In Teter v. Lopez, a Ninth Circuit panel struck down Hawaii’s ban on butterfly knives in an opinion that is hard to understand. The underlying result was presaged in the oral arguments, as this prior post suggests, but the final opinion is still confounding to me. It would not be surprising to see this case go en banc, as has happened with other contested appellation decisions like Range in the Third Circuit and Bondi in the Eleventh Circuit. Such vehement disagreements are a sign of the fissures Bruen has generated in lower courts, especially since this much disagreement so quickly is different than the slower, more cautious approach courts took after Heller and McDonald.
Hawaii criminalizes the manufacture, sale, transfer, transport, and possession of butterfly knives, split handle knives in which the sharp edge is covered when the handle is closed. In 2019, two men wanting such knives sued to invalidate the law on Second Amendment grounds. The district court granted summary judgment to the state. Ruling before Bruen, the trial court used the then-controlling two-part framework which first asked whether butterfly knives are within the scope of the Second Amendment and, if it concluded yes, then turned to the second step to apply means-end scrutiny. At the first step, the court asked whether butterfly knives are in “common use” or instead “dangerous and unusual.” It expressly “decline[d] to decide one way or another whether butterfly knives are ‘dangerous and unusual’ weapons not within the scope of the Second Amendment” and instead opted to assume step one was satisfied and move to step two. At step two, the trial court upheld the law under intermediate scrutiny.
While the case was pending on appeal, the Supreme Court handed down Bruen, replacing the reigning two-step framework with a different two-step framework more focused on history. Enter the Ninth Circuit. The panel made what to me are some strange decisions in the course of striking down the law. Consider three prime ones.
First, the panel refused Hawaii’s request to remand the case for further briefing, even though the trial court decided the case prior to Bruen. The panel faulted Hawaii for failing to specifically identify what it would do below on remand (even though Hawaii said further historical research would be done consistent with Bruen). This refusal contrasts with what many other panels, including panels in the Ninth Circuit, have done with cases on appeal that had been decided under pre-Bruen case law. For example, in a challenge to the felon-prohibitor in same posture before the Seventh Circuit, the panel majority (consisting of two Republican-appointed judges) said the proper route was to remand to the district court. The intervention of Bruen after the trial court ruling “is significant because Bruen announced a new framework for analyzing restrictions on the possession of firearms.” As that court underscored:
Aided by the parties’ briefing and the benefits of the adversarial process, the district court is best suited to conduct the required analysis in the first instance. As our dissenting colleague underscores, the constitutional issues at stake are weighty. Before we resolve the question before us, the parties should have a full and fair opportunity to develop their positions before the district court in accordance with the principles of party presentation. Our review, which all agree is inevitable, will be better for what transpires on remand in the district court.
The Ninth Circuit panel in Teter, however, was unmoved by such considerations, declaring that the appellate judges could “confidently decide the issue ourselves.”
Second, the panel took what appears to me to be a completely novel position on what weapons are protected under the Second Amendment. The conventional test, grounded in Heller, is called the “common use” test. That test provides that weapons that are in common use by law-abiding citizens for lawful purposes are entitled to constitutional protection. Those “common use” weapons are contrasted with “dangerous and unusual” weapons that can be banned consistent with the Second Amendment. At least that is how most courts and commentators, including the trial court in this case, have read Heller. Teter instead relied purely on the plain text, as explicated by Heller, to say that all weapons falling into the dictionary definition of “arms” are constitutionally protected. It said that dangerous and unusual weapons are still arms, and so “whether butterfly knives are ‘dangerous and unusual’ is a contention as to which Hawaii bears the burden of proof in the second prong of the Bruen analysis.” In other words, everything the dictionary classifies as an arm clears the plain-text hurdle of Bruen and then the government bears the burden of proving a tradition of regulating that arm.
That is a startling reading of the decisions. It means, for example, that shoulder-fired missiles, suitcase nukes, handheld bio weapons, and many more weapons of mass destruction (so long as they are bearable) are presumptively entitled to Second Amendment protection. A challenger arguing that regulations on such weapons are unconstitutional need do nothing more than file a complaint. The government then bears the burden of proving a tradition of regulating that weapon—an inquiry that, if prior cases are indication, is unpredictable at best.
