Opinion
The Ninth Circuit is up to no good again when it comes to your Second Amendment rights. It recently granted en banc review in Teter v. Lopez, vacating the panel opinion that had previously held Hawaii’s ban on butterfly knives unconstitutional under Heller’s “in common use” test.
The now-vacated opinion’s analysis is excellent. It found at step one of Bruen’s text-first-and-history second methodology that butterfly knives were “arms” and therefore presumptively protected under the plain text of the Second Amendment. The panel then turned to Bruen’s historical inquiry.
Here, because a prohibition on butterfly knives is an arms ban, the panel correctly applied Heller’s “in common use” constitutional test, which is the governing legal standard in all arms ban cases. That test instructs that if an arm is in common use by Americans in the present day, then it cannot be banned.
The “in common use” test occurs at the historical level of Bruen’s methodology. This is extremely important because at the historical level the burden rests on the government; it must affirmatively disprove that an arm is in common use.
The panel in Teter correctly found that Hawaii’s ban on butterfly knives was unconstitutional because the government failed to meet its burden to show that butterfly knives were uncommon. For this reason alone, the law was declared unconstitutional.
So, what are the chances that the panel’s decision will stick on en banc review?
Thirteen of the twenty-nine judges on the Ninth Circuit were appointed by Republicans, and sixteen were appointed by Democrats. The actual panel that will hear this case will be comprised of eleven judges, including the chief judge who was appointed by Obama. While it is possible then that the panel will consist of a majority of Republican appointees, it is not likely. But the news is not all bad.
Complicating matters for the Ninth Circuit is Duncan v. Bonta, another arms ban case scheduled to be heard en banc on March 19. The en banc panel that decides Duncan will be aware that Teter is next on deck. Even if the Ninth Circuit upholds both arm bans, the anti-gunners’ victory could be pyrrhic.
This is because there are now several pending petitions for certiorari before the U.S. Supreme Court concerning arm bans—including Bianchi v. Brown from Maryland and Harrel v. Raoul from Illinois. While it is unlikely that the petitions from the Illinois case will be granted given they are interlocutory appeals, Bianchi—which concerns Maryland’s so-called “assault weapons” ban—has a much better chance of being taken up by the Court.
As I have written previously on AmmoLand News, the procedural circumstances surrounding the Fourth Circuit’s sudden, unrequested grant of en banc rehearing in Bianchi is highly suspect. This is especially so given that the case had been pending for over a year following oral argument when the Circuit decided to take the case en banc. As the Supreme Court sees more and more cert petitions in arms ban cases, it may find itself with no choice but to step in and defend its decisions in Heller and Bruen.
The Ninth Circuit’s decision to grant en banc review in Teter might be the straw that breaks the camel’s back. It should urge the Supreme Court to take up an arms ban case (likely the Bianchi case) and to put these nose-thumbing inferior courts back in line.
Read Related:
Supreme Court Must Slap Down Fourth Circuit’s Lawless Actions
Hawaii Knife Ban is Unconstitutional
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.
His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
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