A 3-judge panel of the 9th Circuit Court of Appeals just invalidated Hawaii's ban on butterfly knives. Ruling in the case of Teter v. Lopez, judges found that a Hawaii law which prohibited the manufacture, sale, transportation and possession of butterfly knives violated the Second Amendment of the US Constitution.
The Old Rule
Readers of this blog know that the US Supreme Court recently adopted a new test to determine whether or not a specific law violates the Second Amendment's right to bear arms.
Previously, the court weighed the importance of a state's interests and considered the degree to which the law was related to serving that interest vs. the degree to which it infringed upon some "core" Second Amendment right. If the law was closely related to achieving some important government interest (i.e. reducing gun violence, etc.), then it was generally allowed to stand.
The New Rule -- Bruen
In Bruen, though (decided last year), the Supreme Court announced a new test to apply in cases involving Second Amendment challenges.
Rather than considering the importance of a state's interests and the degree to which those interests relate to a given law, lower courts must now apply a "historical analogy" test to Second Amendment issues. If the law in question is similar, or "historically analogous" to some law that existed at the time the Constitution was adopted, then we can assume that the Framers approved of the restriction and that the law is constitutional. If some modern restriction is without historical precedent, though, then we should conclude that the Framers would not have accepted it and that the modern law is unconstitutional.
Teter
Hawaii laws prohibit the manufacture, sale, transportation and possession of butterfly knives. Plaintiffs in Teter were law-abiding residents of Hawaii who wanted to -- and were legally prevented from -- purchasing butterfly knives for self-defense. They brought a suit against the Attorney General of Hawaii to invalidate the state's ban. A lower court had ruled for the state and plaintiffs appealed to the 9th Circuit.
The appellate court started by establishing that butterfly knives are "arms" and that they, therefore, fall within the protections of the Second Amendment.
Once the court overcame this initial hurdle, it spent most of the published opinion analyzing various historical knife laws that Hawaii cited as precedent for its restrictions. Judges examined several 200 year-old statutes that prohibited certain types of people from carrying specific weapons at particular places and times. Some historical laws banned the "concealed carrying" of Bowie-type knives, along with cane swords and other objects that were not immediately identifiable as deadly weapons. Many of these archaic laws included exceptions for law-abiding people to carry otherwise-prohibited weapons for self-defense, while traveling or "carrying on lawful business", etc.
None of the laws that the State of Hawaii cited as historical precedents specifically banned butterfly knives. The judges reasoned that a butterfly knife is more analogous to a typical pocket knife than it is to a Bowie knife, and that none of the historical laws prohibited pocket knives. The court also noted that most of the laws cited by Hawaii prohibited the carrying of certain weapons in public, but not the manufacture, sale or private ownership of those same weapons.
The judges concluded that no historical precedent supported the state's position and remanded the case to the lower court for "further proceedings consistent with this opinion".
What Does This Mean for California?
Butterfly knives are included within the definition of "switchblades" under section 17235 of the California Penal Code.
Section 21510 of the California Penal Code makes it a misdemeanor to carry a switchblade in the passenger area of a car or "upon the person". It also prohibits the sale or transfer of any switchblade. That includes giving, loaning, or offering to sell a switchblade.
Interestingly, California law does not prohibit the manufacture, transportation or possession of a switchblade. Switchblades may be legally produced in California for sale outside of the state (and imported into the state if purchased elsewhere), kept at home, or carried in the trunk of a car.
Since Hawaii's law was more restrictive than California's, it is not clear how the court would rule on a challenge to PC 21510. The California law seems to be more in line with the historical cases that prohibited certain types of weapons in specific places. At the same time, the courts could reason that a switchblade or butterfly knife is more analogous to a pocket knife than it is to a Bowie knife, and that there is no historical precedent for any restrictions.
We will be following this closely, so check back for updates as they become available.
If you or a loved one has questions about knife laws in California, call for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
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