Ninth Circuit rules Hawaii butterfly knife ban violates Second Amendment

A U.S. Supreme Court ruling on gun regulations applies to bladed weapons as well, the Ninth Circuit said.

by Candace Cheung, Courthouse News,  August 7, 2023

(CN) — Butterfly knives are protected under the Second Amendment right to bear arms, a Ninth Circuit panel ruled Monday, overturning Hawaii’s 30-year ban on the weapon.

The conservative panel cited precedent set by the U.S. Supreme Court’s decision in 2022 in New York State Rifle & Pistol Association, Inc. v. Bruen, which found the carrying of concealed firearms in public a constitutional right. In Bruen, Justice Clarence Thomas held that gun restrictions must comply with what he called the “historical tradition of firearm regulation.”

The three-judge Ninth Circuit panel determined this new standard for gun regulation also applies to restrictions on other forms of “arms” including knives like the butterfly knife, a kind of pocketknife with double handles that can be quickly opened and used with one hand.  

Hawaii first criminalized possession of butterfly knives in 1993 and remained the only state to entirely ban the possession, sale, manufacture or transport of the knife.

Two Hawaii residents sued Hawaii Attorney General Clare Connors and State Sherriff Division Administrator Al Cummings in 2019, challenging the 1993 ban which prevented them from owning the knives for self-defense.

U.S. District Judge Alan C. Kay issued summary judgment in favor of state officials in 2020, but on Monday the Ninth Circuit panel ruled the Bruen ruling superseded Kay's basis for summary judgment, District of Columbia v. Heller, under which the ban was considered constitutional.

U.S. Circuit Judge Carlos T. Bea, a George W. Bush appointee, citied a 1774 dictionary that considered bladed weapons like swords and halberds, and by extension butterfly knives, “arms” — a definition that would have applied during the Second Amendment’s adoption in the 18th century.

“Although Bruen discussed ‘firearm regulation[s],’ that was because the arm at issue in that case was a firearm. We see no reason why the framework would vary by type of ‘arm’,” Bea wrote in his 31-page ruling.

The panel, rounded out by Donald Trump appointed U.S. Circuit Judges Daniel Collins and Kenneth Lee, rejected Hawaii’s argument that there are historical analogues of similar bans on the concealed carry of potentially dangerous weapons like Bowie knives, “Arkansas Toothpicks” or daggers that justified the ban.

“The vast majority of the statutes cited by Hawaii did not ban the possession of knives; they regulated only their carry. But no statute cited by Hawaii categorically banned the possession of any type of pocketknife,” Bea wrote. “And none of the statutes cited by Hawaii prohibited the carry of pocketknives, much less their possession outright. Four of these statutes, in fact, exempted pocketknives by name.”

State officials had also argued that butterfly knives were “dangerous and unusual,” exempting them from inclusion into the definition of “arms.”

“The record does not support a conclusion that the butterfly knife has uniquely dangerous propensities. The butterfly knife is simply a pocketknife with an extra rotating handle,” Bea wrote, adding that the knives can be used for self-defense and are a major element in Filipino martial arts.

Several states have restrictions for butterfly knives, also known as balisongs, including prohibitions on concealed carry. They are also illegal in several countries, including Germany, Ireland and Denmark.

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PDF: Court Opinion

HiFiCo: Today Attornies Alan Beck & Stephen D. Stamboulieh secured yet another second amendment win for Hawaii.

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