Ninth Circuit to rehear Hawaii butterfly knife ban

The Ninth Circuit restored Hawaii's 1993 ban on butterfly knives while agreeing to take on an appeal of the decision that the knife is protected under the Second Amendment.

by Candace Cheung, Courthouse News, February 22, 2024

(CN) — Hawaii will get a chance to reinstate a ban on butterfly knives after the Ninth Circuit Court of Appeals agreed Thursday to review a decision that determined the weapons fall under Second Amendment protection.

The court voted to grant Hawaii's request for an en banc rehearing of a conservative three-judge panel's ruling in August 2023 that ended the state's 30-year ban on butterfly knives — a kind of pocketknife with double handles that can be quickly opened and used with one hand. Several states restrict the knives, and some countries have outlawed them.

The case stems from 2019, when two Hawaii residents challenged state Attorney General Clare Connors and the state's Sheriff Division on their enforcement of the ban, which they said unconstitutionally prevented them from having or using the knives for self-defense.

In a ruling authored by U.S. Circuit Judge Carlos T. Bea, a George W. Bush appointee, the panel cited the U.S. Supreme Court’s New York State Rifle & Pistol Association, Inc. v. Bruen decision to declare that the knives historically counted as "arms" protected under the Second Amendment.

"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," Bea wrote in the August opinion. He was unconvinced that there were historically analogous statutes that banned the possession of pocketknives and other similar weapons.

U.S. Circuit judges Daniel P. Collins and Kenneth K. Lee, both Donald Trump appointees, joined Bea in the ruling.

U.S. Circuit Chief Judge Mary Murgia said in her Thursday order that the en banc hearing was granted "upon the vote of a majority of nonrecused active judges." The Barack Obama appointee also wrote that the opinion of the three-judge panel finding the ban unconstitutional was now vacated. The en banc hearing is scheduled for June in Seattle.

In its petition for the en banc review, Hawaii said that the panel misinterpreted the Supreme Court by "preemptively" declaring that bladed weapons were covered by the Second Amendment, and "eliminates the nexus to self-defense laced into both steps of Bruen's analysis."

"Rather than ask, as Bruen and Alaniz require, whether butterfly knives were commonly used for self-defense, the panel instead asked whether Hawaii had proven that these weapons were not in common use for some lawful purpose," the state wrote.

The state also said the panel conducted its own "distorted" test and drew its own conclusions about restrictions on similar bladed weapons without properly giving the state a chance to bring in evidence.

In its en banc petition, the state only briefly touched on historical arms regulations in its pre-territorial days. However, the state Supreme Court recently harkened back to the Kingdom of Hawaii — which historically levied heavy regulations on weapons — while pushing back on the Second Amendment. In a Feb. 7 ruling ruling, the court denied the individual right to carry a firearm in public, as the Hawaii Constitution emphasizes the right only for a "well-regulated militia."

"The spirit of Aloha clashes with a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities," Justice Todd Eddins wrote in the ruling.

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Ammoland: Hawaii's Butterfly Knife Decision and 'Spirit of Aloha' Both Offensive to Freedom (ammoland.com)

JN: US appeals court agrees to re-hear Hawaii butterfly knife ban case - JURIST - News