9th Circuit overturns butterfly knife ban, citing Supreme Court ‘history’ standard on guns

A conservative panel of federal judges ruled Monday that a 30-year ban on butterfly knives in Hawaii is unconstitutional under the U.S. Supreme Court’s new “history and tradition” standard for reviewing the legitimacy of gun and other weapons laws nationwide.

“Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms,” Judge Carlos Bea wrote for the unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals.

The ruling, which may be appealed, has implications beyond Hawaii, including in California and other states that also ban or severely restrict butterfly knives, which have been targeted by lawmakers because they can be easily concealed and flipped open.

California bans “switchblades” — which include butterfly knives — when they have blades 2 or more inches in length. A separate lawsuit challenging that ban is pending.

The decision reflects the growing reach of the Supreme Court’s pro-gun rights decision last year in New York State Rifle & Pistol Assn. vs. Bruen, in which the nation’s highest court ruled that restrictions on people’s 2nd Amendment right to bear arms are constitutional only if they are deeply rooted in the nation’s history and tradition or analogous to some historical rule.

Since then, trial and appellate judges have found themselves sifting through century-old state statutes to determine the legality of hundreds of modern weapons restrictions in states all across the country — including on knives and billy clubs, assault weapons and ammunition magazines, and on the possession of guns by certain classes of people, including adults under 21 and people who are subject to restraining orders.

Bea wrote that Hawaii’s 1993 ban on butterfly knives did not meet the criteria because nothing like it existed around the historical benchmarks chosen by the Supreme Court as relevant for such analyses: 1791, when the 2nd Amendment was passed, or 1868, when the 14th Amendment was passed. The latter amendment prohibits states from depriving people of property without due process of law.

Although the Bruen decision specifically addressed firearm regulations, Bea wrote that was only because the case in Bruen was about gun regulations in New York. The same “framework” applies to knives, which are also “arms” under the 2nd Amendment, he said.

Bea, an appointee of President George W. Bush, was joined in his opinion by judges Daniel Collins and Kenneth Lee, both appointees of President Trump.

Butterfly knives have split handles that swing back to form a single handle when the blade inside is revealed. They can be flipped open using just one hand by experienced users.

The knives have been associated with criminals, including in Hollywood films, since at least the 1950s. Some critics have said bans on them are racist, and serve as a pretext for harassing and arresting people of color — particularly Black and Latino men.

Hawaii banned such knives as “dangerous and unusual” weapons popular among gang members and increasingly common in acts of violence. The 9th Circuit panel found that the state had failed to prove they were either of those things, with Bea writing that they are “simply a pocketknife with an extra rotating handle.”

The office of Hawaii Atty. Gen. Anne Lopez said it was still reviewing the decision Monday, but “may have further comment at a later time.”

The case arose after plaintiffs Andrew Teter and James Grell sued the state over the ban, arguing that they are law-abiding citizens who wanted butterfly knives for multiple reasons, including for self-defense.

Grell, a 51-year-old who does accounting for a water utility company on the Big Island of Hawaii, praised the decision Monday.

“It seemed like a pretty obvious ruling to be made in light of all the recent Supreme Court decisions,” he said. “It’s good to see civil liberties prevail.”

Grell said he had owned a butterfly knife — a “relic” from his childhood in Colorado — before moving to Hawaii and saw no reason why he shouldn’t be able to keep it.

“It’s a knife I had since I was a teenager and it just never made any sense that I couldn’t bring it over here.”

Alan Beck, an attorney for Grell and Teter, applauded the court’s ruling as “well reasoned.”

“Hawaii’s complete ban on this type of knife just wasn’t sustainable under the current 2nd Amendment jurisprudence,” he said. “There just aren’t any historical restrictions on pocket knives at all.”

Adam Winkler, a UCLA law professor who focuses on 2nd Amendment law, said the 9th Circuit’s decision “is emblematic of what’s happening across the nation right now.

“Courts are striking down regulation of arms left and right.”

Winkler said the Supreme Court “has put states in the impossible position of showing that any law that regulates weapons for public safety [has] clear analogues in the 1700s and 1800s,” which he added “just leaves courts to draw analogies to laws that were designed for a different society.”

“It really makes no sense,” he said.

After the Bruen decision came down, Hawaii had argued that the knife case should be sent back to a lower trial court so that the parties could conduct additional research around the potential historical analogues for the law. Other cases, including on California gun laws, have been similarly remanded by the 9th Circuit.

However, Bea and his colleagues disagreed, determining they could rule on the case in light of Bruen — and decide on the relevance of any purported analogues — themselves.

Hawaii put forward several such laws, dating back to 1837, including laws that banned or regulated bigger blades such as Bowie knives and “Arkansas Toothpicks,” daggers, brass knuckles, canes concealing swords and knotted ropes with metal weights at the end called “slung-shots.”

An 1837 law in Georgia — which the court called Hawaii’s “best historical analogue” — said no one shall “keep, or have about or on their person or elsewhere ... Bowie, or any other kind of knives.”

Bea wrote that the Georgia law didn’t clearly include “pocketknives” — which in his decision would include butterfly knives — so it wasn’t necessarily relevant. And anyway, he wrote, “one solitary statute is not enough to demonstrate a tradition of an arms regulation.”

Many of the other laws cited by Hawaii regulated not the possession of such weapons entirely, but their concealed carry, or their possession by certain people or in certain places, Bea said. Or, they exempted pocketknives, Bea said — meaning, in his estimation, that they would not justify a modern ban on a butterfly knife.

“The butterfly knife is clearly more analogous to an ordinary pocketknife than to an Arkansas Toothpick or a Bowie knife. And none of the statutes cited by Hawaii prohibited the carry of pocketknives, much less their possession outright,” Bea wrote.

Winkler said different courts have approached such analyses in vastly different ways since the Bruen decision came down, and Monday’s decision was just another example of how little clarity there is from Bruen on how the process should work and what sort of historical laws represent appropriate analogues for modern laws.

The conservative-leaning Supreme Court could provide more clarity in a case it has already said it will hear, over whether domestic abusers and others with restraining orders have a right to own guns under the new Bruen framework. But other cases, including the butterfly knife case, could land back before the high court as well, Winkler said.

“The court has to provide more clarity and direction for the lower courts,” Winkler said, “because the Bruen test has proven absolutely unworkable and unpredictable.”

Monday’s decision may be reconsidered first in the 9th Circuit before a larger, 11-judge “en banc” panel. The judges of the circuit are closely divided between conservative and liberal judges.

An array of weapons laws are being relitigated in lower courts as a result of the Bruen decision, including California bans on assault weapons and on large-capacity ammunition magazines.