82 Hawai'i 143, State v. Mendoza

• Decision Date: 21 June 1996
• Docket Number: No. 17839,17839
• Citation: 920 P.2d 357,82 Hawaii 143
• Parties: 82 Hawai'i 143 STATE of Hawai'i, Plaintiff-Appellee, v. Marc C. MENDOZA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 357

920 P.2d 357

82 Hawai'i 143

STATE of Hawai'i, Plaintiff-Appellee, v. Marc C. MENDOZA, Defendant-Appellant.

No. 17839.

Supreme Court of Hawai'i.

June 21, 1996.

Catherine H. Remigio, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Mark R. Simonds, Deputy Prosecuting Attorney, on the briefs, Wailuku, Maui, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Defendant-Appellant Marc C. Mendoza appeals from his conviction of unlawful possession of a firearm under Hawai'i Revised Statutes (HRS) § 134-4(b) (1993). ¹ Mendoza argues that HRS § 134-4(b) violates his "right to keep and bear arms" under the state and federal constitutions. ²

I. BACKGROUND

On March 8, 1993, a member of the Maui Prince Hotel's housekeeping staff recovered a Colt .45 Caliber Government Model pistol from a recently vacated room at the hotel, which had been rented to Mendoza. The police determined that the pistol was not stolen, but that it was registered in Lihue, Kaua'i to someone other than Mendoza. Mendoza later admitted that he had transported the pistol to the hotel from his home and further explained that he purchased the weapon from its registered owner in 1985. Mendoza eventually produced a notarized bill of sale dated March 30, 1993, which alleged that the transfer for value took place in or about spring of 1985. Mendoza acknowledged that he did not acquire a permit for the transaction as required by law. Accordingly, he was charged with the misdemeanor offense of unlawful possession of a firearm.

On January 31, 1994, Mendoza filed a motion to dismiss the amended complaint arguing that HRS § 134-4(b) violates his right to bear arms under the state and federal constitutions. On February 4, 1994, with the court's permission, Mendoza argued the motion on his own behalf. Nevertheless, the court denied Mendoza's motion:

Well, Mr. Mendoza, the Court does not agree. The Section in question ... is, in the Court's view, reasonable regulation which does not relate to either the Federal or the State Constitution. The burden that it imposes is a minimum interference with the rights of the citizen, whether the test is a compelling state interest or simply a rational relation, either way I think the State has an interest in ensuring that firearms do not come into the hands of those who lack the capacity or ... have the criminal history which would indicate a very compelling danger to the community.

That same day, Mendoza pled no contest and the court sentenced him to one year probation with the following terms and conditions: 1) thirty days incarceration with mittimus suspended for as long as he complies with the terms of probation; and 2) confiscation of the firearm, stayed pending appeal. The court entered judgment, guilty conviction and sentence on February 7, 1994. On March 4, 1994, the court denied Mendoza's motion for stay of execution of sentence. Mendoza timely filed his notice of appeal on March 7, 1994.

II. STANDARD OF REVIEW

"Questions of constitutional law are reviewed under the right/wrong standard of review." State v. Toyomura, 80 Hawai'i 8, 15, 904 P.2d 893, 900 (1995). Moreover, "we have long 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." Convention Center Authority v. Anzai, 78 Hawai'i 157, 162, 890 P.2d 1197, 1202 (1995) (internal quotation marks omitted).

III. DISCUSSION

Mendoza argues that the circuit court improperly denied his motion to dismiss because: 1) previous cases from other jurisdictions concluding that the second amendment to the United States Constitution (Second Amendment) established a collective right to bear arms are wrongly decided; 2) article I, section 17 of the Hawai'i Constitution establishes an individual, rather than a collective, right to bear arms; and 3) HRS chapter 134, which asks for "extremely personal and confidential information, including privileged information," is not narrowly tailored to satisfy a valid state interest. ³ The prosecution responds that: 1) neither the state nor federal constitutions confer an individual right to bear arms; 2) article I, section 17 of the Hawai'i Constitution permits government registration and regulation of firearms; and 3) HRS chapter 134 is a valid exercise of the State's legitimate police power.

A.

