Hawaii’s three-decades-long ban on butterfly knives has been overturned after a three-judge panel at the Ninth Circuit Court of Appeals unanimously found the restriction unconstitutional.
Hawaii first criminalized carrying butterfly knives, also known as balisongs, in 1993. Six years later, Hawaii Legislature expanded the law to make it a misdemeanor for anyone to manufacture, sell, transfer, transport, or even own those blades, citing the perceived social problem of an “increasing trend in minors and gang members armed with knives and daggers.”
The statue is challenged in court by Hawaii residents Andrew Teter and James Grell, who owned butterfly knives before moving to the Aloha State and were “forced to dispose” of their knives to avoid violating the state law. In 2020, they filed a Second Amendment lawsuit against the state, arguing that the knife ban violated their individual right to keep and bear arms.
In an Aug. 7 ruling, the Ninth Circuit sided with the suing duo, reversing a lower court decision that upheld Hawaii’s butterfly knife ban.
Recognizing knives as weapons of self-defense protected by the Second Amendment, a panel of three circuit judges applied a two-step test for the constitutionality of the Hawaii knife law.
The two-step process, established last June by U.S. Supreme Court Justice Clarence Thomas, first requires the court to determine whether the Second Amendment’s “plain text” covers an individual’s conduct. If so, then that conduct is presumptively protected, and the government must prove that its law is “consistent with this Nation’s historical tradition of firearm regulation.”
The burden then fell back to Hawaii government to prove that its knife policy aligns with the “historical tradition” of the United States. “Hawaii has never cited an on-point historical analogue to [the knife ban],” the judges concluded.
In its attempt to justify the ban, the Hawaii government argued that the Second Amendment only protects “ordinary, law-abiding” citizens and that butterfly knives are used disproportionately by criminals. The court dismissed such an argument as simply going against common sense.
“This argument fails because Hawaii’s ban is not limited to criminals,” Judge Bea wrote, further noting that the mere use of any arms by criminals shouldn’t prevent law-abiding citizens from possessing them.
“Hawaii cites some conclusory statements in the legislative history claiming that butterfly knives are associated with criminals. We give little weight to these statements,” he added. “Common sense tells us that all portable arms are associated with criminals to some extent.”
“Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.”
Judge Bea, a George W. Bush appointee, was joined by Judges Daniel Collins and Kenneth Lee, both Donald Trump appointees.
The provision banning butterfly knives is part of the Hawaii code that regulates “firearms, ammunition, and dangerous weapons.” The “dangerous weapons” law also makes it illegal to manufacture, sell, transfer, transport, own or carry switchblades in the state and prohibits any unauthorized person from carrying a dirk, dagger, slung shot, blackjack, billy club, and metal knuckles.
The possession, making and sale of butterfly knives are also illegal in California, New Mexico, and Washington.
At the federal level, the Federal Switchblade Act considers butterfly knives to be switchblades. The Act says switchblades can’t be possessed on certain federal property and territories, making it illegal to carry butterfly knives in places like Puerto Rico, Guam, and U.S. Virgin Islands.
