By Chuck Michel
The State of Hawaii filed a petition on Wednesday seeking en banc review of a Ninth Circuit panel’s ruling in Teter v. Lopez. While that ruling was limited in scope, declaring Hawaii’s ban on butterfly knives to be unconstitutional, the panel’s correct application of the Supreme Court’s ruling in Bruen and the standards it set for evaluating Second Amendment challenges to gun control laws has implications that extend well beyond butterfly knife cases and well beyond Hawaii.
States facing Second Amendment lawsuits challenging various gun control laws have worked very hard to twist and misapply the Bruen standard, and some courts have gone along with the distortions of Bruen that states are advocating.
The case so far is a critical win for our Second Amendment rights that Hawaii now seeks to reverse through en banc review. The Second Amendment Law Center is assisting the plaintiffs in the case and preparing briefs to oppose the state’s request for en banc review.
The Teter decision confirmed that the Second Amendment applies prima facie to all instruments that constitute bearable arms, and that all laws that prohibit law-abiding citizens from acquiring arms are presumptively unconstitutional. More importantly, it laid out how analogical reasoning is to be applied consistent with Bruen in any Second Amendment challenge.
The panel rejected the argument that laws mainly governing the concealed carry of arms can justify modern possession bans because “how” a law addresses a societal concern is entirely different in the historical law regulating manner compared to a modern law banning possession entirely.
If upheld, the approach will become the mandatory standard for evaluating Second Amendment challenges in any of the nine states and three territories that the Ninth Circuit covers. So this is a colossal ruling very favorable for the right to keep and bear arms. Other circuit courts across the country will be hard-pressed to reject the standard. So, this case has national implications.
Hawaii’s request for en banc review rages against the three-judge panel’s ruling, even though the 3-0 ruling merely consisted of a proper elementary application of the Supreme Court’s precedent. Every critical point the panel made was backed up with a direct pinpoint citation to the Bruen or Heller decision.
Nonetheless, the State insists that only weapons commonly used for self-defense are protected by the Second Amendment, despite the Supreme Court saying all “lawful purposes” are protected.
The state went so far as to complain that this makes the Ninth Circuit “the first circuit to strike down a ban on a particular category of weapon after Bruen” as if that is somehow objectionable. (Heller, of course, struck down such a ban on handguns.)
Hawaii warns that if the panel ruling is left intact, it will “govern challenges involving many highly dangerous weapons” like “assault weapons, high-capacity magazines, and more.” The state concludes by desperately and hysterically suggesting that granting en banc review is a “matter of life and death.”
Hawaii’s petition will now be circulated to all active 9th Circuit judges and any senior judge who has chosen to participate. The entire circuit court bench then may order the opposing party to respond to the petition and brief whether the court should rehear the case. During this time period, if an amicus is submitting a brief to support or oppose a petition for rehearing, it must file its brief along with any necessary motion no later than 10 days after the petition or response of the party the amicus wishes to support is filed or due.
I reiterate that if the 9th circuit reverses a 3-0 ruling that quoted Bruen and Heller directly on every major point it made, then there is simply no 2A win that will ever be allowed to stand in this circuit. They shouldn’t even grant en banc review to this one.
If Teter is… https://t.co/chjxDfW2ri
— Kostas Moros (@MorosKostas) September 20, 2023
If most active judges vote in favor of rehearing or rehearing en banc, the Chief Judge shall enter an order for the case to be heard by an 11-judge en banc panel. If no majority is reached, the three-judge panel ruling stands.
Currently, there are 28 active judges on the circuit. The current ideological split is closely divided, with 15 Democratic appointees and 13 Republican appointees.
This is a situation where well-done amicus briefs could help persuade one or two judges who are on the fence to vote against en banc review, so 2ALC will be actively involved now, and later if necessary.
C.D. “Chuck” Michel is Senior Partner at the Long Beach, California Law firm of Michel & Associates, P.C. He is the author of California Gun Laws, A Guide to State and Federal Firearm Regulations now in its 10th edition for 2023 and available at www.calgunlawsbook.com.
What is the point of banning certain types of knives? In the 40’s and the 50’s a bunch of well off white folks watched movies where the bad guys were swarthy and armed with switchblades and butterfly knives. This scared the well off white folks. Hollywood made our knife laws and they absolutely reek of racism.
At the risk of sounding like debbiew. there are no legit reasons why I shouldn’t be able to buy an otf knife. Especially not as I can go to my home depot and buy an ax and machete no questions asked?
Our betters are making laws that have no common sense, None.
Actually, San Francisco adopted a butterfly and switch blade knife ban in the early years of the 20th century because Mexicans carried them and white people were afraid of the Mexicans carrying knives. (That the gun and knife ban ordinance was expressly racist was established years ago).
