The Second Amendment is arguably the most interesting area of American constitutional law right now. Courts and judges have already spent more than two centuries defining the scope of what counts as free speech under the First Amendment and probable cause under the Fourth Amendment. But they did not spend much time on defining what the individual right to bear arms protects. How could they have? The Supreme Court only established it within the last 15 years.
One of the many big questions in this brave new world is deceptively complicated: What exactly counts as âarmsâ that someone can bear under the Second Amendment? (Please, no jokes about ursine limbs.) On Monday, the Ninth Circuit Court of Appeals came one step closer to answering that question in Teter v. Lopez. The case involved a challenge to Hawaiiâs absolute ban on possessing butterfly knives, a type of small knife with a bifurcated handle that folds upward to cover the blade when sheathed. As the court noted, an experienced user can quickly unfold it with one hand if the need arises.
Nearly all Second Amendment cases involve firearms. But the three-judge panel ruled that the same logic that protects guns under the individual right to bear arms applies to other types of weapons. âBecause the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nationâs historical tradition of regulating arms, we conclude that section 134-53(a) violates Plaintiffsâ Second Amendment rights,â Judge Carlos Bea wrote for the court.
That an absolute ban on a certain type of knife has been judged unconstitutional might seem like a small matter at first glance. But Mondayâs ruling could directly affect a wide swath of gun and weapon regulations in the Ninth Circuitâs jurisdiction, which covers most of the Western United States and roughly one-fifth of the national population. Its reasoning, if adopted by other courts, could also make it much more difficult for state and federal lawmakers to restrict access to certain types of weapons.
The case comes from a lawsuit filed by two men, Andrew Teter and James Grell, who live in Hawaii and want to purchase butterfly knives for self-defense. Barring their path is a state law that makes it a misdemeanor offense whenever someone âknowingly manufactures, sells, transfers, possesses, or transportsâ a butterfly knife in Hawaii. Teter and Grell attested that they owned butterfly knives before moving to Hawaii and had to dispose of them to comply with state law. They now seek the ability to own them again.
A federal district court initially ruled against the two men and held that the Second Amendment does not protect butterfly knives. They appealed the ruling to the Ninth Circuit, which stayed the case pending the Supreme Courtâs then-imminent ruling in New York State Rifle & Pistol Association v. Bruen last summer. The high courtâs eventual ruling in Bruen last June laid out a new history-and-tradition test for weighing restrictions on the individual right to bear arms. In general, it required courts to determine whether there was a historical analogue for a challenged restriction and strike it down if none could be found.
âWhen the Second Amendmentâs plain text covers an individualâs conduct, the Constitution presumptively protects that conduct,â Justice Clarence Thomas wrote for the court. âThe government must then justify its regulation by demonstrating that it is consistent with the nationâs historical tradition of firearm regulation. Only then may a court conclude that the individualâs conduct falls outside the Second Amendmentâs unqualified command.â
This test, as Iâve noted before, has had a dizzying array of outcomes in the lower courts. The Supreme Court is set to review one of those rulings this fall in United States v. Rahimi, where the justices will consider whether gun possession bans for people under certain types of domestic violence restraining orders violate the Second Amendment. A federal district court in Texas concluded that they were unconstitutional earlier this year, noting that early American lawmakers imposed no such restrictions in the founding eraâa period when women generally had few legal or civil rights.
One notable limitation on the Bruen test, at least at first glance, is that it hitherto only applied to âfirearms.â The Ninth Circuit panel, however, concluded that language was no impediment to the knife challenge. âAlthough Bruen discussed âfirearm regulation[s],â that was because the arm at issue in that case was a firearm,â Bea wrote. âWe see no reason why the framework would vary by type of âarm.ââ Those types of weapons, the court noted, can also be used for self-defense.
Hawaii pointed to another potential defense for its ban: District of Columbia v. Heller, the 2008 Supreme Court case that established an individual right to bear arms in the Second Amendment. In that decision, the high court suggested that some types of categorical weapon bans remained presumptively constitutional. The Heller justices specifically declined to overturn United States v. Miller, a 1939 case that upheld a federal law banning certain types of guns commonly associated with criminal activity, such as sawed-off shotguns and fully automatic rifles.
