Is a Ban on Butterfly Knives Unconstitutional?
In Hawaii, the manufacture, sales, transport and possession of a butterfly knife is barred by a 1983 state law., Hawaii Revised Statute §§ 134-53(a). A violation of this law is punished as a misdemeanor. California has a similar law concerning a switchblade with a blade more than two inches long. Fishermen often use a butterfly knife, which is also called balisong.
Two Hawaii residents, Andrew Teter and James Grell, wanted to buy butterfly knives for self-defense, but could not because of this Hawaiian law. They then sued Hawaii Attorney General Anne E. Lopez (Teter, et al. v. Lopes, et al.) in federal court, seeking declaratory relief to establish that §§ 134-53(a) violated the Second Amendment and injunctive relief against the law’s enforcement.
The district court denied both declaratory relief and injunctive relief, so Teter, et al., appealed to the U.S. Court of Appeals for the Ninth Circuit in Hawaii. While the appeal was pending, the U.S. Supreme Court heard New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S. Ct. 2111, so the Ninth Circuit panel in Hawaii stayed any ruling on Teter, et al.’s appeal, pending a ruling in Bruen.
To the casual reader of this article, it may seem odd that a court would stay a ruling on a case involving knives for a ruling on a case involving firearms. However, the broader issue in Bruen was the scope of the Second Amendment, which is traditionally understand as provision to protect a person’s right “to keep and bear arms.” In other words, if “arms” is understood to mean more than just guns, a knife certainly would seem to be included and therefore, the U.S. Supreme Court ruling in Bruen may cause Hawaii’s butterfly knife ban to be unconstitutional.
This is exactly how the Ninth Circuit then evaluated Hawaii’s law. The Ninth Circuit explained that the right at issue in Bruen was a historical right to defend oneself using arms, which traditionally included firearms, but could also include other weapons, too.
In Bruen, the U.S. Supreme Court ruled that a New York law from 1905 that required applicants to show “proper cause” to be issued a concealed carry license violated the Second Amendment. The Bruen case, some might say, expanded the right of one to “bear arms” under the Second Amendment after the U.S. Supreme Court ruled in District of Columbia v. Heller in 2008 that a District of Columbia law prohibiting possession of certain firearms without one’s house was also unconstitutional.
The Ninth Circuit panel agreed with Mr. Teter, et al., that “arms” include more than guns. The Ninth Circuit at or before the time the Second Amendment was passed, during the American Revolution, at least two states, New Hampshire and New York, required their militiamen to carry a jackknife (a large folding knife). State v. Delgado (Or. 1984) 692 P. 2d 610, 613-614. Moreover, a folding knife has been found in Roman archeological sites, indicating that such knives were popular at least from the first century A.D. They have been used as both instruments of labor and combat. Id.
Nonetheless, the Ninth Circuit acknowledged Heller explained, Hawaii could ban such weapons if they could show that such weapons were “dangerous and unusual, “ meaning they are not “arms” as that term in used in the Second Amendment. For example, weapons such as brass knuckles, Bowie knives, “Arkansas Toothpicks, sword canes and “slung-shots” have been found to be dangerous and unusual weapons.
The Ninth Circuit, however, noted, that Hawaii’s Public Defender’s Office presented testimony that “butterfly knives . . . are an integral part of the [F]ilipino martial art called Escrima,” and an Escrima instructor testified to teaching the use of the balisong in martial arts for over a decade.
Therefore, the butterfly knife was not excluded from Second Amendment protection and the Hawaiian law was found unconstitutional.
We look forward to whether Hawaii will request an en banc ruling from the Ninth Circuit on this ruling.
Lastly, it merits mention that the U.S. Supreme Court recently accepted for review a Fifth Circuit Court of Appeal ruling in U.S. v. Rahimi, wherein Mr. Rahimi was convicted of possessing a firearm while under a domestic violence restraining order in violation of a 1994 federal law prohibiting this. The ruling by the U.S. Supreme Court will certainly cast a shadow over California law prohibiting the same type of conduct.
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