw. Rev. Stat. §§134–25, 134–27 (2011).
At the time, Hawaii had a “may issue” licensing regime.
That regime allowed local police chiefs to grant licenses in
narrow circumstances, but left the ultimate decision to
their discretion. A police chief could grant a concealed-
carry license only if the applicant had shown that he had
an “exceptional case,” with “reason to fear injury to [his]
person or property.” §134–9(a). And, a police chief could
grant an open-carry license only if the applicant had shown
“urgency” or “need,” “good moral character,” and that he
would be “engaged in the protection of life and property.”
Ibid. The result of this scheme was that very few Hawai-
ians could obtain licenses: In 2017, the year of Wilson’s ar-
rest, Hawaii police granted zero licenses to private citizens.
See Dept. of the Atty. Gen., Firearm Registrations in Ha-
waii, 2017, p. 9 (May 2018), https://ag.hawaii.gov/cpja/files/
2018/05/Firearm-Registrations-in-Hawaii-2017.pdf.
Wilson persuaded the Circuit Court to dismiss his
unlicensed-carry charges. The Circuit Court recognized
that Hawaii’s near-total restrictions on public carry could
not be squared with Bruen, and it accordingly held that
prosecuting Wilson for unlicensed carry would violate the
Second Amendment and the parallel provision in Article I,
§17, of the Hawaii Constitution.
The Hawaii Supreme Court disagreed. See 154 Haw. 8,
543 P. 3d 440. It spent the bulk of its opinion explaining
why the Hawaii Constitution does not confer an individual
right to bear arms, with analysis that doubled as a critique
of this Court’s Second Amendment jurisprudence. The
court specifically took aim at our focus on original meaning.
See id., at 19–23, 543 P. 3d, at 451–455. Bemoaning the
policy consequences, the court asserted that an originalist
interpretation of the Second Amendment “disables the

3 Cite as: 604 U. S. ____ (2024)
Statement of T
HOMAS, J.
states’ responsibility to protect public safety, reduce gun vi-
olence, and safeguard peaceful public movement,” by put-
ting firearms restrictions “mostly out of bounds.” Id., at 22,
543 P. 3d, at 454. And, it denigrated the need for public
carry in particular, rejecting as un-Hawaiian “a federally-
mandated lifestyle that lets citizens walk around with
deadly weapons.” Id., at 27, 543 P. 3d, at 459. On the Ha-
waii Supreme Court’s view, a sounder approach to constitu-
tional interpretation would give due regard to the “spirit of
Aloha” and would preclude any individual right to bear
arms, or at least subject it to “levels of scrutiny and public
safety balancing tests.” Id., at 21, 27, 543 P. 3d, at 453, 459.
Remarkably, the Hawaii Supreme Court’s recognition of
the “federally-mandated” right to public carry disappeared
when it turned to Wilson’s Second Amendment defense.
There, the court invoked state standing law to avoid any
meaningful Second Amendment analysis. It held that, be-
cause Wilson had not applied for a license and had not been
charged with violating the licensing statute itself (which
was not a criminal statute), he lacked standing to challenge
the particulars of the licensing regime. Id., at 12–13, 543
P. 3d, at 444–445. Instead, he could argue only that the
Second Amendment categorically forbids state licensing re-
gimes. Because that is not the case, the court held, Hawaii’s
prohibitions on unlicensed carry “do not graze Wilson’s Sec-
ond Amendment right.” Id., at 27, 543 P. 3d, at 459.
II
The decision below is the latest example of a lower court
“fail[ing] to afford the Second Amendment the respect due
an enumerated constitutional right.” Silvester v. Becerra,
583 U. S. 1139, 1140 (2018) (T
HOMAS, J., dissenting from
denial of certiorari). As this Court has repeatedly empha-
sized, “[t]he constitutional right to bear arms in public for
self-defense is not ‘a second-class right, subject to an en-
tirely different body of rules than the other Bill of Rights