Good to confirm that miner, dacian and jsled are walking hand in hand with the klan.
The dems just rebrand yesterdays racism as todays common sense.
When I was a teenager, there was a seller at our local Swap Meet who would sell butterfly knives and throwing stars (both big no-nos in CA) out of the trunk of his car instead of his main area if he felt you weren’t LE. A fair number of my friends had them. The throwing stars were nice and heavy, but more like quality cosplay items than real weapons.
…a quick treatment at the grinding wheel to sharpen the edges took care of that deficiency real quick…
Those bans carried over to the state legislature. Presently in CA, throwing stars, shobi-zoe, nunchuks, brass knuckles, slung shot, blackjacks, clubs, concealed daggers and dirks (you would be amazed at how the CA courts have interpreted that statute), the triangular things one steps on which pierce one’s feet whose name escapes me at this moment) — any weapon that ever appeared in a Japanese chanbara movie, are all forbidden. My list is quite short because as I write this, I can’t recall all the different esoteric weapons that are verboten in the land of fruits and nuts. Wow! what a sea change for the ninth circus court. You mean a couple of the folks in black muu-muus actually read a Supremes ruling and understood it? I am just flabbergasted.
“…the triangular things one steps on” are called “caltrops”. They are also known variously as: caltrap, galtrop, cheval trap, galthrap, galtrap, calthrop, crow’s foot or jackrock.
Lucky beat me to it. I’ve always known them as “caltrops”.
The whole term “illegal knife” makes me nauseous. An utterly stupid law created by utterly stupid people. I’ve carried an OTF for a decade now and will always continue to do so.
At the risk of sounding like jwm stooping to appease his pals with a disclaimer…History Confirms “Arms Control” is Rooted in Racism and Genocide…
“History Confirms “Arms Control” is Rooted in Racism and Genocide…”
Really?
The Japanese Shoguns banned the peasants from owning swords a thousand years ago, and Japan is about as genetically-pure of a society as it gets.
Just drop your same-old tired tripe, will you? It’s boring… 🙁
Exactly. Plus butterfly knives are probably some of the worst ones out there in terms of use as weapons due to the inherent fragility of the linkage system. But a darker skinned actor in a gangland movie can twirl one around on screen in a way that looks especially scary to racist, well off leftists (the who had likely never even been in a fistfight and don’t know a thing about violence) so boom, banned
Reminds me should pick up a switch blade next time I head south or west.
The one I have is a loose goose pos I found in a car on a you pull it parts lot. It rates lower than better than nothing.
As weapons they are probably mediocre but they make great tools. I’ve been carrying one for a few years now and it has dressed well over 100 animals at this point. It’s made by Benchmade, has a great clip point shape, and since the handles are drilled through and hollow, it’s super easy to clean by just spraying it with hot water.
i remember scratching my head when you first adopted that. seems like you’d have to friction wrap the handles once open. the clip point ones are not just stabby.
that’s the only benchmade that uses a different torx size for the pivots.
The en banc reviews always make me nervous. You get inactive senior judges who have really retired sitting on them. These judges are more likely to rule based on their own bias as they are not ruling based on possible making it to SCOTUS someday and are less likely to care if SCOTUS slams them for their decision later on down the road.
Not in the Ninth Circuit. It’s a random selection of 11 of the ACTIVE service judges.
I believe it’s a combo process of one senior and ten random.
Nyet. From the Court’s IOP’s:
“The en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn. Senior judges are not eligible to serve on the en banc court, unless they served on the three judge panel.”
I meant “Chief”. I didn’t realize the title “senior” was different than “Chief” in this situation, but…there you go.
One Chief and ten random judges.
rajesh has that exact knife in the pic. it is way less spendy than most, but it’s sort of big in action. the handles seem too long but that does allow for a bigger blade. enh.
The Bruen standard makes no reference to the quality of bearable arms, nor should it have. The leftist controlled states will have be dragged kicking and screaming and otherwise acting like a petulant child into compliance with the Constitution.
This is rich.
This is a very easy case on a straightforward record. Recall that the MA “stun gun” prohibition case was 9-0, and that was even before Bruen.
If CTA9 reverses this this en banc, reversal by SCOTUS is all but assured, probably on a summary GVR basis.
But if they don’t take it en banc and the panel opinion stands, it becomes broad form, binding precedent that greases the skids for *all* the 2A challenges in the Ninth Circuit pipeline.
So what I suspect will happen is that CTA9 will take it en banc and then sit on it until Rahimi is decided, and hope that lightning strikes and SCOTUS narrows Bruen (unlikely).
LKB…Do you sense signs of oppression between the forum’s own former water walker who hails from The Land of Lincoln and the Blacks/slaves, Catholics, Indians, etc. who were oppressed by Gun Control prior to, during and after the Civil War? If so do you LKB sense the oppressive mindset found in yesterday’s Gun Control is alive and well today?
