We've been following a Second Amendment case, Hawaii v. Wilson, as it awaited the U.S. Supreme Court's decision whether to accept review. Not because it is relevant to the usual subjects of this blog, but because a friend and colleague is Counsel of Record for the petitioner, and we're just naturally interested in cases from the 808 that involve locally-disfavored rights. In that case, the right to keep and bear arms.
The Hawaii Supreme Court refused to consider a criminal defendant's defense that to prosecute him for carrying a firearm publicly violated the Second Amendment, concluding he lacked standing under Hawaii law because he had not sought a license to carry a firearm.
Today, in this Order, the Court denied certiorari. But three Justices issued or joined statements (Thomas, Alito, Gorsuch). And Justice Thomas's statement revealed this Fifth Amendment nugget:
Our rejection of state procedural restrictions on the invocation 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 moment 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 tradition of firearm regulation.” Bruen, 597 U. S., at 17. Judicial review of a license denial may be one way that an individual 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 licensing process before they may invoke their Second Amendment 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 (internal quotation marks omitted).
Had the Hawaii Supreme Court followed its duty to consider the merits of Wilson’s defense, the licensing scheme’s unconstitutionality should have been apparent.
Statement at 5.
As we read that passage, Justice Thomas is saying that claims of unconstitutional government action may be raised it multiple procedural contexts, and are "self-executing" -- meaning that they are inherent limitations on government action and should not be subject to unnecessary procedural hurdles or restrictions, something we already understood (at least in part) about the Takings Clause (see, for example, the California raisin case where the Court held that the owner could raise a takings argument as a defense to an enforcement action).
And just to be clear, in our minds that is a slightly different "self-executing" context than the usual way we see the term invoked in takings cases, where it is used to describe the idea that legislative recognition of a cause of action, an ability to sue, and a remedy is not necessary, because the text of the Fifth Amendment sets it out.
And there's also another Knick angle here in Justice Thomas's statement, where he wrote that the Hawaii court's refusal to consider the federal constitutional argument "contravenes the settled principle 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.'" Statement at 1. Perhaps no better illustration of this principle is the "final decision" ripeness rule in takings cases, which allows local land use regulators to establish all kinds of "empty formalities" that lower courts point to when they want to avoid deciding these type of cases.
If only the Supreme Court would apply the "no empty formalities" rule to those cases as well.
Statement of Justice Thomas, with whom Justice Alito joins, respecting the denial of certiorari, Wilson v....
