B.L.U.F.Brick by Brick, Row by Row, we build our freedoms.
The 9th Circuit court of Appeals got it right. What does it mean? What did the state attempt? How did the court opine?
In April 2019, another legal battle began. A long shot case that the plaintiffs knew would drag out for years if they made any progress, or they would be shutdown almost immediately.
Under the Second Amendment, Defendants retain the ability presumptively to regulate the manner of carrying arms and may prohibit certain arms in narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment’s protection such as unusually dangerous arms, and disqualify specific, particularly dangerous individuals from carrying arms. See Heller, 554 U.S. at 627.
—Teter v. Connors, No. 1:19-cv-00183, slip op. ¶ 11 (District Court, D. Hawaii)
This is from the good guys. In the original complaint, they are giving the state the presumption of the power to regulate. They also give the state the power to regulate “unusually dangerous arms”. This is not what Heller said, and we know this because the Bruen court made it absolutely clear that it is dangerous and unusual. If the arm is in common use, it is not unusual, and it cannot be banned.
This was Bruen quoting and explaining Heller
This is the equivalent of watching the puppy cower when their owner comes home. They try so hard to be good, but they fear being smacked again. Or maybe the battered spouse is a better analogy.
Given the decision in Heller, Defendants may not completely ban the keeping and bearing of arms for self-defense that are not unusually dangerous, deny individuals the right to carry arms in non-sensitive places, deprive individuals of the right to keep or carry arms in an arbitrary and capricious manner, or impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment. See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016); Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015); Palmer v. District of Columbia, 59 F.Supp.3d 173 (2014).
—id. ¶ 12
See, the language is very deferential to the state. Just a paragraph later, they use a citation to the 5th Cir. to support Caetano, but even that citation is weak. … implied that the number of states that allow or bar a particular weapon is important—id. ¶ 13 quoting Caetano This is incorrect, Alito, in Caetano, said that mere possession of 200,000+ stun guns made them “common”. It wasn’t about how many states banned them.
The issue with counting states that ban an arm is that if 26 states ban an arm that is in common use by the people, that would make it “uncommon”. Thus, the gun grabbers would just work at getting bans in place.
In upholding a criminal conviction for possession of a switchblade, the New Mexico Court of Appeals found that knives are protected by the Second Amendment and upheld that specific ban applying intermediate scrutiny. See State v. Murillo, 347 P.3d 284 (2015).
—id. ¶ 18
We see the two-step shuffle in place in this case. The court found that knives are protected arms under the Second Amendment, but then stole back the right from The People.
Plaintiffs are bringing an as-applied and facial challenge to the applicable Hawaii laws which prevent them from owning butterfly knives.
Plaintiffs seek an injunction preventing enforcement of the applicable Hawaii laws as applied to themselves, and for declaratory relief.
—Complaint – #1 in Teter v. Connors (D. Haw., 1:19-cv-00183), No. 1:19-cv-00183, slip op. ¶ 26,27
The rest of the complaint is straightforward. It is the argument phase of the complaint, and the plaintiffs (good guys) do a good job of laying it all out.
Finally, a year and some after they filed the case, the court issued their ruling, finding for the state.
ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING THE STATE’S MOTION FOR SUMMARY JUDGMENT, re ECF 33 Plaintiffs’ Motion, and ECF 36 State’s Motion—Signed by JUDGE ALAN C. KAY on 5/13/2020. For the foregoing reasons, the Court holds that HRS § 134-53(a) is not an unconstitutional restriction on the right to bear arms under the Second Amendment. To summarize the Court’s ruling: (1) butterfly knives are bearable arms that trigger Second Amendment protections; (2) the Court assumes without deciding that butterfly knives are commonly used by law-abiding citizens for lawful purposes and therefore fall within the historical scope of the Second Amendment; (3) the ban on butterfly knives is not per se unconstitutional under Heller; (4) because the ban implicates the core right under the Second Amendment but does not severely burden that right, intermediate scrutiny applies; and (5) the statute survives intermediate scrutiny because it furthers the State’s important interest to promote public safety by reducing access to butterfly knives, which leads to gang-related crime. While recognizing that Heller does not cleanly resolve all the constitutional questions at play here, this analysis is faithful to Heller. The Court hereby DENIES Plaintiffs’ Motion for Summary Judgment and GRANTS the State’s Motion for Summary Judgment.(jni)
— ECF No. 61
The court does the two-step shuffle. They did find that butterfly knives are arms and protected by the Second Amendment. They make a presumption that butterfly knives are in common use, but don’t declare it. This tells us that this court knew that under “in common use” would cause the law to be found unconstitutional. We know that is not going to happen.