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Statement of T
HOMAS, J.
guarantees.’” Bruen, 597 U. S., at 70 (quoting McDonald,
561 U. S., at 780 (plurality opinion)). So, the Hawaii Su-
preme Court cannot single out the Second Amendment for
disfavor, even if it does not believe that “right is really
worth insisting upon.” District of Columbia v. Heller, 554
U. S. 570, 634 (2008).
By invoking state standing law to dodge Wilson’s consti-
tutional challenge, the Hawaii Supreme Court failed to give
the Second Amendment its due regard. To be sure, a state-
law standing determination ordinarily is an adequate and
independent state ground precluding our review. But, as
this Court has elsewhere recognized, only “constitutionally
proper” rules can create adequate and independent state
grounds. Trevino v. Thaler, 569 U. S. 413, 421 (2013).
The Hawaii Supreme Court should have asked the
threshold question whether the Second Amendment allows
state standing law to restrict the defenses that criminal de-
fendants facing firearms-related charges may raise. The
answer is “no,” as our case law on constitutional challenges
to licensing regimes makes clear.
A defendant can always raise unconstitutionality as a de-
fense “where a statute is invalid upon its face and an at-
tempt is made to enforce its penalties in violation of consti-
tutional right.” Smith v. Cahoon, 283 U. S. 553, 562 (1931).
A “long line of precedent” confirms this point. See, e.g., City
of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750,
755–757 (1988) (collecting cases).
Thus, a state-law holding that a defendant “lacked stand-
ing to attack the constitutionality of the ordinance because
[he] made no attempt to secure a permit under it” is “not an
adequate nonfederal ground of decision” where the “ordi-
nance . . . on its face violates the Constitution.” Staub v.
City of Baxley, 355 U. S. 313, 319 (1958). This is true where,
as here, an individual waits to raise the issue until “he is
prosecuted for failure to procure” a license. Thornhill v. Al-
abama, 310 U. S. 88, 97 (1940). And, it is true even if the

5 Cite as: 604 U. S. ____ (2024)
Statement of T
HOMAS, J.
defendant’s “conduct could be proscribed by a properly
drawn statute.” Freedman v. Maryland, 380 U. S. 51, 56
(1965).
Our rejection of state procedural restrictions on the invo-
cation of constitutional defenses follows from the fact that
constitutional rights are “self-executing prohibitions on
governmental action.” City of Boerne v. Flores, 521 U. S.
507, 524 (1997). A constitutional violation accrues the mo-
ment the government undertakes an unconstitutional act.
For example, a violation of the Takings Clause occurs “at
the time of the taking.” Knick v. Township of Scott, 588
U. S. 180, 194 (2019). And, the availability of state-law
compensation remedies cannot delay or undo the accrual of
a takings claim. See id., at 193–194.
The same principles apply to the Second Amendment.
That Amendment is similarly self-executing, and a State
transgresses it as soon as the State implements a licensing
regime that is inconsistent with the Nation’s “historical tra-
dition of firearm regulation.” Bruen, 597 U. S., at 17. Ju-
dicial review of a license denial may be one way that an in-
dividual can challenge state overreach. But, because the
constitutional violation occurs as soon as an individual’s
right to bear arms is inhibited, States cannot mandate that
would-be gun owners go through an unconstitutional licens-
ing process before they may invoke their Second Amend-
ment rights. Any other rule would impermissibly demote
the Second Amendment “to the status of a poor relation”
among constitutional rights. Knick, 588 U. S., at 189 (in-
ternal quotation marks omitted).
Had the Hawaii Supreme Court followed its duty to con-
sider the merits of Wilson’s defense, the licensing scheme’s
unconstitutionality should have been apparent. We have
made clear that the Second Amendment is a right “guaran-
teed to all Americans,” whose exercise cannot be condi-
tioned on a showing of “special need.” Bruen, 597 U. S., at

6 WILSON v. HAWAII
Statement of T
HOMAS, J.
70–71 (internal quotation marks omitted). Yet, in restrict-
ing license eligibility to Hawaiians with “‘exceptional
case[s],’” or who otherwise could show special “urgency” or
“need,” the Hawaii regime did just that. Hawaii’s onerous
restrictions closely paralleled those in the New York regime
we held unconstitutional in Bruen. See id., at 13–15, and
n. 2; see also id., at 79 (K
AVANAUGH, J., concurring) (recog-
nizing that Bruen’s holding applied to all States with “‘may-
issue’ regimes”); Young v. Hawaii, 45 F. 4th 1087, 1092
(CA9 2022) (en banc) (O’Scannlain, J., dissenting) (“we need
not conduct the [Bruen] inquiry now because the Supreme
Court has already done it for us”).
The Hawaii regime’s obvious unconstitutionality may be
why the Hawaii Legislature has since amended the State’s
licensing statute to create a “shall issue” regime, at least for
concealed carry. The new regime allows any applicant who
meets certain baseline requirements to obtain a license
without any “special need” limitation. See 2023 Haw. Sess.
Laws no. 52, §7, p. 126 (codified at Haw. Rev. Stat. §134–
9(a)).
Had the Hawaii Supreme Court followed the legislature’s
lead and tried to give effect to our Second Amendment ju-
risprudence, it would have found the licensing regime at is-
sue unconstitutional and upheld the dismissal of Wilson’s
public-carry charges. The court’s contrary path “resist[s]
our decisions,” Rogers v. Grewal, 590 U. S. ___, ___ (2020)
(T
HOMAS, J., dissenting from denial of certiorari) (slip op.,
at 3), and demotes the Second Amendment to a “second-
class right,” McDonald, 561 U. S., at 780 (plurality opinion).
This Court cannot tolerate “such blatant defiance” in any
constitutional context. Rogers, 590 U. S., at ___ (slip op., at
5).
III
All this said, correction of the Hawaii Supreme Court’s
error must await another day. Wilson moved to dismiss

