Hawaii officials argue for second chance to reinstate butterfly knife ban

SEATTLE (CN) — The Ninth Circuit is again considering whether to return to a federal judge a Second Amendment case over whether Hawaii’s ban on the concealed carrying of butterfly knives is constitutional.

A Ninth Circuit panel on Tuesday held an en banc rehearing of a conservative three-judge panel's ruling in August 2023 that ended the state's 30-year ban on butterfly knives — a kind of pocket knife with double handles that can be quickly opened and used with one hand. Several states restrict the knives, and some countries have outlawed them. 

Hawaii Governor Josh Green approved an amendment to the ban in May that partially rolled back the ban, making possession no longer illegal and making open carry legal, but the plaintiffs — two Hawaii residents who said that state Attorney General Clare Connors and the Sheriff Division's enforcement of the original ban unconstitutionally prevented them from having or using the knives for self-defense — argue that the ban still essentially bans the knives by having concealed carry of the knives remain illegal.

Before an 11-judge panel in Seattle on Tuesday, attorney Reedy Swanson for the state of Hawaii said that the case is now moot and the panel should vacate the prior ruling and remand the case to the federal court, as an “advisory decision” to help clarify the amended law.

Asked if the state challenges the right to carry the knife privately as well as in public, Swanson said the plaintiffs already forfeited the ability to argue only about concealed weapons since the original case focused on the general right to carry the knives.

U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee sitting on the panel by video, didn't seem to agree.

“The case law has been shifting quite dramatically over the last few years," he said.

Alan Beck, for the plaintiffs, said that the panel should not remand, because the issue remains that Hawaii’s amended law would maintain an unconstitutional restriction of butterfly knives for self-defense.

Beck noted that there is some confusion about whether the amended law can treat knives in the same manner as guns, which are typically held in some form of "container" such as a holster. People typically carry knives with a clip, but butterfly knives are usually carried freely, he said.

“Under Hawaii law if you’re open carrying, you can openly carry a firearm in a holster and it doesn't run afoul of Hawaii’s concealed carry law," Beck said.

U.S. Circuit Judge Jacqueline Nguyen said there seems to be enough confusion around how the knives may be carried in public to warrant returning the question to federal court.

“My question is, why shouldn’t we remand, to give the state a chance to demonstrate whether these knives can be carried in the same way as other knives?” the Barack Obama appointee asked.

Beck said the state already waived its opportunity for discovery of more evidence to do so.

He said the panel could order a supplemental briefing to settle such questions, or simply decide that Hawaii had no precedent for banning butterfly knives concealed carried for self-protection.

However, Beck added: “I absolutely believe that we have already prevailed in this case.”

Swanson contested Beck’s argument, saying that even if such a knife were sheathed, Hawaii's amended ban restricts carrying it as it blocks carrying such weapons out of sight.

On rebuttal, Beck said that the court must, if it remands, give the federal court guidance on whether the butterfly knives are protected weapons under Bruen.

He reminded the panel that case law is still moving. On Friday, the U.S. Supreme Court allowed a ban on gun ownership for people under domestic violence restraining orders, which Beck said still upheld New York State Rifle & Pistol Association, Inc. v. Bruen’s protection of covered weapons under certain limits.

The first Ninth Circuit panel used the Supreme Court’s blockbuster decision in 2022 in Bruen — which found the carrying of concealed firearms in public a constitutional right — to determine butterfly knives fall under the protected category of "arms."

The panel must decide if it may administratively vacate without prejudice the August 2023 ruling authored by U.S. Circuit Judge Carlos T. Bea, a George W. Bush appointee, who was unconvinced that there were historically analogous statutes that banned the possession of pocketknives and other similar weapons. 

In its petition for the en banc review, Hawaii said that the panel misinterpreted the Supreme Court by "preemptively" declaring that bladed weapons were covered by the Second Amendment, and "eliminates the nexus to self-defense laced into both steps of Bruen's analysis." The state also said the panel conducted its own "distorted" test and drew its own conclusions about restrictions on similar bladed weapons without properly giving the state a chance to bring in evidence.

The en banc panel was led by U.S. Circuit Chief Judge Mary Murgia, an Obama appointee, and was also made up of U.S. Circuit Judges Ronald Gould, a Bill Clinton appointee; Ryan Nelson, Eric Miller, Bridget Bade, Daniel Collins and Lawrence Van Dyke; and Gabriel Sanchez and Ana De Alba, both Joe Biden appointees.

Follow @nhanson_reports

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