In describing what it means to be dangerous and unusual, the court cited two factors: whether the weapon (1) has “uniquely dangerous propensities” and (2) is “commonly possessed by law-abiding citizens for lawful purposes.” It said that butterfly knives are not uniquely dangerous because they are simply a kind of knife. They aren’t an “‘astonishing innovation’ that ‘could not have been within the contemplation of the constitutional drafters.’” (quoting a 1984 Oregon Supreme Court ruling that the state’s constitutional right to bear arms protects a switchblade). It then said there is no dispute butterfly knives are commonly owned for lawful purposes: “Most notably, Hawaii’s own witness conceded that butterfly knives may be used for self-defense.” I’m not sure how a concession that a weapon may or can be used for self-defense is the same as a concession they are commonly owned for that purpose (after all, RPGs can be used for self-defense). The panel also cited evidence that such knives are a part of Filipino martial arts, and rejected the notion that butterfly knives are most associated with criminal endeavors. “Common sense tells us that all portable arms are associated with criminals to some extent.” The panel then concluded that Hawaii “has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.” Hawaii did not, in other words, present evidence to disprove that such weapons were in common use. It didn’t introduce evidence to show a negative. Flipping the burden like this will make it much easier for challengers to prevail in class-of-weapon cases.
It is also worth emphasizing that the level of generality at which the court found protection for butterfly knives is in a class of arms it designated “bladed weapons.” It didn’t look to see whether this specific type of knife, or any of its progenitors, was protected, but simply grouped it with a broad range of weapons and said it was protected. That high level of generality in looking to antecedents for protection contrasts starkly with the very specific level of generality the court used when looking for regulatory tradition.
Third, when the panel turned to the regulations that Hawaii relied on as analogues to its restriction, it focused extremely narrowly on whether any of those old laws looked precisely like Hawaii’s. The only way for Hawaii to sustain its burden, said the court, was by pointing to laws “that were enacted close in time” to either 1791 or 1868. Hawaii cited numerous laws as analogues, including those aimed at Bowie knives, Arkansas Toothpicks, slung-shots, metal knuckles, sword-canes, and other deadly weapons. The panel dismissed them all as not analogous because the “how” of these laws differed from Hawaii’s – “they regulate,” said the court, “different conduct.” Specifically,
The vast majority of the statutes cited by Hawaii did not ban the possession of knives; they regulated only their carry. True, four of these statutes (by our count) banned the possession of slung-shots, metal knuckles, and an undefined category of “deadly weapons.” See supra note 11. But no statute cited by Hawaii categorically banned the possession of any type of pocketknife.
The panel did not say why these four statutes were not analogues – it seems to me it merely dismissed them because they were not identical. The panel went on to dismiss other laws on similar grounds: that they did not regulate exactly the same way as Hawaii’s law. And, said the court, because the problem of violence with “easily concealable, foldable knives being used in crimes” is a problem that has persisted since the founding, Hawaii’s failure to cite any law “in which Congress or any state legislature imposed an outright ban on the possession of pocketknives to remedy this problem near 1791 or 1868” went to prove that the law is unconstitutional today. Once again, the absurdity on using past legislative silence to mean the unconstitutionality of modern laws is on full display here.
There are also some other oddities about the opinion. Hawaii, for example, prevailed on summary judgment below and raised an argument on appeal that butterfly knives are dangerous and unusual. But the panel strangely said “Hawaii failed to present evidence sufficient to create a genuine issue of material fact as to whether butterfly knives are dangerous and unusual.” But the trial court expressly declined to decide whether the knives were dangerous and unusual, so it didn’t pass on that argument. If that’s a dispositive argument, wouldn’t the proper course be to remand for the trial court to actually reach the issue? Plus, what does the panel mean that Hawaii did not create a genuine issue of material fact? It sure seems to be implying that the dangerous and unusual inquiry is a factual inquiry that would be addressed by the trier of fact. Can that be the case? If so, how does that square with the panel’s rejection of the remand request?
I do not think this panel will be the last word on the Ninth Circuit’s rule for what weapons are protected. The novelty of the panel’s plain-text inquiry—that eschews an inquiry into whether the weapons are in common use or dangerous and unusual—seems ripe for revision. Judge Lee, who joined this opinion, previously wrote a panel decision on large-capacity magazines that treated this question as part of the first step inquiry (under the old framework) into whether the Constitution protected the arms at all: “We next determine whether LCMs are arms that fall outside the scope of the Second Amendment. Heller provides that some arms are so dangerous and unusual that they are not afforded Second Amendment protection.” (Emphases added). That, plus the specificity with which the panel analyzed the record, seem to me to set Teter apart from other recent circuit court rulings, even ones like Range that vindicated Second Amendment claims.