As a preliminary matter, we observe that it is well-settled that the Second Amendment "is a limitation only upon the power of Congress and the National government, and not upon that of the States." Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886). See also United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939); Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 875, 38 L.Ed. 812 (1894); United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876). In other words, the Second Amendment does not apply to the States through the fourteenth amendment to the United States Constitution (Fourteenth Amendment). Malloy v. Hogan, 378 U.S. 1, 4 n. 2, 84 S.Ct. 1489, 1491 n. 2, 12 L.Ed.2d 653 (1964) (citing, inter alia, Presser and Cruikshank ). Compare Gideon v. Wainwright, 372 U.S. 335, 345-47, 83 S.Ct. 792, 797-98, 9 L.Ed.2d 799 (1963) (Douglas, J., concurring) (observing that "ten justices have felt that it [i.e., the Fourteenth Amendment] protects from infringement by the States the privileges, protections, and safeguards granted by the Bill of Rights" but conceding that this view "has never commanded a Court"). ⁴ Thus, we hold that Mendoza cannot claim that State firearms regulations infringe upon any rights protected by the Second Amendment.

Notwithstanding the fact that article I, section 17 of the Hawai'i Constitution is virtually identical to the Second Amendment, we recognize our ability to extend greater protection to defendants than provided under the federal constitution. State v. Wallace, 80 Hawai'i 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)). Accordingly, we must now examine the constitutional right accorded by this state to keep and bear arms.

B.

The proper construction of article I, section 17 is a question of first impression. Forty-two other state constitutions contain provisions providing a "right to bear arms." Hawai'i is one of only five states whose provisions track the language of the Second Amendment. ⁵ See Alaska Const. art. I § 19 ("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."); N.C. Const. art. I, § 30 (1875); S.C. Const. art. I, § 20 (1971); Va. Const. art. I, § 13. ⁶ Among the four states with constitutions that track the language of the Second Amendment, it appears that only the North Carolina appellate courts have rendered judicial opinions construing the right to bear arms under its state constitution. See, e.g., State v. Fennell, 95 N.C.App. 140, 382 S.E.2d 231 (1989).

In Fennell, the Court of Appeals of North Carolina affirmed the defendant's conviction of possessing a weapon of mass death and destruction--viz., a sawed-off shotgun. The court rejected the defendant's argument that the state could only regulate firearms as to time, place or manner. Citing the North Carolina supreme court, the court of appeals observed that:

[i]t is ... a reasonable regulation ... to require that a pistol shall not be under a certain length, which, if reasonable, will prevent the use of pistols of small size, which are not borne as arms, but which are easily and ordinarily carried concealed. To exclude all pistols, however, is not a regulation, but a prohibition, of arms, which come under the designation of "arms" to which the people are entitled to bear.

Id. 382 S.E.2d at 233 (quoting State v. Kerner, 181 N.C. 574, 107 S.E. 222, 225 (1921)). In Kerner, the court had indicated that:

[t]he historical use of pistols as "arms" of offense and defense is beyond controversy.

....

We know that in the past this privilege [i.e., the constitutional right to bear arms] was guaranteed for the sacred purpose of enabling the people to protect themselves against invasion of their liberties. Had not the people of the Colonies been accustomed to bear arms, and acquire effective skill in their use, the scene at Lexington in 1775 would have had a different result, and when "the embattled farmers fired the shot that was heard around the world," it would have been fired in vain....

....

The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. It should be construed to include all "arms" as were in common use, and borne by the people as such when this provision was adopted. It does not guarantee on the one hand that the people have the futile right to use submarines and cannon of 100 miles range nor airplanes dropping deadly bombs, nor the use of poisonous gases, nor on the other hand does it embrace dirks, daggers, slung-shots and brass knuckles, which may be weapons but are not strictly speaking "arms" borne by the people at large, and which are generally carried concealed. The practical and safe construction is that which must have been in the minds of those who framed our organic law. The intention was to embrace the "arms," an acquaintance with whose use was necessary for their protection against the usurpation of illegal power--such as rifles, muskets, shotguns, swords, and pistols. These are now but little used in war; still they are such weapons that they or their like can still be considered as "arms," to which they have a right to "bear."

107 S.E. at 224-25 (emphasis added). See also Nunn v. Georgia, 1 Ga....