âWe also recognize another important limitation on the right to keep and carry arms,â Justice Antonin Scalia explained in Heller. âMiller said, as we have explained, that the sorts of weapons protected were those âin common use at the time.â We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of âdangerous and unusual weapons.ââ
The panel, however, sidestepped Hawaiiâs invocation of Heller. First, it denied a motion by the state to remand the case back to the lower court so it could build a factual record for the Bruen test, which did not exist when the district court upheld the law. Then the panel concluded that Hawaii should have already built that record when it defended the ban in the district court since Heller already existed at that point, even though the Bruen test did not. Accordingly, Bea wrote, the state had âfailed to present evidence sufficient to create a genuine issue of material fact as to whether butterfly knives are dangerous and unusual.â
From there, the panel declared that there was âno genuine issue of material fact as to whether butterfly knives are commonly owned for lawful purposes.â It cited some testimony during the lower-court trial that butterfly knives can be used in self-defense and that the knivesâ use is part of a martial arts style that originated in the Philippines. While Hawaii cited what the panel described as âsome conclusory statements in the legislative historyâ that butterfly knives were associated with criminal activity, Bea wrote that the court gave âlittle weightâ to those findings. âCommon sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes,â he concluded.
Nor did the panel find any of Hawaiiâs purported historical analogues to be convincing. The closest match, the judges said, was an 1837 Georgia law that declared no one shall âkeep, or have about or on their person or elsewhere ⊠Bowie, or any other kind of knives.â They reasoned that it was ânot apparent to us that âother kind[s] of knivesâ would have been understood to include pocketknives.â Nor did laws banning the possession and/or carry of more eclectic stabbing implements like Arkansas toothpicks, Bowie knives, daggers, dirks, or the like persuade them because, they concluded, a butterfly knife âis clearly more analogous to an ordinary pocketknife.â
Nor did the claimed emergence of novel societal problems that were unforeseen by the founding generation persuade the panel to uphold the law. In our August issue, I wrote about how Bruen was part of a growing trend where the Supreme Court and its rulings squelch policymaking innovation by lawmakers. If I wrote that article again today, I would undoubtedly include a portion of Mondayâs ruling in Teter where the panel knocked down Hawaiian lawmakersâ rationale for the ban by dialing up the degree of specificity.
âHere, the 1999 Hawaii Legislature addressed the perceived social problem of an âincreasing trend in minors and gang members armed with knives and daggers,â who preferred butterfly knives âas they are easy to conceal and are more intimidating when brandished,ââ Bea wrote. âBut the problem of people using easily concealable, foldable knives in violent crimes predates 1999 by hundreds of years.â
While the court only addressed Hawaiiâs butterfly knife ban, its interpretation of the Second Amendment and its application of the Bruen test could apply to a variety of other statutes. The panel concluded that bladed weapons fell within the scope of the Second Amendment by citing Malachy Postlethwaytâs Universal Dictionary of Trade and Commerce. Published in 1774, that dictionary defines âarmsâ to include âfascines, halberds, javelins, pikes, and swords,â according to the panel.
Under that framework, a wide variety of knife-related laws could conceivably be challenged. Hawaiiâs own statutes have a similar ban on switchblade knives that could run afoul under this interpretation of the Second Amendment. California, which is also in the Ninth Circuit, bans the possession of an even wider assortment of bladed weapons, including dirks, daggers, ballistic knives, belt buckle knives, lipstick case knives, cane swords, and more. If the Second Amendment is not limited to firearms, Mondayâs ruling also calls into question state-level bans on weapons like truncheons, saps, billy clubs, nunchucks, and the like.
The panelâs sidestepping of Heller and Millerâs restriction on âdangerous and unusual weapons,â coupled with its stark dismissal of legislative conclusions about what qualifies as one, could potentially affect some bans on specific types of firearms. Mondayâs ruling does not directly affect restrictions on these types of guns; the decision itself is limited to Hawaiiâs butterfly knife ban. But its narrower approach to deciding what counts as a âdangerous and unusualâ weapon could call into question state-level bans on assault rifles and other type-specific restrictions. While the federal assault weapons ban expired in 2004, other federal laws still restrict the possession of fully automatic rifles manufactured after 1986.
All of this depends on whether the panelâs ruling stands on review. Like other federal appeals courts, the Ninth Circuit has a mechanism to review panel decisions through a super-panel of sorts, which includes a random assortment of its sitting judges. Democratic appointees on the Ninth Circuit have a narrow majority in its 29 seats at the moment, but the courtâs sizable bloc of Republican appointees has frequently signaled an interest in aggressively enforcing the Bruen test on gun laws in its jurisdiction.
Either way, it seems likely that the Supreme Court will have to decide at some point what weapons count as âarmsâ under the Second Amendment, as well as which ones are âdangerous and unusualâ in a post-Bruen world. In Rahimi, the upcoming domestic violence case, weâll get a look at whether the justices want to clarify or refine the history-and-tradition test now that theyâve seen it in practice. How the court rules in that case will shape how it addresses Mondayâs ruling in Teter and the rest of the Second Amendmentâs yet-to-be-explored frontier.
