Hawaii Petitions 9th Circuit for Rehearing En Banc to Overturn Decision that HI's Butterfly Knife Ban is Unconstitutional

[hso]

No one expected Hawaii to just give up and go with the 9th Circuit decision declaring the ban on butterfly knives to be unconstitutional, but the hysterical tone of their petition is surprising.

Suffice it to say that HI sees this decision as having much wider implications for the 2A in HI and across the 9th Circuit.


What can we do? Provide financial support to the groups challenging the HI restriction since 2A activism isn't cheap when you're going through the courts.

​ ​

​ Hawaii Petitions for Rehearing En Banc to Overturn Decision that HI's Butterfly Knife Ban is Unconstitutional​

​ ​ ​ Hawaii has petitioned the Ninth Circuit for a rehearing En Banc in an attempt to overturn the recent 3-0 panel decision in Teter v. Lopez that Hawaii’s ban on Butterfly Knives is unconstitutional under the Second Amendment. As explained in our original post, That was a huge win not just for owners of Butterfly Knives in Hawaii, but for all pro-Second Amendment supporters. Knife Rights filed an important amicus (friend of the court) brief in support of the appellants in that case. Their intellectually dishonest petition makes a whole lot of specious claims, including that only weapons “commonly used for self-defense” are protected by the Second Amendment. That’s incorrect as the Bruen decision from the U.S. Supreme Court very clearly reiterated that arms usable for any “lawful purposes” are protected. Their emotionally charged, overwrought and hyperbolic concluding paragraph should tell you all you need to know about how desperate Hawaii, and all the anti-Second Amendment supporters, are to overturn this pro-2A decision, because they indeed got it right about how important this decision in Teter is in the 2A fight: If left undisturbed, the panel’s analysis will govern challenges involving many highly dangerous weapons that States quite reasonably seek to regulate or ban: assault weapons, high-capacity magazines, and more. In this matter of life and death, the Court should ensure its precedent fully comports with the balance the Supreme Court struck in Heller, McDonald, and Bruen. Hawaii’s petition will now be circulated to all active Ninth Circuit judges and any senior judge that have chosen to participate. It is likely that the the opposing party will be required to respond to the petition about why the court should not rehear the case, though they could just vote on it. The court is currently closely split with 15 Democratic and 13 Republican appointees. Odds are that sooner or later court will vote to rehear the case, but we’ll see. If it is reheard En Banc, the panel will include the Chief Judge and 10 judges selected at random. Attorney C.D. “Chuck” Michel has a good write up here on The Truth About Guns.​

 

[RickD427]

Misleading Thread Title - The state of Hawaii is not "Appealing" anything through this action. They're simply requesting a rehearing of their current appeal before the Ninth Circuit.

 

[hso]

Thread Title

edited

 

[P89DCSS]

the hysterical tone of their petition is surprising.

On the 3nd of page two and beginning of page three, the Hawaiian AG claims the right to regulate switchblade and butterfly knives because both are associated with criminal gangs. And they can be opening single handed.

Gang-bangers are carrying knives as a primary weapon? How quaint, if only it was factually correct......

 

[hso]

So why are AGs not part of the Ninth Circuit filing an amicus brief on a knife case in Hawaii? Dean Weingarten explains below that the case has wide implications to advance 2A protections if Knife Rights wins and Hawaii ultimately looses.

Read more: https://www.ammoland.com/2023/10/co...r-of-states-to-ban-common-arms/#ixzz8G9Cvhvnx
Under Creative Commons License: Attribution
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Coalition of Attorney Generals Argue for the Power of States to Ban Common Arms​

Ammoland Inc. Posted on October 13, 2023 by Dean Weingarten

A coalition of Attorney Generals for sixteen states and the District of Columbia has filed an amicus brief to the Ninth Circuit appeal by the State of Hawaii, claiming state power to ban common arms is essential. On August 7, 2023, a three-judge panel of the Ninth Circuit reached the unsurprising conclusion that knives, particularly the type of pocket knife called a “butterfly knife” or “balisong,” were bearable arms. Therefore, they were protected by the Second Amendment of the Constitution, and the State of Hawaii did not have the legal authority to ban them.
On September 20, 2023, the State of Hawaii appealed to Teter v Lopez, claiming the three-judge panel of the Ninth Circuit mistakenly applied the law, asking for a new panel or a hearing en banc. The Ninth Circuit has historically been hostile to the Second Amendment and has reversed the decision of three-judge panels that uphold Second Amendment rights.


On September 22, the plaintiffs, Teter and Grell, were ordered to file a response to the appeal within 21 days.

On October 2, 2023, the coalition of 14 state Attorney Generals and the District of Columbia filed an amicus brief in support of the appeal. The arguments of the State of Hawaii, the 14 attorney generals, and the District of Columbia are remarkably similar. In sum, they are this:​

1. The Heller and Bruen decisions did not clarify that all bearable arms are preemptively covered by the Second Amendment (they carefully do not mention the unanimous Caetano decision, which says the opposite.)
2. The Heller and Bruen decisions only protect arms shown to be in common use for self-defense.
3. Common possession of arms is not the same as common use. The Second Amendment does not protect arms that are commonly possessed, only those arms that are commonly actually used for self-defense. The state can claim an arm is unusual and dangerous. It is the burden of the person challenging the law to prove an arm is commonly used for self-defense.

The three arguments turn the Heller, Caetano, and Bruen decisions on their head. The three decisions make clear all bearable arms fall under the Second Amendment. Caetano, which was a unanimous decision, clarifies this the best. From Caetano:​

The Court has held that “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,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The proper test is to determine if the instrument is a bearable arm. Knives are bearable arms. Therefore, they are “prima facie” (accepted as correct until proven otherwise), protected by the Second Amendment. Once this is established, it is the burden of the state to prove these particular bearable arms are not in common use for lawful purposes. Lawful purposes are not limited merely to self-defense but include all lawful purposes.

The 14 attorney generals and the District of Columbia use the scare tactic of saying a backpack nuclear bomb is a bearable arm and thus would be presumptively protected by the Second Amendment.​

It is a correct but misleading statement. Backpack nukes are far from “in common use.” They are uncommonly dangerous, as they could wipe out an entire city. Under Heller, Caetano, and Bruen, they can and are heavily regulated so as to make them exceedingly difficult to obtain.

 

[Old Dog]

Not being facetious, but I'm wondering just how many documented assaults or homicides were committed in Hawaii with butterfly knives? I resided on Oahu for four-and-a-half years, and don't remember a single homicide by butterfly knife.

 

[Jeff White]

Mark Smith has a good analysis of this case:

EXCITING 9th CIRCUIT NEWS: Anti-gunners Desperate as Terrific Brief Filed in Arms (Knife) Ban Case

US Court of Appeal for Ninth Circuit declared Hawaii's butterfly knife ban to be unconstitutional under the 2nd Amendment. Hawaii hires $2400 per hour attorn...

youtu.be

 

[JTHunter]

The lawyers Mark mentions are using an interesting tactic.

 

[armoredman]

I can't see YT from here, do you have a very quick summary of what that might be? Thank you.

 

[hso]

Let's be careful to not cross into what should be a Legal forum discussion and loose the Activism aspect.