Considering the plain text of the Second Amendment, a law that seeks to regulate “arms” is presumptively unconstitutional and it is the government’s burden to demonstrate that (1) there is a historical tradition of regulation of the arms at issue that carves out an exemption from the protections of the Second Amendment; and (2) that the modern regulation fits within that tradition. See Bruen, 579 U.S. at 28-29. It is thus Hawaii’s burden to demonstrate that this Nation’s history and traditions would allow butterfly knives to be regulated in the manner the law at issue does (i.e., a complete ban). That is an impossible task in view of the longstanding history of ownership and use of butterfly knives by the American public. And if an arm is in common use, it cannot be banned. District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

Thus, this Court should reject Appellees’ improper attempt to inject the “common use” analysis as part of the threshold textual inquiry, and confirm that any such analysis belongs in the historical inquiry to be made—where the government bears the burden—as Bruen requires.
—No. 167 Andrew Teter v. ANNE E. LOPEZ, No. 20-15948, slip op. at 1–2 (9th Cir.)

Heller expounded on the definition of “arms” in the context of the Second Amendment, identifying historical definitions and connecting 18th-century definitions of “arms” to the meaning of “arms” in the modern day. Id. at 581 (concluding that, based on a comparison of dictionary definitions, “[t]he 18th-century meaning is no different from the meaning today”). Analyzing the term “arms” further, the Court observed that the term includes weapons other than firearms, citing examples of historical usage of the term. See id. (“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”) (emphasis added) (internal quotation marks omitted). Thus, the historic and modern definitions of “arms” are synonymous, and both are understood to include a variety of weapons, which include butterfly knives.

Having established that butterfly knives are “arms” within the plain text of the Second Amendment, it is the burden of the government to affirmatively demonstrate that they may still be banned consistent with a valid historical tradition of firearm regulation. The Supreme Court has already undertaken the relevant historical work, having recognized in Heller that the type of arms that are protected is limited by “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” 554 U.S. at 527. Because only dangerous and unusual weapons can be banned, it follows that arms “in common use at the time” are protected. Id. at 627; Bruen, 597 U.S. at 21; see also Mark W. Smith, What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases Again, 2023 HARV. J. L. & PUB. POL’Y PER CURIAM 41 (2023) (“Smith, How Courts Have Defied Heller”). Therefore, unless the government can demonstrate that butterfly knives are “dangerous and unusual,” including by proving they are not in common use, the government will not be able to carry its burden under Bruen. Appellees incorrectly attempt to place the burden on individuals to show that an arm is in common use for self-defense.

Put simply, neither Heller nor Bruen permits this sort of burden shifting. In fact, Bruen requires that the government, not the challenging party, justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” Bruen, 597 U.S. at 18 (citing Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)). As the Supreme Court observed in Heller, the scope of the Second Amendment was originally understood to stem from “[t]he traditional militia … formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Heller, 554 U.S. at 627 (citing United States v. Miller, 307 U.S. 174, 179 (1939))

Bruen clearly requires that only when the “government can prove that the regulated conduct falls beyond the Amendment’s original scope,” the analysis stops and the “regulated activity is categorically unprotected.” Bruen, 597 U.S. at 18 (citing United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (internal quotation marks omitted)). Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Id. (citing Konigsberg v. State Bar of California, 366 U.S. 36, 50 (1961)).

In sum, the government bears the threshold burden of proving that arms are not in common use, rather than the burden falling on individuals to prove that they are in common use, and therefore are exempt from the Bruen framework.
—#167 in Andrew Teter v. ANNE E. LOPEZ (9th Cir., 20-15948), No. 20-15948