In a recent case, Teter v. Lopez, a Ninth Circuit panel (Judges Bea, Collins and Lee) invalidated Hawaii's ban on butterfly knives (a type of pocketknife). Unlike some other courts, the panel did not seem to have difficulty applying the Supreme Court's decision in Bruen. From Judge Bea's opinion for the panel:
[T]he first question in Bruen was “whether the plain text of the Second Amendment protects [the plaintiffs’] proposed course of conduct—carrying handguns publicly for self-defense.” [Bruen], at 2134. In answering it, Bruen analyzed only the “Second Amendment’s text,” applying ordinary interpretive principles. Id. at 2134–35. Because the word “‘bear’ naturally encompasses public carry,” the Court concluded that the conduct at issue in Bruen (public carry) was protected by the plain text of the Second Amendment. Id. at 2143.
The second question addressed in Bruen was whether New York had met its burden in proving its “proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2135. In answering this second question, Bruen noted that “not all history is created equal.” Id. at 2136. It reasoned that the most apposite historical sources from which to derive a comparable historical analogue to the challenged statute are those close in time to 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified). Id. at 2136–38.
We similarly structure our analysis. First, we examine whether possession of butterfly knives is conduct covered by the plain text of the Second Amendment. Concluding that it is, we then analyze whether Hawaii has demonstrated that its complete prohibition of that conduct is consistent with this Nation’s historical tradition of regulating arms.
On the first point:
In Heller, the Supreme Court held that a handgun was an “arm” within the meaning of the Second Amendment. 554 U.S. at 581, 628–29. In reaching that conclusion, the Court began by noting that, as a general matter, the “18th-century meaning” of the term “arms” is “no different from the meaning today.” Id. at 581. Then, as now, the Court explained, the term generally referred to “[w]eapons of offence, or armour of defence.” Id. (cleaned up). The Court further noted that all relevant sources of the original public meaning of “arms” agreed that “all firearms constituted ‘arms’” within the then-understood meaning of that term. Id.
The Court emphasized that it is irrelevant whether the particular type of firearm at issue has military value, because the term “arms” “was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.” Id. And, just as the scope of protection afforded by other constitutional rights extends to modern variants, so too 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.” Id. at 582.
We similarly conclude that, just as with firearms in Heller, bladed weapons facially constitute “arms” within the meaning of the Second Amendment. Like firearms, bladed weapons fit the general definition of “arms” as “[w]eapons of offence” that may be “use[d] in wrath to cast at or strike another.” Id. (cleaned up). Moreover, contemporaneous sources confirm that, at the time of the adoption of the Second Amendment, the term “arms” was understood as generally extending to bladed weapons. …
On the second point:
Because the possession of butterfly knives is covered by the plain text of the Second Amendment, Hawaii must prove that section 134-53(a) is consistent with this Nation’s historical tradition of regulating weapons. Bruen, 142 S. Ct. at 2126–27, 2135. Hawaii may meet its burden by citing analogous regulations that were enacted close in time to the Second Amendment’s adoption in 1791 or the Fourteenth Amendment’s adoption in 1868. Id. at 2136–38. “Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years,” and “we must also guard against giving postenactment history more weight than it can rightly bear.” Id. at 2136. Hawaii must derive from these sources a “proper [historical] analogue” to section 134-53(a). Id. at 2132.
In this historical-analogue inquiry, we cannot “uphold every modern law that remotely resembles a historical analogue.” Id. at 2133. “On the other hand, analogical reasoning requires only that the government identify a well established and representative historical analogue, not a historical twin.” Id. In determining whether the modern regulation and the historical analogue are “relevantly similar,” we must look to the “how and why” of the two regulations; that is, “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.” Id. at 2132–33. (cleaned up).
Hawaii argues that section 134-53(a) is analogous to a number of state statutes stretching back to 1837, which regulated “Bowie knives,” “Arkansas Toothpicks,” “slungshots,” metal knuckles, sword-canes, and other so-called “deadly weapons.” Hawaii argues that these statutes evince an historical tradition of banning weapons associated with criminality. We disagree that these statutes are proper historical analogues to section 134-53(a). …
But we'll see if that holds up through the en banc process.
(Thanks to Alan Beck, USD law grad and counsel for the claimants, for the pointer.)
Posted at 6:10 AM