7 Cite as: 604 U. S. ____ (2024)
Statement of T
HOMAS, J.
only some of his charges, most notably leaving for trial a
trespassing charge on which his Second Amendment de-
fense has no bearing. He thus seeks review of an interloc-
utory order over which we may not have jurisdiction. See
28 U. S. C. §1257(a); Cox Broadcasting Corp. v. Cohn, 420
U. S. 469, 476–487 (1975). I agree with the Court’s decision
to deny certiorari in this posture.
In an appropriate case, however, we should make clear
that Americans are always free to invoke the Second
Amendment as a defense against unconstitutional
firearms-licensing schemes. Perhaps Wilson himself will
present that case, should he file a post-trial petition for cer-
tiorari. Regardless, this issue is an important and recur-
ring one. See, e.g., Brief in Opposition 14–16, and n. 2 (col-
lecting cases); cf. Baughcum v. Jackson, 92 F. 4th 1024,
1035 (CA11 2024) (recognizing, for Article III standing pur-
poses, that litigants did not need to make the “futile ges-
ture” of first applying for a carry license, where “they do not
meet the state’s requirements for license holders”). And,
this Court’s intervention clearly remains imperative, given
lower courts’ continued insistence on treating the Second
Amendment “right so cavalierly.” Silvester, 583 U. S., at
1140 (opinion of T
HOMAS, J.).

1 Cite as: 604 U. S. ____ (2024)
Statement of G
ORSUCH, J.
SUPREME COURT OF THE UNITED STATES
CHRISTOPHER L. WILSON v. HAWAII
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF HAWAII
No. 23–7517. Decided December 9, 2024
Statement of JUSTICE GORSUCH respecting the denial of
certiorari.
In December 2017, Christopher Wilson went for a
nighttime hike with friends in the West Maui Mountains.
The group strayed onto private property, and the owner
called the police. When the police arrived, they searched
Mr. Wilson and found he had a handgun—but not a license
to carry one in public. So Hawaii prosecuted Mr. Wilson for
trespass and for carrying a firearm in public without a li-
cense. Mr. Wilson moved to dismiss the gun-related
charges against him, arguing that Hawaii’s prosecution vi-
olated the Second Amendment by unduly restricting his
right to carry a firearm for self-defense. The circuit court
agreed with Mr. Wilson and granted his motion. But, after
the State pursued an interlocutory appeal, the Hawaii Su-
preme Court reversed.
The Hawaii Supreme Court’s decision raises serious
questions. For one, the court failed to address Mr. Wilson’s
contention that Hawaii’s prosecution is inconsistent “with
this Nation’s historical tradition of firearm regulation” and
so defies the Second Amendment. See New York State Rifle
& Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 17 (2022); United
States v. Rahimi, 602 U. S ___ (2024) (slip op., at 6–7). In-
stead, the court simply asserted, “States retain the author-
ity to require that individuals have a license before carrying
firearms in public.” 543 P. 3d 440, 459 (Haw. 2024). That
much is surely true. But it’s just as true that state licensing
regimes can sometimes be so restrictive that they violate
the Second Amendment. Bruen, 597 U. S., at 38–39, n. 9.

