This court eyed article I, section 17 before. See State v. Mendoza, 82 Hawai‘i 143, 920 P.2d 357 (1996). But Mendoza dodged the key question: Does Hawai‘i’s Constitution afford a personal right or a collective right to keep and bear arms?
This court eyed article I, section 17 before. See State v. Mendoza, 82 Hawai‘i 143, 920 P.2d 357 (1996). But Mendoza dodged the key question: Does Hawai‘i’s Constitution afford a personal right or a collective right to keep and bear arms?
We review constitutional questions under the "right/wrong" standard. State v. Mendoza, 82 Haw. 143, 145, 920 P.2d 357, 359 (1996) (quoting State v. Toyomura, 80 Haw. 8, 15, 904 P.2d 893, 900 (1995)). Additionally, we have held "that (1) legislative enactments are presumptively constitutional; (2) a party challenging [a statutory scheme] has the burden of showing unconstitutionality beyond a reasonable doubt; and (3) the constitutional defect must be clear, manifest, and unmistakable."
State courts have likewise found that state legislative action is not restricted by the Second Amendment. See, e.g., State v. Mendoza, 920 P.2d 357, 360 (Haw. 1996) ("[T]he Second Amendment does not apply to the States through the fourteenth amendment to the United States Constitution.") (citation omitted); People v. Swint, 572 N.W.2d 666, 669 (Mich.Ct.App. 1997) ("[T]he Second Amendment is not applicable to the states through the Fourteenth Amendment."); State v. Friel, 508 A.2d 123, 125 (Me. 1986) (citations omitted); Demyan v. Monroe, 108 A.D.2d 1004, 1005 (N.Y.App.Div. 1985); Burton v. Sills, 240 A.2d 462, 468 (N.J.Super.Ct. Law Div. 1967) ("[T]he Second Amendment merely protects against unwarranted extensions of federal power and does not bar a state government from enacting regulations concerning the use and possession of arms."). In Heller, the Supreme Court noted its previous holdings that the Second Amendment has not been incorporated through the Fourteenth Amendment and thus is inapplicable to the states.
We believe that requiring a person to obtain a permit under HRS § 134-2 prior to acquiring a firearm is rationally related to the legitimate government interest of ensuring that only those who are mature, law abiding, competent citizens possess firearms.State v. Mendoza, 82 Hawai'i 143, 154, 920 P.2d 357, 368 (1996).
Second, this court has repeatedly recognized that it may accord greater protection to criminal defendants under the Hawai'i Constitution than that conferred under the United States Constitution. See,e.g., State v. Mendoza, 82 Haw. 143, 146, 920 P.2d 357, 360 (1996) (citing State v. Wallace, 80 Haw. 382, 397 n. 14, 910 P.2d 695, 710 n. 14 (1996) (citingState v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2 (1967))). Inasmuch as the analysis employed by the plurality inSchad concluded that the Due Process Clause of the United States Constitution does not preclude a state from employing a statute by which premeditated murder and felony murder are but alternative means of proving a single offense, I submit that Article I, sections 5 and 14 of the Hawai'i State Constitution may mandate a different result.
This court has repeatedly recognized that it may accord greater protection to criminal defendants under the Hawai'i Constitution than that conferred under the United States Constitution. See, e.g., State v. Mendoza, 82 Haw. 143, 146, 920 P.2d 357, 360 (1996) (citing State v. Wallace, 80 Haw. 382, 397 n. 14, 910 P.2d 695, 710 n. 14 (1996) (citing State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2 (1967))). Certainly, as Kotis suggests, his liberty interest in bodily integrity and his right to a fair trial are protected by article I, section 5 of the Hawai'i Constitution (1978) (providing in relevant part that "[n]o person shall be deprived of life, liberty, or property without due process of law . . .").
See, e.g., Bach v. Pataki, 408 F.3d 75, 84 (2d Cir. 2005) ("[W]e hold that the Second Amendment's "right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts."); Edwards v. City of Goldsboro, 178 F.3d 231, 252 (4th Cir. 1999) ("[T]he law is settled in our circuit that the Second Amendment does not apply to the States."); State v. Mendoza, 920 P.2d 357, 360 (Haw. 1996) ("[T]he Second Amendment does not apply to the States through the fourteenth amendment to the United States Constitution."); People v. Swint, 572 N.W.2d 666, 669 (Mich.Ct.App. 1997) ("[T]he Second Amendment is not applicable to the states through the Fourteenth Amendment."). Despite the foregoing, appellant asks this court to hold that the Second Amendment is incorporated to the states through the Fourteenth Amendment.
See also, Bach v. Pataki, 408 F.3d 75, 84 (2d Cir. 2005) (holding that the Second Amendment imposes a limitation on only federal, not state, legislative efforts.); State v. Mendoza, 82 Hawai'i 143, 920 P.2d 357, 360 (1996) (stating that the Second Amendment does not apply to the states through the Fourteenth Amendment to the United States Constitution). But see Nordyke v. King, No. 07-15763, 2009 WL 1036086 (9th Cir. Apr.20, 2009) (concluding that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment and applies it against state and local governments).