The Last Resort

"You can leave it all behind

And sail to Lahaina

Just like the missionaries did

So many years ago

They even brought a neon sign

"Jesus is coming"

Brought the white man's burden down

Brought the white man's reign . . .

And you can see them there

On Sunday morning

Stand up and sing about

What it's like up there

They call it paradise

I don't know why

You call someplace paradise

Kiss it goodbye"

-Don Henley, The Last Resort

An interesting ruling from the Hawaiian Supreme Court this week caught my eye. The issue presented was whether the Hawaiian Constitution's language regarding the right to bear arms, which is identical to the second amendment of the U.S. Constitution, guarantees an individual right to bear arms. The court held that it did not.

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What's interesting here, at least if you're a lawyer, is that the justices employed many of the analytical devices favored by the Federalist Society and the revanchist wing of the current U.S. Supreme Court. Their use of textualism showed that the language in the U.S. version excluded an individual right that was enshrined in many state constitutions when the Constitution was ratified. They also rather exhaustively discussed what "bear arms" meant in 1787, and the fact that it always referred to communal wielding of weapons in a militia, not individual ownership.

While casting a jaundiced eye at the originalist notion that we should try to interpret the Constitution consistently with the Founders' understanding, given their comfort with slavery and keeping women out of the voting booth, they showed that, in fact, the drafters never envisioned individual gun ownership as the reason for the inclusion of the second amendment, which was really meant to put the states at ease that the feds wouldn't do away with their militias. This was a big deal in what became the slave states, and the drafting of the Constitution was all about placating the slaveholding class so they'd vote in favor of ratifying the document.

And the Hawaiians highlighted the higher court's flagrant disregard for stare decisis, the principle that a court should rule consistently with its prior jurisprudence, by showing that until a decade ago there was fairly universal agreement among the federal courts that there was no individual right to own a weapon. That the Hawaiian Supreme Court's ruling marks a radical departure from current Constitutional law on gun control shows how far and how radically we've departed from the law as it existed on a few years ago.

The opinion was long, well-reasoned, and funny in places. A truly refreshing bit of legal writing in a sea of mostly turgid opinions lately. Did it help that I agreed with the outcome? Certainly, but what most appealed to me was that they managed to hoist the SCOTUS on its own petard, using or dismantling all the same interpretive techniques the most conservative justices on the national stage have employed, and arriving at the exact opposite conclusion.

And the opinion included something I'd never heard, the Law of the Splintered Paddle, named for an encounter between a Hawaiian king and two fisherman who gave him a good whacking with their oars when he and his party took off in pursuit of a man carrying a child. The chief whacker was later brought before the king, who made this proclamation as he chose to spare the guy's life:

Oh people,

Honor thy god;

respect alike [the rights of] people both great and humble;

May everyone, from the old men and women to the children

Be free to go forth and lie in the road (i.e. by the roadside or pathway)

Without fear of harm.

Break this law, and die.

I could get behind a law like that. How different our world would be if this was posted in Southern courthouses instead of the Ten Commandments.

Anyway, P and I got to thinking yesterday, in the midst of all the MAGA mania that threatens to consume this country in the biggest election year since 1860, that maybe Hawaii would be a good option to sit out the Trump dictatorship. It's expensive as hell, but with golden visas up to 800,000 euros now there's no cheap escape. Sure, you're still in the U.S., but it's halfway across the planet, liberal as hell, and you can use your Medicare, which is a big deal as I feel every day the imminent arrival of physical infirmity.

Peg's been there, albeit years ago. I've never been. Maybe it's time for a scouting expedition.