We constantly see this, the court gives because they know it won’t matter. The case was decided with intermediate scrutiny because it furthers the State’s important interest. That important interest is public safety. The state simply declares that banning butterfly knives makes the public more safe. No proof required.
By the end of the week, the case was appealed to the 9th Cir. Nobody expects the 9th to rule in favor of The People.
The case is docketed at the 9th Cir. May 19th, 2020. All briefings and materials are to be before the court by Aug. 21st, 2020. That didn’t last long. Responses are now due by mid-November. By October, Everytown has their fingers in the pie.
All the paperwork was in by November 12th, 2020. In December and again in February, the parties file supplemental authorities. These are normally references to other cases that were decided in favor of the filing party.
Finally, the case is scheduled for oral arguments sometime in July 2021.
Before that happens, everything is put on hold:
Apr 27, 2021: Filed order (Deputy Clerk: WL) This appeal is removed from the July 9, 2021 Honolulu calendar and appellate proceedings will be HELD IN ABEYANCE pending the United States Supreme Court’s resolution of New York State Rifle & Pistol Ass’n v. Corlett (NYSRPA), No. 20-843. This case is returned to the Clerk’s office for assignment to another panel at the conclusion of the abeyance. The Clerk shall administratively close this docket pending further order of the Court. The parties shall notify this Court within 7 days after the Supreme Court’s disposition of NYSRPA.  (WL) [Entered: 04/27/2021 11:05 AM]
— ECF No. 50 20-15948, 9th Cir.
On June 23rd, the plaintiffs tell the 9th Cir. About the Bruen opinion, a few days later they requested that the case be remanded back to the district court.
Late August, the court says, “Nope, this is staying with us.” A little surprising given how many other cases the 9th remanded back to the lower courts.
Everytown sticks their oar in the water with their standard arguments:
Everytown files this amicus brief in support of Defendants-Appellees (the “State”) to address three methodological points in connection with New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). First, on the initial, textual inquiry of the Bruen framework, the burden is on Plaintiffs to establish that butterfly knives are protected “arms” within the meaning of the Second Amendment, and they have failed to carry that burden. Second, analysis of “the Nation’s historical tradition of firearm regulation,” id. at 2130, should center on 1868, not 1791. Third, the long history of regulating both bladed weapons and weapons connected to criminal activity that the State has set out, see State’s Suppl. Br. 14-34, amply establishes the constitutionality of Hawaii’s law, and Plaintiffs’ arguments about the number of laws a government must produce to establish a historical tradition are inconsistent with Bruen.
— ECF No. 76 20-15948, 9th Cir.
This was filed on 9/25/2022, and they are making the same argument about magazines. They argue that the Fourteenth Amendment changed the plain meaning of the text of the Second Amendment, and of course, any law that inconvenienced a person in the late 1800s is justification for any ban or infringement today.
At last the big day arrives, Feb 14, 2023 the case is argued and submitted. It is in the hands of three judges. One Bush appointee and 2 Trump appointees.
As normal, the state attempted to get the case dismissed for standing. What this means is that the state argues that the person who is being infringed on hasn’t really been infringed on because they haven’t attempted to do the conduct.
For example, the case in NJ challenges casinos as sensitive places. The plaintiffs (good guys) claim that they would carry in the casinos but for the law. The state asked, “Have you ever been to the casinos?” Oh, you haven’t, then you don’t have standing.
It is important, extremely important, to establish standing before these suits are brought. If a suit is brought, and then you attempt to improve your standing by doing something, the court is likely to rule out that behavior.
The panel determined that plaintiffs had standing to challenge § 134-53(a) because they alleged that the Second Amendment provides them with a legally protected interest to purchase butterfly knives, and but for section 134-53(a), they would do so within Hawaii. Plaintiffs further articulated a concrete plan to violate the law, and Hawaii’s history of prosecution under its butterfly ban was good evidence of a credible threat of enforcement.
