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AG Nessel Joins Brief in Defense of Hawaii’s Ban on Butterfly Knives

LANSING – Michigan Attorney General Dana Nessel joined a multistate coalition of 17 attorneys general in support of Hawaii’s request to the Ninth Circuit to rehear an appeal defending Hawaii’s ban on butterfly knives. The petition seeks a full en banc review of a panel opinion issued in Teter v. Lopez on August 7, 2023, that invalidated Hawaii’s butterfly knife ban, holding that it violates the Second Amendment. In the amicus brief, the coalition argues that the panel’s failure to remand the case after New York State Rifle & Pistol Association, Inc. v. Bruen (Bruen) is inconsistent with the approach taken in most other appeals involving Second Amendment challenges in the same posture. 

In Hawaii, it is a misdemeanor to manufacture, sell, transport, or possess a butterfly knife, a type of knife where a split handle can fully encase the blade and then rotate open to expose the blade. In 2019, plaintiffs filed a lawsuit challenging the law, citing it violated their Second Amendment. The district court granted Hawaii’s motion for summary judgment in 2020, to which plaintiffs appealed to the Ninth Circuit. After the Supreme Court issued Bruen in June 2022, Hawaii filed a motion with the Ninth Circuit to vacate the decision below and remand the case to the district court to consider the implications of the Bruen decision in the first instance, or, in the alternative, to order supplemental briefing. In August 2022, a motions panel denied the motion to vacate and remand and directed the parties to file supplemental briefs within 30 days. 

“The Ninth Circuit’s decision striking down Hawaii’s butterfly knife ban is misguided and ignores the ‘common use’ test,” said Nessel. “I stand firmly with my colleagues in supporting the right of states to ban extremely dangerous weapons and ask the Ninth Circuit for a panel rehearing in this case. If other courts follow this case’s rationale, state and federal efforts to protect citizens from these and other types of weapons could be undermined.” 

In addressing the panel’s failure to remand the case after Bruen and its inconsistency related to other appeals, the amicus brief: 

  • Provides examples of the extensive historical analysis typically conducted in post-Bruen cases; and
  • Identifies how the panel’s legal errors are inconsistent with Bruen, including its discussion about the plain meaning of the term “arms” and its misguided approach to the historical analysis. 

AG Nessel joins a coalition in filing the brief that includes the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, and Washington.

A copy of the amicus brief is available here.


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