Debbie W.,
The root problem is the fact that nasty people always have been around us and always will be around us.
My father explained that simple fact a VERY long time ago. And he explained another simple fact: you cannot persuade nor reason with such people because they only understand one “language”: that “language” is violent force applied to them when they attempt to violate you.
Bigotry may very well have inspired voters and lawmakers to INTRODUCE civilian disarmament laws in our nation 150 years ago. Superiority complexes and mistrust of our fellow citizens (but I repeat myself) inspire CONTINUED support of civilian disarmament through the present day.
Let me know when you have a cure for superiority complexes and mistrust of fellow citizens.
I prefer my distrustful superiority complexes be too stoned to leave the house. Deflate the black market, or die a slave.
“Nonetheless, the State insists that only weapons commonly used for self-defense are protected by the Second Amendment, ”
that “commonly used for self-defense” is a trick they have trying to use. it places the burden back on the other party instead of the state to show how they are “commonly used for self-defense”. its akin to having the accused in a criminal trial prove ‘beyond a reasonable doubt’ they didn’t do the crime instead of the prosecution having to do it.
“The Teter decision confirmed that the Second Amendment applies prima facie to all instruments that constitute bearable arms, and that all laws that prohibit law-abiding citizens from acquiring arms are presumptively unconstitutional.”
That reasoning therefore dooms the National Firearms Act of 1934 which created the arbitrary definitions of “short-barreled rifle” and “short-barreled shotgun”.
Exactly. NFA 1934 is flamingly unconstitutional. If there are statues of any of the men who voted for it, and of the President who signed it into law, THOSE statues should be torn down, melted down, and cast into weapons for the public.
“Exactly. NFA 1934 is flamingly unconstitutional.”
Re-read the 2008 ‘Heller’ decision, where Scalia wrote : “Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”
A Glock with a ‘switch’ qualifies, in that regard. Or are you going to seriously suggest you have no problem with a Leftist-Fascist walking out of a gun store with a full-auto AK-47?
I prefer my “Leftist-Fascists” be too stoned to leave the house.
I don’t have a problem with a L/F walking out of a guns store with an AK as long as I can have a weapon of my choice from among the various armaments carried by the troops of our armed forces. That includes 5-inch navel guns and Tomahawk missiles if I can afford them. Also an F-35 if they actually fly but I am afraid such niceties are beyond my budgetary limits.
The intent of the second is for the People to have
sufficient Arms to defeat Tyranny in any form. We should have access to every Arm available on this planet. It’s incredibly naive to believe otherwise!
“… and that all laws that prohibit law-abiding citizens from acquiring arms are presumptively unconstitutional.”
Don’t let anyone fool you into thinking that Bruen some how turned Heller upside down on this!
The gun-haters have LIED about Heller since the day it was published, misrepresenting the FOOTNOTE that describes other, out-of-scope “regulatory measures” as “presumptively lawful.”
They were presumptively lawful only because they were out of scope, meaning Heller did not rule one way OR THE OTHER.
Heller specifically left the question to later cases: like BRUEN, which now, finally HAS determined that many of those other regulatory measures are, indeed, UNLAWFUL.
This is not a change from Heller, this is simply the sequel to Heller.
When I was a kid, my home state had carry laws regarding knives. I don’t remember now, but I think it was six inches overall, and a three inch blade limit. Which I always though ridiculous, because once I hit puberty, any “legal” knife was too small and awkward to use efficiently. (Not quite certain if the numbers are right, but yeah, some friends got into trouble for knives that were 1/4, 1/2/, or 1 inch too long.)
IMO, if you can carry it, it should be legal. I don’t care if you have a broadsword strapped to your back. At least I see it, and I know that you’re armed. I can evaluate your attitude and your actions as required, and act accordingly.
There is nothing magical, or special about a butterfly knife. All the Filipinos I knew in the Navy carried them. It’s just a blade, like any other blade. If you know how to work the handles, they’re fast and easy to open and lock into position. If you don’t know how to work them, then you might believe they are magical and special. I will say, they are much more convenient than a typical pocket knife, that requires two hands to operate. But then – pocket knives today don’t require two hands either. If you knew to look for them, you could have found one-handed pocket knives when I was a kid, too.
I’m surprised Hawaii did this.
I wish someone would explain a butterfly knife to me. The first time I saw one I thought to myself I could have broken that when I was ten years old.
A well made one is sturdy. I knew a WWII veteran back in the 1960s and 1970s, a former SeaBee, who still carried the one he had made in the Pacific Theater from leaf spring steel, aircraft aluminum, and and canopy plexi. He used it a lot. It was a good knife.
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