—Andrew Teter v. ANNE E. LOPEZ, No. 20-15948 (Court of Appeals for the Ninth Circuit)
The state argued that the cases should be remanded for more fact finding. An important thing to understand is that there are two types of “facts” in a case, there are those facts that “everybody knows”. Such as cars have engines. The court doesn’t need a witness to prove that cars have engines, the court knows it as part of general knowledge.
This was in play in Heller. The court didn’t need to establish as a fact that handguns are in common use for lawful purposes, it was obvious.
When some maroon claims that the plaintiff hasn’t proven that a knife is an arm, they are ignoring this. The court knows that knives are arms. The court knows that knives are in common use.
The panel held that possession of butterfly knives is conduct covered by the plain text of the Second Amendment. Bladed weapons facially constitute “arms” within the meaning of the Second Amendment, and 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, and by necessity, butterfly knives. The Constitution therefore presumptively guarantees keeping and bearing such instruments for self-defense.
Double emphasis added. “Facially” means that the court didn’t have to have evidence presented to them to know that this is a fact.
The panel held that Hawaii failed to prove that section 134-53(a) was consistent with this Nation’s historical tradition of regulating weapons. The majority of the historical statutes cited by Hawaii did not ban the possession of knives but rather regulated how they were carried and concerned knives that were distinct from butterfly knives, which are more analogous to ordinary pocketknives. Hawaii cited no analogues in which Congress, or any state legislature, imposed an outright ban on the possession of pocketknives close in time to the Second Amendment’s adoption in 1791, or the Fourteenth Amendment’s adoption in 1868.
Wow. It would have been easy to claim that bans on carrying Bowie Knives were the same. This panel didn’t take that path.
Copy and paste is alive and well in the courts of the land. Some of it is boilerplate stuff. This is where the court goes through the rules to grant a preliminary injunction, and the wording is exactly the same from case to case.
In this situation, the court is talking about Jackson. Those paragraphs are so very similar to other cases I’ve read.
Jackson has been interpreted as holding that an “ongoing deprivation of an alleged legally protected interest, [one’s] Second Amendment rights, is sufficient to constitute an injury in fact.” Sullivan v. Ferguson, No. 3:22-CV-05403-DGE, 2022 WL 13969427, at *5 (W.D. Wash. Oct. 24, 2022). Although Sullivan is not binding, its understanding of Jackson comports with our recognition that a threat of prosecution is unnecessary to prove standing where the plaintiffs’ injury is “not a hypothetical risk of prosecution but rather actual, ongoing … harm resulting from their” adherence to the challenged statute. National Audubon Society, Inc. v. Davis, 307 F.3d 835, 855 (9th Cir. 2002).
—id. n. 2
This is a great little quote. It clearly explains that in the 9th Cir. You don’t have to be arrested or threatened with arrest to have your rights violated.
Second, we deny Hawaii’s request for a remand. Hawaii has not explained what further factual development necessitates this relief. At oral argument, Hawaii’s counsel argued that further historical research is needed in light of Bruen. Oral Arg. at 14:58–16:50. But the historical research required under Bruen involves issues of so-called “legislative facts”—those “which have relevance to legal reasoning and the lawmaking process,” such as “the formulation of a legal principle or ruling by a judge or court”—rather than adjudicative facts, which “are simply the facts of the particular case.” Fed. R. Evid. 201, advis. comm. note (1972 proposed rules). Because the issue does not require further development of adjudicative facts to apply Bruen’s new standard, it does not trigger our “standard practice” in favor of remanding when an intervening change in law requires additional inquiry concerning adjudicative facts. See Detrich v. Ryan, 740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc) (plurality opinion), overruled on other grounds by Shinn v. Ramirez, 142 S. Ct. 1718 (2022). And even when that presumption in favor of remand applies, we need not do so when “we can confidently decide [the issue] ourselves.” Id. at 1249. This is such a case. As we explain below, Hawaii has never cited an on-point historical analogue to section 134-53(a) even after having an opportunity to do so before both motions and merits panels. We therefore decline to remand.
—id. at 15