By Chuck Michel
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The State of Hawaii filed a petition on Wednesday seeking en banc review of a Ninth Circuit panel’s ruling in Teter v. Lopez. While that ruling was limited in scope, declaring Hawaii’s ban on butterfly knives to be unconstitutional, the panel’s correct application of the Supreme Court’s ruling in Bruen and the standards it set for evaluating Second Amendment challenges to gun control laws has implications that extend well beyond butterfly knife cases and well beyond Hawaii.
States facing Second Amendment lawsuits challenging various gun control laws have worked very hard to twist and misapply the Bruen standard, and some courts have gone along with the distortions of Bruen that states are advocating.
The case so far is a critical win for our Second Amendment rights that Hawaii now seeks to reverse through en banc review. The Second Amendment Law Center is assisting the plaintiffs in the case and preparing briefs to oppose the state’s request for en banc review.
The Teter decision confirmed that the Second Amendment applies prima facie to all instruments that constitute bearable arms, and that all laws that prohibit law-abiding citizens from acquiring arms are presumptively unconstitutional. More importantly, it laid out how analogical reasoning is to be applied consistent with Bruen in any Second Amendment challenge.
The panel rejected the argument that laws mainly governing the concealed carry of arms can justify modern possession bans because “how” a law addresses a societal concern is entirely different in the historical law regulating manner compared to a modern law banning possession entirely.
If upheld, the approach will become the mandatory standard for evaluating Second Amendment challenges in any of the nine states and three territories that the Ninth Circuit covers. So this is a colossal ruling very favorable for the right to keep and bear arms. Other circuit courts across the country will be hard-pressed to reject the standard. So, this case has national implications.
Hawaii’s request for en banc review rages against the three-judge panel’s ruling, even though the 3-0 ruling merely consisted of a proper elementary application of the Supreme Court’s precedent. Every critical point the panel made was backed up with a direct pinpoint citation to the Bruen or Heller decision.
Nonetheless, the State insists that only weapons commonly used for self-defense are protected by the Second Amendment, despite the Supreme Court saying all “lawful purposes” are protected.
The state went so far as to complain that this makes the Ninth Circuit “the first circuit to strike down a ban on a particular category of weapon after Bruen” as if that is somehow objectionable. (Heller, of course, struck down such a ban on handguns.)
Hawaii warns that if the panel ruling is left intact, it will “govern challenges involving many highly dangerous weapons” like “assault weapons, high-capacity magazines, and more.” The state concludes by desperately and hysterically suggesting that granting en banc review is a “matter of life and death.”
Hawaii’s petition will now be circulated to all active 9th Circuit judges and any senior judge who has chosen to participate. The entire circuit court bench then may order the opposing party to respond to the petition and brief whether the court should rehear the case. During this time period, if an amicus is submitting a brief to support or oppose a petition for rehearing, it must file its brief along with any necessary motion no later than 10 days after the petition or response of the party the amicus wishes to support is filed or due.
If most active judges vote in favor of rehearing or rehearing en banc, the Chief Judge shall enter an order for the case to be heard by an 11-judge en banc panel. If no majority is reached, the three-judge panel ruling stands.
Currently, there are 28 active judges on the circuit. The current ideological split is closely divided, with 15 Democratic appointees and 13 Republican appointees.
This is a situation where well-done amicus briefs could help persuade one or two judges who are on the fence to vote against en banc review, so 2ALC will be actively involved now, and later if necessary.
C.D. “Chuck” Michel is Senior Partner at the Long Beach, California Law firm of Michel & Associates, P.C. He is the author of California Gun Laws, A Guide to State and Federal Firearm Regulations now in its 10th edition for 2023 and available at www.calgunlawsbook.com.