UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANDREW TETER; JAMES GRELL, No. 20-15948

Plaintiffs-Appellants, D.C. No. 1:19-cv-00183- v. ACK-WRP ANNE E. LOPEZ, in her official capacity as the Attorney General of OPINION Hawaii; MARK HANOHANO, in his official capacity as the State Sheriff Division Administrator,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding

Argued and Submitted February 14, 2023 Honolulu, Hawaii

Filed August 7, 2023

Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Bea 2 TETER V. LOPEZ

SUMMARY *

Civil Rights/Second Amendment

Reversing the district court’s summary judgment in favor of Hawaii officials and remanding, the panel held that Hawaii’s ban on butterfly knives, Haw. Rev. State. § 134- 53(a), violates the Second Amendment as incorporated against Hawaii through the Fourteenth Amendment. The panel determined that plaintiffs had standing to challenge § 134-53(a) because they alleged that the Second Amendment provides them with a legally protected interest to purchase butterfly knives, and but for section 134-53(a), they would do so within Hawaii. Plaintiffs further articulated a concrete plan to violate the law, and Hawaii’s history of prosecution under its butterfly ban was good evidence of a credible threat of enforcement. The panel denied Hawaii’s request to remand this case for further factual or historical development in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), determining that further development of the adjudicative facts was unnecessary. 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, and contemporaneous sources confirm that at the time of the adoption of the Second Amendment, the term “arms” was * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TETER V. LOPEZ 3

understood as generally extending to bladed weapons, and by necessity, butterfly knives. The Constitution therefore presumptively guarantees keeping and bearing such instruments for self-defense. The panel held that Hawaii failed to prove that section 134-53(a) was consistent with this Nation’s historical tradition of regulating weapons. The majority of the historical statutes cited by Hawaii did not ban the possession of knives but rather regulated how they were carried and concerned knives that were distinct from butterfly knives, which are more analogous to ordinary pocketknives. Hawaii cited no analogues in which Congress, or any state legislature, imposed an outright ban on the possession of pocketknives close in time to the Second Amendment’s adoption in 1791, or the Fourteenth Amendment’s adoption in 1868.

COUNSEL Alan A. Beck (argued), Law Offices of Alan Beck, San Diego, California; Stephen D. Stamboulieh, Stamboulieh Law PLLC, Olive Branch, Mississippi; for Plaintiffs- Appellants. Robert T. Nakatsuji (argued), First Deputy Solicitor General; Ryan M. Akamine and Caron M. Inagaki, Deputy Attorneys General; Kimberly T. Guidry, Solicitor General; Holly T. Shikada, Attorney General; Attorney General’s Office; Honolulu, Hawaii; for Defendants-Appellees. Pamela W. Bunn and Wendy F. Hanakahi, Dentons US LLP, Honolulu, Hawaii; Janet Carter, William J. Taylor, Jr., Lisa M. Ebersole, and Carina B. Gryting, Everytown