The Volokh Conspiracy
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Justice Thomas's Statement Reaffirms Sword-Shield Dichotomy
"A defendant can always raise unconstitutionality as a defense 'where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right.'"
Today the Supreme Court denied cert in Wilson v. Hawaii, which I wrote about here. Justice Thomas wrote a statement respecting the denial of cert, joined by Justice Alito. The posture of the case is a bit unusual. The defendant was convicted of carrying a firearm without a license. At the time, Hawaii imposed a "may issue" conceal carry law. It turns out that Wilson had never applied for a carry permit. To challenge his conviction, the defendant argued that Hawaii's carry law runs afoul of Bruen. However, the Hawaii Supreme Court held that he could not raise the Second Amendment as a defense against the carry regime. Justice Thomas explains:
There, the [state] court invoked state standing law to avoid any meaningful Second Amendment analysis. It held that, because 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 regimes. Because that is not the case, the court held, Hawaii's prohibitions on unlicensed carry "do not graze Wilson's Second Amendment right."
Justice Thomas explained why this approach is mistaken:
A defendant can always raise unconstitutionality as a defense "where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional 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).
Even though Wilson was not being prosecuted for violating the civil registration law, the defendant could still challenge the government's enforcement action based on the unconstitutionality of the gun control law.
Here, the Defendant does not need any sort of cause of action to raise the unconstitutionality of the statute. The Constitution is being used as a "shield."
However, Justice Thomas does not say that "A defendant can always raise unconstitutionality," full stop. It can always be raised as a "defense" or a "shield." But for the Constitution to be raised as a "sword" to seek affirmative relief, a cause of action is needed. Justice Thomas recognized this principle in last term in DeVillier v. Texas:
Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)
Wilson should have been able to invoke the Second Amendment defensively, but could only assert it offensively with a cause of action.
Justice Thomas continues to bring clarity to an area of that is often misunderstood.
For those interested in reading further, Seth Barrett Tillman and I discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs' purported Section 3 action).