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Statement of G
ORSUCH, J.
And the court never analyzed whether Hawaii’s law crossed
that line in this case.
For another, the Hawaii Supreme Court’s reason for de-
clining to consider the merits of Mr. Wilson’s defense poses
questions of its own. The court observed that Hawaii
charged Mr. Wilson with violating two statutes—§134–25
and §134–27. Respectively, those laws forbid carrying
handguns and ammunition in public without a license.
Haw. Rev. Stat. §§134–25, 134–27 (2011). And, the court
continued, those charges did not, as a matter of state law,
afford Mr. Wilson standing to challenge a distinct statute,
§134–9, regulating the issuance of licenses to carry guns
and ammunition in public. After all, the court stressed, the
State had not charged Mr. Wilson under §134–9, nor had he
pursued the civil administrative process available for citi-
zens seeking a public-carry license. See §134–9.
The trouble with this line of reasoning, as Mr. Wilson
notes, is that the two statutes under which he was charged
work hand-in-glove with the third. In fact, §134–25 and
§134–27 expressly incorporate §134–9, providing that guns
and ammunition may not be carried in public “[e]xcept as
provided in . . . 134–9.” See §§134–25, 134–27. And, as Mr.
Wilson sees it, the charges against him under the first two
statutes are constitutionally problematic because the ex-
ceptions in the third are not broad enough to accommodate
the demands of the Second Amendment. Put another way,
Mr. Wilson argues that the three statutes together—the
prohibitions, even when read in light of the exceptions—re-
strict his right to carry in public for self-
defense purposes more than the Constitution allows. Be-
cause the Hawaii Supreme Court failed to grapple with that
argument, Mr. Wilson now seeks review here.
It is perhaps an understandable request. This Court does
not generally review decisions premised on state law like
the Hawaii Supreme Court’s standing analysis in this case.
But under the Constitution and our precedents, it is this

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ORSUCH, J.
Court’s role to ensure that “criminal defendants [enjoy] a
meaningful opportunity to present a complete defense.”
Holmes v. South Carolina, 547 U. S. 319, 324 (2006) (inter-
nal quotation marks omitted). The Fourteenth Amend-
ment’s Due Process Clause and the Sixth Amendment, this
Court has said, guarantee that opportunity by precluding
state-law rules that “infring[e] upon a weighty interest of
the accused and are arbitrary or disproportionate.” Ibid.
(internal quotation marks omitted, alteration in original).
Applying that standard, the Court has repeatedly found un-
constitutional the application of state-law “rules that ex-
clud[e] important defense evidence but that d[o] not serve
any legitimate interests.” Id., at 325; accord, Chambers v.
Mississippi, 410 U. S. 284, 295 (1973).
To be sure, this case isn’t a carbon copy of Holmes or
Chambers. In those disputes, the Court faced state-law
rules excluding the admission of evidence rather than a
state-law rule precluding the presentation of a constitu-
tional defense. But it’s unclear how that distinction might
help Hawaii’s cause. Either type of state law threatens to
deprive a criminal defendant of “a fair opportunity to de-
fend against the State’s accusations.” Chambers, 410 U. S.,
at 294. Admittedly, too, this Court once approved a “war-
time emergency measure” preventing criminal defendants
from challenging the validity of an administrative rule un-
derlying the charges against them because they could have
challenged the rule in earlier civil administrative proceed-
ings. Yakus v. United States, 321 U. S. 414, 429–431 (1944).
But it’s difficult to see how a decision “motivated by the ex-
igencies of wartime,” United States v. Mendoza-Lopez, 481
U. S. 828, 838 n. 15 (1987), might be extended beyond that
context. All of which seemingly returns us to the usual rule
that criminal courts are obliged to consider all “proper is-
sues, whether of law or of fact, relating to the validity of the
law for violation of which the defendant[] [is] charged.” Ya-
kus, 321 U. S., at 480 (Rutledge, J., dissenting).

4 WILSON v. HAWAII
Statement of G
ORSUCH, J.
In saying that much, I do not mean to suggest Mr. Wil-
son’s Second Amendment defense has merit. I observe only
that no one knows the answer to that question because the
Hawaii Supreme Court failed to address it. And that fail-
ure invites with it the distinct possibility that Mr. Wilson
may be convicted of, and ordered to serve time in prison for,
violating an unconstitutional law.
Still, it may not be too late to avoid that result. Mr. Wil-
son’s case has not yet proceeded to trial, let alone through
the post-judgment appellate process. The Hawaii Supreme
Court issued its ruling in the course of an interlocutory ap-
peal. And often courts revisit and supplement interlocutory
rulings later in the course of proceedings. Perhaps the Ha-
waii Supreme Court will take advantage of that oppor-
tunity in this case. If not, Mr. Wilson remains free to seek
this Court’s review after final judgment.