In layman’s terms: The US Court of Appeals for the 9th Circuit is avoiding a strong pro-2A ruling by calling a challenge against Hawaii’s knife ban “moot” in light of recent legislation.
On Wednesday, January 22, the 9th Circuit Court of Appeals sent a case regarding a ban on butterfly knives in Hawaii back to a lower court. The case falls within the scope of the Second Amendment as knives constitute “bearable arms,” but in typical fashion, the decision of the 9th Circuit makes every effort to avoid a strong, pro-Second Amendment ruling on the merits. The real story here is told in the dissenting opinions.
The case of Teter v. Lopez challenges Hawaii’s ban on butterfly knives under the auspices of the Second Amendment.
(San Diego County Gun Owners Political Action Committee, Firearms Policy Coalition, and Knife Rights Foundation, wrote an excellent Amici Curiae brief in support of this case.)
A district court initially issued summary judgement in favor of the Hawaii knife ban.
Following that, in August of 2023, a three-judge panel reversed the district court’s judgement noting in its summary that:
The panel held that possession of butterfly knives is conduct covered by the plain text of the Second Amendment. Bladed weapons facially constitute “arms” within the meaning of the Second Amendment…
The panel reversed and remanded the case back to the lower court, and Hawaii appealed.
In February of 2024, the 9th Circuit ordered that the case be reheard en banc in June and the case was argued and submitted on June 25.
Meanwhile, on May 14, 2024, Hawaii Governor, Josh Green, signed HB2342 into law. The Act repealed the bans on manufacture, sale, transfer, possession, and transportation of butterfly knives, along with switchblades, gravity knives, and rather amusingly, swords and spears (among others).
Today’s decision from the en banc 9th Circuit Court of Appeals appears to be an end run around addressing the case on its merits. The decision determined that the Hawaii law:
…has been sufficiently altered so as to present a substantially different controversy from the one the district court originally decided. The statutory amendment gave plaintiff everything he hoped to achieve in this litigation. Because no further relief could be granted, the case was moot, and the court lacked Article III jurisdiction.
However, dissenting Judge VanDyke and Judge Collins agreed that the case is not moot, and pointed out the maneuvering of the court when faced with pro-Second Amendment decisions:
When a three-judge panel unanimously and correctly declared Hawaii’s complete ban on butterfly knives unconstitutional, this circuit responded the way it always does when a Second Amendment claim is vindicated: we called the case en banc.
The Judge further excoriated the en banc decision:
As the en banc proceedings in this case demonstrate, this court’s practice of automatically vacating panel opinions upon the grant of rehearing en banc creates perverse incentives for government defendants. By amending their challenged laws only after this court grants rehearing en banc, parties like Hawaii can strategically deploy mootness to lock in the effect of our auto-vacatur without the risk of losing on the merits before the en banc court.
Judge VanDyke also added, “These statements and many others like them obviously undercut any judicial fiction that all state governments are ‘acting in good faith’ in response to the Supreme Court’s Second Amendment jurisprudence.”
