A coalition of leftist Attorney Generals for sixteen states and the District of Columbia has filed an amicus brief to the Ninth Circuit appeal by the State of Hawaii, claiming state power to ban common arms is essential. On August 7, 2023, a three-judge panel of the Ninth Circuit reached the unsurprising conclusion that knives, particularly the type of pocket knife called a “butterfly knife” or “balisong,” were bearable arms. Therefore, they were protected by the Second Amendment of the Constitution, and the State of Hawaii did not have the legal authority to ban them.
On September 20, 2023, the State of Hawaii appealed to Teter v Lopez, claiming the three-judge panel of the Ninth Circuit mistakenly applied the law, asking for a new panel or a hearing en banc. The Ninth Circuit has historically been hostile to the Second Amendment and has reversed the decision of three-judge panels that uphold Second Amendment rights.
On September 22, the plaintiffs, Teter and Grell, were ordered to file a response to the appeal within 21 days.
On October 2, 2023, the coalition of 14 state Attorney Generals and the District of Columbia filed an amicus brief in support of the appeal. The arguments of the State of Hawaii, the 14 leftist attorney generals, and the District of Columbia are remarkably similar. In sum, they are this:
- The Heller and Bruen decisions did not clarify that all bearable arms are preemptively covered by the Second Amendment (they carefully do not mention the unanimous Caetano decision, which says the opposite.)
- The Heller and Bruen decisions only protect arms shown to be in common use for self-defense.
- Common possession of arms is not the same as common use. The Second Amendment does not protect arms that are commonly possessed, only those arms that are commonly actually used for self-defense. The state can claim an arm is unusual and dangerous. It is the burden of the person challenging the law to prove an arm is commonly used for self-defense.
The three arguments turn the Heller, Caetano, and Bruen decisions on their head. The three decisions make clear all bearable arms fall under the Second Amendment. Caetano, which was a unanimous decision, clarifies this the best. From Caetano:
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).
The proper test is to determine if the instrument is a bearable arm. Knives are bearable arms. Therefore, they are “prima facie” (accepted as correct until proven otherwise), protected by the Second Amendment. Once this is established, it is the burden of the state to prove these particular bearable arms are not in common use for lawful purposes. Lawful purposes are not limited merely to self-defense but include all lawful purposes.
The 14 leftist attorney generals and the District of Columbia use the scare tactic of saying a backpack nuclear bomb is a bearable arm and thus would be presumptively protected by the Second Amendment.
It is a correct but misleading statement. Backpack nukes are far from “in common use.” They are uncommonly dangerous, as they could wipe out an entire city. Under Heller, Caetano, and Bruen, they can and are heavily regulated so as to make them exceedingly difficult to obtain.
What the State of Hawaii, the 14 leftist attorney generals, and the District of Columbia are attempting to do is salami slice the Second Amendment into a nullity. If they can claim a knife that opens a somewhat different way is “uncommon” and “dangerous” and can force the burden of proof of what is in common use onto the plaintiff, they have erected a serious obstacle to restoring Second Amendment rights. When they claim only actual, documented cases of self-defense count as lawful purposes, they create a very difficult bar to overcome. Uses for self-defense include deterrent effects. If a person owns an arm for the purpose of self-defense, they are using it for self-defense. A person does not have to cut or stab someone with a knife in order to use it for self-defense.
If the government can claim a particular type of pocket knife is “unusual” and can therefore be banned, without having to prove it is *not* in common use, they can cut the Second Amendment in slices by banning one item, then banning another, eventually banning so many none are left. Perhaps unloaded single-shot shotguns will be allowed if securely stored in the home. They could only be loaded when under serious threat. Before the Supreme Court decision in Bruen, supporters of unlimited state power were willing to admit items such as semi-automatic rifles and magazines were in common use.
Bruen has clarified the Heller decision so as to prevent states from nullifying the Second Amendment by claiming “safety” or “an important state purpose” in a means/ends test where the state always wins. Opponents of limited government are left with attempts to redefine the words of the Heller, Caetano, and Bruen decisions.
The arguments by the leftist attorney generals are an inventive, if unsupported, way to nullify 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.