September 28, 2023
On August 7, 2023, the three-judge panel of the Ninth Circuit Court of Appeals reversed the District Court, ruling the Hawaii ban was unconstitutional under the Second Amendment.

In 1999, Hawaii enacted a categorical ban on possessing, carrying, and using butterfly knives or “balisongs.” The knives had been legal to possess before that time. In 2020, the ban on butterfly knives was challenged in court. The District Court upheld the ban. The ban was appealed to the Ninth Circuit. On August 7, 2023, the three-judge panel of the Ninth Circuit Court of Appeals reversed the District Court, ruling the Hawaii ban was unconstitutional under the Second Amendment. The Supreme Court Bruen decision (June of 2022) was cited in the ruling. Of particular interest is the logic used by the three-judge panel to show the plaintiffs in the case had standing to sue. The opinion shows how the requirement for standing has changed with the Heller decision in 2008. From the opinion, pages 9-10:

 When San Diego County was decided, our precedent held that “the Second Amendment [was] a right held by the states, and [did] not protect the possession of a weapon by a private citizen.” 98 F.3dat 1124 (cleaned up).3 In other words, to the extent San Diego County categorically held that a plaintiff cannot be injured by his inability “to purchase outlawed firearms,” 1129–30, that was because our precedent had not yet recognized any individual right to keep and bear arms, id. at 1124. Of course, that precedent is “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003), with Heller’s recognition of the individual right to keep and bear arms. 554 U.S. at 595.

The three-judge panel recognizes knives are arms protected by the Second Amendment. The opinion states an obvious fact, which should be cited more often in Second Amendment cases. Arms are going to be used by criminals. Arms criminals use are not a valid reason to prevent law-abiding citizens from having those arms. From page 22 of the opinion:

In opposition, Hawaii cites some conclusory statements in the legislative history claiming that butterfly knives are associated with criminals. We give little weight to these statements. Common sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes. Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.

Having rejected Hawaii’s arguments to the contrary, we conclude that the possession of butterfly knives is conduct covered by the plain text of the Second Amendment.

Knife laws in Hawaii are somewhat restrictive. You may carry single-edged pocket knives without a length restriction. It is illegal to carry daggers, dirks, knives with knuckles on them and illegal knives. It has been illegal to own balisong knives since 1999.

The three-judge panel in the Ninth Circuit shows how important it was to have President Trump make judicial appointments. Senior Judge Carlos T. Bea, born in Spain, played basketball for Cuba in the Olympics before the Castro revolution and was appointed by George Bush to the Ninth Circuit in 2003. Judge Daniel P. Collins was appointed by Donald Trump in 2019. Judge Kenneth K. Lee was appointed by Donal Trump in 2019.

The Ninth Circuit has a long history of taking decisions of three-judge panels which uphold the Second Amendment to en banc panels and reversing them. It remains to be seen if Teter v. Lopez will suffer the same fate. The procedure from Bruen is clear. The Hawaii government relied primarily on the argument about standing. An en banc panel might reverse the three-judge panel, claiming the plaintiffs do not have standing. Standing has become a way for the judicial branch to decide what cases it is willing to hear.

The opinion has a good section on the history of restrictions on the possession and carry of knives in the United States. It is clear pocket knives were seldom restricted and were often specifically exempted from regulation. The opinion ends with this:

We conclude that section 134-53(a) violates the Second Amendment as incorporated against Hawaii through the Fourteenth Amendment. We reverse and remand for further proceedings consistent with this opinion.

Teter v. Lopez shows how important the Heller and Caetano decision were. They unambiguously state all bearable arms are protected by the Second Amendment.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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